Court Tells Government It Can't Search A House Just Because A Suspected Drug Dealer Once Parked In Its Driveway

from the an-affidavit-needs-to-be-more-than-a-sketchy-conspiracy-theory dept

The "good faith" exception can be difficult to overcome. Courts seem willing to grant the government this Fourth Amendment workaround even when it seems apparent the government operated in bad faith.

Take, for instance, the FBI's Playpen investigation. On the strength of a single warrant issued in Virginia, the FBI, in essence, searched computers all over the nation (and all over the world) to extract identifying info about the devices' users. Even when courts found the warrant to be invalid because of its blatant disregard for jurisdictional limitations (warrants can only be executed in the district they're issued), they still granted the government "good faith" because the FBI agent had relied on the judge's approval of the warrant to execute the search.

But this was happening while the FBI was petitioning the rest of the government to remove jurisdictional limitations with amendments to Rule 41. So, this warrant was obtained while limits the FBI wanted lifted were in place, but its execution took place before the limits were lifted. Somehow, this was still considered "good faith," even if those overseeing the warrant and investigation knew the FBI planned to violate jurisdictional limitations with the deployment of its PII-scraping malware.

This is only a small part of the federal court system's deference to law enforcement. "Good faith" is supposed to be the exception, not the rule, but hundreds of court rulings on evidence suppression bend over backwards to view law enforcement actions in the best possible light, even as evidence mounts outside the court system American policing is frequently unconstitutional, if not outright corrupt.

When you see a court actually reject the government's "good faith" advances, you can be certain law enforcement has screwed up severely. This case, brought to our attention by the Sixth Circuit Blog, is one of those exceptional strippings of a Fourth Amendment exception.

In this decision [PDF], the Sixth Circuit Appeals Court upholds the lower court's suppression of evidence. The Akron PD engaged in a lengthy drug investigation, but decided to take a few shortcuts to search a residence it vaguely speculated might be related to the drug dealer they were pursuing. The connective tissue of the warrant tore immediately upon judicial inspection. The supposed probable cause for an extensive, broad search of a residence? One time the guy they were surveilling parked his car in the driveway.

The target of the investigation was Camiolo Rocha-Ayon Jr. The rest of this is related to Carl Tucker -- the person challenging the evidence's legal origins -- in ways only clear to the officer requesting the warrant.

Akron Police Department Detective M.V. Gilbride sought a records-and-documents search warrant for the Saxon Avenue house. Citing his training and experience, as well as his observations on February 17, 2017 at 791 Saxon Avenue, Gilbride hypothesized that Rocha-Ayon had traveled to the residence “to collect drug proceeds from TUCKER to pay for [an] upcoming delivery of cocaine.” He further speculated that “a portion of the cocaine seized” from Rocha-Ayon was intended for Tucker, that “at least a portion of the currency recovered” from Rocha-Ayon was obtained from Tucker on February 17, and that Rocha-Ayon had purchased the vacuum sealer and bags on February 17 to conceal the odor of the currency that he was obtaining from Tucker, in the event that he was stopped by a K-9 unit during his return trip to Canal Winchester. Detective Gilbride attempted to bolster his conclusions by noting that the Summit County, Ohio Auditor’s Office listed Tucker as the owner of 791 Saxon Avenue; that Tucker was the account holder for the residence’s electric utilities; that the Akron Police Department had received a service call in October 2016, which suggested that drug dealing was occurring at the house; that, inter alia, Tucker had been convicted in 2000 for possession with intent to distribute crack cocaine ; and that the affidavit had been presented to and approved by “the Akron Police Legal Advisor.”

Having perused Detective Gilbride's speculative affidavit, a local judge granted the Akron PD the permission to seize:

[b]ooks, records, receipts, notes, ledgers[,] and other papers and electronic equipment to store information relating to the possession, transportation, ordering, purchase and distribution of controlled substances, . . . bank statements and records and other items evidencing the obtaining, secreting, transfer and/or concealment and/or expenditure of money; financial proceeds, namely[,] U.S. [c]urrency, photographs, indicia of occupancy; and other fruits, instrumentalities and evidence related to drug trafficking.

So, based on the observation a drug suspect once parked in the driveway of a house owned by someone else, the PD was given free rein to seize everything in the house (if not the house itself, because, you know, "transfer/concealment/expenditure of money").

Then the government obtained a second warrant after finding a utility bill with Tucker's name on it listing an address on Penguin Ave. [Keep in mind, the supposed target of this investigation is still Rocha-Ayon, who once parked in the driveway of the Saxon Ave. residence.] This affidavit copy-pasted the Saxon Ave. speculation and dragged in a completely unrelated service call from the Akron PD to this Penguin Ave. for a domestic dispute involving Tucker. This warrant was approved as well.

