Cellphone-location Data to Prosecute Accused for the Drive-by Slaying

It’s always interesting to me how the law continues to address and mold itself to “new” technologies.

From Courthouse News: The Ninth Circuit on Monday signaled it will likely allow federal prosecutors to use a San Francisco man’s cellphone-location data to prosecute him for the drive-by slaying of his young sister’s pimp.

The court’s three-judge panel suggested it would rule against the brother, Antonio Gilton, despite Gilton’s insistence that the data allegedly placing him in the area of the 2012 murder just before it occurred was obtained by San Francisco police via an illegal search warrant.

A ruling against Gilton would seemingly place the Ninth Circuit at odds with the Supreme Court’s landmark 2018 ruling in Carpenter v. United States. There, the high court held that police must have a valid warrant to obtain cellphone-location data, which shows which cell towers a person’s phone connected to during a specific period of time.

But the Supreme Court held in 2011 in another case, Davis v. United States, that evidence obtained through searches conducted in good faith – or based on appellate precedent – is admissible in criminal trials, even if the evidence was obtained illegally.

“Let’s suppose for purposes of this argument that I completely agree with you, that the magistrate [judge] should not have signed this warrant,” U.S. Circuit Judge Jay Bybee said in Monday’s hearing, addressing Gilton’s attorney Mark Goldrosen. “What do we do with the fact that the police went to the trouble of drafting a series of warrants, trying to make sure they crossed all of their Ts and dotted all of their Is, didn’t do so as skillfully as we, on reflection years later, would like; what makes this not done in good faith?”

The case stretches back to June 2012, when city prosecutors charged Gilton’s parents, Barry Gilton and Lupe Mercado, with the murder of Compton-area gang member Calvin Sneed. Sneed, 22, had begun a relationship four months earlier with the couple’s 17-year-old daughter upon her arrival in Los Angeles to live with Antonio Gilton. Sneed became her pimp soon after.

In the early morning hours of June 4, 2012, Sneed was gunned down in his car as he arrived at Gilton’s and Mercado’s Bayview neighborhood home to pick up their daughter, identified in court records only as L.G. According to prosecutors, Sneed died of a gunshot wound to his forehead, fired by an unknown passenger in a silver SUV that had pulled up alongside him.

San Francisco police suspected the Gilton family in the murder, and obtained a search warrant from a state magistrate judge for the seizure of cellphone-location data for both Barry and Antonio Gilton. According to federal prosecutors, the data shows Antonio Gilton had been in the area around Meade and Le Conte Avenues where the shooting occurred, leading them to conclude he was either involved in the murder or had valuable information about the perpetrators.

Both Gilton men, Mercado and several others were subsequently charged in federal court in San Francisco in connection with Sneed’s murder.

But in February 2016, U.S. District Judge William Orrick III granted Antonio Gilton’s motion to suppress his cellphone-location data, reasoning the warrant’s affidavit hadn’t established probable cause justifying a search because it “hardly mention[ed]” him. Orrick also concluded the good-faith exception to the exclusionary rule, which bars the use of evidence in a criminal trial obtained illegally, didn’t apply to Gilton’s case.

On Monday, the appellate panel appeared to reject Orrick’s good-faith finding.

Bybee, a George W. Bush appointee, suggested that even if the magistrate issued the warrant without probable cause, the police still acted on the warrant in good faith, thereby permitting the use of Gilton’s cellphone data at trial.

The suggestion prompted Goldrosen to accuse a San Francisco police sergeant of having “suckered” the magistrate into issuing the warrant without probable cause, and that the good-faith exception established by the Supreme Court in 1984 in United States v. Leon is therefore not applicable.

“You really believe [the police sergeant] didn’t have probable cause and then went to a magistrate and asked for it? That’s a pretty strong indictment of a police officer,” replied Senior U.S. Circuit Judge J. Clifford Wallace, a Nixon appointee.

Wallace set up the core question – can a “reasonable” police officer conclude from the affidavit that, for example, L.G.’s family plotted Sneed’s murder and that L.G. and Antonio Gilton were closely involved, and can the officers act “reasonably” under these circumstances?

