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The court holds that the resolution of this issue requires an interpretation of such in CPL § 170.56 subd. 1(a)

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This is a proceeding wherein the issue presented is whether or not a defendant may be granted an Adjournment in Contemplation under Criminal Procedure Law § 170.56, without the District Attorney's consent, where the defendant has been granted a prior...

United States Supreme Court Asked To Decide How Far Police Can Go In Searching Cell Phone At Time Of Arrest

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Colorado Cell Phone Searches.jpg Cell phones - 91% of us have them. Cell phones are a modern marvel defying most of us to com close to fully understand how they function. They are truly highly complex "mini computers" containing vast amounts of personal information that should remain private and well away from the eyes of law enforcement. Recently the United States Supreme Court has been asked - in the case of Riley vs California - to set the standard for searches "incident to arrest" involving the seizure - but much more importantly - the search of the contents of cell phones. A petition to the Supreme Court asks the court to clarify whether - and under what conditions - law enforcement may access the massive amounts of personal information on all of our cell phones without a search warrant. In Riley - the police in the State of California made an legal arrest and "incident to that arrest" seized a cell phone. Officers searched the contents of the cell phone twice. Officers searched the phone at the scene of the arrest, and then again several hours later, at police headquarters. Why Is This An Issue? I submit that the better reasoned authority holds that a search of a cell phone violates the Fourth Amendment unless it is performed with a warrant or under an exception to the warrant requirement such as an exigency otherwise justifying the search. The accepted reasoning for permitting a warrantless search - to this point - has been what has come to be known as the Fourth Amendment's search-incident-to-arrest doctrine. This doctrine permits the police to search a cell phone whenever the phone is "immediately associated with [the arrestee's] person" at the time of the arrest. The Chimel Test Until now the legal framework for analysis of the "search-incident-to-arrest exception" to the Fourth Amendment warrant requirement was based on the vase of Chimel v. California, 395 U.S. 752 (1969). In Chimel the United States Supreme Court held that in order to "seize weapons and to prevent the destruction of evidence," the Fourth Amendment permits police officers to search "the arrestee's person" and "the area into which an arrestee might reach" while being arrested. Since Chimel - many other cases have broadened this holding including the case of United States v. Robinson, 414 U.S. 218 (1973). In Robinson a search of a crumpled cigarette package found on the defendant's person during his arrest - which could not have contained a weapon of course - was lawful and such searches do not depend on "the probability in a particular arrest situation that weapons or evidence would in fact be found" and that "[i]t is the fact of the lawful arrest which establishes the authority to search." Enter Cell Phones The Supreme Court's search-incident-to- arrest jurisprudence" was based on a thinking that is now decades old and well before the digital era. Today - the genius of cell phones provide access to a vast amounts of highly personal data, and these devices are far from the physical containers addressed on the post Chimel cases. Today individuals carry exponentially larger quantities of personal information on their person than they ever could before the creation of cell phones. At the time of the traditional search incident to arrest -eith the push of a button - private and confidential information such as medical records, banking activity, and work-related emails become assessable. Millions of Arrests And Searches Incident To In 2010 alone, there were nearly 11.5 million total adult arrests. Most of these arrests were based on the most minor of legal infractions such as a violation of a traffic code offense. Nearly all of these arrests - the arresstee carried a cell phone. An answer to this question - can the police search a cell phone at the time of a routine arrest..is critical. In Colorado - the answer is ambiguous at best. Our Colorado courts have split the reasoning in a way that satisfies no one. Here is a LINK to a recently written article I drafted on this subject. The Search of Cell Phones In Colorado At The Time Of Arrest H. Michael's Take The Fourth Amendment Prohibits Searching The Digital Contents Of A Cell Phone Incident To Arrest. The Fourth Amendment establishes that, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." While our forefathers could never have dreamed of the technical advances we have seen in the last two centuries - we are charged with trying to understand how they would have viewed such advances. When a cell phone is securely in police control the Chimel exception should not apply. The reasoning makes no sense. The privacy issues that arise from the search of a cell phone make makes such a search - absent a warrant unreasonable. The search-incident-to-arrest exception requires a search to be "'reasonably limited' by the 'need to seize weapons' and 'to prevent the destruction of evidence.'" In the recent decision of Arizona v. Gant the United States Supreme Court said this:"If there is no possibility" that the arrestee could gain access to a weapon or destroy evidence, "both justifications for the search-incident-to-arrest exception are absent and the rule does not apply." Arizona v. Gant, (2009). At the moment police officers separate an arrestee from his phone, there is no longer any risk that he might destroy digital evidence on the phone. The officer - at that moment - has three options to preserve the contents of the phone and apply for a search warrant: 1. He can turn off the phone. 2. He can put it in airplane mode. 3. Or he can place it in an inexpensive bag that prevents any signals from entering or escaping. The measure of the constitutionality of a governmental search has always been 'reasonableness.'" The 2001 United States Supreme Court case of United States v Knights ends the issue - at least for me - it said that the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate government interests.'"

