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Problems with Probable Cause: Law Enforcement Allegedly Used Conflicting Third Party Statements as the basis for a Search Warrant

Evidence obtained by a valid search warrant can be used at trial. But what if the search warrant was based on information provided by a third party who later recants the information he provided? Further, what if law enforcement mischaracterized the evidence when presenting it to the magistrate in the application for the warrant? What legal remedy, if any, exists to support defendants who find themselves in this situation? The Fifth Circuit heard United States v. Minor in August, this article summarizes the Court’s surprising holding.

See the full text of the 5th Circuit's decision in United States v. Minor (USCA 5th Cir. 2016)

US v. Minor - Rogue Bank Employee Hatches Identity Theft Scheme

Anthony Minor and his friend Katrina Thomas, a Fannie Mae employee, hatched a plan to steal the identities of numerous Fannie Mae clients with the intention of using the personal information to obtain entry into checking and savings accounts. Thomas created a list of client names and personal information while at work, and then provided Minor with the information. Minor was successful in using the data to steal money from those individuals’ bank accounts by contacting banks, pretending to be the individual, and transferring funds to Minor’s personal account.

During the time of these crimes, Minor was frequenting a hotel. Eventually, law enforcement began investigating Minor; the lead investigator assigned to the case was Albert Moore. In a warrant affidavit, Moore states that Will Crain, the director of security at the hotel, reported to law enforcement that he had seen Minor with expensive merchandise. That statement was used to establish probable cause for obtaining a search warrant. Law enforcement used the search warrant to search Minor’s dwellings, and the search rendered evidence of the crimes. Minor was arrested on numerous bank fraud charges.

Minor Goes to Trial on Federal Fraud Charges

At trial, a jury found Minor guilty of bank fraud, aiding and abetting bank fraud, conspiracy to commit bank fraud, using or trafficking in an unauthorized access device, aggravated identity theft, and aiding and abetting aggravated identity theft. Minor was sentenced to 192 months’ imprisonment, a sentence that incorporated a six-level enhancement, but was set well below the federal Sentencing Guidelines recommendation at the trial judge’s discretion.

Minor appealed to the Fifth Circuit Court of Appeals, arguing that the search warrant contained false information and that he is entitled to a Franks Hearing to establish the facts surrounding the statements used to support the finding of probable cause for the search warrant.

Minor Appeals to the Fifth Circuit Arguing Agents Lacked Probable Cause for Search Warrant

Minor appealed to the Fifth Circuit Court of Appeals, arguing:

1. that the trial court should have held a Franks Hearing to determine whether law enforcement improperly obtained a search warrant for his car,
2. that even if Minor’s case does not meet the requirement for a Franks Hearing, that an exception be carved out specifically for his case, and
3. that his sentence should not have included a six-level enhancement (more prison time).

Minor alleged that Crain, the hotel’s security guard, testified at trial that he did not see Minor carrying merchandise and therefore, law enforcement did not have probable cause to secure a search warrant.

Franks Hearing Requirements—A Supreme Court Precedent

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that

“where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.”... [Further, if the] “allegation of perjury or reckless disregard is established by…a preponderance of the evidence…the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.”

Id. at 155-56.

Federal Sentencing Guidelines for Bank Fraud Crimes

“U.S.S.G. § 2B1.1 (2014), provides that “if the defendant’s offense involved 250 or more victims, then § 2B1.1(b)(2)(C) requires the court to increase the defendant’s offense level by 6 levels. U.S.S.G. §2.B1.1(b)(2)(C).

The Fifth Circuit Weighs In; Holds that the Affiant’s statements were not "deliberately false or made with reckless disregard for the truth."

The Fifth Circuit relied heavily on Supreme Court precedent with regard to the evidentiary appeal and deferred to the reasoning of the trial court with regard to sentencing.

As “Minor concedes that Agent Moore did not intentionally insert false information into the affidavit, or act with reckless disregard for the truth…and because Minor failed to make the requisite substantial preliminary showing, [Minor] is not entitled to a Franks hearing.” Secondly, “[Minor] asks us to hold that in a case where a law enforcement affiant is relying upon information….from other[s]…the challenger should not be required to meet the intentional or reckless requirement to proceed a Franks hearing.” Here, “Minor’s argument is meritless under any standard…[and he] has not cited any authority recognizing his proposed exception to Franks…we decline…to create a new exception to well-established Supreme Court precedent.