“We wish we had lawyers to write these out, but it never happens that way,” Wallace said. “It just seems to me you’re asking a little more than these cases do for what a reasonable police officer might do under these circumstances,” he said, referring to cases like Leon.

U.S. Circuit Judge M. Margaret McKeown wanted to know if the Stored Communications Act “effectively let the officers off the hook here.”

Enacted by Congress in 1986, the Stored Communications Act authorizes telephone companies to disclose call records and cellphone-location data to law enforcement either via a warrant or a court order.

A Clinton appointee, McKeown seemed to reject as unsound Goldrosen’s reply that it didn’t in part because police “did not get an order pursuant to the Stored Communications Act.”

On rebuttal, Justice Department attorney Daniel Lerman argued that San Francisco police “went above and beyond” the requirements of the Stored Communications Act by seeking a warrant. He said the officers satisfied Leon’s good-faith exception, noting five appellate courts had held by the time of Sneed’s murder that no warrant was required to obtain cellphone-location data, and that the rulings and the officers’ actions had occurred long before Carpenter.

“I find it hard to believe that there is no colorable argument for probable cause when you have five courts of appeals reaching the very same conclusions here,” Lerman said. “Here we have officers going above and beyond; they got a warrant when they didn’t need to do so, statute didn’t require them to do so, case law didn’t require them to do so. I think it would be perverse under the motivations of the exclusionary rule to punish the officers for going above and beyond what was required for seeking a warrant.”

The panel concluded the hearing after about an hour of arguments and took the case under submission.

According to media reports, L.G.’s parents turned to law enforcement for help when the girl rebuffed their pleas to leave Sneed. They filed police reports in Culver City and Compton in the Los Angeles area, but the reports were reportedly ignored.

The Los Angeles Police Department and the Los Angeles County Sheriffs’ Department did not respond on Monday to requests for comment or to confirm the existence of the reports.

California is one of the top destinations in the United States for human trafficking, according to a 2016 report published by the Los Angeles County District Attorney. Gangs account for much of the “proliferation” of sex trafficking in the county, the report says.

According to the report, Los Angeles prosecuted 75 new sex trafficking cases in 2015 and 68 new cases involving 88 sex trafficking defendants in 2016. The year of Sneed’s murder, in 2012, the county prosecuted just 15 new sex trafficking cases.

“With heightened sensitivity to these crimes and the approval of Proposition 35, which eliminated barriers to prosecuting human traffickers and toughened penalties, the caseload increased,” the report states.

Requests for comment or information regarding how many pimps have been prosecuted in Los Angeles and San Francisco in the last 10 years were not returned Monday.

According to a 2008 report published on the website of the U.S. State Department, pimps use a “grooming” process to gain the trust of their intended female victims, many of whom are runaways or have a history of sexual abuse.

The first step often involves developing a relationship with the victim – whom she comes to regard as her boyfriend – through the use of flattery, affection and gifts, according to the report. Victims are subsequently forced into performing sexual acts for the pimp’s friends and eventually into prostitution under threat of abuse or violence if they refuse.

Los Angeles prosecutors report having filed sex trafficking cases involving victims as young as 12.

Summary Judgment Win in Slip and Fall

Summary judgment win in a parking lot slip and fall lawsuit in Bolivar County Circuit Court.

slip and fall lawsuitPlaintiff filed suit against a Cleveland, Mississippi business following a slip and fall in its parking lot.  Specifically, Plaintiff alleged that he fell over a finger-sized crack with an inch to a 1 ½ inches of separation.  Evidence reveled that Plaintiff crossed the business’ parking lot at least 26 times before the fall. Moreover, Mississippi Courts have repeatedly held that pavement cracks and changes in elevation are not dangerous conditions that can support a slip and fall lawsuit.  Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011).  Indeed, “Mississippi has long recognized that normally encountered dangers such as curves, sidewalks, and steps are not hazardous conditions.  Often [such pathways] contain cracks and changes in elevation; and as such, they do not become hazardous conditions simply because they contain minor imperfections or defects.”  Knight v. Picayune Tire Services, Inc., 78 So. 3d 356 (Miss. App. 2011). See, e.g., City of Greenville v. Laury,172 Miss 118, 159 So. 121, 122 (1935).

