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Wednesday, July 31st, 2019

Circuit Affirms Convictions for Producing and Distributing Child Pornography

United States v. DiTomasso, No. 17-1699 (2d Cir. July 30, 2019), involves a defendant who was convicted after a jury trial of producing and distributing child pornography. On appeal, he argued that the district court should have granted his motion to suppress certain electronic communications found through searches conducted by two Internet service providers (AOL and Omegle), and reported to the National Center for Missing and Exploited Children. He also argued that he should have been granted a hearing on whether his trial attorney was ineffective for not calling a witness (the defendant’s uncle) who supposedly would have confessed that he, not the defendant, was guilty of the charged crimes. The Circuit rejected all the defendant’s contentions and affirmed his convictions.

First, the Court held, the AOL searches did not afford a basis for relief. The district court found that the AOL searches constituted government searches for Fourth Amendment …

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Categories: Fourth Amendment, ineffective assistance of counsel

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Thursday, June 28th, 2018

Recap of Supreme Court Decisions in Carpenter and Currier

As we mourn Justice Kennedy’s retirement, Sentencing Resource Counsel Sissy Phleger has graciously allowed us to post her summaries of the Supreme Court’s recent decisions in Carpenter v. United States (opinion available here) and Currier v. Virginia (opinion available here):

First, in the eagerly-anticipated Carpenter v. United States, the Court held that the government’s acquisition of Mr. Carpenter’s cellphone location records was a Fourth Amendment search. Roberts wrote for the majority, joined by Kagan, Breyer, Sotomayor, and Ginsburg. All the dissenters filed separate opinions (and variously join in each other’s). While the majority opinion is at pains to confine its impact, this is a great win with potential implications far beyond its specific circumstances.

Mr. Carpenter had challenged the use of warantlessly-obtained historical cell-site location records used to convict him of a string of armed robberies. He argued that the records constituted a search, and thus required …

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Categories: cell phone location information, double jeopardy, Fourth Amendment

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Friday, June 1st, 2018

This Week’s Supreme Court Opinions

This week the Supreme Court issued two opinions, both of which seem relatively straightforward in their holdings.

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In Collins v. Virginia, the Court held that the automobile exception to the Fourth Amendment does not permit a warrantless search of a vehicle parked within the curtilage of a home. In Collins, police officers tracked a stolen vehicle to the address of the defendant’s girlfriend. There, parked in the driveway, an officer saw what appeared to be a motorcycle frame covered with a white tarp. The officer entered the driveway, uncovered the tarp, and confirmed that it was the stolen motorcycle.

Justice Sotomayor’s opinion, for an eight-member majority, is clear in its language and broad in its scope. The opinion swiftly concludes that the part of the driveway on which the motorcycle was parked was curtilage.  That portion of the driveway was enclosed on three sides, but open …

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Categories: automobile exception, curtilage, Fourth Amendment, MVRA

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Categories: automobile exception, curtilage, Fourth Amendment, MVRA

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Friday, May 18th, 2018

Supreme Court Roundup (including post-Dimaya GVRs)

This week the Supreme Court issued a number of significant criminal opinions, as well as a number of GVRs signalling that the holding of Sessions v. Dimaya likely extends to § 924’s residual clause (18 U.S.C. § 924(c)(3)(B)).

In McCoy v. Louisiana, 16-8255, the Court held that it was structural Sixth Amendment error for an attorney to concede a defendant’s guilt, against his wishes, in the hope of sparing him the death penalty. McCoy’s attorney argued that his client lacked the mental capacity to form the specific intent necessary for first-degree murder, see slip op. at 3 n.1, but conceded in his opening statement that the jury could not reach “any other conclusion than Robert McCoy was the cause of” the victims’ deaths. Id. at 4. This strategy, the Court held, violated the client’s Sixth Amendment rights regardless whether it was “counsel’s experienced-based view . . . that confessing …

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Categories: 924(c), Fourth Amendment, ineffective assistance of counsel, right to counsel, traffic stop, wiretaps

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Tuesday, May 1st, 2018

Second Circuit Reverses Denial of Suppression Motion, Clarifies Scope of Curtilage

Today the Second Circuit reversed the denial of a motion to suppress guns that police found adjacent to a shed in the backyard of a defendant’s home. United States v. Alexander, No. 16-3708 (2d Cir. 2018) (Lynch, Carney, Hellerstein (SDNY)) (appeal from Amon, J., EDNY). This area, the panel held, was curtilage and thus considered part of the home for Fourth Amendment purposes. In so holding, the panel clarified that Florida v. Jardines, 569 U.S. 1 (2013), abrogates at least three Second Circuit opinions suggesting that driveways and other publicly accessible areas fall outside the curtilage of a home. The opinion in Alexander, which this office litigated, is available here.*

The defendant in Alexander lived in a narrow house, on a property fenced on three sides but open to the street. The property included a driveway that extended past the house, with a shed …

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Categories: curtilage, Fourth Amendment

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Tuesday, December 5th, 2017

“Unrelated inquiries that prolong or add time to a traffic stop violate the Fourth Amendment absent reasonable suspicion of a separate crime.”

