Brad: Alright, you’re listening to the FloridaDefense.com podcast hosted by The Bauer Crider Kenny & Parry Law Firm. We’re speaking toCriminal Defense Attorney, Mike Kenny. Good morning, Mike.
Mike: Good morning. How are you?
B: Good. The past few weeks we’ve been talking about search warrants.
We’ve kind of gotten into the technical ends of it. We talked about
also search warrants on computers. Today’s a little bit different.
We’re going to be talking about a specific case that you had to
file a motion to suppress that evidence based on a search warrant, correct?
Michael: That’s right. Some years ago I had an individual that was arrested and charged by information, which is a charging document in the state of Florida, with possession of 20 counts of child pornography. This warrant was executed kind of like we talked about last time, in relation to a search warrant on a computer. The agency involved made a determination that there were known images of child pornography going to a particular IP address. They determined that the IP address owner – the company that had the IP address was a particular company, so they sent a subpoena out to that company to get the name of the person whose account the IP address was listed to. And then they go that person’s name, they got that person’s address, and the law enforcement agency went to a judge and got a warrant to search this individual’s computer; essentially his home and all the computer items in the home. The search warrant was executed and the individual was inside the home. The individual was arrested after certain images of child pornography were found on the computer. When I say certain – numerous amounts at a minimum of 20 which is what the state ended up charging him with initially.
And then the person came to hire me. So what I do, in a case where I know that there is a search warrant, the first thing that I want to do is look at what that search warrant says and then I want to look at what’s called the affidavit to the search warrant. So the search warrant is the actual warrant from the judge. The actual document that the judge gives to the police officer saying “you may search this home” and I review that warrant because I want to make sure that everything in the warrant was followed. As I said before last week, search warrants are written with great particularity. They tell exactly what is allowed to be searched and where and all of that. So you want to check that first to make sure it’s not too vague. You want to make sure it meets Constitutional muster, let’s say, and all the rules were followed. And then, what I think might be even more important than the search warrant is the affidavit for search warrant. The affidavit for search warrant, as the first name implies, the affidavit is the statement under oath from the law enforcement officer outlining the reasons why he believes evidence of a crime is going to be found in this particular home, this particular address.
So what a law enforcement officer has to outline in an affidavit for a search warrant is A that a crime is committed and that he believes that evidence of that crime is gonna be found here and he’s got to tell the judge why. So I reviewed this affidavit and I noticed a couple of things that probably immediately jumped out at me. I would say the first thing that jumped out at me, what I read in the affidavit was that the images when the officers were initially doing their search – not the search but the internet gathering before they actually get the warrant – I noticed that during that period of time, the person, my client lived at a different address. He lived at one particular address in an apartment community and all of the images that the law enforcement officers had which they determined were going to a particular IP address were going to this one house or this one apartment. Some time had passed and then the law enforcement officers went to secure a warrant and they realized that during that period of time my client had then moved to a new address. Law enforcement officers went and secured the warrant. They didn’t do any additional searches or any additional internet gathering. They just asked the judge for the warrant and then they went and executed the warrant. So why does that matter to me? Why does that jump out at me? Well, because the first thing that you have to understand is that the probable cause question is probable cause that evidence of a crime will be found in the place.
A person may have committed a crime, but you’re not really getting the warrant to arrest the person, you’re getting a search warrant. You’re getting a warrant to find evidence. So if a person moves from one location to another location, one very obvious question might be, “where is the belief that the evidence will still be in this new place? Why would we believe that it was transferred from one place to another? There’s a lot of other questions that come after that but that’s the first one that may come to mind. The other thing that I noticed was the way the warrant was written, and I think it was written this way because there was no other way to write it, but the way the warrant was written, it was saying that unknown persons in a particular county were downloading images of child pornography. It specifically said, “the information leads the affiance to believe that a computer or other digital media capable of securing internet access of the above described premises residence cartilage or related vehicles thereon was knowingly used by unknown person (and it even has a forward slash and an s) as the instrumentality of a crime or means by which a felony was committed.
