Tagged: police investigation

I Am Sure That’s Him … I Think – Eye Witness Identification: Improper Showups

POST WRITTEN BY: Maria Dollas (’16), J.D. Pace Law School

Often, there are no witnesses to a crime other than the victim. Given the stress and state of the victim the question arises whether such conditions affect this lone witness’s ability to accurately recall the assailant. Things become more muddied when the police apprehend an assailant (not necessarily THE assailant who committed the crime in question) and the police proceed to do more than to merely present the alleged assailant to the victim.

In a 3-1 majority the Appellate Division Second Department recently held that the use of showup identification by police was unduly suggestive and that the victim’s identification testimony should have been suppressed. People v. James, ___ N.Y.S.3d ___ 2015 N.Y. Slip Op. 03864 (App. Div. 2d Dep’t May 6, 2015).

The discrepancy in the attributes of the person the victim described and the person actually caught were significant:  they varied in age, height, and attire. The victim described her assailant as about 20 years old, 6 feet tall, wearing a brown and white striped shirt. The person apprehended by police was 13 years older and 4 inches shorter. A striped shirt of a different color combination, in this case a red-and-blue striped shirt was found near a parked vehicle and not on his person. Nonetheless, the police presented the person apprehended in handcuffs to the victim. That alone might have signaled guilt. It was particularly suspicious since the person arrested was walking shirtless in the area.

Still, the victim was not able to identify her assailant. It was only when the police purposely placed the miscolored striped shirt across the defendant’s chest that that the victim conceded that he was her assailant. The victim did not request the shirt to be placed upon the apprehended individual. Initially, she could not and did not identify him. It was only after the police officer took active steps that the victim said he was the one.

There is no doubt that the crime was committed. There is however doubt as to the reasonableness of the police tactics in presenting the apprehended individual to the victim. Showups and other identification procedures are not to be so unduly suggestive as to violate due process. The primary evil to be avoided is a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968).

The law is not concerned with the number of witnesses but rather with the quality of the identification given. Even a slight deviation from permitting the victim to objectively determine whether the person presented to her as the assailant taints the process. The circumstances in this case are not free from coaxing the victim even so slightly as to whether the right shirt and therefore the right person is in custody.

Additionally, the identification here may have been a cross-racial one:  the assailant was described as a light skinned black male, the victim was only described as a 22 year old female and her skin color was not noted. Ordinary human experience indicates that some people have greater difficulty in identifying members of a different race than they do in identifying members of their own race. See Gary L. Wells & Elizabth A. Olson, The Other-Race Effect in Eyewitness Identification: What Do We Do About It?, 7 Psychol., Pub. Pol’y & L. 230 (2001).  Here, an already challenging identification may have been even more problematic by irresponsible police tactics.

The people’s burden is not only to prove beyond a reasonable doubt that a crime was committed but justice requires that the defendant is indeed the person who committed the crime. One person wrongly identified is one person too many whose liberty and life may be irrevocably altered because of the procedural missteps of others. Misidentification and its consequences can also happen to you and me.

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TrackMyCrime Keeps Crime Victims in UK Informed

The Telegraph, in London, reports that the UK Ministry  of Justice has launched TrackMyCrime, an online platform intended to allow victims easier access to information about police investigations of their cases. By logging on, victims can track the progress of a police investigation and send secure messages directly to officers working on their cases. In the future, the hope is that victims will be able to follow their cases through the courts as well, and ultimately, if there is a conviction, through an offender’s imprisonment and release.

Victims, the one group of people often overlooked yet the most affected by crime are getting a voice in the UK for now – and in a relatively efficient manner. Maybe other systems should take heed.  At the international level, the International Criminal Court and the various criminal tribunals and hybrid courts allow and support victims’ participation, but even there, the participation is limited to court proceedings.  In the United States, victims’ interests are said to be represented by the prosecutor’s office; however, they often are not a priority, particularly for a busy, urban prosecutors office. It appears that the United Kingdom has found a reasonable middle ground – allowing victims to be part of the investigation, to be informed about the progress of their cases, to have the ability to provide information, and, perhaps most importantly, to feel involved in the process.

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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.

5 Ways Technology Boosts Crime-Fighting

POST WRITTEN BY: Daphne Holmes*

Technology helps law enforcement agencies and justice personnel stay one step ahead of criminals, furnishing new ways to detect and prevent crimes, as well as helping prosecutors convict offenders. And since emerging technology is available on both sides of justice, the cat-and-mouse game between perpetrators and police is never-ending, requiring continual adjustments from law enforcement agencies.