UK Detains Glenn Greenwald's Partner for 9 Hours

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Update: Britain has an independent reviewer of its terror legislation, David Anderson QC. He investigates and prepares reports on the legislation for submission to Parliament. Here is his latest report on terror stops at airports. **** David... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]

Celebrating 13 Years

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I adopted Roxie 13 years ago from a PetSmart in Kentucky, in the summer of 2000—about a month before I started my firm. I had just left the Public Defender’s Office and was embarking on a new chapter in my life. Over the past 13 years, a lot has happened: I have become a boss, [...]

Missouri could consider juvenile sex offender measure

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8-18-2013 Missouri: Allowing juveniles to seek removal from Missouri's sex offender registry is a target for a possible veto override when state lawmakers return to the state Capitol in several... [[This,an article summary.Please visit my website for complete article, and more.]]

Case o' The Week: The Ninth Gets Cable, Too -- Ermoian and Obstruction of Justice

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“The facts of this case read like an episode of the fictional television drama Sons of Anarchy.” United States v. Ermoian, 2013 WL 4082072 (9thCir. Aug. 14, 2013), *1, decision available here.A great teaser opening, for a great Ninth decision.Players: Decision by Judge O’Scannlain, joined by Judges Goodwin and N.R. Smith. Big win by former ED Cal AFPD John Balazs and others.Facts: Federally-funded cops were investigating a motorcycle shop with suspected Hells Angel affiliations. Id. at *1. The cops suspected internal leaks, so they released a watered-down bulletin about some surveillance. Id.David Johnson – a Deputy Sheriff and bailiff – took the bait, and called Gary Ermoian – a private investigator. Deputy Johnson warned Ermoian that he had seen some of the surveillance photos and told Ermoian to advice a target to “watch his back.” Id. Wiretaps then picked up a “flurry of activity” as the various targets were warned of and reacted to the tip. Id. Ultimately, twelve defendants were indicted for RICO and other offenses. Id. at *3. Johnson and Ermoian were indicted on charges of conspiracy to obstruct justice, in violation of 18 USC § 1512(c)(2). At every opportunity before and during the trial Johnson and Ermoian objected that the FBI investigation did not qualify as an “official proceeding” under the obstruction statute. Id. Those challenges were denied, the jury convicted, and the defendants appealed.Issue(s): “We must decide whether an FBI investigation qualifies as an ‘official proceeding’ under a federal statute criminalizing obstruction of justice.” Id.at *1. The defendants “primarily focus on one issue: Did the district court err when it determined that an FBI investigation qualifies as an ‘official proceeding’ under the statute criminalizing obstruction of justice?” Id. at *3.Held: “[I]n light of the plain meaning of the term ‘proceeding,’ its use in the grammatical context of the ‘official proceeding’ definition, and the broader statutory context, we conclude that a criminal investigation is not an ‘official proceeding’ under the obstruction of justice statute.” Id. at *7. Of Note: In a case of first impression, Judge O’Scannlain brings the Ninth onto the right side of a circuit split. Id. at *6-*7 (rejecting Second Circuit analysis as unpersuasive, and adopting the approach of the Fifth Circuit). Will the Supremes resolve this split? If so, Justice Scalia will hopefully note Judge O’Scannlain’s shout-out for Reading Law: The Interpretation of Legal Texts. Justice Scalia’s book, explains the Ninth, “aptly explains” the principle of statutory interpretation used to get to the result in Ermoian. Id. at *5. Like Justice Scalia, Judge O’Scannlain isn’t too keen on the Congressional record: because the meaning of the statute is “plain and unambiguous” he “decline[s] the Government’s invitation to consult the statute’s legislative history.” Id.at *7 & n.6; id. at *6 (rejecting Second Circuit’s reliance on Congressional “purpose”).  