The lower court said the Saxon Ave. warrant (the first one obtained) was so bare bones it could not possibly justify a search. And if that warrant was bad, it invalidated the second warrant because that one was largely based on evidence recovered during the first invalid search.

The appeals court agrees. And in doing so, it provides a crystal clear description of a "bare bones" warrant -- the kind that can't be salvaged by "good faith" pleas from the government. It also points out officers utilizing warrants like these terrible ones cannot expect a judge's signature to save them from their own better judgment.

Broadly speaking, an officer’s reliance on a search warrant is not objectively reasonable where “a reasonably well[-]trained officer would have known that the search was illegal despite the magistrate’s authorization.” One such situation is where the affidavit is “bare bones,” i.e., is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”

Everything about the Saxon Ave. warrant was garbage. And everything arising from that one -- the Penguin Ave. warrant -- is just more garbage. Here's the PD's bare bones warrant, stripped of its boilerplate and CopSpeak, bleeding to death in the harsh light of judicial examination.

The Saxon Avenue affidavit is a prototypical example of a bare-bones affidavit. Stripped down to its basics, the affidavit asserts that evidence of drug trafficking would be found at the Saxon Avenue residence because (1) a suspected drug dealer once parked in the driveway for a brief period of time, (2) the house’s owner had a 17-year-old conviction for possession with intent to distribute, and (3) a four-month-old, seemingly unverified, apparently anonymous tip suggested that drug dealing may have occurred there.

The court then drags the government's arguments on behalf of its terrible warrant into the same light and lets them soak in their own shame.

The government attempts to resist this conclusion by pointing to additional, allegedly “critical” facts contained in the Saxon Avenue affidavit. Specifically, the government notes that when Rocha-Ayon visited the residence, he was driving a car that he sometimes—but not always— used in connection with drug trafficking; that prior to his arrival on February 17, Rocha-Ayon stopped to purchase household items that are sometimes—but not always—used by drug traffickers; and that two days later, Rocha-Ayon was arrested 135 miles away while transporting cocaine. Based on these additional facts, the government claims that a reasonable law enforcement officer could “easily infer” that “ROCHA-AYON JR. [had] traveled to 791 Saxon Avenue on February 17, 2017 to collect drug proceeds from TUCKER to pay for the upcoming delivery of cocaine…"

If that's the argument the government wants to make, the court will let it. But all it does is show the officer involved in obtaining this warrant is either incredibly poorly trained or an idiot.

Contrary to the government’s assertion, no reasonably well-trained officer could draw such conclusions based upon the particularized facts in the affidavit…

Building another warrant on the skeletal framing of the first bad warrant can't save the second warrant. The court discusses the issue, but points out it doesn't even need to reach a "good faith" decision on the second warrant. It clearly sprung from the first invalid warrant/search and is similarly nothing but unconstitutional garbage. Evidence obtained from both searches is suppressed, leaving the government with its original investigation target -- the one they arrested 135 miles away from the residences searched and in which the suspect parked his car once at only one of the residences.

It's an exception to the rule that's actually supposed to be an exception. Only the worst law enforcement actions are refused the GFE pass for the halls of justice. This isn't a win for the Fourth Amendment. It just one of the few times the government's disregard for civil liberties actually results in suppressed evidence.


Reader Comments

The First Word

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 13 Aug 2018 @ 3:14pm

    So aside from possibly resulting in an acquittal if the suppression causes the government's charges against Mr. Tucker to fall apart, what actually happens here to penalize the government? Does Mr. Tucker have any chance of leveraging this into appropriate compensation for the illegal search and the subsequent time investment fighting the government, or is his victory limited to not being convicted based on this seizure? If the latter, it's not much of a victory.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 13 Aug 2018 @ 3:23pm

      Penalize the government for doing wrong? So what?

      We are limited with what we know. The real downside might be that if the police had actually followed procedure and gained sufficient information for probable cause, and THEN applied for the warrant, it seems like Mr. Tucker would have been convicted. But again, we have limited information.

      The problem being that police seem to think they can do whatever they want to make an arrest and then expect a conviction. This is not actually the case. There are rules. Those rules apply, albeit inconsistently, and often not with due respect to the constitution.

      As to penalizing the government, well, they screwed up. Why shouldn't they be penalized. If they had followed the rules, they might not have been penalized. Let them follow the rules. All the rules. That is what they are paid for.

      reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 13 Aug 2018 @ 4:58pm

      Re: Penalties...

