Supreme Court hears case on warrantless wiretaps

The issue before the Supreme Court yesterday was not whether the law allowing warrantless wiretaps violated the Fourth Amendment, but rather whether the plaintiffs may try to make the case that it did.

Here is the transcript from yesterday's oral arguments in Clapper v. Amnesty International.

Read: Adam Liptak's article in the NYT Challege to Wiretaps is heard by Justices


By Lee Davis

Looking Through Your Smartphone: Electronic Pocket Litter and Police Searches

A recent article discussed a seemingly boring but ultimately important issue that may be raised before the Supreme Court in the coming session: pocket litter. “Pocket litter” is a phrase used in law enforcement circles to refer to items of miscellaneous information carried on a person. This comes into play when a person is arrested or otherwise detained by an officer and they are subject to a search.

When law enforcement officers arrest someone, they conduct a thorough search of the suspect and his or her immediate possessions. This is what is known as a “search incident to arrest.” Any and all items found during this search are deemed admissible in Court. During a typical search officers are trained to look for items that might provide useful evidence for the case or that might cause harm to themselves or others. Another use of such searches is to gather information that might provide a clue about other individuals involved in the alleged criminal activity.

Seemingly mundane items found in people’s pockets or purses can provide a significant amount of information. Slips of paper with quickly written messages, phone numbers, names, addresses business cards, etc. all make for great leads. Beyond these obvious examples, scraps of paper including receipts, bus passes or airplane tickets also provide valuable information to those seeking to identify a suspected criminal and any possible criminal associates.

One thing that has happened on this front given the technological changes seen recently is that the items that often make up such pocket litter have changed. Originally the term referred only to small scraps of paper generally containing only a relatively small amount of information. Today, the term has grown to include electronic devices such as smartphones, tablets, iPods, and even laptops from which huge amounts of information can be collected. These devices carry voicemails, call and text logs, photos, Internet browser history and even GPS information.

The question facing many appellate courts today is just how far such a search can go when high value electronic pocket litter is involved. Cellphones in particular present a puzzling gray area, as there have been conflicting rulings between various U.S. Circuit Courts. This conflict makes it more likely that the issue will end up before the Supreme Court at some point to help clarify the issue. Judges confronted with such facts often find themselves lost, comparing cellphones to diaries while trying to analogize to prior cases from decades ago that have little if any relevance to the challenges they face today. The Supreme Court should step in and shed light on the issue, hopefully catching the legal system up to changes in technology.

Read: “Pocket Litter: The Evidence That Criminals Carry,” by Scott Stewart, published at RightSideNews.com.

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Student Who Hacked Sarah Palin’s E-Mail Account Denied Hearing by U.S. Supreme Court

The U.S. Supreme Court recently announced that it would not hear a case concerning the man who hacked into the email account of Sarah Palin. The hacker, David Kernell, was convicted of a felony related to his hacking and eventual posting of the Republican candidate’s emails online.

Kernell served a year and a day in federal prison in Kentucky and is currently on probation. Kernell was studying at the University of Tennessee in 2008 when Sarah Palin was running for Vice President. Kernell’s father, Mike, has been a Tennessee Representative for Shelby County for the past 38 years.

The younger Kernell, a frequent user of the popular internet message board service known as 4chan, hacked into Palin’s Yahoo! e-mail account using the site’s password recovery feature. He then posted the password to her account, as well as several screenshots of her emails to the 4chan site.

Beyond just stealing the information, Kernell made the additional bad decision of deleting the evidence. He commented at one point that he was afraid the FBI would investigate his stunt and, in an attempt to cover things up, deleted files from his computer, removing his browser and defragmenting his hard drive. Turns out Kernell was right and the FBI did launch an investigation, eventually stumbling upon a 4chan post where he bragged about this technical savvy perpetrating the hack.

The law that ended up busting Kernell is contained in the Sarbanes-Oxley Act, a federal law passed in 2002 designed to certify the accuracy of financial records published by major corporations. A lesser-known provision of the law can be interpreted very broadly and has been used in the past to catch those who delete electronic data in an attempt to avoid being caught for a larger, typically more serious crime. Several previous instances involve those who are targets of investigations involving child pornography deciding to delete their collections as the police close in.

Kernell’s attorney claimed that his client’s case was different than the others because, unlike the child pornographers who deleted the incriminating material before police made their busts, Kernell did not know that there was an ongoing investigation. Kernell’s lawyer said that the provision of Sarbanes-Oxley that makes it illegal to anticipatorily obstruct justice is unconstitutionally vague and should not be used to convict someone for obstructing an investigation that had not yet begun.