How to Use: Ermoianis an interesting statutory construction case, because the word at issue in the obstruction statute – “proceeding” – has both a lay definition and a legal definition. Id. at *4. The lay definition is broad enough to encompass an “investigation” (which would have meant a government win), but Judge O’Scannlain holds that the more-narrow legal definition controls because of the context of the word in the statute. Id. at *5. Add Ermoian to the arsenal of statutory interpretation cases for the proposition that a common lay definition may not necessarily carry the interpretative day.                                                 For Further Reading:  It was a most-eventful week, for CJA funding.    CJA Lawyer Rep Rob Ruth has posted on his blog a recent email of Judge Catherine Blake, Chair of the Defender Services Committee of the Judicial Conference. See blog here. In her email Judge Blake describes last week’s decision of the Executive Committee, including a $15 per hour cut to the CJA rate and four weeks deferral of CJA payments in Fiscal 2014.   For a thoughtful overview of the impact of this decision for both siblings in the CJA family, see a Tampa Tribune article here.“Sons of Anarchy” poster from http://all-things-andy-gavin.com/wp-content/uploads/2012/10/Sons_of_Anarchy_Poster.jpgSteven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org.

OFF TOPIC - Make The Homeless Smile (PLEASE SHARE!)

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If all Muslims / Humans were like this, the world would be a better place! © 2006-2013 | Sex Offender Issues (Facebook) [[ This is a content summary only. Visit our blog for full links, videos, studies and more! ]]

Man Admits Laundering Mortgage Fraud Proceeds

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Henry J. Papale, 62, Southington, Connecticut, pleaded guilty before Senior United States District Judge Ellen Bree Burns in New Haven to federal wire fraud and money laundering offenses stemming from a mortgage fraud scheme. According to court documents and statements made in court, in 2007, Papale used credit information of others to purchase four homes [...]

Sun Sentinel: Shooting video of police could land you in jail — but should it?

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Sun Sentinel: Shooting video of police could land you in jail — but should it? by Adam Sacasa: [...] Read more!

Cal.1st: DUI blood draws were performed reasonably

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In seven consolidated cases, the court concluded that the blood draw in each case was reasonable under the Fourth Amendment. All the defendants chose to have a blood test. In each case, a police officer witnessed blood draws performed by a person the officer believed to be a trained phlebotomist or blood technician. None of the defendants exhibited any signs of pain or discomfort during the blood draw procedure; indeed, the testimony reflected these were routine blood draws consistent either with the officer's own experience of having blood drawn or with the officer's observation of other arrestee blood draws. Moreover, the testimony reflected the blood draws were conducted in a cooperative manner, utilizing needles from sealed packages and ensuring the blood extraction area was cleaned prior to inserting the needle and cleaned and bandaged after the blood was drawn. Under the totality of the circumstances presented, in each case the officer's un-rebutted testimony showed the blood draw did not expose the defendant to an unjustified element of personal risk of infection or pain. People v. Cuevas, 2013 Cal. App. LEXIS 655 (1st Dist. July 31, 2013), Published August 15, 2013.