      And for that matter, what's up with the magistrate who signed off on two crap warrants in the first place? Are the Akron police given pre-signed warrants that they fill in at their convenience?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Aug 2018 @ 8:27pm

      Re:

      There was the dumbass legal theory that the police wouldn't be able to do their jobs if there was a punishment for going too far in pursuit of the law. Which is obviously absurd given that said standard doesn't apply to literally any other field. Under that logic the doctor shouldn't be charged with murder cutting your perfectly heart out to get to the lung tumor because you don't want to discourage him from taking out tumors.

      reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 13 Aug 2018 @ 3:30pm

    based on the observation a drug suspect once parked in the driveway of a house owned by someone else, the PD was given free rein to seize everything in the house

    "Observation: I can't see a thing on the surface of Venus

    Conclusion: Dinosaurs." - Carl Sagan

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2018 @ 3:50pm

    Just another isolated incident.

    reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 13 Aug 2018 @ 4:25pm

    It's about time

    It's about time for judges to do their jobs. In this case, the first judge involved should have not approved the warrant.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Aug 2018 @ 4:55pm

      Re: It's about time

      Agreed. He should also approve the compensation for the destroyed house that resulted from his inept approval to try to prevent a lawsuit where he loses his retirement.

      reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 13 Aug 2018 @ 4:29pm

    More laundering

    This reeks of "parallel construction", better termed as evidence laundering.

    reply to this | link to this | view in chronology ]

    • identicon
      Christenson, 13 Aug 2018 @ 8:48pm

      Re: More laundering

      Nothing to see here, move along! (TM)

      reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 14 Aug 2018 @ 5:55am

      Re: More laundering

      Parallel Construction is a euphemism for a conspiracy between law enforcement and prosecution to lie to the court and perjure themselves, while withholding from the defense the actual evidence discovered and the way that the investigation actually progressed.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Aug 2018 @ 8:54am

        Re: Re: More laundering

        Is it a conspiracy theory when actual evidence of its existence exists?

        reply to this | link to this | view in chronology ]

        • icon
          DannyB (profile), 16 Aug 2018 @ 1:39pm

          Re: Re: Re: More laundering

          Not a conspiracy theory. Just a conspiracy.

          The prosecution and law enforcement conspiring. Or you could use a capitalistic euphemism and call it a joint venture.

          reply to this | link to this | view in chronology ]

  • identicon
    Judge made critical error, 13 Aug 2018 @ 7:37pm

    "no reasonably well-trained officer", does that mean that only 10% of the police force can get a search warrant?

    reply to this | link to this | view in chronology ]

  • icon
    Sayonara Felicia-San (profile), 14 Aug 2018 @ 4:24am

    Parallel Construction Fail?

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 14 Aug 2018 @ 5:52am

    An even better one

    How about this. Search a house for drugs because a car parked in the driveway, and at some earlier time a suspected drug dealer had once been in that car.

    reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 14 Aug 2018 @ 11:03am

    "is either incredibly poorly trained or an idiot"

    Or the third option:
    "an incredibly poorly trained idiot" - We have a winner!!!

    reply to this | link to this | view in chronology ]

  • identicon
    DisgruntledHarumph, 14 Aug 2018 @ 11:27am

    I see lots of drug-dealers and shady characters...

    At the police station.

    Quick, lets get the Feds to raid the police station since we know lots of criminal types hang out there.

    reply to this | link to this | view in chronology ]

  • identicon
    Peter, 14 Aug 2018 @ 2:11pm

    Wrong target

    "...no reasonably well-trained officer could draw such conclusions based upon the particularized facts in the affidavit..."


    Lets be fair. The job of the police is to obtain a search warrant and they will do it using whatever means they think necessary or justified. It is the job of the Judge to determine if the warrant is lawful, reasonable, fair and justified. They are the line in the sand against the police trying to get an unjustified warrant.

    The Appeal Court should have focused AT LEAST as much attention on the Judge's rubber stamping of this bad warrant as they did for the police's evidence and conclusions. That is the real ongoing failure here.

    reply to this | link to this | view in chronology ]

  • identicon
    Research OGS, 14 Aug 2018 @ 4:42pm

    There, fixed it for ya

    um....


    stripped of its boilerplate and CopSpeak?


    The linguistic reference is to "Pig Latin."

    reply to this | link to this | view in chronology ]

  • icon
    DontHateDefenestrate (profile), 16 Aug 2018 @ 7:34am

    Police Reform

    Shenanigans like this won't ever stop under our current laws. Police know they are individually shielded from the consequences of their actions in 95% of cases, so they throw shit at the wall to see what sticks.

    You cannot have rule of law or ethical and responsible government without direct, personal accountability for every person empowered under the law.

    We have qualified immunity to protect civil servants who are doing their jobs. Great. No problem.

    But when you are violating the Constitution, you are not doing your job.

    When you are breaking the law, you are not doing your job.

    When your actions are not in accordance with the established rules and procedures of your office or agency, you are not doing your job.

    When you are a police officer, and your actions are not in good faith (sincere, actual good faith; not flim-flam, wink-wink, legal-gymnastics "good faith"), you are not doing your job.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: Copying Is Not Theft
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.