Tagged: constitutional rights

ACLU Takes on Wisconsin Officials Operating Youth Correctional Facilities

On January 23, 2017, ACLU filed a class action suit against Wisconsin officials alleging severe human and children’s rights abuses. The complaint’s introduction states:

The State of Wisconsin operates the Lincoln Hills School for Boys and the Copper Lake School for Girls, which incarcerate approximately 150-200 youth who are as young as 14 years old, in remote northern Wisconsin. The State routinely subjects these youth to unlawful solitary confinement, mechanical restraints and pepper spraying. Prior to state and federal raids on the facility at the end of 2015, staff also regularly physically abused youth in the facility. Currently, Wisconsin’s juvenile corrections officials lock up approximately 15 to 20% percent or more of the facilities’ young residents in solitary confinement cells for 22 or 23 hours per day. Many of these children are forced to spend their only free hour of time per day outside of a solitary confinement cell in handcuffs and chained to a table. Officers also repeatedly and excessively use Bear Mace and other pepper sprays against the youth, causing them excruciating pain and impairing their breathing. These practices constitute serious violations of the children’s constitutional rights, including their rights to substantive due process, as guaranteed by the Fourteenth Amendment to the United States Constitution, and their right to be free from cruel and unusual punishment, as guaranteed by the Eighth Amendment to the United States Constitution.

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International Megan’s Law (H.R. 515): Necessary? Constitutional?

Virtually unnoticed, on February 8, President Obama signed a new bill (H.R. 515), International Megan’s Law, requiring  that 1) the U.S. Immigration and Customs Enforcement Agency notify foreign officials when a convicted child sex offender is traveling to their country; and 2) the State Department put a “unique identifier” on the passports of persons who have been convicted of a sex crime involving a child (even if they were children at the time themselves and no matter when the conviction arose) who have been listed on a public sex offender registry. A lawsuit challenging the constitutionality of this law has been filed by California Reform Sex Offender Laws (CA RSOL). The plaintiffs include CEOs of major international companies who travel extensively – and innocently – for business.

The bill was signed eight days after it left Congress and four days after it was received by the White House. Supporters say that the law will help prevent sex trafficking by making it more difficult for sex offenders to “[plan] their trips around locations where the most vulnerable children can be found,” in the words of Congresswoman Ann Wagner, who co-sponsored the bill. Critics  assert that there has been no connection established between people on sex registries and international sex trafficking; that the branding passports will do nothing to protect the United States from its own sex offenders who, indeed, will be limited in traveling, even for innocuous purposes; that such limitations are unconstitutional; and that the “unique identifier” endangers the safety of such tourists and anyone flying with them. Moreover, a large percentage of people on the registry for child sex offenses were themselves minors when they were convicted, usually of engaging in sexual conduct as with a minor incapable of consent only because of age. Significantly, many Americans use their passports not for travel but simply for identification purposes – and those people will be unfairly subjected to all of the negative consequences of such identification.

A personal observation:  Is there no limit to the US urge to stigmatize and punish the other? Is the urge to punish and stigmatize really justified by the desire to help prevent sex crimes in other countries? Shouldn’t that be done by the legislatures of other countries, who might want to restrict the entry of various people and are fully capable of doing so?  Reciprocal international efforts to limit sex trafficking are legitimate, but this Act is overbroad, unhealthy, and probably unconstitutional.

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An Ineffective Assistance of Counsel Claim Divides the NYCA

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On November 23, 2015, the N.Y. Court of Appeals issued a decision in People v. Harris, 2015 N.Y. Slip Op. 08607 (Nov. 23, 2015) that split the Court 4-2 on application of the law of ineffective assistance of counsel (IAC).

The facts of the case were that in 2002 a man surreptitiously entered a dwelling where a woman was sleeping. The man masturbated nearby the woman and fled when she awoke. The woman subsequently noticed that a pair of her earrings was missing. Based on DNA evidence processed several years later, the prosecution identified defendant as the man involved and indicted him on a misdemeanor count of petit larceny (for theft of the earrings) and a felony count of second-degree burglary (for unlawfully entering a dwelling with intent to commit a crime therein).

There was just one problem with the prosecution’s case: the limitations period for the petit larceny count, even allowing for tolling, had expired more than a year before the indictment.

Nevertheless, the prosecution pursued the petit larceny charge at trial and used its underlying facts to support the burglary charge, the prosecution’s theory being that defendant had an intent to steal when he entered the dwelling. This decision would lead the Court of Appeals to comment on the need for “responsible charging practices.” But on appeal, focus would not be on the prosecutor’s decision but on the question: Why did defense counsel not seek dismissal of the time-barred larceny count?

At trial, defendant was convicted on both charges. On appeal, the defendant argued that his attorney was ineffective by failing to obtain dismissal of the larceny count. The issues were (1) whether counsel had a reasonable strategy in letting this charge go forward and (2) whether this singular error – if indeed it was such – could support an IAC claim.