In fact, there are at least 17 Mississippi appeal’s court opinions rejecting slip and fall actions over cracks in parking lots and sidewalks:

  • Three-inch depression in a sidewalk is not unreasonably dangerous.  City of Meridian v. Crook, 69 So. 182 (Miss. 1915)(To hold otherwise “would be equivalent to holding that sidewalks in the residence portion of our cities must not deviate three inches from a perfectly smooth surface … The practical result rendering municipalities insurers of the safety of pedestrians.”  Id. at 184).
  • Crack in side walk large enough to catch the heel of a pedestrian’s shoe was not unreasonably dangerous.  Rowe v. City of Winona, 159 So.2d 282 (Miss. 1964), aff’g directed verdict.
  • Seven and One-half inch high side walk crack was not unreasonably dangerous.  Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss. 1967).
  • Differential between sidewalk sections of three to 4 inches are not unreasonably dangerous.  City of Biloxi v. Schamback,157 So.2d 386 (Miss. 1963).
  • An uneven concrete gap in parking a lot was not unreasonably dangerous.  Penton v. Boss Hogg Catfish Cabin, LLC,42 So.3d 1208 (Miss. Ct. App. 2010), Aff’g summary judgment.
  • One-inch elevation of a sidewalk did not create a dangerous condition.  Bond v. City of Long Beach, 908 So.2d 879 (Miss. Ct. App. 2005).
  • A crevice in the street stretching a half-inch to 3 inches by 18 inches to 2 feet was not enough to make a street unsafe.  City of Greenville v. Laury, 159 So. 121 (Miss. 1936)(Cited with approval in Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011)).
  • Elevation change in homeowners’ driveway did not create an unreasonably dangerous condition to hold homeowners’ liable for a fall in their driveway.  Ringo v. Wilson, 2016 WL 612093.
  • Imperfections to a parking lot are generally not considered unreasonably dangerous conditions.  First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 265 (Miss. 1968).
  • Cracks on the edge of a concrete riser are not unreasonably dangerous condition.  First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 465 (Miss. 1968).
  • A “seam” creating an uneven surface in an asphalt parking lot is not a dangerous condition.Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011)).
  • Hole between sidewalk sections covered by grass not unreasonably dangerous.  City of Meridian v. Raley, 118 So.2d 342 (Miss. 1960).
  • Threshold 3/4 of an inch, not unreasonably dangerous such that a slip and fall claim can be maintained.  McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990).
  • 3 ½ inch wide and 2 inches deep crackthat caught Wal-Mart customer’s heel not a dangerous condition. Parker v. Walmart Stores, Inc., 267 F. App’x 724 (5thCir. 2008) (granting summary judgment as crack was not a dangerous condition under Mississippi law).
  • 2 inches wide, 4.75 inches long, and 0.75 inches deep in restaurant’s sideway, not a dangerous condition.  Mack v. Waffle House Inc.,No. 1:06CV559, 2007 WL 1153116 (S.D. Miss. Apr. 18, 2007), (granting summary judgment, as the crack was not a dangerous condition so support slip and fall claim under Mississippi law).
  • 10 inches around and 1 ½ inches deep pothole in Burger King parking lot not a dangerous condition.  Quick v. Strategic Restaurants Acquisition Co., No. 3:12-cv-301, 2013 WL 1305583 (S.D. Miss. Mar. 28, 2013)(granting summary judgment.).
  • 1.5 to 1.75 inch indentation in parking lot at Wal-Mart that caught customer’s foot was not a dangerous condition as a matter of law. Chance v. Wal-Mart East L.P., No. 3:14-cv-363, 2015 WL 4496442 (S.D. Miss. July 23, 2015).


