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When an investigation involves potential fraud, almost any document or record could be related to it. Prosecutors often need to show that transactions that appear to be legal were misleading or deceptive, which might not be apparent on the face of the documents. So the description in the warrant of what the government can seize in a white-collar case is usually quite broad, covering general categories of records and computer files created over a substantial period of time, but cannot be so vague that almost anything could be seized.

The government obtained warrants to search Mr. Weys company, New York Global Group, and his New York City apartment for evidence that he used other companies and investors as part of a plan to manipulate the shares of companies used for mergers with China-based businesses. The warrants listed 12 categories of documents that related to transactions with 220 individuals and companies, including the seizure of computers and other electronic devices that might contain records related to them.

The key to any warrant that covers so much material is to properly identify the specific crimes that were committed so that there is some limitation on what types of records can be seized. It was on this point that Judge Nathan found the warrant in Mr. Weys case had failed.

The primary flaw was that while the affidavit submitted by an F.B.I. agent to a magistrate judge gave a reasonable description of the crimes under investigation, that document was not incorporated in the warrant, or even attached to it, to establish the parameters for the search.

Because there were no apparent limits to what could be seized, the agents executing the warrants seemed to take just about everything they could get their hands on. In particular, Judge Nathan was troubled that agents took personal items with no apparent connection to the investigation, like X-rays of family members, childrens sports schedules, divorce papers, passports and family photographs.

In finding that the search violated the Fourth Amendment, the judge pointed out that failure to reference the suspected crimes would alone be enough to render the warrants insufficiently particularized.

The importance of including the crimes under investigation was highlighted in another recent case, involving the appeal of Ross W. Ulbricht, who once operated under the moniker Dread Pirate Roberts. He was sentenced to life in prison for helping set up and operate Silk Road, an anonymous online marketplace used to sell drugs and broker other illegal services. Crucial evidence came from his laptop, which was searched shortly after his arrest in a public library in San Francisco in 2013.

The warrant allowed agents to open every file to view the first few pages of a document, and search terms could be used to scan the laptops entire memory. In upholding the search, the United States Court of Appeals for the Second Circuit in Manhattan pointed out that files and documents can easily be given misleading or coded names, and words that might be expected to occur in pertinent documents can be encrypted; even very simple codes can defeat a preplanned word search.

While the description of what could be searched on Mr. Ulbrichts laptop was broad, it was permissible under the particularity requirement of the Fourth Amendment because the affidavit outlining the crimes under investigation was incorporated into the warrant, providing the necessary limitations on what could be viewed. Although that meant a very intrusive search that could include many personal documents, the appeals court found that such an invasion of a criminal defendants privacy is inevitable, however, in almost any warranted search.

Why did the government fail to meet this seemingly simple requirement of incorporating the description of the crimes under investigation in the warrant to search Mr. Weys office and apartment? There is no good explanation for that mistake, which led Judge Nathan to conclude that the warrants are in function if not in form general warrants, the death knell for any search.

One way the government could have seized virtually everything from Mr. Weys business and home would have been to offer evidence in the warrant application that his operation was completely fraudulent. Courts recognize that if a company is thoroughly permeated by fraud, such as a boiler-room operation or a bogus prescription drug dispensary, then any records connected to it would constitute evidence.

Although prosecutors made this argument to defend the seizure from Mr. Wey, they could not overcome two hurdles. First, this type of warrant is usually limited to a business rather than a home, at least unless there is substantial evidence that the home was really just an extension of the illegal operation. There was nothing in the warrant application involving Mr. Weys apartment that would indicate its primary use for that purpose, even though his wife assisted his advisory business from there.

Second, Judge Nathan found that the government did not set forth any evidence, explicit or implicit, that the scheme either constituted just the tip of iceberg with respect to fraudulent activity at Mr. Weys operation, or that the claimed fraudulent activity infused the entire business.

Perhaps the ultimate fallback in any case involving a flawed search warrant is the claim that the agents acted in good faith. The exclusionary rule is designed to deter governmental misconduct, and the Supreme Court noted in United States v. Peltier that where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.

That exception does not apply when a warrant is so clearly flawed that no reasonable agent would rely on it. Judge Nathan found that the warrants did not have any meaningful linkage to the suspected criminal conduct and limited only, at the outer boundaries, to some relationship to the owner/occupant of the premises being searched. Therefore, a claim of good faith to salvage the fruits of an otherwise unlawful search could not be supported, so the exclusionary rule required suppression of all the evidence seized.

