by Anthony W. Accurso
The Court of Appeals of New York ordered the suppression of a jail recording where it was derived from a wiretap and the People failed to provide the required statutory notice to the defendant under CPL 700.70.
Syracuse police were investigating a fatal hit-and-run automobile accident that occurred in October 2015. Around the same time in a separate investigation, the New York Attorney General’s Office obtained authorization for a wiretap on the phone of A.C.
A.J, a prisoner at the Onondaga County Justice Center (“OCJC”) called A.C., who later handed the phone to Michael Myers, who then made self-incriminating statements regarding the hit-and-run. An officer listening to the wiretap recording recognized Myers’ voice and obtained a copy of the OCJC phone recording.
Myers was indicted for the hit-and-run based on the jail phone recording. He filed a suppression motion for the recording but was denied under a long-standing policy that prisoners have no reasonable expectation of privacy in jail phone calls. Meyers timely appealed.
The Court noted that CPL 700 governs wiretaps in the state of New York and that the Court of Appeals “require[s] strict – indeed, scrupulous – compliance with the provisions of the ...
by Anthony W. Accurso
The U.S. Court of Appeals for the Fourth Circuit upheld the denial of a defendant’s suppression motion where he failed to invoke his Fifth Amendment protections while on post-release supervision and instead provided statements which led to a new charge.
Eugene Reid Linville was on supervised release for a child pornography conviction. He had conditions of supervision which included: (1) that he not possess adult or child pornography; (2) that he is subject to warrantless searches of his home upon reasonable suspicion of unlawful conduct; (3) that he truthfully answer questions from his probation officer; and (4) that he participate in a sex offender treatment program, which includes periodic polygraph testing.
After a year on supervision, Linville submitted to a polygraph exam, during which he admitted that he possessed Playboy magazines. During a subsequent interview with his probation officer, James Long, Linville was asked – without being informed of his Miranda rights – whether he possessed adult or child pornography. He admitted he possessed both and, during a trip to his home, surrendered “8 to 10 cardboard boxes containing numerous magazines, photos and video tapes, as well as notebook-type binders containing compact discs and digital video discs.” ...
by Anthony W Accurso
The U.S. Court of Appeals for the Seventh Circuit ruled that Wisconsin courts denied a defendant his Sixth Amendment right to counsel by failing to appoint counsel until after he had been ordered detained by a magistrate and required to participate in an in-person lineup – that is, after his right to counsel had “attached.”
Nelson Garcia, Jr. was picked up for a parole violation on January 2, 2012, by Milwaukee Police. They received several anonymous tips identifying Garcia as the person who had robbed a Milwaukee bank the previous month.
Two days after his arrest, Detective Ralph Spano appeared in court to submit a form CR-215 to a court commissioner in Milwaukee County. This form requested the continued detention of Garcia on the basis of police having probable cause to believe he robbed the bank in question, and it included Spano’s description of the bank’s surveillance footage and the subsequent hotline tips. The court commissioner approved the request, setting bail at $50,000. Garcia was not present at this hearing, nor was there any record that he received the completed form.
A few hours after the form was processed, police conducted an in-person lineup with Garcia ...
by Anthony W. Accurso
The U.S. Court of Appeals for the Sixth Circuit weighed in on the ongoing Circuit split of whether a “bump stock” – placement of which on a semiautomatic rifle enables it to function essentially like a machinegun the possession of which is a criminal offense – is a machinegun “part” under the National Firearms Act of 1934, concluding that the rule of lenity requires the Court to construe the ambiguous statute in question in favor of the defendant.
Section 922(o)(1) regulates “machinegun[s], and any combination of parts from which a machine gun can be assembled” and defines the term “machinegun” via incorporating by reference the definition contained in 26 U.S.C. § 5845(b), which defines it as any “weapon” that can shoot “automatically more than one shot, without manual reloading, by a single function of the trigger” as well as any “part” that’s “designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun….”
Up until December 26, 2018, the ATF’s position was that bump stocks are not a machine gun part. However, after the 2018 mass shooting in Las Vegas, Nevada, in which a gunman ...
by Anthony W Accurso
The Supreme Court of New Jersey held that a third party, with property in a storage trailer shared with the defendant, had apparent authority to authorize a search of the trailer but not a search of a bag belonging to the defendant in which the third party has no property.
