Tucson Criminal Law Blog

FBI Turns Off 3,000 GPS Devices Following United States v. Jones Ruling

Last month in United States v. Jones, the Supreme Court ruled that attaching a GPS to a vehicle and using it to track that vehicle's movements is a search under the Fourth Amendment. In addition, the court held that attaching a GPS device to a car without a search warrant constitutes an impermissible warrantless search.

 

Following the Jones ruling, many commentators questioned how law enforcement would alter their use of GPS tracking. According to the Wall Street Journal, there has been a “sea change” within the U.S. Justice Department and the FBI in how they use GPS tracking.

 

At a conference in San Francisco, FBI General Counsel Andrew Weissmann stated that the Jones ruling prompted the FBI to turn off 3,000 GPS tracking devices that were in operation. Weismann remarked that the FBI had problems collecting the GPS devices that it had turned off. In some instances, the FBI petitioned courts to obtain permission to turn on the GPS devices briefly so that the FBI could locate the devices and remove them.

9th Circuit Rules that DNA Testing On Adults Arrested For Felonies is Constitutional

 

The Ninth Circuit in Haskell v. Harris recently upheld a California law that requires law enforcement officers to take DNA samples – through mouth swabs – of people arrested for felonies. The Ninth Circuit joins the Third Circuit in holding that taking DNA samples from certain arrestees is not an unreasonable search and seizure under the Fourth Amendment.

 

In Haskell, four Californians were arrested for felonies but never convicted of those crimes. Following their arrests, law enforcement officers took DNA samples of these individuals pursuant to a 2004 California law that requires collecting DNA samples of “any adult person arrested or charged with any felony offense.” In 2009, the four individuals filed a class action lawsuit state officials who ran the state DNA collection system. The plaintiffs argued that such DNA collection was an unreasonable search and seizure under the Fourth Amendment. They also sought a preliminary injunction to bar California from collecting DNA samples from individuals who were arrested but never convicted. The district court denied the plaintiffs' motion for a preliminary injunction, leading the plaintiffs to appeal to the Ninth Circuit.

 

The Ninth Circuit affirmed the district court's ruling and held that the DNA collection system did not violate the Californian arrestees' Fourth Amendment rights. The court determined that compelled DNA extraction was clearly a “search” for Fourth Amendment purposes. However, the question before the court was whether the DNA extraction was an “unreasonable search,” and thereby impermissible under the Fourth Amendment. Looking at the totality of the circumstances and balancing the arrestees' privacy interest against California's interest in collecting DNA samples, the court held that collecting DNA samples did not constitute an unreasonable search.

Balancing the interests, the court found that California's interest in collecting DNA samples from arrestees outweighed the privacy intrusions imposed by the compelled collection. For the government, the court found that “DNA analysis is an extraordinarily effective tool . . . to identify arrestees, solve past crimes, and exonerate innocent suspects.” For the arrestees, the court determined that the invasion of their privacy interests was not significant. For instance, the mouth swabbing of the arrestees was a minimally invasive (compared to drawing blood) collection of DNA. The court remarked that the DNA was collected for the limited purpose of identifying individuals – akin to fingerprinting. In addition, the court highlighted that there were safeguards to protect the privacy of the collected DNA, such as state and federal statutes that impose significant criminal and civil penalties on people who misuse DNA information. 

Fiesta Bowl Executive Set to Plead Guilty To Felony Charge in Campaign Contribution Scheme

 

The Arizona Republic reports that John Junker, the former CEO of the Fiesta Bowl, is set to plead guilty this Tuesday to a felony for his involvement in a fraudulent political campaign-contribution scheme. Under the plea bargain, Junker will admito soliciting campaign contributions from Fiesta Bowl employees, who were later reimbursed with bowl funds. This reimbursement arrangement violated Arizona state law.

 

While the Fiesta Bowl has been the subject of federal investigations, it appears that the U.S. Attorney for the District of Arizona will not prosecute Junker on federal charges. Junker's attorney Stephen Dichter told the Arizona Republic in a written statement:

 

"Pursuant to plea agreements with the prosecuting agencies involved, Mr. Junker will continue his ongoing cooperation with them and their agents, as requested. No additional charges arising out of Mr. Junker's long tenure with the Fiesta Bowl will be brought against him by either the State of Arizona or the United States Attorney for the District of Arizona.”