So that word “unknown persons” just jumped out at me. Because what is that essentially saying? Well, that’s saying that at this point there is no evidence or information that the law enforcement officers have to believe even who the person is downloading the images. And that obviously makes sense, because all you get when you get an IP address is a person who has an account. And as I said last week, tons of folks have access to computers where multiple users maybe using that computer. So that was one other thing that jumped out at me. And the last thing that jumped out at me, which may have been the most crucial in everything is what jumped out at me after I started reading the police report. What I learned from the police report is that the judge allowed the officers to search the home and when the officers went to search the home, they realized that that particular person wasn’t there. Now, in my experience in doing this for quite some time is that when law enforcement officers are going to search a house, search a house for drugs, search a house for possession of child pornography, really search for anything, they really would like to do it when the person is present. They don’t have to do it when the person is present, they can break down the door and execute the search. But they want to do it when the person is present because they usually want to catch the person off guard and they usually want to catch the person either in the act of the crime or where the person is in the position where he might admit to being involved in a crime. So that’s one of the situations that happened here. Law enforcement officers determined that he wasn’t present and they had an expectation that he’d be back at another time. And that time was beyond the then days, and I’ll tell you in a minute why that’s so important. Beyond the ten days that the warrant was issued. So ten days expire, law enforcement officers go back to the judge and get another warrant to search the same residence and they used the identical, the identical meaning the exact same affidavit they provided the first time. They didn’t use any new information. They didn’t use any follow up details. Not one word was different. It was literally a photocopy. Then they went back and they executed the search warrant, found my client in the home, found several images on the computer, and my client was arrested. So, we have three huge things going on right here. So when I found out that in the police report that a second affidavit was prepared and a second warrant was obtained, I obviously got both affidavits, both things that were submitted to the judge. And I sat there and I looked and I said, “wow, these affidavits are identical.” And there’s a reason why this matters. In the State of Florida, in most cases there is a concern about staleness. Staleness is, as the term implies, something getting too old. In Florida, ten days is the time limit a person has when a judge authorizes them to execute a search. And after that ten days, the information is legally, by as a matter of law presumed stale. So, the law enforcement officers got a warrant to search this house. Ten days had expired and then they went back and they provided the judge with the exact same warrant they showed before. So, the first thing that goes off in my mind is, “well, if as a matter of law, the facts that were provided to the judge are now stale, meaning no longer sufficient to justify the search of the residence, you can’t provide the same exact facts to search the residence again. You have to at least provide something new. At least throw another word in there. Do something. But these folks didn’t do that. They took the same exact affidavit and just made a photocopy. They got the same facts and the judge issued a warrant again.” And I’ll tell you one of the trickiest parts in a search warrant case is the fact that a judge actually issues a warrant. We have protections. We have protections from unreasonable searches and seizures and a warrant issued by a judge is considered a very high indication that those rules are followed and that person has been subject to a reasonable search. That’s because a judge actually looks at the facts and makes a determination, believes there’s probable cause, and issues it. So it’s very hard, my experience has been it’s very hard when a search warrant has been issued, that you can get – that you can win a case. That you can get a judge to actually suppress evidence and say, “no, I am going to suppress everything that was found.” And suppress meaning, “I’m not going to let the state use any of the images in evidence because I don’t believe there was probable cause.” Because we don’t expect – when I say “we” – judicial system in general; courts, lawyers, judges – nobody expects law enforcement officers to think like judges. And we don’t hold them to that same standard, so if a judge issues a warrant, it’s presumed valid and a search is presumed valid. So that’s why it’s so difficult to get a court to say, “no, I’m going to find that the search was unlawful and I’m going to suppress all the evidence found.” Because presumably you have it signed off on by a judge. But in this particular case, it struck me that the law in the State of Florida is that after ten days the evidence is no longer considered enough to support a search. And the reason why we have that ten day requirement is the whole point of a search warrant is that you are telling a judge that you believe under these facts and circumstances that evidence of a crime is going to be found in a particular place. So as sort of like a bright line rule, a way to catch these searches that go on maybe in perpetuity, that happen months and months later and disrupt the lives of folks when they shouldn’t needlessly, they said ten days. If a judge says you can search the house, you must search that house within ten days from the time the issuance of the warrant. And in this particular case, the ten