Further, the Fifth Circuit said, “we agree with the district court that Minor…actively employed the means of identification of over 250 victims in furtherance of their bank fraud scheme…with the object of unlawfully accessing those customers’ bank accounts without their consent.” Accordingly, the Fifth Circuit affirms the holding and sentence of the trial court.

United States v. Garcia-Lopez (5th Circuit, 2016)

FACTS: On February 5, 2014, the Wharton County Deputy Sheriff’s Department served a felony arrest warrant on Yonari Garcia at his father’s trailer home. Yonari’s father told law enforcement that Yonari was not home, however, consented to a search of the trailer. Upon entry, Garcia-Lopez, Yonari’s brother, made a beeline for a bedroom, closing and locking the door. Law enforcement followed Garcia-Lopez and demanded that the door be unlocked. Garcia-Lopez opened the door and the police entered, continuing the search for Yonari. Garcia-Lopez asked if he could sit on his bed and eat his dinner while police searched the room. The police obliged the odd request. A minute later, law enforcement discovered two sets of bullet-proof vests in plain sight, prompting a background check. Garcia-Lopez was a convicted felon and having the body armor was a violation for being a felon in possession of body armor, U.S.C. § 922(g)(1). The police arrested Garcia-Lopez after being in the home a total of three minutes. After the arrest, police continued searching the Garcia-Lopez’s room. Concerned Yonari might be sheltered in a hollowed-out mattress, the police lifted the bed up, discovering ammunition and three handguns sandwiched between the mattress and box springs. After a total of seven minutes inside the trailer, the police left with Garcia-Lopez under arrest.

See the 5th Circuit's full opinion in United States v Garcia Lopez.

Garcia-Lopez Indicted for Federal Firearms Charges

In March 2014, Garcia-Lopez was indicted on six counts of being a felon in possession of a firearm in violation of USC §§ 922(g)(1) and 924(a)(2). During an evidentiary hearing, the district court denied Garcia-Lopez’s motion to suppress the guns found under the mattress because law enforcement was originally in the trailer for a legitimate purpose and they had a right to search the home pursuant to the valid arrest warrant for Yonari. The court added that upon the valid search of the premises, law enforcement found contraband and arrested Garcia-Lopez. Further the court stated that upon his arrest, law enforcement had the right to make a protective sweep, so long as it did not last an unreasonable amount of time. Additionally, there was testimony that indicated that suspects have been known to hide in hollowed-out mattress to evade arrest. According to the district court, the search for Yonari and seizure of the guns was proper in every way. Garcia-Lopez was sentenced to forty-six years imprisonment and two years of supervised release. Garcia-Lopez appealed to the Fifth Circuit Court of Appeals, arguing that law enforcement’s belief that Yonari might have been hiding in the bed was unreasonable, and thus, unconstitutional.

Was Lifting the Mattress an Unconstitutional Search or a Lawful Protective Sweep?

The Court of Appeals must determine whether the act of “lifting up the mattress” and seizing the guns violated Garcia-Lopez’s constitutional rights. In other words, was lifting the mattress an unconstitutional search under the Fourth Amendment’s protection against unreasonable searches and seizures?

Under the Fourth Amendment, warrantless searches are pre se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971). A protective sweep may be conducted with [a lower threshold of] reasonable suspicion, probable cause is not necessary. Maryland v. Buie, 494 U.S. 325-27 (1990). “There must be articulable facts which, taken together with the rational references from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing danger to those on the arrest scene.” Id. A protective sweep [must be] quick and…limited to the safety of the police. Id. Evidence seen in plain view during a lawful sweep can be seized and admitted into evidence during trial. United States v. Jackson, 596 F. 3d 236, 242 (5th Cir. 2010).

5th Circuit Holds that the Warrantless Search of the Mattress was Reasonable

Here, the Court of Appeals held that the district court’s finding of reasonable suspicion was correct because of the amount of evidence supporting such a claim. First, law enforcement became suspicious because of the standoff over the locked door. Second, Garcia-Lopez’s odd request to sit back down on the bed while the police conducted the search is suspicious in light of the circumstances. Third, the belief that a suspect could be hiding in a hollowed-out mattress is reasonable given police training and data supporting such a claim. Fourth, the search lasted a total of seven minutes—a reasonable amount of time to conduct a protective sweep. In sum, the Court says it was logical under the specific facts of this case to suspect that Yonari might have been hiding in the mattress. The Court affirms the district court’s judgment—the warrantless search under Garcia-Lopez’s mattress was not unconstitutional under the circumstances.