 

Finally, the Republic notes that Junker's plea offers were reached before any formal indictments were issued. 

Federal Judge Strikes Down Louisiana Law that Banned Sex Offenders from Facebook

 

The Wall Street Journal reports that a federal judge recently ruled that a Louisiana law that barred sex offenders from using Facebook and other social media sites violated the First Amendment. Chief Judge Brian Jackson of the Middle District of Louisiana explained that the law imposed “a sweeping ban on many commonly read news and information websites,” in addition to social media sites.

 

The court found several things wrong with the Louisiana law. First, it had overly broad definitions such that sex offenders could be prohibited from using legitimate government websites – such as the website of the U.S. District Court. Second, the law required sex offenders who were no longer under court supervision to seek an exemption from a judge to legally access social media websites. Judge Jackson noted that courts lack jurisdiction to even grant such exemptions once an offender has completed a prison sentenced and post-release supervision.

 

It is interesting to note that Facebook supported the bill and other such bills that criminalize social networking by registered sex offenders. A spokesman for Facebook commented to the Wall Street Journal:

 

We take the safety and security of our users, especially the many young people on Facebook, very seriously. We have consistently supported bills that criminalize usage of social networking sites by registered sex offenders. Our Statement of Rights and Responsibilities already bars these individuals from using Facebook and we would welcome the potential of criminal penalties to strengthen these provisions

Did the Justice Department Mislead the Supreme Court on Immigration Policy?

 

According to the Wall Street Journal, a U.S. District Court judge in New York recently ruled that the Justice Department may have mislead the Supreme Court in 2009 about immigration policy. This ruling could have potentially huge and uncertain consequences.

In 2009, the Justice Department asserted in a Supreme Court case that when federal appellate courts ruled in favor of deported immigrants, the government's policy was to help those immigrants return to the U.S. and restore their status.

This purported policy played a prominent role in the court's decision. Chief Justice John Roberts cited this policy and ruled that immigrants deported erroneously would not suffer “irreparable injury” since the government would help them return if they later prevailed on appeal.

The problem, however, was that immigration lawyers had never heard of this federal policy. Immigration lawyers followed up by filing Freedom of Information Act requests, but both the Homeland Security and State departments answered that they had no information on the supposed policy. The Justice Department, though, stated that it had four pages of emails on the policy but refused to release the emails.

Following the Justice Department's disclosure refusal, the Immigrant Rights Clinic at New York University School of Law sued in federal court to get access to the emails. U.S. District Court Judge Jed Rakoff agreed with the clinic, and wrote in a 20-page opinion that there is “substantial evidence that the judicial process may have been impugned if the Supreme Court relied upon what may have been inaccurate or distorted factual representation by the solicitor general's office.”

Now, what would happen if the Justice Department actually misled the Supreme Court?

Deborah Rhode, director of the Center on the Legal Profession at Stanford Law School, said the implications could be serious.

“Lawyers for the solicitor general’s office carry special responsibilities to present a full and fair record,” she told Bravin. She said that either the solicitor general’s office should confess the error “or the policy should be revised to be what the government said it was.”

Two Tucson Gem Show Vendors Arrested For Selling Counterfeit Jewelry

The Arizona Daily Star reports that U.S. Immigration and Customs Enforcement (ICE) agents arrested two gem sell vendors for selling counterfeit goods last Wednesday.

 

According to ICE, the two vendors sold knock-offs of Tiffany & Co., Chanel, Hermes and Coach at the Gem Mall pavilions. ICE agents seized almost $35,000 in cash and more than 2,500 pieces of jewelry from the vendors.

 

The arrests resulted from an undercover operation after agents were tipped off about counterfeit jewelry. When one of the agents tried to buy items from one of the vendors, the vendor allegedly told one of the agents that the merchandise was fake.

 

The vendors could face fraud, counterfeiting, money laundering and illegal enterprise charges in state court.