days expired and then they went back in and provided the same exact affidavit. So, that’s one thing I thought. I thought that this may be an issue here. Going back to the unknown persons, what that tells you right off the bat is that they don’t know who the person is, and I wouldn’t expect them to know who the person is just by finding an IP address like we were talking about. So why does that matter? Well, in this particular set of circumstances, we have the facts were that the person was using a wireless account. A wireless internet account, which everyone talks about it now and probably everyone has access to things like wifi, and in that particular scenario as probably everyone knows who uses wifi, any phone any computer if you’re within the signal range can actually use that particular IP address. When you go to Starbucks and you have your coffee and you use your computer and you use their wifi, all the work that you are doing on that computer looks like it’s going to that particular IP address. And why does that matter in a case such as this? Well, if you’re living in an apartment complex where there are numerous apartments right next to each other, and you have an unsecured line, meaning you don’t have to type in a code to get onto the wifi, it’s potential that your neighbor could be downloading images using your IP address right next to you. I mean, I can’t tell you how many times when I used to have my iPhone set on search for networks or request to be signed up on networks, I’ll be driving by on my street in my car and as I pass houses by, things will pop up. Do you want to join this network? Do you want to join this network? So I know that there’s a range that these wifi systems have that go beyond the physical boundaries of the house. So that’s a legitimate concern. If in this particular situation, it was a neighbor that was downloading these images and my client then moves to another home, how can the officer outline reasonable facts to indicate that they believe evidence to a crime will be found in this new home when he might not even have been the one downloading the images? So that was another major issue that popped up. And the fact that all the evidence that the officers found prior to getting a search warrant was when he was going to an IP address when he was living at this other address. So that was significant. So in this particular set of circumstances, my client is charged with 20 counts of possession of child pornography. These types of crimes are very very serious, as probably I don’t even need to tell you. And they carry with them very strict penalties. So this was a case where my client was looking at a particular amount of time in prison. And after reviewing the case and reviewing the search warrant, I had some serious concerns about whether or not this was in fact a legitimate search warrant. So, I made a decision with my client after going over all the facts, to file what’s called a motion to suppress. A motion to suppress is a document where you challenge the reasonableness of the search. What that entails is that you say that there’s been a violation of my client’s 4th Amendment. And the 4th Amendment has basically this rule saying that there will not be unreasonable searches and seizures as we’ve talked about before. But a rule is no good if it doesn’t have any teeth. That’s a double negative, and I apologize, but that’s the easiest way to say it. If there isn’t any teeth to this rule, no one is going to work really hard or very diligently to make sure that your rights are preserved. So the US Supreme Court years and years ago came up with a basically a penalty if the 4th Amendment was violated, and that’s called the exclusionary rule. The exclusionary rule to the 4th Amendment says that if a person executed a search and violated a person’s 4th Amendment right, any evidence found from that search – that illegal search – will be suppressed. Suppressed meaning the prosecutor will not be allowed to use that evidence in court. So what does that mean in a possession of child pornography case? Well, that means all of the images that law enforcement found on the computer, if the court made the determination that it was illegally obtained, would suppress all of those images and there would be absolutely no evidence that the prosecutor could present that a crime was committed. Which, long story short, means the case would be dismissed. So we filed this motion to suppress and we brought up the issue about not being able to identify the person in the warrant, so there’s really no way you can transfer probable cause was my argument from one house to another house. Just because my client moved there, if you don’t know who the guy is downloading the images, why would you search that new house if you don’t know it’s my client downloading the images? Because if you don’t know it’s him, you don’t know he’s bringing those items to the new house. That’s the law enforcement way to try and get around that is what they indicate is the people who download these types of images carry these images on them. They value them highly and they take them with them wherever they go. They usually have them on them, so that argument might make sense if they could say it was my exact client who was downloading the images. If he moves from one house to the next, they could probably still tell the judge, “judge we believe evidence of a crime will be in that house because we know he was downloading images in this house. And he then moved from this house to this house. Logically, he’s still gonna have it on him, because we know from experience that people like this tend to keep these images on them. They cherish them. They don’t destroy them.” That kind of thing. That presumption works if you can identify the person downloading the images. The problem is you can’t identify the person with just an IP address. So if you can’t identify the person, the presumption is utterly meaningless. One