10th Circuit Holds that Possession of Child Erotica Does Not Give Rise to the Likelihood of Possession of Child Pornography

Paul Edwards was charged with possession of child pornography (which is illegal) after officers executed a search warrant based on his possession of child erotica (which is not illegal). The search of Edwards's home resulted in the discovery of thousands of images and videos of child pornography. Edwards filed a motion to suppress the images on the grounds that the affidavit failed to prove his possession of child erotica amounted to probable cause to believe that he also possessed child pornography. The court denied this motion and Edwards entered a conditional guilty plea, reserving his right to appeal the denial, and was sentenced to 63 months in jail followed by 7 years of supervised release.

Full Court Opinion: United States v. Edwards (USCA 10th Circuit, 2015)

The Probable Cause Affidavit that Led to the Search and Arrest

Edwards was identified by agents that were investigating a website for individuals suspected of child exploitation as an internet user that had shared 715 images of the same prepubescent girl, approximately 10 years old. In some of the photos the girl was clothed and in others she was “scantily clad.” The government acknowledged that the agents did not observe Edwards posting or viewing child pornography. Instead, the affidavit described the photos as child erotica and only provided evidence that Edwards possessed legal child erotica. The officer explained in the affidavit that those who collect child pornography are likely to collect child erotica but made no distinction that a possessor of child erotica is highly likely to also possess child porn. This opinion was used by the magistrate in issuing the warrant and again by the trial court in denying Edwards’s motion to suppress.

The Legal Significance: Child Erotica vs. Child Pornography

While it is legal to possess child erotica, it is illegal to possess child pornography. Here, child erotica is defined in the affidavit as “materials or items that are sexually arousing to persons having a sexual interest in minors but that are not, in and of themselves, obscene or that do not necessarily depict minors in sexually explicit poses or positions.” The affidavit further explains that child erotica “includes things such as fantasy writings, letters, diaries, books, sexual aids, souvenirs, toys, costumes, drawings, cartoons and non-sexually explicit visual images.”

Child pornography is any visual depiction, whether authentic or computer generated, of a minor engaging in sexually explicit conduct. 18 U.S.C. §2256(8). To cross the line from legal child erotica to prohibited child pornography, there must be nudity that displays the genital area of the child and that display must also be lascivious. United States v. Horn, 187 F.3d 781. A photo is lascivious if it focuses on the genital area of a child and the apparent purpose of the photo is to arouse sexual desire. United States v. Kemmerling, 285 F3d 644.

Participation in Legal Conduct Does Not Prove Participation in Criminal Conduct

In many situations courts are hesitant to presume that defendants are more likely to engage in certain illegal activities based on their participation in a certain legal activity, as they should be. Similarly, here, the appellate court found that there is no sufficient connection between the posting of child erotica, a legal activity, and the possession of child porn that establishes probable cause to believe that child porn will be found in the home of the person who posted child erotica.

While some courts have found that the possession of child erotica is one factor that can be used to support probable cause of the possession of child porn, no court has found that one factor to be probative in making a probable cause determination. Instead, the courts look to the totality of the circumstances surrounding defendant’s said possession of child erotica to prove that such circumstances amount to the high probability that defendant is also in possession of child pornography.

The appellate court found that the affidavit lacked information based on the officer’s experience about the type of materials possessors of child erotica are highly likely to maintain and lacks any evidence to show that Edwards was a collector of child pornography. Further, the court determined that the information in the affidavit failed to provide a “substantial basis” to find probable cause that child porn would be found in Edward’s home.

Ultimately, this case is the perfect example that mere possession of child erotica cannot be used to prove that a defendant has committed the offense of possession of child pornography.

Guest Blog Post: Former Federal Prosecutor Offers Tips for Defense Attorneys in Federal Criminal Cases

Former Assistant United States Attorney and long-time U.S. Marine prosecutor Glen Hines provides some tips regarding Federal criminal cases from his time as an AUSA in Arkansas.  The views contained in this post are his own and not those of the Department of Justice, the United States Marine Corps or any other government organization.

Below are the top five unsolicited practice points for defense attorneys practicing in the Federal justice system:

Read up on the U.S. Attorneys' Manual.

