Archive | Uncategorized

The first challenge to a new breed of warrants is pending in the Eastern District of Virginia. Law enforcement is using “geofence” warrants to sweep up large amounts of data on all the cell phones in a particular geographic area. Rather than seeking a warrant for information about one person or one cell phone, these warrants seek information about all the cell phones that passed a location at the time of the crime. Paranoid yet?

Here, a bank robbery was committed, and the government had no suspects, so they got a warrant for Google to turn over data related to all smart phones that passed by a bank over the course of 2 hours one afternoon. Right by the bank was also a hotel, restaurant, mega church, and retirement home. Getting the early bird special at the Ruby Tuesday’s in Richmond? The government learned about it.

In a motion to …

When agents came to search his business, Mr. Drago asked, why and what crime was being investigated? The agents said, look at the warrant. But…the warrant didn’t say what crime they were investigating. Instead, it completely failed to state any crimes at all. Even the government admitted the warrant was invalid. But, it argued that they didn’t mean to draft an unconstitutional warrant and that they were protected by their good faith intentions.

In a lengthy report and recommendation issued this week, an EDNY magistrate judge rejected that argument. The judge wrote: the “lack of intent to create a bad warrant (or to cover-up that error) does not automatically translate into a finding of objective good faith belief that the conduct was lawful.”  Instead, the conduct of the search was “sufficiently reckless such that no objective officer could have believed that they were acting in good faith.”

A rare defense …

Unfortunately, the Supreme Court might decide that the answer is yes. The Supreme Court has granted cert in a case out of Kansas, in which a police officer ran the license plate of a passing car (for reasons unexplained in the Kansas decision given that there was no traffic infraction) and saw that the registered owner had a suspended driver’s license. Based only on that – and with no information about whether the owner was actually driving – the police pulled over the car. Mr. Glover, who was the owner and did not have a valid driver’s license, was charged with “driving as a habitual violator.”

The Kansas Supreme Court held that the officer did not have reasonable suspicion to pull over the car and suppressed the evidence (which in this case, seems to only be the fact that Mr. Glover was, indeed, driving). That sounds right! But Kansas sought …

On August 9, 2019, the Second Circuit vacated a high-profile civil forfeiture judgment, in an opinion that may be of interest to criminal practitioners. The litigation involves the government’s efforts to seize 650 Fifth Avenue, a skyscraper in midtown, and other property, based on allegations that the property owners violated federal law through their relationships with the Islamic Republic of Iran.

In In re 650 Fifth Avenue and Related Properties, No. 17-3258(L) (2d Cir. Aug. 9, 2019), 2019 WL 3756033, the Circuit held that, among other errors, the trial court mistakenly denied a motion to suppress evidence obtained pursuant to a defective search warrant. In a prior 2016 appeal in the case, the Circuit ruled that a certain search warrant was constitutionally deficient because, on its face, it lacked particularity as to the alleged crimes.

Thus, the Circuit had already found a Fourth Amendment violation. The only question was …

In Hyman v. Brown, __ F.3d __ (2d Cir. June 24, 2019), the Court reversed a judgment granting habeas corpus relief from a state murder conviction under 28 U.S.C. § 2254. Judge Raggi wrote the majority opinion, in which Judge Droney joined. Judge Jacobs concurred in a separate opinion.

The Court held that the petitioner had failed to make the “gateway showing of actual innocence” necessary to permit review of his procedurally barred claim of ineffective assistance of counsel. The Court’s reasoning is lengthy and merits the attention of anyone pursuing an “actual innocence” claim. And the news for other petitioners may not be all bad: the Court rejected the State’s argument, for example, that there are “categorical limits” on the types of evidence that can be offered to demonstrate actual innocence. Nevertheless, Hyman is a deeply troubling case: both the majority opinion and the concurrence acknowledge …

In United States v. Havis, the en banc Sixth Circuit held, unanimously, that a Tennessee state offense criminalizing the attempted delivery of a controlled substance was not a “controlled substance offense,” for purposes of U.S.S.G. §§ 2K2.1 and 4B1.2. ___ F.3d ___, 2019 WL 2376070 (6th Cir. June 6, 2019) (en banc). Overruling prior Circuit precedent, the Court explained that attempts appear only in Application Note 1 to § 4B1.2(b), not in the text of the Guideline itself. Consequently, the inclusion of attempts was not an interpretation of § 4B1.2(b)’s text, to which deference would be owed under Stinson v. United States, 508 U.S. 36 (1993), but rather an addition to § 4B1.2(b)’s text, due no deference at all:

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself—no term in § 4B1.2(b) would bear that …