How long does it take to contest a First Offense OUI in Massachusetts

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Among the first questions those charged with OUI ask of a Massachusetts OUI Lawyer is, how long will the case take to finish. Most who have no experience with the legal system are surprised as to how slow the...

Feds decrypt two hard drives in Wisconsin case, defendant arrested on CP charges

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Over the past several months, I've written a few times about the ongoing Wisconsin encryption case. Here are the posts for background.Defense suggests improprieties in Wisconsin encryption case Wisconsin federal magistrate reverses on forced production of decrypted data after government presents new evidence Wisconsin federal court forbids forced production of decrypted data on Fifth Amendment grounds The feds had been unable to break the encryption on the defendant's hard drives, but a major breakthrough last week resulted in the defendant's arrest for child pornography. According to the Journal Sentinel, the Assistant U.S. Attorney on the case announced that two of the nine hard drives had been decrypted. Those two drives contained "preteen children in images of sexual assault, bondage and bestiality." The court has yet to decide whether the defendant will be ordered to decrypt the remaining hard drives. The criminal complaint is available here.

Oklahoma City Man Arrested for Murder of 4 Family Members

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An Oklahoma City man diagnosed with schizophrenia and obsessed with former Disney star Selena Gomez has been arrested after allegedly murdering four family members, including his teenaged niece and infant nephew. Last Wednesday night, a relative found the bodies of Sallie Green, 57; her daughter Rebecca Cizek, 34; and Cizek’s children, Katherine “Kat” Cizek, 16, [...]

The Crime of Creating a False Impression

Short Wins - 9th and 11th Circuit edition

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There are some great cases from the Ninth and Eleventh Circuits this week - especially United States v. Ermoian on obstruction of justice. Good times. And, of course, the big news of last week was Eric Holder's recognition that there are a lot of people in federal prison. I'm skeptical that a policy that lets folks with one or two criminal history points avoid a mandatory minimum is going to do much to reduce our prison population, as I told some folks last week, but if the Attorney General is going to pay lip service to an idea, I suppose I'm glad it's an idea that I agree with. To the victories! 1155650_berlin_siegessule.jpg1. Spencer v. United States, Eleventh Circuit: Appellant was convicted of distributing crack and sentenced to 151 months based in part on his designation as a career offender. Appellant argued at sentencing and on appeal that one of his predicate felony convictions upon which the career offender status was based no longer qualified as a predicate crime of violence. The court ruled that appellant could use a timely filed motion under 28 U.S.C. § 2255 to pursue that argument when an intervening case from the Supreme Court validated the argument and applies retroactively. Because appellant correctly argued that one of his predicate convictions no longer qualified as a predicate crime of violence, the district court's denial of the § 2255 motion was vacated and the case remanded for resentencing. 2. United States v. Acosta-Chavez, Ninth Circuit: Appellant pled guilty in 2005 to Illinois aggravated criminal sexual abuse and was removed from the country. After he reentered illegally, he was indicated on that basis, pled guilty, and was sentenced to 30 months in prison. His sentence was based in part on the court's designation of the 2005 crime as a "crime of violence." This was error. Because the error was not harmless, the sentence was vacated and the case remanded for resentencing. Attorney: David W. Basham, for Appellant. 3. United States v. Edwards, Ninth Circuit: Appellant pled guilty to being a felon in possession of a firearm and was sentenced to 46 months in prison. At sentencing the district court found that appellant's prior conviction for attempted burglary under Nevada law was a "crime of violence" using the modified categorical approach. In this case, applying that approach was error. Appellant's sentence was vacated and the case remanded for resentencing without the "crime of violence" enhancement. Attorney: Chad A. Bowers, for Appellant. 4. United States v. Ermoian, et al., Ninth Circuit.pdf: Appellants were convicted of obstructing justice arising out of their alleged conduct during an FBI investigation. Because an FBI investigation is not an "official proceeding" under the federal obstruction of justice statute, the jury instruction identifying it as such was erroneous. The government conceded that, if an FBI investigation wasn't an official proceeding, the obstruction of justice charges could not have been sustained on evidence presented at trial. For these reasons, appellants' convictions were reversed and retrial was barred. Attorneys: for Mr. Ermoian, John Balazs; for Mr. Johnson, Jerald Brainin. 5. United States v. Madden, Eleventh Circuit: Appellant was indicted for, among other things, knowingly using and carrying a firearm in relation to a crime of violence and knowingly possession a firearm in furtherance of a drug trafficking crime. At trial, the court's instructions to the jury constructively amended this charge by using different and confusing language. He was convicted on this charge. Because the amendment was plain error, appellant's conviction was reversed and the case remanded.