The title is the holding of today’s Second Circuit opinion in United States v. Gomez (Parker, Wesley, Droney) (on appeal from D. Conn.). Specifically, the Circuit held that (1) the Fourth Amendment was violated when officers prolonged a minutes-long traffic stop to investigate matters unrelated to the pretextual basis for the stop, but that (2) suppression was not warranted because the good-faith exception to the exclusionary rule applied. The opinion is available here.

A DEA task force had been investigating Mr. Gomez in connection with a heroin trafficking operation. One of the task force members, a Hartford police officer, testified that he observed the defendant commit three traffic violations. The officer used these violations as grounds to conduct a traffic stop. “From the moment” the officer first approached the car, “his questioning detoured from the mission of the stop (Gomez’s traffic violations) to the DEA’s heroin-trafficking investigation.” Slip …

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Categories: forfeiture, Fourth Amendment, good faith, traffic stop, waiver

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Monday, November 13th, 2017

This Week’s Cert. Grants

The Supreme Court has recently granted certiorari in three First Amendment cases relevant to criminal practice:

Lozman v. City of Riviera Beach, Florida, No. 17-21
Question presented: Does the existence of probable cause defeat a First Amendment retaliatory-arrest claim as a matter of law?

Cert. papers and opinion below available here:

Lozman v. City of Riviera Beach, Florida

Minnesota Voters Alliance v. Mansky, No. 16-1435
Question Presented: Is Minnesota Statute Section 211B.11, which broadly bans all political apparel at the polling place, facially overbroad under the First Amendment?

Cert. papers and opinion below available here:

Minnesota Voters Alliance v. Mansky

National Institute of Family and Life Advocates v. Becerra, No. 16-1140
Question Presented: Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling …

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Friday, October 6th, 2017

Recent Cert. Grants

The Supreme Court granted certiorari on a number of criminal cases in orders from its September 25 conference. The details are below, courtesy of Sentencing Resource Counsel:

City of Hays, Kansas v. Vogt, No. 16-1495
Question Presented: Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.

Cert papers and opinion below available here:
http://www.scotusblog.com/case-files/cases/city-hays-kansas-v-vogt/

Collins v. Virginia, No. 16-1027
Question Presented: Whether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Cert papers and opinion below available here:
http://www.scotusblog.com/case-files/cases/collins-v-virginia/

Byrd v. United States, No. 16-1371
Question Presented: Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is …

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Categories: certiorari, due process, Fifth Amendment, Fourth Amendment, plain error, probable cause

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Monday, September 11th, 2017

Nuanced Second Circuit Opinion on Dissipated Probable Cause & McLaughlin Violations

The Second Circuit issued two criminal opinions today, both of which we will cover this week. In one, United States v. Pabon, the Circuit rejected a set of Fourth Amendment challenges where police obtained a CT scan which revealed that the defendant was body-packing narcotics. The opinion, available here, is as notable for what it does not hold as for what it does.

In Pabon, police obtained a search warrant authorizing an x-ray of the defendant’s lower abdomen to determine whether he was body-packing narcotics. Based on the x-ray, an emergency room physician reported that body-packing was “unlikely.” A detective nevertheless obtained a search warrant for a CT scan based on his testimony that the x-ray results were consistent with those he had observed in other body-packing cases. The CT scan suggested body-packing, and the defendant was given laxatives that led him to pass eight packages of …

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Categories: car stop, Exclusionary Rule, Fourth Amendment, probable cause, search warrant

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Monday, July 24th, 2017

Circuit Upholds Conviction Where Defendant “Never Submitted to Police Authority”

The Circuit affirmed the denial of a suppression motion today in United States v. Huertas.  You can access the opinion here.

A woman drove up to a patrol car and told the officer that “a man named Branden was nearby with a gun.”  The officer drove in the direction the woman pointed and saw Huertas, who was standing on a street corner holding a black bag.  The officer asked Huertas questions through his car window.  The questioning lasted about thirty-sixty seconds.  Huertas “stayed in a fixed position” and “answer[ed] the questions.”  When the officer got out of his car, Huertas ran away.  He was later found and arrested by other officers.

Relying on United States v. Baldwin, 496 F.3d 215, 219 (2d Cir 2007), the Circuit held that Huertas did not actually submit to police authority when he answered the officer’s questions because his actions were “evasive, …

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Thursday, June 15th, 2017

Judge Nathan Grants Suppression in Fraud Case

Southern District Judge Alison Nathan suppressed evidence obtained as a result of “essentially limitless” warrants that were “insufficiently particularized.”  The 92-page opinion in United States v. Wey,  15-cr-611 (AJN), can be accessed here.  Agents executing the searches collected, among other things, personal documents and materials from Wey’s home and office.  The Court found that the “catch-all” gathering of all of this material had no “linkage to the suspected criminal activity, or indeed any meaningful content-based parameter or other limiting principle” and that the Agents’ actions ran afoul of “well-established constitutional principles that provide a bulwark against the execution of general warrants.”  Recognizing that it was and “extraordinary remedy,” the Court ordered suppression of all evidence gathered from both search locations.…

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Categories: Fourth Amendment, search warrant

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