A panel of the 6th Circuit said that Kernell admitted anticipating such an investigation and as a result, his conviction was justified. Now that the Supreme Court has declined to hear the case Kernell’s conviction will stand.

Read:“Sarah Palin’s Hacker Turned Down by Supreme Court,” by Michele Bowman, published at Lawyers.com.

Court of Criminal Appeals Reverses Child Rape Conviction Due to Ineffective Assistance of Counsel

A Tennessee defendant, Joel Ernest Blanton, was convicted of one count of rape of a child and two counts of aggravated sexual battery and sentenced to 24 years in prison. Blanton appealed the conviction, citing several instances of ineffective assistance of counsel, particularly, that his attorney was ineffective for failing to obtain visitor logs from the Tennessee Department of Correction that could have been used to impeach the primary witness against him. The Court of Criminal Appeals heard the case and in an unusual decision, ultimately agreed with Blanton, reversing and remanding his case for a new trial.

By way of background, a 12-year-old girl said that Blanton was a friend of her family whom she had known for years. After having to spend the night at his house one day she says she awoke to find Blanton fondling her until she told him to stop and said that “it hurt.” The defendant remained in bed with the girl until the morning when he told her to be quiet about the incident. The girl’s sisters also later admitted to their mother that they too had inappropriate contact with Blanton after Blanton had crawled into bed with them on a previous occasion that same weekend.

Blanton, who was 20 year old at the time of the incident, always vehemently denied touching the girls, though he did admit that they were in the same house on the night in question.

The Court of Criminal Appeals held that the case turned solely on the issue of the witnesses’ credibility. One of the victims testified that her mother was snowed in overnight while visiting their father in prison. On cross-examination, the girl said she was “certain” her mother was away. However, in the videotaped interview with DCS, she said that her mother was at home when the incidents occurred. The other two victims testified that their mother was away from home on the night in question. The mother also said that she was away at the time of the incident. The Court said that whether the mother was home during the alleged incidents was a pivotal fact used by the children and their mother in establishing the time frame relied upon by the State.

The Court of Criminal Appeals found that this case turned completely on the credibility of the State’s witnesses versus the defendant’s witnesses. The evidence of prison visitation records would have irrefutably impeached the mother and her daughter’s credibility regarding where the mother purported to be the night of the incident.

Because the conviction in this case rested solely on the credibility of witnesses, defendant’s counsel should have obtained the available impeachment evidence for use at trial. The Court could not clearly say that the attorney’s failure to do so did not affect the outcome. Given that, Blanton suffered prejudice as a result of his attorney’s failure to request the prison visitation logs.

To read the full opinion, click here.
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THP Set to Crack Down on Impaired Driving as Fatalities Increase

According to recent numbers appearing on the state’s TDOT “SmartWay” electronic message boards, the number of traffic fatalities in Tennessee is on the rise. The most recent numbers shown on the board indicate that Tennessee roads have seen 765 deaths so far this year. That compares to the 728 which had been seen at this point last year.

Law enforcement agencies across the state, including the Tennessee Highway Patrol, have said they will begin cracking down on drunk drivers as a way to hopefully reduce the number of deaths in the state. Arrests statistics indicate that crackdown is real given that between January 1 and the end of September, THP made 4,349 DUI arrests statewide. By way of comparison, last year that same timeframe saw only 3,487 DUI arrests.




The THP says that the plan is to continue to increase enforcement of impaired driving to bring down the state’s increasing fatality rate. It should be pointed out that this strategy is hardly a guarantee for success. After all, the number of DUI arrests across the state are up by nearly 25% though fatality rates have also risen.

Some have raised questions about the benefits of the state’s somewhat strict punishments associated with DUI convictions, especially those for first-time offenders. In Tennessee, first-time DUI offenders face a mandatory two-day jail term, over $2,500 in fines and fees, one-year suspension of the driver’s license, and, more troubling to critics, the misdemeanor can never be expunged from their record.

The lifetime provision of the state’s DUI law is especially tough for those who have never faced any trouble before or after. Though the state’s legislators recently passed a law allowing for the expungement of certain felonies, a DUI is not included--and it is a misdemeanor.

The long-term damage that such a lifetime record can cause is serious. Many people in Tennessee find themselves having trouble finding a job with a DUI conviction on their record as employers often conduct background checks before hiring. In some cases colleges can deny admission to those with a DUI and other professional organizations can deny certification thanks to the presence of a DUI, even one that took place many, many years ago.

Though no one recommends that those convicted of impaired driving get off lightly, punishing someone for the rest of their lives serves little purpose other than to mark them for life.

Read: “TN roadway fatality numbers continue to climb,” by Jennifer Meckles, published at WBIR.com.