N.D. and her adult daughter contacted Borough of Highlands police on the morning of July 27, 2019. N.D. showed text messages to officers supporting the claim that her boyfriend of four years, Anthony Miranda, had threatened her and her children. She then showed them fresh bruises claiming Miranda had assaulted her. She also stated that Miranda possessed two handguns and kept them in a black bag in a residential trailer they shared.
Officers engaged the Domestic Violence Response Team and contacted a local magistrate. The magistrate authorized a restraining order, arrest warrant, and a search warrant for the trailer in which Miranda and N.D. lived.
Just before 11:00 a.m., officers arrived at the trailer and arrested Miranda, whereupon he was transported to the police station for processing into the county jail. Miranda remained in police custody during the events that transpired afterwards at the residential trailer ...
by Anthony W. Accurso
The U.S. Court of Appeals for the Third Circuit held that second-degree aggravated assault of a protected individual in violation of 18 Pa. Cons. Stat. § 2702(a)(3) is not a “violent felony,” for purposes of the Armed Career Criminal Act (“ACCA”), reversing a defendant’s sentence enhanced thereunder.
In 2008, Samuel Jenkins pleaded guilty to a violation of 18 U.S.C. §§ 922(g)(1) and 924(3) for possessing a firearm as a convicted felon. He also had two prior drug convictions and a conviction in Pennsylvania for second-degree aggravated assault of a protected individual under § 2702(a)(3). His sentence was enhanced under the ACCA and sentenced to 15 years in prison with five years of supervision.
In 2015, the U.S. Supreme Court issued its ruling in Johnson v. United States, 576 U.S. 591 (2015), declaring the residual clause of the ACCA unconstitutional, which was made retroactive in Welch v. United States, 578 U.S. 120 (2016).
Jenkins submitted a habeas motion under 28 U.S.C. § 2255, claiming that, under Johnson, § 2702(a)(3) is not a “violent felony” upon which an ACCA enhancement can stand because the statute of conviction can be violated without the use, attempted use, or ...
by Anthony Accurso
Field test kits are touted as an easy way for law enforcement to determine if an unknown substance is in fact a narcotic. Millions are used each year by police during traffic stops, so they are commonly referred to as “roadside drug tests.” But revelations about the accuracy (or lack thereof) of these tests have called into question their usefulness for law enforcement purposes, causing a push to reform their role in prosecutions and elsewhere.
On the last day of 2015, Dasha Fincher was arrested in Monroe County, Georgia, during a traffic stop. Fincher was a passenger in the vehicle, and officers found an unknown substance attributed to her during a search. Deputies used a roadside drug test kit which indicated the substance contained methamphetamines. She would spend the next three months in jail on a $1 million bond because of the suspicion that she was a drug trafficker, largely based on the roadside test.
A subsequent lab test would reveal the substance was actually cotton candy. Though there were several reasons why the system failed Fincher, much of her trouble stemmed from the field test kit which misidentified a harmless substance as a narcotic.
A Known ...
by Anthony W Accurso
In resolving a split among the state Courts of Appeal, the Supreme Court of California held that, unlike an outstanding arrest warrant, a condition of a suspect’s parole allowing for warrantless and suspicionless searches does not dissipate the taint of an unlawful detention and that any evidence obtained as a result of the subsequent search must be suppressed.
Officer Matthew Croucher of the San Jose Police Department responded to a report of a possible vehicle burglary in a business parking lot on an evening in January 2017. A security guard on the premises “told him she had seen two suspicious individuals on bikes shining flashlights into parked cars.”
After finding nothing suspicious in the commercial lot, Croucher then drove through an adjacent lot. He noticed one of the vehicles was occupied by Duvanh Anthony McWilliams, who “did not appear to be sleeping, just hanging out.”
Croucher called for backup, then approached the vehicle, and instructed McWilliams to exit, ostensibly for “safety reasons.” A records check showed McWilliams was “on active and searchable [California Department of Corrections] parole.” Croucher then conducted a search of McWilliams and the vehicle, “from which he seized a firearm, drugs, and drug ...
by Anthony Accurso
Bitcoin is rapidly changing the way we function as individuals in a global and interconnected economy. Even though any individual person may not own or use it directly, it is reshaping economics across the planet. It is, in many ways, the best solution to a unique problem ...
by Anthony W. Accurso
Police are tasked with upholding the law, but current case law has created a system where officers are actually incentivized to break the law by making bogus traffic stops.
The Fourth Amendment to the U.S. Constitution provides that citizens will be free from unreasonable searches and ...
