WaPo: Volokh: Do travelers have a right to leave airport security screening areas without the TSA’s permission? by Orin Kerr:
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WaPo: Volokh: Do travelers have a right to leave airport security screening areas without the TSA’s permission?
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CA1: Driver's connection to vehicle was tenuous; no standing
The vehicle in this case was stopped for a traffic offense, and Martin was driving and defendant was a passenger, but both, it turned out, gave false names, defendant using his brother’s. After they were released, the officer got more information and realized the false names. He looks for it and pulled the vehicle over again, and defendant was now driving and Martin was the passenger. The court concludes there is no bright line rule for standing in this situation, and it concludes defendant has no standing despite being the driver. United States v. Almeida, 2014 U.S. App. LEXIS 6280 (1st Cir. April 4, 2014):
=> Read more!
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Houston crime lab found hundreds of CODIS 'hits' in rape-kit backlog
When Houston PD began processing backlogged rape kits in reaction to SB 1636, crime lab director Irma Rios told the Texas Forensic Science Commission on Friday, they outsourced 9,723 cases to private vendors because they lacked internal capacity to handle the volume. Of those, so far they've received reports back on 8,450 cases and lab workers have reviewed 5,651 of them.Here's the astonishing part, though: As a result of those reviews, the lab uploaded 1,662 cases to CODIS, which is the national DNA offender database, and found 607 "hits," meaning they identified a suspect whose DNA matched the rape-kit sample. That's about 36.5% of cases uploaded. And 26 of those may be serial rapists - i.e., they got multiple hits for a single offender.So Houston PD had rape kit evidence in their possession that could have solved these crimes but the evidence had never been tested! To her credit, that's exactly what state senator and now-gubernatorial candidate Wendy Davis predicted when she sponsored SB 1636. She'd wanted to require backlog testing but couldn't secure funding and so the watered down version that finally passed required testing only if funding is available to do so. That legislation spurred Houston to confront its backlog, but other agencies have pled poverty and still haven't tackled the problem.Many of these were older cases dating back to the 1980s, so for some of them the statute of limitations has run out and the cases can't be prosecuted. But prosecutors can use the evidence to help enhance (read: boost penalties) for future crimes and also to oppose parole for those locked up in Texas prisons for other offenses, which includes a significant number of those identified. Rios didn't detail the criteria by which they chose to update results to CODIS, so we can't know whether there may even be more cases from the backlog where it's possible to identify perpetrators or potentially exonerate people who were wrongfully convicted. The Houston crime lab recently was moved out from under the police department's management structure and into an independent local government corporation with its own board. They're currently one of two departments (Detroit is the other) with a National Institute of Justice grant to study how to prioritize testing rape kit backlogs. (See prior Grits coverage and a website devoted to the grant project.) Rios estimated that there are about 400,000 untested rape kits sitting around in police department evidence rooms nationwide.
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"Reviving the Excessive Fines Clause"
The title of this post is the title of this notable new paper by Beth Colgan now available via SSRN. Here is the abstract: Millions of American adults and children struggle with debt stemming from economic sanctions issued by the...