I expect that the Justice Department will challenge the decision because the suppressed evidence is at the heart of the case against Mr. Wey. Although a defendant cannot appeal a denial of a suppression motion until after a conviction, the Criminal Appeals Act authorizes prosecutors to seek review of a decision granting such a motion so long as the United States attorney certifies that the appeal is not for the purpose of delay and the material would be substantial proof of a fact material in the proceeding.

Judge Nathans decision sends a clear message to agents and prosecutors in white-collar-crime investigations to tread carefully when using a search warrant to gather evidence. Although a treasure trove of materials can be obtained this way, failing to pay attention to the details of properly writing and executing a warrant can have devastating consequences for a case.

See the rest here:
Mishandle a Fraud Search, and All That Fine Evidence Could Be for ... - New York Times

Posted Mon, June 26th, 2017 4:23 pm by Amy Howe

It has been a little over seven years since 15-year-old Sergio Hernandez was shot by Jesus Mesa, a U.S. Border Patrol agent, while Hernandez was standing on the Mexican side of the border. Hernandezs family filed a lawsuit against Mesa, arguing that (among other things) the shooting violated Hernandezs right under the Fourth Amendment to be protected against excessive deadly force. Both Mesa and the U.S. government urged the Supreme Court to uphold the lower courts rulings dismissing the familys lawsuit, but their case survived at least for now. Acknowledging that the facts outlined in the familys lawsuit depict a disturbing incident resulting in a heartbreaking loss of life, the justices sent the case back to the lower court for it to take another look.

View of the courtroom on the last day of opinions (Art Lien)

The Hernandez family had asked the justices to weigh in on two questions: whether the Fourth Amendments bar on excessive deadly force applies outside the United States and how courts should make that determination; and whether, even if Hernandez was protected by the Fifth Amendments guarantee that his life would not be taken without proper judicial proceedings, Mesa is immune from suit. But the justices asked the two sides to brief another question: whether the Hernandez family can rely on the Supreme Courts 1971 decision in Bivens v. Six Unknown Named Agents, holding that a plaintiff can bring a private federal case for damages against federal officials who allegedly violated his constitutional rights, at all.

In an unsigned opinion, the Supreme Court emphasized today that the lower court had not given any consideration to the Bivens question. The justices noted that plaintiffs cannot rely on Bivens when there are special factors counselling hesitation in the absence of affirmative action by Congress. And in another decision last week, the court continued, it indicated that the focus of that inquiry should be whether courts are well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Therefore, the court concluded, the case should go back to the lower court for it to consider what effect that ruling might have on the Bivens question in this case. Doing so, the court indicated, might eliminate any need for the court of appeals to decide whether Hernandez was protected by the Fourth Amendment which, the court seemed to suggest, could be preferable to deciding the sensitive and potentially far reaching Fourth Amendment question.

The court disagreed with the lower courts conclusion that Mesa was entitled to qualified immunity from the familys Fifth Amendment claim. That conclusion, the court explained, rested on the fact that Hernandez was not a U.S. citizen and did not have any connection to the United States. But that fact isnt relevant to whether Mesa can be immune from a lawsuit, the court countered, because Mesa only learned after the shooting that Hernandez was not a U.S. citizen. Here too, the court stressed, the lower court had not addressed whether the familys claim could even proceed under Bivens; it will now consider that question, as well as a series of other arguments about qualified immunity, on remand.

Justice Clarence Thomas wrote separately to indicate that, in his view, the Hernandez family could not rely on Bivens at all. This case, he contended, arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny in particular, conduct that occurs across an international border. He would not have sent the case back to the lower court; instead, he would have put a halt to it altogether.

Justice Stephen Breyer dissented, joined by Justice Ruth Bader Ginsburg. In his view, Hernandez was protected by the Fourth Amendment when he was shot. Even if he was on the Mexican side of the border, Breyer reasoned, his location should not, standing alone, be dispositive. This is particularly true, Breyer continued, when you consider several factors. For example, Mesa who shot Hernandez is a federal law-enforcement officer, and the culvert where Hernandez was shot is in fact a special border-related area run by an international commission to which the United States contributes tens of millions of dollars each year. Moreover, a finding that Hernandez was not protected by the Fourth Amendment would create an anomalous result: Mesa could be held liable for shooting Hernandez if Hernandez was on the U.S. side of the imaginary mathematical borderline running through the culverts middle, but not if Hernandez was just a few feet on the other side of that line, even if everything else about the case, including Mesas behavior, remained the same. When all of these things are considered together, Breyer concluded, there is more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections. He would therefore decide the Fourth Amendment question in favor of Hernandez and send the case back to the lower court for it to decide the Bivens and qualified immunity questions.