As to the first issue, the majority stated that a finding of guilt on the larceny count would “as a practical matter have dictated a finding of guilt on the burglary count as well,” and so failure to obtain dismissal of the larceny count was “objectively incapable of enabling any compromise verdict.”

The dissenters noted, however, that even had the larceny count been dismissed, evidence relating to this uncharged crime would still have been admissible to support the intent element of the burglary charge – a possibility the majority did not deny. Accordingly, the dissenters concluded that counsel might have wanted to provide opportunity to convict only on this misdemeanor charge – an opportunity that would have been precluded were the charge dismissed.

As to the second issue, the Court’s precedents state the rule that an IAC claim requires assessment of counsel’s overall representation. So the question was whether a single error in otherwise unquestioned performance could support the IAC claim in Harris. The Court relied on its earlier decision in People v. Turner, 840 N.E.2d 123 (N.Y. 2005), in which it held that a singular error to obtain omission of a time-barred charge was prejudicial in a case where the time-barred count was the only one on which the jury convicted. Writing for the Court, Judge Robert Smith noted that Turner “may be the first [case] this Court has encountered” in which a singular error required a finding of constitutionally deficient performance.

The Harris majority understood Turner to create a “freestanding” exception to the overall assessment rule for cases where counsel’s only error was omission to seek dismissal of a time-barred charge. The dissenters interpreted Turner as instead upholding the overall assessment rule, while allowing that a single questionable decision of whatever sort can sustain an IAC claim only if that decision discloses ineffectiveness in overall performance.

This disagreement also implicated the issue of remedy. The majority interpreted Turner broadly to apply wherever unreasonable omission to obtain dismissal of a time-barred charge results in conviction on that charge. Accordingly, in Harris the majority granted only partial relief, reversing the larceny conviction but not the burglary conviction. The dissenters found this partial relief, grounded in “charge by charge analysis,” unprecedented. Given their understanding that focus must be on counsel’s overall performance, the dissenters stated that the proper remedy, assuming IAC is found, would have to have been comprehensive.

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Professors, Prosecutor, and Police Chief Address Cell Phone Searches after Riley

POST WRITTEN BY: Rebecca Arbolino (’16), Pace law School

On October 7, 2014, Pace Law School CLE and the Pace Law School Criminal Justice Institute co-hosted “Cell Phone Searches after Riley: Investigative and Evidentiary Issues.” The CLE commenced in the Gerber Glass Law Library Moot Court Room. Streaming video of the event was available online from Pace Law School.

Pace Law Professors Bennett Gershman, David Dorfman, and David Bender, along with two distinguished Pace Alumni, discussed the implications of the recent Supreme Court decision in Riley v. California.  Professor Bender is not only a professor at Pace Law but also a sole practitioner with extensive experience in technology and privacy litigation. Thomas Kapp, an Assistant District Attorney for Bronx County, and Chris McNerney, Esq., the Chief of Police for the Town of Greenburgh, added insight and practical depth to the scholarly panel. The moderator, Pace Law School 3L Annmarie Stephanic, began the event with a recorded webinar conversation between Prof. Gershman, a former defense litigator and prosecutor and A.D.A. Thomas Kapp. After the webinar, the panelists discussed Fourth Amendment issues after Riley. Finally, the panelists answered questions from attendees.


The webinar elucidated the main issues presented by Riley. Professor Gershman remarked upon Riley as a “landmark case.”  Riley is the first Supreme Court decision about police intrusion upon technological privacy, and Gershman found that the decision’s unanimity was “startling.”

A.D.A. Kapp explained that the practical implications for policing are minor: most prosecutors find it prudent not to use evidence acquired through warrantless cell phone searches. Rules for New York State and other states for searches incident to valid arrests required warrants to search cell phones before Riley in the absence of exigent circumstances or consent. According to Kapp, since the scope of Riley’s holding is limited to cell phones, warrantless searches of digital devices such as flash drives and digital cameras are still permissible.

Gershman agreed with the limited scope of Riley, but applied the reasoning therein to other devices like laptops: if an item’s immense storage capacity heightens the privacy intrusion of searching that item, then searches of digital devices similar to cell phones involve a heightened individual privacy interest. Under the Fourth Amendment reasonableness balancing test for warrantless searches, the question is whether any legitimate government interest outweighs the intrusion upon individual privacy interest. If the heightened privacy interest in cell phones expressed in Riley applies to similar devices like laptops, then the scales may tip toward requiring warrants to search those similar devices.

Kapp called Riley “a seminal case for the digital world” because the Supreme Court finally recognized the individual “right to digital privacy.”

Panel Discussion

Following the showing of the webinar, the panel discussion began with Prof. Bender explaining the rapid changes in privacy law. Privacy law changes in response to developments in technology such are drones and data mining.