TN Supreme Court to Review Case Involving Facebook Messages

By Jay Perry

             In a case that is emblematic of the potential problems with digital communication during jury trials, the Tennessee Supreme Court has granted review in State v. William Darelle Smith.  The case, which is an appeal from a conviction of First Degree Murder involves Facebook messages sent between a juror and the medical examiner during the trial. 

After the medical examiner had concluded her testimony, the juror sent a message stating that the juror recognized the witness and “thought you did a great job today on the witness stand”.  The message also stated the juror’s belief that “you really explained things so great!!”  The medical examiner responded that “I was thinking that was you” and recognizing the impropriety added “there is a risk of a mistrial if that gets out”. To the medical examiner’s credit, she notified the trial court of these communications.

Despite the trial court’s knowledge of this contact, it refused defense counsel’s request to question the juror further regarding the Facebook communications.  At the Court of Criminal Appeals, the appellate court rejected the defendant’s appeal finding the communication to be merely a “social communication” and no evidence that the juror was seeking extra or improper information about the case. 

It seems likely that the Supreme Court granted review in order to better outline how to control digital communication and information gathering during trials.  The most recent case law cited in the Court of Criminal Appeals decision is from 2000 and it seems that this issue deserves some new guidance to trial courts throughout the state.  Not only in terms of communication but now additional information is available to any juror with a simple Google search.  While there is only so much a trial court can do to control jurors and their access to information, it is important that such communications do not comprise the defendant’s right to a fair trial.   It seems appropriate that the trial court with knowledge of potentially inappropriate communications or other technology usage would at the least make further inquiries.

 

It will be interesting to see what happens with this case and whether the Court finds that what happened here mandates a new trial.  The Court of Criminal Appeals decision can be read here.

Tennessee Board of Probation and Parole Admits to Monitoring the Dead

Troubling news for many in the state came when Tennessee’s Board of Probation and Parole reported that dozens of dead offenders were alive and being monitored, according to a state comptroller report released earlier this month. The office claimed that at least 82 dead people on probation or parole were still alive. In a stunning understatement, the state’s comptroller attributed the mistake simply to “inadequate supervision.”

State Senator Brian Kelsey boiled the problem down quite well, saying, “With that many dead people supposedly being supervised, it makes you wonder how many live people were also not being supervised.”

One good example of the kind of problems revealed in the report is a criminal who died in October 2011 but who was reported to be bedridden at home by the Board of Probation and Parole. In another instance, an officer continued turning in documentation of visits with a parolee who, the auditors later learned, had been dead for 19 years.

The individual officers responsible for the shoddy work have not been identified and the Board has not said if anyone has been disciplined for the errors. The Comptroller did admit that the report raises concerns about how the office’s nearly $100 million budget is being spent. “If parole officers are supervising dead people, this is a waste of taxpayer dollars and makes us wonder about the supervision of parolees living in our communities.”

Supporters of the Board have pointed out the economic downturn has stretched the office thin. With increasing numbers of criminals added to the rolls, some officers have found themselves supervising about 100 offenders. Many say this number is simply too large to do a good job.

So far, the Board has said only that staff would be trained to better detect deceased offenders by the end of the year. We can only hope it doesn’t take that long to train officers to be able to detect if a parolee is dead.

The full report is available here.

Read: “Parolees monitored, but no longer alive,” by Bobby Allyn, published at Tennesseean.com.

Supreme Court May Hear Case Regarding DNA Database

The Supreme Court will likely hear a Maryland case this term regarding a law that allows law enforcement to take DNA samples of anyone arrested for a crime--before the individual has been convicted of a crime.
Many people may know or expect that individuals convicted of crimes are required to submit to DNA collection in Tennesee. Something most people are unaware of is that there is a Tennessee law that requires law enforcement to take a DNA sample once someone has been arrested for all violent felonies.

The collection law states: (1) When a person is arrested for the commission of a violent felony, the person shall have a biological specimen taken, for the purpose of DNA analysis to determine identification characteristics specific to the person as defined in subsection (a). After a determination by a magistrate or a grand jury that probable cause exists for the arrest, but prior to the person's release from custody, the arresting authority shall take the sample using a buccal swab collection kit for DNA testing. The biological specimen shall be collected by the arresting authority in accordance with the uniform procedures established by the Tennessee bureau of investigation, pursuant to § 38-6-113, and shall be forwarded by the arresting authority to the bureau, which shall maintain the sample as provided in § 38-6-113. The court or magistrate shall make the provision of a specimen a condition of the person's release on bond or recognizance if bond or recognizance is granted.