Posted in Hernndez v. Mesa, Analysis, Featured, Merits Cases

Recommended Citation: Amy Howe, Opinion analysis: Court sends cross-border shooting lawsuit back to lower court, SCOTUSblog (Jun. 26, 2017, 4:23 PM), http://www.scotusblog.com/2017/06/opinion-analysis-court-sends-cross-border-shooting-lawsuit-back-lower-court/

Original post:
Opinion analysis: Court sends cross-border shooting lawsuit back to lower court - SCOTUSblog (blog)

Sacramento Bee

Why California gun owners may be breaking the law on July 1 Sacramento Bee You can't just take something away from somebody that they own without violating the Fourth Amendment. Some gun owners say they're hanging on to their magazines in the hopes pending court challenges will block the ban. They also hope the federal ...

Originally posted here:
Why California gun owners may be breaking the law on July 1 - Sacramento Bee

The Trump administration asked a federal judge on Friday to uphold the constitutionality of the controversial state immigration crackdown passed by the Republican-dominated Texas legislature.

The U.S. government isnt a party in the lawsuit challenging Texas Senate Bill 4, which bans so-called sanctuary policies that limit local police from cooperating with federal immigration authorities. But the Texas law has become a prominent test of whether courts will approve strong-arm tactics endorsed by President Donald Trumpto pressure local jurisdictions into complying with federal deportation efforts.

President Trump has made a commitment to keep America safe and to ensure cooperation with federal immigration laws, Attorney General Jeff Sessions said in a statement Friday. The Department of Justice fully supports Texass effort and is participating in this lawsuit because of the strong federal interest in facilitating the state and local cooperation that is critical in enforcing our nations immigration laws.

SB 4 bars local jurisdictions in Texas from denying requests from Immigration and Customs Enforcement to hold suspected undocumented immigrants on the federal governments behalf. Adopting a policy of refusing such requests, known as detainers, can land public officials in jail for up to a year under the new law. SB 4 also allows local police officers to ask the immigration status of anyone they stop, drawing comparisons to an Arizona law derided by critics as the show me your papers law.

Several jurisdictions including Austin, San Antonio and El Paso filed lawsuits to overturn SB 4 shortly after Gov. Greg Abbott signed it into law last month.

The legal challenges accuse Republican lawmakers of trampling multiple constitutional principles.

Several federal judges have ruled in recent years that holding someone on an ICE detainer in a local jail if they would otherwise be allowed to go free violates the Fourth Amendments guarantees against illegal search and seizure. And because the federal government alone is charged with crafting immigration policy, the state of Texas cant create its own, or dole out criminal penalties for refusing to follow a state policy, critics argue.

The flurry of lawsuits were consolidated into a single case that will have its first hearing on Monday, when U.S. District Judge Orlando Garcia will consider whether to block the law from taking effect on Sept. 1 while the legal challenges move forward.

The Justice Department will try to convince the judge to give the law a chance.

Cooperation with federal officials is plainly permitted under the [Immigration and Nationality Act] and the Constitution, the statement of interest filed by DOJ reads. Parties may disagree with the state legislatures policy determinations in enacting SB 4, but nothing in federal immigration law precludes a state from directing law enforcement officers in the state to cooperate with the federal government, rather than merely permitting them to do so on an ad hoc basis.

The filing hinges on the argument that ICE detainers have changed in the months since Trump took office. The Department of Homeland Security started issuing administrative arrest warrants in April, along with detainer requests, in an apparent effort to make ICE holds less vulnerable to legal challenges.

That argument may not convince Garcia. He ruled earlier this month that the Bexar County Sheriffs Office in Texas violated the Fourth Amendment by refusing to release an undocumented immigrant for more than two months on the basis of an ICE detainer. The ruling appeared to strike a major blow against SB 4, which aims to force local jurisdictions to honor all such requests from ICE.