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EuGH-Urteil C-314/12: Webseiten & Urheberrechtsverletzungen - Sperren bei Internet Service Providern per Gerichtsanordnung zulässig
Gemäss Urteil C-314/2012 der vierten Kammer des Europäischen Gerichtshofs (EuGH) vom 27. März 2014 müssen Internet Service Provider (ISP) unter bestimmten Voraussetzungen Websites sperren; vorliegend ging es um die Blockade der Webseite "kino.to" (vgl. Pressemitteilung Nr. 38/14):Konkret haben zwei Filmproduktionsgesellschaften festgestellt, dass mehrere Filme ohne ihre Zustimmung auf der früheren Website „kino.to“ angesehen und sogar heruntergeladen werden konnten. Der betroffene ISP wurde von den erstinstanzlichen nationalen Gerichten (auf Antrag) verpflichtet, den Zugang zu "kino.to" für seine Kunden zu sperren. Die erstinstanzlichen Urteile wurde weitergezogen; das in letzter Instanz mit diesem Rechtsstreit befasste nationale Gericht ersucht den EuGH um Auslegung der EU-Richtlinie 2001/29/EG über das Urheberrecht und der unionsrechtlich anerkannten Grundrechte. Diese Richtlinie sieht u.a. vor, dass Rechteinhaber den Erlass von Anordnungen gegen Vermittler beantragen können, deren Dienste von einem Dritten zur Verletzung der Rechte der Rechteinhaber genutzt werden.Der betroffene ISP war vorliegend der Auffassung, dass er nicht als Vermittler im vorgenannten Sinne qualifiziert werden könne: er argumentierte, dass eine solche Anordnung ihm gegenüber gar nicht getroffen werden dürfe. Im massgeblichen Zeitraum habe er nämlich in keiner Geschäftsbeziehung zu den Betreibern von "kino.to" gestanden; ferner gebe es keinen Beleg dafür, dass die eigenen Kunden rechtswidrig gehandelt hätten. Jedenfalls könne jede der möglichen Sperren technisch umgangen werden, und schließlich seien einige der Sperren teuer. Der EuGH hielt daraufhin u.a. fest, dass ein ISP "der seinen Kunden den Zugang zu Schutzgegenständen ermöglicht, die von einem Dritten im Internet öffentlich zugänglich gemacht werden", ein "Vermittler" im Sinne der EU-Richtlinie 2001/29/EG sei. Ferner sei "kein besonderes Verhältnis zwischen der das Urheberrecht verletzenden Person und dem Vermittler, gegen den eine Anordnung erlassen werden kann" erforderlich. "Es muss auch nicht nachgewiesen werden, dass die Kunden des Anbieters von Internetzugangsdiensten tatsächlich auf die Schutzgegenstände zugreifen, die auf der Website des Dritten zugänglich sind. Die Richtlinie verlangt nämlich, dass die Maßnahmen, die die Mitgliedstaaten treffen müssen, um ihr nachzukommen, Verstöße gegen das Urheberrecht oder verwandte Schutzrechte nicht nur abstellen, sondern ihnen auch vorbeugen sollen".Schliesslich bleibe durch eine Anordnung zur Blockade der Webseite "kino.to" der "Wesensgehalt des Rechts des Anbieters von Internetzugangsdiensten auf unternehmerische Freiheit unangetastet. Zum einen überlässt sie [die Anordnung zur Blockade] es ihrem Adressaten, die konkreten Maßnahmen zu bestimmen, die zur Erreichung des angestrebten Ziels zu treffen sind, so dass er sich für die Umsetzung derjenigen Maßnahmen entscheiden kann, die seinen Ressourcen und Möglichkeiten am besten entsprechen und mit den übrigen von ihm bei der Ausübung seiner Tätigkeit zu erfüllenden Pflichten und Anforderungen vereinbar sind. Zum anderen ermöglicht sie es ihm, sich von seiner Haftung zu befreien, indem er nachweist, dass er alle zumutbaren Massnahmen ergriffen hat". Michal Cichocki
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Monmouth County Police Blotter: Drunken Driving Arrests for Several Drivers in Middletown Area
Police officers in Middletown Twp. Had a busy week not long ago when they arrested and charged five individual drivers with operating a motor vehicle while under the influence of alcohol. Without knowing the specific circumstances of each arrest, it is difficult to know how or why each of these drivers was served with a summons for DWI, however it is instructive to remind readers that being stopped on any Garden State roadway can open a person up to extreme scrutiny, especially if they in any way exhibit some key signs of impairment.
As New Jersey drunken driving defense lawyers, my colleagues and I understand the difficult position under which many otherwise law-abiding citizens are placed when they find themselves being questioned on the roadside by a local cop or state trooper. Odd as it may seem to some people, it is possible -- yet amazingly commonplace -- to see a motorist who is pulled over for one of many possible traffic infractions end up admitting, in short order, that he was drinking prior to the police stop.
Providing a police officer with an "admission of guilt" in whatever manner it happens, does not necessarily that the driver's statements can be used against him in court. An experienced DWI defense attorney, like those on the legal team in my firm, will know immediately to ask whether or not the driver was read his or her Miranda Rights prior to their supposed admission of guilt. Similarly, one should also consider whether or not the driver was informed of his right to remain silent. Depending on the situation, if the answer to these two questions was no on both counts, then there is reason to believe that the court may likely strike any admission of guilt from the record, since it was probably not obtained legally.
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The Lacey Act and the Overcriminalization Debate
One of the pleasures of teaching law is the opportunity to meet some exceptionally bright students. One of mine was Jarrett Dieterle, now in his third year, getting ready for his upcoming clerkship with a federal judge.The paper Jarrett wrote...