In addition, the Court found that even if the subject crack could somehow be deemed a dangerous condition, the Plaintiff’s numerous prior trips through the parking lot provided him sufficient notice of the parking lot’s condition.  The dismissal relied, in part, on the Mississippi Supreme Court’s opinion in Vaughn v. Ambrosino, 883 So.2d 1167 (Miss. 2004)which provides that:

“With respect to the [failure to warn claim], however, it would be strange logic that found it reasonable to allow a plaintiff to pursue a [slip and fall] claim against a defendant for failure to warn of an open an obvious danger. One would struggle, indeed, to justify the need to warn a plaintiff of that which was open an obvious. Stated differently, a warning of an open and obvious danger would provide no new information to the plaintiff. Stated still another way, a thing warned of is either already known to the plaintiff, or it’s not. If it’s already known to the plaintiff, then the warning serves no purpose. If it is not already known to the plaintiff, then the thing warned of was not open and obvious in the first instance. Thus, an invitee may not recover for failure to warn of an open and obvious danger.”

Holcomb Dunbar attorneys Jonathan Masters and Josh Moore presented the successful arguments.


Holcomb Dunbar Opens New Jackson Office


Jonathan Masters Jackson MS office

Holcomb Dunbar Attorneys is pleased to announce the opening of its new Jackson, Mississippi office expanding its services to the firm’s regional and national clients throughout central and south Mississippi. 

“We have served the Jackson, Mississippi area for many years.  By opening this new office, however, we hope to better serve our central and south Mississippi clients from the State’s capital.”

Holcomb Dunbar is a full-service, regional law firm offering services in Mississippi, Tennessee and Alabama.  The firm focuses on representing individuals and companies in the courtroom.  In addition to its robust civil litigation practice, the firm provides a full range of services in commercial transactions and litigation, real estate, family and domestic matters, workers compensation, product’s liability, professional liability, white collar criminal defense and mass-tort defense.

In addition, Holcomb Dunbar is a member of TAGlaw, a worldwide alliance of law firms.  With 140 member firms based


in nearly 100 countries, TAGlaw is the premier global network of independent law firms whose success is driven by broad, deep, local relationships all over the world.  The TAGlaw alliance enables Holcomb Dunbar to use its local expertise to deliver highly effective legal solutions while drawing upon the collective wisdom and experience of other member firms within the United States and around the world as needed.

Origins of Legal Contingency Agreements

Contingency Fee Agreements

No fee unless we recover for you” … “The no fee promise” … “No charge unless we win!”

We see and hear these and similar ads daily. But where did these arrangements come from? And how did they develop into the wide-spread use that we see and hear constantly?  Thanks to the Professor Peter Karsen’s 1998 article, Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency Free Contracts, a History to 1940, we have a bit of an answer.

The typical legal contingency fee agreement is a contract in which the fees are payable only if there is a favorable result.  Legal contingency fee agreements are typically calculated as a percentage of the client’s recovery through a settlement or trial verdict.  And if there is no settlement or verdict, the attorney and client recovery nothing.

Contingency fee-like agreements trace their roots to thirteenth century England where the practice of third parties “financing” litigation, called champerty, was deemed illegal.  The prohibition originally sought to stop wealthy individuals from financing litigation against competitors in an effort to take their land and property to increase their own wealth through a proxy. These prohibitions, however, had the ultimate effect of limiting the lower classes access to the courts.  Indeed, without the means to pay an attorney the poor where without a means to effectively enforce their rights.

Even today, English courts manage lawyer funded litigation differently than the U.S.  English solicitors typically enter what known as a “conditional fee agreement.”  If the case is won, the solicitor may recover a nominal hourly fee, plus a “success fee” that is be no greater than 100 percent of the nominal fee.

From the beginning, attitudes in America were quite different.  Indeed, America’s founders had the radical notion that the criminally accused had a right to counsel which was preserved in the Constitution’s Sixth Amendment. England didn’t adopt a similar right to counsel for another 50 years.

The belief in a right to an attorney and access to courts filtered into the civil justice system as well.  This notion pushed American courts to reject England’s “loser pays” system removing the Sword of Damocles over a losing party of potentially having to pay the winner’s attorney’s fees. And gradually, the same sentiment advanced the use and acceptance of contingency agreements.