Although this is non-binding guidance to AUSAs, they rarely deviate from it. Be aware of the Principles of Federal Prosecution, at Section 9-27.000, because you can use these to get your client a better outcome in some cases. This will give you a good idea of DOJ policy on issues like charging decisions, non-criminal alternatives to prosecution, plea agreements and their provisions, and cooperation issues. These policies form the AUSA's mindset to any federal case. If the AUSA on your case deviates from the USAM to the detriment of your client, ask him or her why they are doing it.

Get out ahead of the government's case.

This is easier said than done in practice; unfortunately, by the time most of your clients get around to retaining you, they have likely already been indicted. But in the rare event one hires you beforehand, it's an opportunity for you to shape the case before it even gets started. Don't be afraid to proffer your client. If you think he has something to offer the government that might help them get a bigger fish, most offices have a standard use immunity agreement to cover whatever your client tells them during the proffer. Moreover, as stated above, if you can get in touch with the AUSA on your case, you might be able to obtain a non-criminal alternative to prosecution; for instance in financial cases you could offer the government that your client agree to a civil, financial forfeiture and "pretrial diversion" (Section 9-22.000) in lieu of indictment.

Know the Federal Sentencing Guidelines.

They drive everything. For some reason, a lot of defense attorneys avoid federal cases because they are afraid of having to deal with the guidelines, but it really isn't rocket science. This is very important because almost every case I did as an AUSA, I pulled up the guidelines first to see what the case was going to be worth, the idea being, why should the government spend the resources to indict a case if the punishment was going to be very minimal? Know generally how to calculate the range, know about enhancements and deductions, and especially know that your client gets 3 points off the applicable range for timely pleading and "acceptance of responsibility." See section 3E1.1.  Your client is going to want to know how much time he is going to have to do if he pleads as opposed to going to trial and getting convicted, so you need to be able to calculate that number. A helpful calculator (not affiliated with any governmental entity) is on the internet HERE. Always check your numbers against what the AUSA comes up with.

"The squeaky wheel gets the grease"/Return my phone calls.

This goes along with #2 above. The defense attorney who calls or emails me about his case will get their call or email returned. If I know you are paying attention to your client's case and hearing from you, it's more likely I will view you as a straight-shooter and try to work with you on a potential deal. If I never hear from you and you never return my calls or emails, I will assume you want to go to trial and I'll start preparing to do so.

The AUSA is not going to deal your case out at the last minute.

Do not turn down a plea offer because you think the AUSA is going to knuckle under at the last minute and give you a sweetheart deal as the jury is walking in for voir dire. I know this happens on the state level, but as said before, the AUSA does not have the discretion to fashion some kind of sentence deal; the guidelines drive sentencing. If you wait that long, expect to go to trial. AUSAs typically don't have the huge caseload state deputy district attorneys do, so they try fewer cases and are only more than willing to roll the case out to the jury when the time comes.

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Glen. R. Hines (LinkedIn) is a former Assistant U.S. Attorney and a reserve Marine Corps Lieutenant Colonel and judge advocate. The majority of his 18-year, active-duty and reserve military career has been served as a prosecutor and Military Judge. He is a graduate of George Washington University (LLM-Highest Honors) and the University of Arkansas, Fayetteville (JD). He has written on national security, federal and military criminal law, and gun control issues.  See his past article at Task & Purpose.

When should online comments made by prosecutors rise to the level of misconduct, so that a ‘presumption of prejudice’ would likely be granted on appeal?

A district court convicted Renee Pratt, a prominent Louisiana politician, of conspiracy to violate the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”). 18 U.S.C. § 1962(d). Pratt’s conviction resulted from a thorough investigation of her long-time friend, Mose Jefferson, a well-known Louisiana community organizer and politician, as well as his family. United States v. Pratt, 728 F.3d 463 (5th Cir. 2013), cert. denied, 134 S. Ct. 1328 (2014). The Jefferson family and Pratt were accused of obtaining community-service grants, and using the money for personal gain. Id. Pratt timely appealed, citing new evidence that several prosecutors from the U.S. Attorney’s Office (“USAO”), made negative and persuasive online comments in public forums, including a local newspaper’s website, regarding her case around the time of trial. Pratt claims that the jury rendered a guilty verdict because of the disparaging and prejudicial comments.

Read the 5th Circuit's Full Opinion in United States v. Pratt.