Tennessee law requires the Tennessee Bureau of Investigation to establish a DNA database. The database was established nationally by the Federal Bureau of Investigation to enable crime laboratories to exchange DNA profiles for unknown subjects and other offenders.

The law was championed as a tool to help law enforcement find and capture those who commit serious offenses in the state, but opponents of the law argue that it allows law enforcement to trample on the 4th Amendment rights of those who have been arrested but not yet convicted of anything. These opponents of the law argue that DNA samples represent an unreasonable search and seizure of private information when the person has been accused and not convicted of a serious offense.

DNA is a powerful tool that law enforcement can use to tie a person to a crime or crime scene when other evidence is lacking. Adding DNA to the state and national database is expected to help close multiple cases that have gone cold, often because the existing physical evidence, without DNA, was not enough to lead investigators to the perpetrator.

Prior to the implementation of the T.C.A. Section 40-35-321, police were required to obtain a warrant for DNA evidence before they were legally allowed to collect it. For those who are later acquitted or have their charges dismissed, the DNA information is supposed to be removed from the statewide database.

Read: “California and the Fourth Amendment,” published at NYTimes.com.
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TN Supreme Court Refuses to Overturn Man’s Felony Murder Conviction

The Tennessee Supreme Court recently denied an appeal by a man from Knoxville attempting to have his felony murder conviction overturned. The man, Travis Kinte Echols, had been sentenced to life in prison and appealed claiming that there had been a number of errors during his trial.

Echols claimed that the trial court failed to suppress a statement the defendant made to the police which he said was the product of an unlawful arrest. Echols appealed his case to the Tennessee Court of Criminal Appeals which found that the arrest lacked probable cause. Despite the unlawful arrest, the Court of Appeals said that the statement qualified as harmless error and thus did not serve as grounds for reversal.

Echols appealed again and the Supreme Court agreed to hear the case. In a unanimous decision, the justices rejected Echols’ argument that his conviction should be reversed because the police did not have probable cause when they arrested him back in 2005.

Echols was arrested and ultimately convicted of murdering Robert Steely in the parking lot of the Townview Towers apartment complex in East Knoxville. During his interrogation, Echols waived his right to remain silent and, in the course of a conversation with officers, admitted to shooting Steely, but said that he only did so in self-defense. Specifically, Echols admitted to shooting Steely and then disposing of the weapon. This claim of self-defense did not ring true to the jury and they found him guilty of felony murder during a robbery of Steely, ultimately sentencing him to life in prison.

The Supreme Court heard the case and disagreed with the Court of Criminal Appeals. The High Court ruled that the police were able to establish probable cause for the warrantless arrest of Echols and, given this probably cause, the statement Echols later made to investigators was admissible at trial. The Supreme Court did find that the trial court incorrectly limited cross-examination of two witnesses, but that these errors were harmless and did not affect the final result of the trial. As such, the judgment of the lower court convicting Echols of felony murder was upheld.

To read the full opinion, click here.

Sexting Teacher’s Aide Given New Sentencing Hearing by the TN Court of Criminal Appeals

A former Knox County Schools teacher’s aide who sent naked photos to a Gibbs High School student has been given a new sentencing hearing as the result of a recent ruling by the Tennessee Court of Criminal Appeals. Scot E. Vandergriff won the hearing to determine whether he should avoid conviction for sending “inappropriate texts and nude photos” to a male student at the school.

The Court said that the problem began in October of 2009 when Gibbs’ Principal Lynn Hill called the police after a parent complained that there were sexual texts on her son’s phone. The student’s teacher then alerted the principal who, in turn, confronted Vandergriff about the inappropriate text messages.

Vandergriff admitted to the principal that he had sent the photos. He then turned over his phone to authorities and gave consent to search the mobile device. The phone contained pictures of his anatomy and a subsequent investigation showed numerous text messages back and forth with the student, including nude photos.

Vandergriff decided to plead guilty as part of a plea deal to a charge of sexual exploitation of a minor and was sentenced to a two-year prison term. After pleading guilty he applied for judicial diversion, a program for first-time offenders that avoids jail and a criminal record if he were to abide the requirements of probation. The trial judge however, refused to allow Vandergriff to enter into the program. This decision was appealed and the Court of Criminal Appeals agreed that Vandergriff was entitled to another, more complete hearing.

The Court said that the judge, Knox County Criminal Court Judge Mary Beth Leibowitz, did not adequately explain her decision to deny Vandergriff diversion. The Court said that the record does not demonstrate that the lower court considered all the factors in ruling against the application. All Leibowitz said was that she was going to “err on the side of caution” and deny the diversion. This statement is not a sufficient explanation for why Vandergriff does not qualify.

To read the full opinion, click here.

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