In 1813, Pennsylvania Justice Hugh Henry Brackenridge wrote “parties not monied” sometimes “stipulate for something out of what was recoverable,” with attorneys “taking what are called contingency fees.”  Though the practice was still not accepted by all courts and attorneys of the day, notable attorneys such as Henry Clay and Daniel Webster worked under contingency agreements.

Reported cases from across the country in the early 1800s illustrate America’s growing acceptance of contingency agreements though still tinged with some skepticism.  For example, in 1823 arguing before the Kentucky Supreme Court an attorney in Rust v. LaRue, noted “[a client] may not have anything else to give, and without the aid of the matter in this contest, he can never sue for his right, not having otherwise the means to employ counsel…” By the mid-1800s these agreements continued to gain approval.  InLytle v. State, Arkansas Justice Scott in 1857 expressed the general sentiment spreading across the county that “rights are nothing without the means of enforcing them.”  And, around the same time, state legislatures were redefining the broad scope of champerty to provide for contingency fee agreements.

And by 1875, U.S. Supreme Court Justice Morrison Waite in Write v. Tebbitsnoted the wide-spread use and acceptance stating that contingency fee agreements ‘legitimate and honorable.’

Today, such contracts are common and permeate the legal community.  While still not practical or available to all matters, for better or worse, they remain entrenched in our legal system.


Can you sue yourself?

In Utah, you apparently can.  As the 2015 opinion summarizes: “Barbara Bagley, acting in different capacities, appears as both the appellants and the appellee in this case. Bagley represents the estate of Bradley M. Vom Baur. She also appears on her own behalf as Vom Baur’s heir. We refer to these two roles collectively as Plaintiffs. Bagley is also the defendant and alleged tortfeasor (Defendant).”

Did you get that?  Here’s another quote to clear things up a bit, “Bagley  finds herself on both sides of this dispute because not only is she her husband’s heir and the personal representative of his estate, she is also the defendant driver whose negligence allegedly caused the accident.”

Let me help — Ms. Bagley was apparently the negligent driver that caused her husband’s death.  She then filed a wrongful death action against herself as her husband’s heir.

The lower determined that the language of the wrongful death and survival action statutes prevents a tortfeasor from seeking recovery from herself and that the plaintiffs therefore could not bring suit against the defendant.   On appeal however, Utah Court of Appeals found “that the plain language of the statutes does not bar such suits” and sent it back for trial.

I wonder which table Ms Bagley sat at the trial!

Read the full opinion.

Can iPhone users sue Apple for charges to app developers? Supreme Court to decide

U.S. SUPREME COURTCan iPhone users sue Apple for charges to app developers? Supreme Court to decideBY DEBRA CASSENS WEISSPOSTED JUNE 18, 2018, 3:06 PM CDT    inShare    Dedi Grigoroiu/Shutterstock.com.The U.S. Supreme Court agreed Monday to decide whether people who buy iPhone apps can sue Apple over 30 percent commissions charged to app developers on sales.Four iPhone users are seeking triple damages in a would-be class action that alleges Apple violated antitrust law by monopolizing the app market, report SCOTUSblog, Bloomberg News, the Wall Street Journal and CNet. A federal court had ruled that consumers can’t sue because they weren’t directly overcharged, but the San Francisco-based 9th U.S. Circuit Court of Appeals reversed in January 2017.The 9th Circuit had reasoned that consumers could sue because they bought the apps through the Apple App Store. Apple’s cert petition argues the 9th Circuit erred under a 1977 Supreme Court decision, Illinois Brick Co. v. Illinois, which held that only direct purchasers can sue under antitrust law.The federal government had argued, in response to a request for its views, that the 9th Circuit had erred.The St. Louis-based 8th U.S. Circuit Court of Appeals had followed Illinois Brick in a 1998 decision. The court had held consumers could not sue Ticketmaster for an alleged monopoly over ticket distribution because the direct victims would be concert venues. The circuit split is cited in Apple’s cert petition.The case is Apple v. Pepper.

Source: Can iPhone users sue Apple for charges to app developers? Supreme Court to decide