Facebook Defriending Leads to Double Murder in Tennessee

 

In the age of social media, defriending a person on Facebook can sometimes lead to hard feelings. In a recent incident in Mountain City, Tennessee, however, a Facebook defriending lead to a double murder.

 

The AP reports that Billy Payne Jr. and his girlfriend Billie Jean Hayworth defriended Jenelle Potter, 30, on Facebook. The couple had an 8-month old daughter together and they both lived with Billy Payne Sr. After defriending Jenelle, the couple complained to police that she was harassing them. Authorities confirmed that police have been involved in other cases where Jenelle believed she had been slighted by someone.

 

This time, however, Jenelle's father Marvin Potter, 60, and romantic interest Jamie Curd, 38, became involved in the dispute.

 

According to the AP, Billy Payne Sr. was the last person to see the couple alive before he left for work at 5:30 a.m. on January 31, 2011. Five hours later, a neighbor stopped by to pick up some mail and discovered Billie Payne Jr. and Hayworth shot dead in the home. The couple's 8-month-old baby was found unharmed in Hayworth's arms.

 

Marvin Potter and Curd were subsequently arraigned last week for the double murder.

Federal Prosecutors Drop Lance Armstrong Doping Investigation

 

Federal prosecutors announced late last week that they have dropped a two-year investigation of seven-time Tour De France champion Lance Armstrong. The investigation was centered on whether Armstrong and his teammates engaged in a secret doping program and thereby cheated their main sponsor – the U.S. Postal Service.

 

Armstrong – who has never failed a doping test and who has been tested 27 times since 2001 by the United States Anti-Doping Agency (USADA)– has been public ally accused by former teammates of doping. For instance, former teammate and Tour de France winner Floyd Landis stated in a deposition in 2010 that Armstrong not only used performance-enhancing drugs but also taught other cyclists how to avoid being caught. Landis claimed that he witnessed Armstrong and other teammates use illegal drugs to boost performance and endurance. In addition, former teammate Frankie Andreu also claimed that Armstrong admitted to using illegal drugs.

 

As a result of the dropped federal investigation, Armstrong will not face criminal charges in the United States. However, the USADA indicated on Friday that the end of the criminal probe did not mean that USADA would drop its own investigation.  

7th Circuit Disbars Criminal Lawyer for Missing Appeal Deadlines and Not Responding to Orders to Show Cause

 

In general, federal judges get upset when an attorney misses deadlines and fails to respond to orders to show cause. Milwaukee attorney Bridget Boyle-Saxton learned this lesson the hard way when the Seventh Circuit Court of Appeals disbarred her from practicing in federal courts in Wisconsin, Illinois, and Indiana.

According to the Milwaukee Journal Sentinel, Boyle-Saxton was disbarred for failing to to follow up and meet deadlines in the appeal of a client convicted on drug charges. The court issued a series of warnings and orders to show cause, but Boyle-Saxton failed to reply to most of them and gave inadequate response to one. In addition, she twice sought more time to file a brief, but didn't meet the extended deadlines.

 

Boyle-Saxton indicated in a November 30, 2011 court filing that she had recently undergone surgery and had been busy in other trials. However, the Sentinel notes that Boyle-Saxton did not explain why she missed earlier deadlines, did not address the court's orders to show cause, and did not explain why she should not face discipline.

 

The Seventh Circuit's order stated:

It is apparent from this final motion for additional time that Boyle-Saxton elected to put work for other clients ahead of her obligations to Rodriguez and this court. That is unprofessional; lawyers have an ethical obligation to take no more work than they can perform. Moreover, counsel has never even offered an explanation for ignoring orders this court has entered, directing her to respond by specified dates.

 

The court also indicated that it would forward its order to the Wisconsin Office of Lawyer Regulation and to the Wisconsin Supreme Court.

 

As for the former client filing the appeal, that individual will have to get the trial court to vacate and reinstate his conviction so as to have a new chance to file an appeal within the time limits. Similarly, the Seventh Circuit expects that the new appeal will argue ineffective assistance of counsel.