The good news for public safety is that crime rates have generally decreased over the past two decades, due in part to advancements in crime detection and deterrent technology. Since effective policing leans heavily on the rapid sharing of sensitive crime-related data; the recent explosion in information technology is a positive development for law enforcement agencies. Identification technology, social media, and mobile capabilities also enhance public safety, enabling justice staff to do their business more efficiently and respond to unfolding investigations in real-time.

While technology poses challenges for law enforcement agencies, which continually strive to keep up with technology-based criminal enterprises; it does more good than harm in the fight against crime. Tech advancements in law enforcement include the following capabilities, which illustrate how quickly things change alongside technology.

Sharing Information
Law enforcement agencies are spread throughout a national criminal justice system that involves, regional, state, and local authorities, each administering their policing efforts independently. Too often in the past, lack of access to timely information prevented various agencies from coordinating their efforts adequately. Advances in the way agencies share information and use criminal identification systems have led to tighter connections between independent law enforcement organizations and universal enforcement standards across jurisdictions. Sharing information about offenders also has a positive preventative impact, helping keep guns out of the hand of dangerous criminals and barring offenders from certain types of employment.

Security and Surveillance Upgrades
Property crimes continue to decrease statistically, so security and video surveillance upgrades have improved public safety dramatically. Camera technology, for example, produces modern models with higher image quality than past versions, and the size of high-quality cameras has also diminished, allowing them to be concealed for covert surveillance. Face-recognition technology is particularly rewarding, enabling law enforcement officials to literally pick faces from crowds.  In fact, the technology is so accurate as to create privacy-rights controversies among those who feel it is too intrusive.

Social Media
Though it is a social trend as much as it is a technological breakthrough, social media use nonetheless furnishes law enforcement advantages for agencies that use the technology effectively. For example, criminals leave trails using social media platforms, so justice agencies turn to Facebook, Twitter and other channels for vital clues and insight into criminal behavior. The technology also enables officers to distribute information directly to concerned citizens, informing them of unfolding crimes and dangerous developments.

Social media links law enforcement directly to the public at large, so it is a great tool for spreading descriptions, videos and other information about criminals. Communicating in real-time closes the crucial gap between the point at which crimes occur and when investigations begin, enabling citizens to respond with timely information.

Crime Mapping Technology
Modern computing power speeds up data analysis and enables law enforcement to track crime trends geographically. What was once accomplished through countless man-hours pouring over data is now a matter of a few mouse clicks. Crime mapping enables agencies to zero-in on problem areas, stepping-up enforcement efforts and assisting in bringing in fugitives. Like highly sophisticated “pin-maps” highlighting crime location, mapping and geographic profiling give enforcement officers clear snapshots of crime trends.

Mobile Technology
Mobile technology furnishes an electronic trail of texts, emails, calls and GPS location information that law enforcement uses to solve cases. Smartphones are so widespread the contact information and other data they contain give officers a starting point for their investigations, which often unfold in arrests directly related to information gleaned from mobile devices and usage. Using advanced digital forensics technology, investigators find links between suspects and their crimes, which might go unnoticed without mobile connections. In addition to investigative benefits, mobile technology speeds communication between officers, agencies and citizens.

Technology will never replace solid investigative work, but modern advances assist law enforcement efforts to stay ahead of criminals. Mobile technology, social media, and rapid access to information contribute to better enforcement and prevention. And crime-mapping and video surveillance breakthroughs also increase public safety, enabling justice agencies to direct resources to where they are needed most.

*Daphne Holmes is a writer from ArrestRecords.com. She can be reached at daphneholmes9@gmail.com.

Opinions expressed in this post are those of the author and do not reflect the position of the Pace Criminal Justice Center or its Board of Advisors.  

Does this Government Conduct “Shock the Conscience of the Ninth Circuit?”

The Ninth Circuit recently upheld a due process challenge to an ATF sting that targeted the poorest minority neighborhoods in Phoenix to court individuals – with a promise of riches – to break into and rob local fictitious, non-existent stash houses.  Many of these individuals had no criminal records; almost all were out of work and poor.

Pace Professor Bennett L. Gershman analyzes the ATF’s penchant for creating fictitious crimes (see e.g., Operation Fast and Furious) in a recent Huffington Post column.  Click here to read the entire post.