Federal Grand Jury to decide whether to charge DeSoto County Jail staff in connection to Internal Affairs Probe on claims of Inmate Abuse

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A federal grand jury is convening this week to decide whether public corruption charges should brought against a DeSoto County jailer who allegedly told internal affairs investigators he did not report a colleague for abusing a former inmate because he is not a "snitch." Maitland Gaol IMG_8215 News reports claim that a massive internal affairs report released this week -- the department's response to the allegations of abuse--show a pattern of orchestrated beatings while the prisoner was being held on a Domestic Violence Injunction. Internal affairs investigators confirmed what the inmate claimed since his release: that he was battered by a jailer several times, while other staff watched and took no action to stop the abuse. The inmate claims that on one occasion, DeSoto deputies slammed his head into a concrete wall, punching him in the face and chest and choking him nearly unconscious. Reports claim that the jail staff ignored very visible injuries -- much of the inmate's face and head were purple with bruising -- telling colleagues the injuries were self-inflicted. The IA investigation revealed that the jail commander failed to report the inmate abuse to the department's chain of command, and to have countermanded a nurse's directive ordering the inmate to be taken to the hospital, delaying medical care. Charges of conduct unbecoming a deputy and neglect of duty were sustained. He resigned during the investigation late last month, stating in a one-sentence resignation letter he wished to "return to retirement." The Desoto County Criminal Defense Attorneys at Whittel & Melton understand that when clients are arrested, many times that are at a loss for what to do when facing criminal charges. The attorneys at Whittel & Melton are seasoned criminal trial attorneys who will fight to protect your rights, regardless of the specific charges you may face. Our attorneys have experience defending federal offenses and white collar crimes and all other state criminal offenses throughout Florida, and because we are former prosecutors ourselves, understand what it takes to successfully defend a case in Florida State and Federal Court. Until you consult a lawyer regarding your arrest and criminal charges, you may not have a clear idea of what is in store for you. Call us today to discuss your options (866) 608-5529.

Rock Hill Hit-and-Run Involves and Entire Family as Both Victim and Defendant

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The Rock Hill Police Department is still investigating an accident that took place on August 8th, earlier this month involving a family as all the key players. The accident at hand took place on Mt. Gallant Road in Rock Hill, which for some reason seems to be where lots of accidents occur in Rock Hill. […]The post Rock Hill Hit-and-Run Involves and Entire Family as Both Victim and Defendant appeared first on .

Connecticut Injury Attorney: What to Look for in Your Lawyer

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If you have been seriously injured in some type of accident in Connecticut whether it involves a car accident, motorcycle accident, truck accident, taxicab accident, premises liability case, dog bite injury, slip and fall or trip and fall on snow and ice or some other slippery substance, a drunk driving accident, a rear end collision [...]

How can someone be charged based solely on hearsay?

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Free legal answers from attorneys - My husband is being charged for things based on hearsay and there are witnesses to say that the accuser is lying and wh

Lethal Injection Roundup

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Today's New York Times reports, "Death Row Improvises, Lacking Lethal Mix," by Rick Lyman. Here's an extended excerpt from the beginning: The decision by the Missouri Supreme Court to allow propofol, the same powerful anesthetic that caused the death of...
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