Prof. Dorfman ignited the conversation with a criminal defense perspective: although police can often obtain a search warrant quickly, problems specific to searches of cell phones arise in applying for and issuing warrants. For example, if an officer arrests someone for selling drugs and he discovers a cell phone on the arrestee’s person, then is there a sufficient nexus between the drug selling and cell phone to establish probable cause for searching the cell phone? Prof. Dorfman further remarked upon Riley’s impacts for particularity in warrants to search cell phones: if cell phones contain immense amounts of data and are subject to heightened privacy interests, then do warrants to search cell phones require more particularity than they did before Riley?

Police Chief McNerney explained that officers in New York State almost always apply for a search warrant to search a cell phone. In applying for a search warrant, the officer asks for permission to search all possible areas in which he may obtain evidence of the crime, and the judge limits the officer’s requests. Satisfying the particularity requirement is thus the province of judges.

A.D.A. Kapp predicted that search warrants for both cell phones and other digital devices like computers will soon be subject to heightened particularity requirements. Although the particularity requirement presents specific problem in the context of digital searches, judges may decide to limit the scope of digital searches by issuing particularized warrants thereof.

Prof. Gershman mentioned the doctrine of minimization. Minimization requires particularity in order to avoid the search of information that is either privileged or unrelated to the crime.

Despite the Circuit Split about the particularity requirement for digital search warrants, Prof. Bender suggested the following procedure as a way to satisfy the doctrine of minimization. Officers create a bitstream copy, or mirror image, of the data to be searched. After a neutral third party conducts the search of the bitstream copy, the third party then provides officers with only information that is both non-privileged and relevant to the offense.

Prof. Dorfman further elaborated upon the framers’ concerns about “general searches.”  The doctrine of minimization and the particularity requirement are designed to prevent such searches. The Riley court explained that a search of a person’s cell phone is more intrusive than a search of his house is. The problem with particularity in searches of cell phones arises because of the plain view doctrine. For example, if officers are conducting a valid search for contraband ‘X’, then officers can seize contraband ‘Y’ so long as contraband ‘Y’ is in plain view during the search for contraband ‘X’. Evidence in plain view of crimes irrelevant to the authorized search is especially problematic in searches of cell phones with immense storage capacities.

According to Chief McNerney, the constitutionality of cell phone searches ultimately “boils down to reasonableness.” Prof. Dorfman explained, however, that “reasonableness” is not all-or-nothing: an individual who uses technology does not necessarily relinquish his right to privacy.

Prof. Gershman and the panelists ended the discussion with the framers’ intent: the framers themselves could not have imagined a device like a cell phone. Surprisingly, though, the Supreme Court originalists agreed that cell phones deserve heightened privacy protection. The Supreme Court pushes principles until they become illogical. In United States v. Robinson, 414 U.S. 218 (1973), the assumption that defendant had no expectation of privacy in his cigarette pack rang true. In Riley, however, the assumption that defendants had no expectation of privacy in their cell phones became illogical.

Q &A Session

An astute attendee asked about the significance of Riley’s warrant requirement, given the various exceptions thereto. Namely, if warrantless searches are permissible when no exigent circumstance exists, the owner consents to the search, or the officer conducts an inventory search, then does the warrant requirement change anything?

Although the panel understood exigent circumstances as a valid exception to the warrant requirement for nearly any search, panelists opined about consent and inventory searches. Chief McNerney explained that consent can be problematic.  The NYPD, for example, required specific, written consent forms instead of verbal consent.

A.D.A. Kapp wondered if the exception for inventory searches applies to cell phones: if cell phones are containers, then inventory searches thereof ensure that the owner cannot later claim that data is missing. Riley does not address whether a warrantless inventory search to catalog cell phone data is reasonable under the Fourth Amendment. Prof. Dorfman responded that an inventory search cannot be a ruse for an investigative search: the police have the burden to create a non-investigatory procedure for inventory searches.

Prof. Dorfman also inquired about whether warrantless searches of other digital devices stored in a vehicle fall under the automobile exception to the warrant requirement. Riley requires a warrant for cell phones within a legal automobile stop, even when officers have probable cause to believe that there is contraband inside the automobile. Riley does not, however, address whether searches of similar devices require warrants within the context of the automobile exception.

Another attendee asked about Riley’s rejection of applying the container analogy to cell phones: are there further implications for searches of similar, non-container devices? The panel agreed that Riley’s rejection of the container analogy to cell phones implies changes in the future of digital searches, but expressed that Riley does not illuminate the nature of those changes. Prof. Dorfman explained the impossibility of applying the constitutional text and framers’ intent to searches of intangible things like digital data: such application is like trying to fit “a square peg into a round hole.”  Prof.  Bender said that it may be best for the legislature to answer such questions.

Prof. Gershman concluded the discussion stating that both the judiciary and the legislature are “behind the curve perpetually” in the light of rapidly changing technology.