The Justice Departments filing took note of that ruling, but countered that the case began last year, before Trump took office. The Trump administrations new policy of including administrative warrants with ICE detainers solves the problem and is fully consistent with the Fourth Amendment, the filing says.

But avoiding the constitutional pitfalls presented by ICE detainers requires a warrant in a criminal case, not an administrative warrant for a violation of civil immigration law, according to Nina Perales, an attorney with the Mexican American Legal Defense and Educational Fund.

The Fourth Amendment in this context requires probable cause that the individual has committed a crime in order to deprive that person of liberty, Perales, one of several lawyers representing SB 4s opponents, told HuffPost. DOJ cannot hang its hat on the new detainer form when it comes to the stringent requirements of the Fourth Amendment.

Read the Justice Departments statement of interest below.

View post:
Trump Administration Backs Texas In Immigration Crackdown Challenge - HuffPost

Next time you set out to commit armed robbery, leave your cellphone at home. Timothy Carpenter was convicted of robbing a string of T-Mobile and Radio Shack stores, stealing smartphones. But he wasnt too smart himself. He used his cellphone to call 15 getaway drivers. The calls were his undoing. The FBI used the records from his wireless carrier to confirm his proximity to every robbed store when it was hit.

Now Carpenter and the American Civil Liberties Union are challenging the conviction, and the Supreme Court just agreed to hear the case. Activists determined to guarantee total privacy to criminal suspects, no matter what the cost to society, are thrilled. Theyre predicting Carpenter v. United States could be a landmark victory for privacy. How foolish. A victory for Carpenter would tip the scales of justice in favor of criminals and against law enforcements ability to keep us safe.

The ACLU claims using wireless companies records to pinpoint suspects locations violates the Fourth Amendments privacy protections. Dont fall for it.

The Supreme Court already has already ruled the actual content of cellphones cannot be searched without a court-issued warrant, because the Fourth Amendment bars unreasonable searches by government. But in Carpenter, the ACLU is stretching the notion of privacy, trying to block police from identifying a cellphones location. Not its content, just its location.

Carpenter v. United States is part of the ACLUs campaign to hobble police and shield wrongdoers both terrorists and common criminals from the latest technologies available to law enforcement.

In the Carpenter case, the ACLU insists the FBI overreached by looking at many months of Carpenters phone records, revealing where he prayed, slept and shopped. But how else could agents find out whether he was near the robbed stores? Carpenters spree went on for months.

Lawyers defending the FBI say phone records are vital for promptly apprehending criminals and exonerating innocent suspects as early as possible.

They also argue Carpenter had no reason to expect his phone records would be private. Anyone who signs up for a cellphone knows the phone company a third party will have call records. Theyre not private.

Not so fast, said Justice Sonia Sotomayor in a previous case. Sotomayor suggested that it may be necessary to reconsider the premise that there is no privacy right once someone gives information to a third party like the phone company. If other justices agree with Sotomayor, the Court could ultimately bar the use of cellphone records without a warrant.

Privacy purists across the political spectrum including the libertarian Cato Institute are lining up against law enforcement. They argue that the Fourth Amendment guarantees Americans must be secure in their persons, houses, papers and effects from unreasonable searches. Thats a precious right.

But as the store owners robbed by Carpenter will tell you, theres also a need to be secure from criminals.

Not to mention terrorists.

The Carpenter case involves records of calls made in the past. What about a new technology police departments are using to track cellphone locations in real time? It can track fugitives, find abducted children, even foil terrorist attacks.

Its a suitcase-size device called a Stingray, and it mimics cell towers. When its moved to an area, cellphones send signals to it, mistaking it for a tower. Stingrays fool cellphones into becoming tracking devices. It was developed by the military, and some object to its use to catch common criminals.

The ACLU is urging dozens of cities, including New York, to clamp down on use of Stingrays and is going to court in some cities to stop it. Thats very misguided, says New York City Deputy Police Commissioner Larry Byrne.

Whos helped when wrongdoers have better technology than cops? Thats one of the questions the Justices will weigh in Carpenter and in future cases as new technologies test the meaning of the Fourth Amendment.

Betsy McCaughey is a senior fellow at the London Center for Policy Research and a former lieutenant governor of New York State. Contact her at betsy@betsymccaughey.com.

Read more from the original source:
BETSY MCCAUGHEY: Privacy purists help criminals - Examiner Enterprise