2nd honker
Apr. 30, 2015
News Picks from NYSDA Staff

News Picks


Supreme Court: Police May Not Prolong Traffic Stop to Conduct Dog Sniff Without Reasonable Suspicion. In Rodriguez v United States (No. 13-9972 [4/21/2015]), a Nebraska K-9 officer pulled over Rodriguez for veering onto a highway shoulder. After checking Rodriguez's license, registration, and insurance and issuing a warning for the traffic offense, the officer requested permission to walk his drug-sniffing dog around the vehicle. Rodriguez refused. The officer then instructed Rodriguez to turn off the ignition and wait outside the vehicle for another officer to arrive. With a second officer at the scene, the K-9 officer led the dog twice around the vehicle and the dog alerted. A subsequent search revealed a large bag of methamphetamine. Approximately seven or eight minutes elapsed between the warning for the traffic offense and the dog's alert. Rodriguez unsuccessfully challenged the search and pleaded guilty while reserving his right to appeal. The Supreme Court held that absent reasonable suspicion the police may not prolong a routine traffic stop for the purpose of a dog sniff of the vehicle.


Beyond determining whether to issue a traffic ticket, an officer's mission includes "ordinary inquiries incident to [the traffic] stop." Typically, such inquiries involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance. ... A dog sniff, by contrast, is a measure aimed at "detect[ing] evidence of ordinary criminal wrongdoing." ... Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer's traffic mission." (citations omitted).


The Court remanded the case to the 8th Circuit for a determination of whether the dog sniff was independently supported by reasonable suspicion.


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OCA Proposes Creating a Search Warrant Database. The Office of Court Administration (OCA) issued a memorandum on Apr. 15, 2015 proposing a new search warrant database. The new database would be a secure statewide database for recording limited search warrant information. The information would be entered into the database by court clerks. "In order to apply for a warrant, the applicant would be required to complete a brief one-page 'Search  Warrant Worksheet' that collects basic information about the filing, i.e., the judge, contact information for the applicant and whether the warrant is public or confidential (Exh. A)." According to the memo, the form would not require "any confidential information as to the subject of the warrant and all supporting documents will remain confidential until the court directs otherwise." For a copy of OCA's memorandum with the proposed Search Warrant Worksheet, click here


Comments to this proposal are welcome and can be sent to rulecomments@nycourts.gov or John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Fl., New York, NY 10004. Comments must be received no later than June 15, 2015. Defenders who submit comments are encouraged to send a copy to the Backup Center.


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Hair Comparison = Bogus Scientific Information. Earlier this month The Washington Post reported that "[t]he Justice Department and FBI have formally acknowledged that nearly every examiner in [the FBI Laboratory's microscopic hair comparison unit] gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000." According to the article, 200 convictions have been reviewed with the assistance of the National Association of Criminal Defense Lawyers and the Innocence Project, two organizations assisting the government with the post-conviction review of questioned forensic evidence. "The FBI is waiting to complete all reviews to assess causes but has acknowledged that hair examiners until 2012 lacked written standards defining scientifically appropriate and erroneous ways to explain results in court. The bureau expects this year to complete similar standards for testimony and lab reports for 19 forensic disciplines."


The Daily News reported that "[d]efendants and federal and state prosecutors in 46 states and the District of Columbia are being notified to determine whether there are grounds for appeals ...." As noted in The Washington Post article, New York, North Carolina, and Texas authorities are reviewing their hair examiner cases and ad hoc efforts are underway in about 15 other states. An update on New York's review was provided by Brian Gestring, Director, Office of Forensic Services, Division of Criminal Justice Services, at the April 15 Commission on Forensic Science meeting (video- discussion starts at 8:24; meeting document - pp. 3-5). A state-by-state chart of flawed forensic hair testimony from the FBI lab is available here.


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State Police Lab Analysts Off State Payroll. Termination notices were issued for two forensic scientists, and ten analysts remained on restricted duty, as the result of an alleged cheating scandal that arose months ago at the State Police Laboratory, the Albany Times Union has reported. The State Police validation study of TrueAllele, which is connected to the scandal, was discussed at the April 15 Forensic Science Commission meeting, but a motion by Commission member Barry Scheck to have the DNA Subcommittee reexamine the validation according to new draft SWGDAM (Scientific Working Group for DNA Analysis Methods) Guidelines for Validation of Probabilistic Genotyping did not pass (video- starting at 86:20).


The Times Union story is the latest development in the TrueAllele saga noted in the Jan. 30, 2015 edition of News Picks, reporting on a Schenectady County case in which the validation study for the computer DNA analysis program was challenged based on two allegations: one, that lab staff had cheated on a qualification test for implementing the analysis and two, questions about the analysis itself. The opinion in People v Wakefield (2015 Slip Op 25037 [Supreme Ct, Schenectady Co 2/9/2015]) found that Cybergenetics TrueAllele Casework met the Frye standard, which is concerned not with "the reliability of an expert's conclusions, but instead with whether the expert's deductions are based on principles that have gained general acceptance as reliable...." Though such challenges are critical, defense lawyers confronting evidence derived by use of TrueAllele will find it harder to successfully challenge introduction of such evidence despite continuing questions, a situation that is all too common with regard to forensic claims.


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E-ZPass Recording - Not Just for Toll Booths Anymore. The New York Civil Liberties Union (NYCLU) has made available records, obtained through Freedom of Information Law requests, showing that transportation agencies have installed E-ZPass readers far from toll plazas. Intended to assist in traffic studies, the monitors are said to work differently from the toll-location readers, electronically scrambling identifying information. But, the NYCLU noted, the readers "can easily become part of an infrastructure for expanded surveillance" and, the NYCLU lamented, privacy policies produced by the New York State Department of Transportation and Thruway Authority "are vague and barebones." So while it appears law enforcement can't track suspects or anyone with the non-toll readers today, defense lawyers and those concerned about privacy in general may want to watch for future developments. A webpage with a link to more detailed information on E-ZPass readers also includes a link to information on StingRay data as reported in the prior edition of News Picks. The page also says that information on Automatic License Plate Readers will be posted soon.


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Second Department Modifies Disposition of Termination of Parental Rights for Incarcerated Father. The Family Court "improvidently exercised its discretion in terminating the father's parental rights" where the father, although incarcerated, made "sufficient progress toward strengthening his relationship with the subject children" and "there is no indication that termination of the father's parental rights would increase the subject children's opportunities for adoptive placement ...." Matter of Javon J., 2015 NY Slip Op 03363 (2nd Dept 4/22/2015).


While the facts at trial supported a finding that the father had permanently neglected his children and that the Orange County Department of Social Services had "made diligent efforts to assist the father in maintaining contact with the children and planning for their future," both pre-incarceration and during his confinement, the trial court improperly exercised its discretion in freeing the children for adoption when the record did not support a possible adoptive placement for either of the children. One child resided at a treatment facility and the other, while placed with a family, did not have the option of adoption with those foster parents.


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Association News


New Issue of NYSDA's Backup Center REPORT. The latest issue of the Public Defense Backup Center REPORT (January-April 2015) is now available on NYSDA's website; the print version will be mailed out shortly. 


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