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Illinois Compassionate Use of Marijuana and DUI Law
Effective January 1, 2014, Illinois legalized the medical use of marijuana. In order to do so, it became necessary to change Illinois DUI law since driving with any amount of marijuana in a person's system is illegal and may subject the person to a DUI charge. Under the new law, if the person holds a registered user's permit from the Illinois Department of Public Health, that person may drive with marijuana in his or here blood or urine as long as he or she is not impaired.
However there is a significant trade-off for the right to drive after using marijuana. The police may require the registered user to submit to physical performance tests. If the person refuses or fails testing then he or she may be suspended. Non-registered users have no obligation to submit to such testing and do not face suspension for refusing or failing testing.
Attorney Larry A. Davis' article on the subject was published in the Illinois Bar Journal in March 2014. The full text is available here.
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AZ - Court hammers operator of Internet intimidation sites
Original Article
04/05/2014
By Robert Anglen
A Valley man accused of running an Internet extortion racket was dealt a blow last month when a judge found he posted information on websites suggesting a decorated combat veteran with no criminal record was a child molester.
Maricopa County Superior Court Judge Katherine Cooper imposed several sanctions against Charles "Chuck" Rodrick, saying evidence showed he controlled websites where operators demanded money from sex offenders and...
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Handelsgericht bei Mietrechtsstreitigkeit zuständig (BGE 4A_480/2013, NZZ vom 3. April 2014)
Sind die Parteien eines gerichtlichen Verfahrens beide im Handelsregister eingetragen, und existiert im betroffenen Kanton ein Handelsgericht, dann ist dieses gemäss BGE 4A_480/2013 auch für die Beurteilung einer mietrechtlichen Streitigkeit zuständig. Im zitierten Fall ging es um die Geschäftsmiete eines Verkaufslokals in einem Shoppingcenter in Winterthur, über die sich Vermieter und Mieter nicht einig waren. Beide Parteien sind im Handelsregister eingetragen. Die Vermieterin wandte sich in der Folge an den Einzelrichter, welcher erst gar nicht auf die Klage eintrat. Er begründete seinen Entscheid damit, dass ausschliesslich das Handelsgericht zuständig sei. Die Beschwerde ans Zürcher Obergericht hingegen wurde gutgeheissen. Die Richter der zweiten Instanz waren der Ansicht, dass in einem solchen Fall sowohl das Miet- wie auch das Handelsgericht zuständig seien. Das Bundesgericht hat diese Auffassung zurückgewiesen. Die Schweizerische Zivilprozessordnung (ZPO) habe in Art. 6 den Kantonen die Kompetenz eingeräumt ein Fachgericht zu bezeichnen, welches als einzige kantonale Instanz für handelsrechtliche Streitigkeiten zuständig sei. Von diesem Recht habe – neben den Kantonen St. Gallen, Bern und Aargau (Anm. des Autors) – auch der Kanton Zürich Gebrauch gemacht. Damit liege die Beurteilung einer handelsrechtlichen Streitigkeit zwingend und ausschliesslich beim Handelsgericht. Eine konkurrierende Zuständigkeit eines anderen kantonalen Fachgerichts, wie z. Bsp. des Mietgerichts, sei daher nicht zulässig.Rouven Brigger
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What It Means if the Death Penalty Is Dying
That's the title of a new New York Times feature, Room for Debate. Last week, lawmakers in New Hampshire heard testimony on a bill outlawing the death penalty. If passed, the law would make New Hampshire the 19th state to...
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MS - Long Beach police officer (Patrick Klis) arrested, charged with sexual battery of a 15-year-old juvenile
Patrick KlisOriginal Article
04/05/2014
By Gareth Clary
LONG BEACH - Patrick Anthony Klis, a police officer with the Long Beach Police Department, has been arrested and charged with three counts of sexual battery of a juvenile, according to a news release Saturday from Harrison County Sheriff Melvin Brisolara.
Brisolara said investigators received information on Thursday that Klis was having sexual relations with a 15-year-old juvenile.
Investigators were able to recover evidence and...
