Archives for: November 2012, 02

11/02/12

Permalink 05:29:37 pm, by fourth, 225 words, 592 views   English (US)
Categories: General

CA1: Illegal search for IMSI number on phone was harmless

The constitutionality of the government’s warrantless obtaining the International Mobile Subscriber Identity (IMSI) number from defendant’s cell phones was a question that did not have to be decided because it was harmless beyond a reasonable doubt. The calls on the phone were obtained on the phone after that. The government already had the phone of the co-defendant and had the calls from that to the defendant. “We cannot imagine that the jury would have rendered a different verdict in the absence of the one, relatively minor, piece of evidence derived exclusively from the retrieval of Green's IMSI number: namely, that the particular phone he was carrying on the day he was arrested was assigned telephone number (954) 245-2759. We therefore find beyond a reasonable doubt that any error here did not contribute to the verdict, see Chapman, 386 U.S. at 24, and we leave the Fourth Amendment question for another day.” United States v. Green, 698 F.3d 48 (1st Cir. 2012).*

Defendant had no standing to challenge the obtaining information from the cell phone at issue. It wasn’t his, and he previously sought to distance himself from the phone. On the motion to suppress, he was pressed about his possession of the phone and he wouldn’t go there. Therefore, he had no standing. United States v. Cannon, 2012 U.S. Dist. LEXIS 156668 (D. S.C. November 1, 2012).*

Permalink 12:20:55 pm, by fourth, 461 words, 509 views   English (US)
Categories: General

OH: It does not violate the Fourth Amendment for the State of Ohio to keep the DNA of a person acquitted and then use it later

It does not violate the Fourth Amendment for the State of Ohio to keep the DNA of a person acquitted and then use it later. State v. Emerson, 2012 Ohio 5047, 134 Ohio St. 3d 191, 2012 Ohio LEXIS 2630 (Ohio November 1, 2012):

{¶ 1} There are two issues presented in this case. First, when a sample of a person’s DNA is lawfully obtained by the state during the course of a criminal investigation but the person is acquitted of that crime, does that person have standing to object under the Fourth Amendment to the U.S. Constitution to the retention by the state of the DNA profile obtained from that sample or its use in a subsequent criminal investigation? Second, is the state authorized to retain and subsequently use a DNA profile when the DNA sample was lawfully taken from a person during a criminal investigation, but the person was acquitted?

{¶ 2} For the reasons that follow, we conclude that a person does not have standing to object to the retention of his or her DNA profile or the profile’s use in a subsequent criminal investigation, and the state is authorized to retain the DNA profile and to use it in a subsequent investigation even though the profile was obtained from a sample taken during the investigation of a crime of which the person was acquitted. We accordingly affirm the judgment of the court of appeals.

. . .

{¶ 30} There is no support in the CODIS Methods Manual for appellant’s position. The manual has no provision for the removal of a DNA profile of an individual acquitted at trial. Section 17.6 sets forth the basis for expunging a DNA profile—a conviction being overturned on appeal or a sample taken in error—and the procedures that need to be followed. However, section 17.6 is not self-executing. There is no mechanism set forth in the manual by which the state is automatically notified that a person’s conviction has been overturned, requiring the profile of the acquitted person to be removed. Instead, the requirement of going forward is on the exonerated individual to notify CODIS that the conviction has been overturned and to seek expungement of the DNA profile. Appellant failed to do this.

{¶ 31} There is no legislative requirement that DNA profiles obtained from lawfully obtained DNA samples be removed from CODIS on the state’s initiative when the subject of the profile is acquitted at trial, and we will not create such a requirement. “Exclusion of extremely valuable evidence in crimes that often leave little other trace is a major social cost” and “the potential for abuse in the future is not sufficiently clear to warrant adopting a rule excluding evidence from the database on the ground that it was obtained or retained beyond the authorized classifications.” Smith, 744 N.E.2d at 442.

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"If it was easy, everybody would be doing it. It isn't, and they don't."
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