Around the time of Pratt’s filing a motion for a new trial, the United States Department of Justice (“DOJ”) conducted an investigation to determine whether attorneys working for the DOJ/USAO were making inappropriate statements online about pending cases. Office of Prof. Resp., Dep’t of Justice, Investigation of Allegations of Professional Misconduct Against Former Assistant Attorneys Salvador Perricone and Jan Mann. OPR Report at 2, (2013). The results of the investigation showed that attorneys from the Louisiana division of the USAO and DOJ “anonymously authored dozens of…online comments…posted on nola.com, the website of the widely-read New Orleans Times- Picayune.” Id. Using several pseudonyms, a senior-level prosecutor, “posted his views…of Louisiana politics…refer[ring] to Pratt’s case.” Id. While Pratt’s trial was pending, the prosecutor commented, “If Pratt walks, it’s the judge’s victory…a sad day for justice.” Id. Post-conviction, a second prosecutor, “proclaimed Pratt’s guilt, defended Pratt’s sentence, and characterized Pratt as driven by greed” on nola.com. OPR Report at 42 (reproducing comments posted in Nov. 2011).

A few months later, the district court that convicted Pratt held a limited evidentiary hearing to “develop a clearer record of any [outside] influence the anonymous comments may have had on Pratt’s trial.” Unlike a standard hearing, this ‘limited hearing’ consisted of a questionnaire submitted to two jurors who had previously identified nola.com as their source of news during jury selection. Both jurors reported no influence by the comments on nola.com. Accordingly, the district court denied Pratt’s motion for a new trial, concluding, “[there is] a lack of evidence that…the jury…was tainted by…the [online] comments.” Pratt appealed to the Fifth Circuit Court of Appeals for relief.

The Court of Appeals must determine whether the online comments made by the high-level attorneys rise to the level of prosecutorial misconduct, so that in Pratt’s case, a presumption of prejudice may be granted, relieving Pratt from the district court’s guilty verdict in her RICO case. The Court considered a Rule 33 Motion for New trial, where a court may “vacate a judgment and grant a new trial if the interest of justice so requires” and in the interest of “fairness of the trial.” Fed. R. Crim. P. 33(a); United States v. Turner, 674 F.3d 420, 429 (5th Cir. 2012) (quoting United States v. Severns, 559 F.3d 274, 280 (5th Cir. 2009); United States v. Williams, 613 F.2d 573, 575 (5th Cir. 1980).

A presumption of prejudice may be made in certain extreme cases or pre-trial publicity. Skilling v. United States, 561 U.S. 358, 381 (2010). There is no ground, however, to presume prejudice based on prosecutorial misconduct alone. In affirming a grant of a new trial, reasons for granting a new trial are “novel and extraordinary.” United States v. Bowen, 799 F.3d 336, 339 (5th Cir. 2015). For a new trial to be warranted, the court must normally find that the misconduct in question actually prejudiced the defense.” Id. at 356; United States v. Bowler, 252 F.3d 741, 747 (5th Cir. 2001).

Here, the Court concludeed that the prosecutorial misconduct—the online comments—is “too far removed from the proceedings to support a presumption of prejudice,” as the attorney who made the comment, “did not prosecute or deal with the Pratt trial,” and because, “no one from the trial team posted the comments…while the trial was underway.” Second, the Court states that rulings on Rule 33 Motions are “necessarily deferential to the trial court” in that the facts must be construed in the light most favorable to the lower court’s verdict. United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004). Lastly, the Court opined that in “certain extreme cases, pretrial publicity…can manifestly taint a criminal prosecution, [giving] rise to a presumption of prejudice.” Skilling v. United States, 561 U.S. 358, 379 (2010). The Court says that the comments made regarding Pratt’s trial were not extreme, “this is not such an extraordinary case…this…concerns a handful of anonymous, speculative postings…that lacked the kind of blatantly prejudicial information…that might poison public opinion and entitle the defendant to a presumption of prejudice.” United States v. McRae, 795 F.3d 471, 481-82 (5th Cir. 2015). Even though prosecutorial misconduct did in fact occur, the Court affirms the district court’s verdict and denies Pratt’s motion for new trial. According to the 5th Circuit, the online comments were far too attenuated to apply to Pratt’s trial and did not affect the guilty verdict.

All attorneys are bound by specific ethical protocols and procedures, promulgated and enforced by each state’s bar association. In Texas, lawyers must abide by the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure. Texas Prosecutors are held to an even higher standard under the “Special Responsibilities of a Prosecutor” not to make extrajudicial statements that “in the course of representing a client…a reasonable person would [not] expect to be disseminated by means of public communication if the [prosecutor] knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.” Tex. Rules of Disciplinary Procedure §3.09; 3.07(a).