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Andrew Stine Wins Dismissal of Felony Charges
Today in Palm Beach Circuit Felony Court, Criminal Defense Attorney, Andrew D. Stine, of West Palm Beach, FL successfully got Mr. Alberto Felipe’s felony case dismissed. Mr. Felipe made world news for biting off his neighbor’s ear in an altercation over a cigarette in the Boca-Raton area. Mr. Felipe’s previous arrest record presented a challenging scenario and stacked the odds against him. However, West Palm Beach Criminal Defense Attorney Andrew D. Stine worked this felony case from the day after Mr. Felipe was released from jail and knew right away that Mr. Felipe was only acting in self-defense. Through a tireless effort, today in felony court, Attorney Andrew D. Stine was able to convince the Assistant State Attorney, through his own investigation into the events that transpired, that Mr. Felipe acted in self-defense and the felony case against him was dismissed. This victory is an excellent example of the difference […]
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News Scan
Bills Introduced to Address Realignment: Members of Coachella Valley law enforcement have teamed up with California State Assemblyman Manuel Perez to introduce AB 1449, one of four bills designed to address the issues surrounding prison realignment. Reza Gostar of The...
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Short Wins - The "the victims a person is convicted of defrauding have to be the same ones as the ones he was indicted for defrauding" edition
Last week was a busy week in the federal circuits. There's a lot there to be interested in, especially if you have a case at the intersection of mental health issues and the law.
If, however, your interests are a bit more prosaic, you might want to read United States v. Ward. There, the person accused was convicted of defrauding different people than the indictment alleged he defrauded.
Amazing stuff.
To the victories!
1. Davis v. Humphreys, Seventh Circuit: The Seventh Circuit indicated that mental incompetence can justify tolling the statute of limitations for a motion under 28 U.S.C. §2244 in certain situations. Because the district court did not conduct proper fact finding to determine Appellant's mental limitations here, the Court chose to remand and did not yet articulate the standard it will use in these situations.
2. United States v. DeBenedetto, Seventh Circuit: The district court's commitment order was vacated and the case remanded for further proceedings because the hearing and written findings were inadequate. To require a person to undergo involuntary mental health treatment, there are four findings that the district court must make, but failed to do so. On remand, the district court is required to make explicit findings about each of the factors.
3. United States v. Long, Seventh Circuit: One Appellant must be resentenced under the Fair Sentencing Act, which is applicable to any person sentenced after the Act was enacted, regardless of when the underlying conduct occurred. The district court had applied the pre-FSA mandatory minimum based on findings which would not be enough under the Fair Sentencing Act.
4. United States v. Burrage, Eighth Circuit: On remand from the Supreme Court, the Eighth Circuit reversed Appellant's conviction for one count - the distribution of heroin resulting in death - based on improper jury instructions. The case was remanded to the district court to enter a conviction for the lesser-included offense of distribution of heroin because the evidence was insufficient to support a conviction for distribution resulting in death.
5. United States v. Emly, Eighth Circuit: Appellant was convicted of one count of receipt of materials involving sexual exploitation of children and three counts of possession of materials involving the sexual exploitation of children. The three possession counts are multiplicitous - the possession of copies of several different files on separate devices constitutes only a single violation. The case was remanded with instructions to vacate all but one of the possession charges.
6. Albino v. Baca: The Court held that the appropriate procedural device for a pretrial determination of whether administrative remedies have been exhausted under the Prisoner Litigation Reform Act is a motion for summary judgment. Summary judgment should have been granted for Appellant because he satisfied the exhaustion requirement because no administrative remedies were available at the jail where Appellant was confined.
Defense Attorney: Andrea Renee St. Julian
7. United States v. IMM, Juvenile Male, Ninth Circuit: Appellant's conviction for child sex abuse was reversed and remanded because Appellant was not Mirandized and was in custody when he made inculpatory statements. This violation of Appellant's Fifth Amendment requires suppression of the statements.
Defense Attorney: Jill E. Thorpe
8. United States v. Ward, Ninth Circuit: Appellant's convictions for two counts of aggravated identity theft were reversed. The district court improperly allowed the jury to convict Appellant of stealing identities of victims who were not the specific victims named in the indictment.
Defense Attorney: Davina T. Chen
9. United States v. Feliciano, Eleventh Circuit: Appellant was convicted of bank robbery charges and use of a firearm. There was insufficient evidence of one gun charge. The evidence was that an accomplice never saw Appellant with a gun and knew Appellant did not have a gun at one robbery. This required reversal of the conviction.
