October, 2015

Fourth Circuit:  Warrantless Seizure of Mobile Phone Violates Fourth Amendment

A divided Fourth Circuit held that mobile phone users have an objectively reasonable expectation of privacy in the records kept by mobile phone companies that can be used to track the user’s location.  The court held that a warrant is required due to the private details that are obtainable. United States v. Graham, 2015 BL 250994 (4th Cir., No. 12-4659, 08-05-15; full text at http://www. bloomberglaw.com/public/document/UNITED_STATES_OF_AMERICA_Plaintiff_Appellee_v_AARON_GRAHAM_Defend.

California:  Cops Need Probable Cause, Warrant to Obtain Historical Cell Site Location Data

The U.S. District Court for the Northern District of California held that mobile phone users have a reasonable expectation of privacy when it comes to data collected by service providers that can be used to precisely track their location.  The court stated that “cell phone users have an expectation of privacy in the historical CSLI associated with their cell phones, and that society is prepared to recognize that expectation as objectively reasonable.  In re Application for Tel. Info. Needed for a Criminal Investigation, 2015 BL 244930 (N.D. Cal., No. 5:15-XR-90304, 08-21-15; full text at http://www. bloomberglaw.com/public/document/In_re_Application_No_15XR90304HRL1LHK_2015_BL_244930_ND_Cal_July_.


New Jersey:  Auto Accident Doesn’t Allow Officer to Enter Vehicle for Driver’s Information

The New Jersey Supreme Court held that the Fourth Amendment doesn’t allow a police officer to enter a disabled vehicle to obtain the driver’s registration and insurance information without first giving the driver the opportunity to retrieve it himself or to consent to the officer’s doing so.  The court stated that the trooper “made the decision to search defendant’s car for credentials only for the trooper’s convenience and expediency, without ever providing the defendant the opportunity to present them.”  State v. Keaton, 2015 BL 247207 (N.J., No. A-92-13, 08-03-15; full text at http://www. bloomberglaw.com/public/document/State_v_Keaton_No_A92_September_Term_2013_2015_BL_247207_NJ_Aug_0.

South Carolina:  Forensic Interviewer’s Testimony Improper Where Presented as ‘Human Lie-Detector’

The South Carolina Supreme Court held that expert testimony in child sexual abuse cases should come from professionals who didn’t actually examine the victim.  The forensic interviewer was presented as a human lie-detector to the jury, which results in prejudice against the accused and impermissibly bolsters the minor victim’s credibility.  State v. Anderson, 2015 BL 250511 (S.C., No. 27558, 08-05-15; full text at http://www.bloomberglaw.com/ public/document/The_State_Respondent_v_Isaac_Antonio_Anderson_Appellant_No_27558_.

Connecticut:  Death Penalty Abolished; Cruel and Unusual After Prospective Ban

A sharply divided Connecticut Supreme Court held that it would be cruel and unusual to execute the 11 remaining inmates on Connecticut’s death row after the state abolished the death penalty in 2012.  The statute was not retroactive, leaving existing sentences in place.  The court held that the distinction could not stand, stating that the “death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose.”  State v. Santiago, 2015 BL 260876 (Conn., No. SC 17413, 08-25-15; full text at http://www.bloomberglaw.com/public /document/STATE_OF_CONNECTICUT_v_EDUARDO_SANTIAGO_No_SC_17413_2015_BL_26087.

Maryland:  DNA Volunteered in Rape Investigation May be Used to Investigate Other Crimes

A divided Maryland Court of Appeals held that if a suspect voluntarily gives a DNA sample to police to exclude himself as a suspect in one crime but fails to put limits on his consent, the police may use that sample to investigate other unsolved crimes.  The court reasoned that whatever expectation of privacy the suspect may have had in the identifying information located in his DNA evaporated once he gave unqualified consent to the testing because a reasonable person would understand that the state indefinitely retains DNA profiles for use in future investigations.  Varriale v. State, 2015 BL 256848 (Md., No. 85, 08-11-15; full text at http://www.bloomberglaw.com/public/document/Varriale_v_State_No_85_2015_BL_256848_Md_Aug_11_2015_Court_Opinio.

New Jersey:  Suspect’s Demand to ‘Talk to My Uncle First’ Qualified as Invoking Right to Remain Silent

The New Jersey Supreme Court held that police violated a murder suspect’s Fifth Amendment right to remain silent when they continued to question him after he said he didn’t want to talk further until he consulted with his uncle – whom he considered to be “better than a freaking attorney.”  The police failed to scrupulously hone his rights when they agreed to let him talk to the uncle but then persuaded the uncle to assist them and secretly recorded his conversation with the defendant after the police left the room.  State v. Maltese, 2015 BL 263348 (N.J., No. A-96, 08-17-15; full text at http://www.bloomberglaw.com/public/document/State_v_Maltese_No_A96_September_Term_2013_2015_BL_263348_NJ_Aug_.

Mississippi:  Only Expert Witnesses May Pinpoint Mobile Phone Use by Analyzing Tower Data

The Mississippi Supreme Court held that a witness who goes beyond simply describing mobile phone basics and purports to be able to pinpoint the area in which a phone user was located at a particular time on the basis of data culled from cell towers and billing records must first be qualified as an expert.  Collins v. State, 2015 BL 268344 (Miss., No. 2013-CT-00761-SCT, 08-20-15; full text at http://www.bloomberglaw.com/public/document/Collins_v_State_No_2013CT00761SCT_2015_BL_

Kentucky:  Parade of 28 Gruesome Photographs Was Overkill and Warrants New Trial

The Kentucky Supreme Court held that a trial court erred in a capital murder case when it allowed prosecutors to show 28 graphic crime scene and autopsy photos that were needlessly cumulative and often duplicative.  It was an abuse of discretion to admit the photos because the facts weren’t in dispute and the jury’s main task was to decide whether the defendant was guilty by reason of insanity, not whether he shot the victims with a high-power rifle.  Hall v. Commonwealth, 2015 BL 268031 (Ky., No. 2012-SC-000423-MR, 08-20-15; full text at http://www.bloomberglaw.com/public/document/BERRY_HALL_APPELLANT_v_COMMONWEALTH_OF_KENTUCKY_APPELLEE_No_2012S