10. United States v. Grzybowicz, Eleventh Circuit: Appellant's conviction for distribution of child pornography. The court determined that distribution required delivery or transfer to another person and Appellant had only emailed images to himself. Because the evidence was insufficient to convict Appellant on this charge, the conviction was vacated and the case remanded for resentencing.
11. United States v. Clark, D.C. Circuit: Appellant was convicted of bank and wire fraud. The district court applied Sentencing Guidelines, which were not published until after the crimes. This retroactive application violated the Ex Post Facto Clause and required remand for resentencing.
Defense Attorneys: Jessica L. Ellsworth, Peter S. Spivack, and Matthew J. Iaconetti
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.395 grams of cocaine beneath the front passenger seat...cont
Here, the evidence adduced at trial distinguishes this case from the cases relied upon by the defendant. In a related case, the criminal defendant, who was concerned about being arrested for the theft of a snowplow blade, led police...
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CT - Bill would require state to notify mayors about sex offender placements
Original Article
Hmm, the state has an option to email people when a "sex offender" is placed into the community, or moves, this is yet another pointless law. And given the fact that "sex offenders" move so much, how quick will it become a pain in the butt to get an email every time one moves?
04/05/2014
By Adam Benson
If a measure before Connecticut legislators becomes law, when registered sex offenders leave prison and are placed into a Connecticut community, the chief executive officer...
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What Is A Ramey Warrant And How Is It Different From An Arrest Warrant?
In very simple terms, a Ramey Warrant is an arrest warrant that is obtained by a police agency by going directly to a judge and bypassing the district attorney.
Typically, in order for a police agency to get a warrant, they must submit a report to the District Attorney and, if the District Attorney feels there is enough evidence to file the case, the police agency can request that the case be filed and at the same time, an arrest warrant issued. This is referred to as a “Walk-through Warrant.” However, with a Ramey Warrant, the officer may skip the district attorney and go directly to a judge. The police agency must submit a declaration, along with a report, to the judge setting out their reasons for requesting that the judge issue the warrant. If the Judge believes that there is probable cause, and sufficient evidence that this person has committed a crime, then the judge will issue the warrant. These types of warrants are often requested and processed after regular business hours.
So why would a police agency choose to get a Ramey Warrant instead of just the traditional arrest warrant? Well for one reason, it is faster. The police agency may not want to wait for the District Attorney's Office to review the paperwork, which they have submitted. So, they bypass this and go straight to the source. However, most commonly, this is done when a police officer feels that he may not have enough evidence for the district attorney to actually file the charges. He doesn’t want to take the chance that the district attorney will reject the case. So, if he can get a judge to issue a Ramey Warrant, he can then arrest the person and question them with the hope of obtaining enough information and sufficient evidence to present it to the District Attorney for filing. Basically, the officer’s hope is that, once they have the individual in their possession, they will get what they need to make their case and end up with the sufficient evidence needed to get the case filed.
These types of warrants are of course legal but are fairly rare. One situation that may cause an officer to choose to go with a Ramey Warrant might be that they have previously tried to file cases against an individual but the district attorney keeps rejecting it for lack of sufficient evidence. The strategy then becomes to arrest the person, and obtain as much sufficient evidence as possible through questioning, lineups, and other investigatory techniques. However, if the individual refuses to talk, and provides them with nothing, then the officer must either file the case as is, or release the individual.
For someone who has been arrested via a Ramey Warrant, having this knowledge may make the difference in a case being filed and the agency being forced to release the individual, provided the arresting agency was unsuccessful in obtaining the information they needed.
If you would like to know more about arrest warrants, or any other criminal legal matter, feel free to contact Orange County Criminal Defense Attorney William Weinberg at 949-474-8008 or at www.williamweinberg.com.
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NFL MILLIONAIRE INDICTED ONE DAY FOR VIOLENT CRIME, MARRIES VICTIM NEXT DAY
Baltimore Ravens Star Rice Indicted One Day, Marries Victim of the Charged Crime Very Next Day NFL running back Ray Rice was indicted last week in New Jersey for aggravated assault against his fiancee, Janay Palmer. Parts of the domestic violence episode were captured on security cameras at the Revel Casino and Hotel, located in […]
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Hearing Officer Miller commenced the administrative hearing ...cont
Moreover, "the penalty of termination does not shock our sense of fairness" when police executing a search warrant found a gun, drugs and drug paraphernalia in an apartment. NYCHA's tenancy termination "determination was supported by substantial evidence" "after a...
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More Pages to Explore .....