guy moves from one house to the next, why would you want to search his house? If you don’t know he’s the guy downloading it, how do you know it’s there? How can you even say that you have a good faith basis to believe it’s there? You might have a hunch, but search warrants aren’t based on hunches. So that was one very compelling argument, but I would say that the argument that probably ruled the day was the ten day expiration. In that set of circumstances like we talked about, law enforcement had an ability to execute the warrant within ten days. They did not. They probably could have gone back to the judge and maybe said, well cancel this warrant out. This information is probably still relevant but we just want to get it at another time. They could’ve written the affidavit with new information. They could’ve put something in there, but instead they just used a carbon copy of the original affidavit. And if it’s presumed stale legally, my argument to the court was it can’t possibly be revived just because a judge looked at it a second time. 20:35 In the end the judge agreed. And the judge made a finding that the search was illegally performed, that there wasn’t probable cause for the search, and all of the evidence was suppressed. Now there’s a catch all that law enforcement officers have and it’s called the good faith exception. I was kind of eluding to it a little bit earlier. And that’s really why search warrants are so hard to beat in a lot of instances. There’s this good faith exception which basically says, “listen, the whole reason we came up with this exclusionary rule – this rule where we suppress evidence – was not to give guys who are committing crimes this get out of jail free card. That wasn’t the idea behind it. The idea behind it was to punish bad police behavior because it occasionally happens. And we want to make sure that law enforcement officers follow the rules. So this good faith exception is designed to say that if the officer is just simply following what he believed was a good search warrant – issued by a good search warrant – then he is not going to be and he is not been found to have acted unreasonably or illegally, then he is not going to suffer the punishment. When I say he, the government is not going to suffer the punishment of there being a failure in the warrant. And that good faith exception means that if the officer acted reasonably, the search could still be considered valid and all of the evidence would be legitimate and used against my client. And that was my biggest concern, that the court was going to say, “listen this was a warrant signed by a judge. The officer believed he had a warrant signed by a judge and he went and executed it. He didn’t do anything wrong.” And that’s generally the case if there’s a warrant signed by a judge. But in my research I found there are certain ways to avoid that good faith exception. And the good faith exception is when there is absolutely no probable cause. When the probable cause provided is so lacking that a reasonable officer would realize that there’s an issue and he still goes forward with it, he’s not going to be protected by that exception to the failure of actually having probable cause in the warrant. And the argument that I made to the court in this particular instance was that the officers know that you have this ten day rule and after ten days the warrant is dead. They have to know that once the warrant is dead, providing the same exact information for a dead warrant can’t possibly revive it. It’s not reasonable to believe that it would. The court agreed and as I said, the evidence was suppressed. And that wasn’t the end of things, of course, because when a court suppresses evidence, the state is given an option of they have 30 days from the time of judgement to file an appeal and have the appellate court, in this instance the District Court of Appeal, review the facts, review the transcript from the hearing, and review the arguments from the case law from the lawyers, and determine if the court got it right. So in that instance I was involved in an appeal. The state appealed, we were lucky enough to win that appeal as well, so the District Court affirmed the trial court’s ruling and in the end the case was dismissed by the state. Not only was it dismissed, because my client met certain standards – he’d never been convicted of a crime before in the state of Florida, you can have cases expunged, meaning all record of it is destroyed. And because my client wasn’t convicted of anything in this particular instance, I had the case completely expunged. I will tell you that that doesn’t happen every single time, but it’s never gonna happen if somebody doesn’t pick up that search warrant and pick up that affidavit and start doing the research and investigating that they need to to find out where there’s a weakness. I think in this particular case, there’s a lot of folks who were arrested for child pornography during a particular sting and I think there was a rush to just try to get as many folks as they could in. I think there were some mistakes in law enforcement in putting this affidavit and case together and that’s something that ended up working to have this case dismissed.
B: So, just importantly, if for some reason you are – a person is arrested, they need to really contact an experienced attorney like you guys’ firm there to make sure that you’re looking at all of that evidence or not all the evidence but yeah all the evidence that they are submitting to the courts, correct?
M: Well, it’s exactly correct. The idea is, just like people don;t think every single doctor is the same, not every lawyer is the same. There’s people have varying levels of competence, varying levels of experience. Some people are very very good and some people may not be so good. I believe that probably every single person who gets arrested, everyone wants the best lawyer that they can have. That comes to doing some research and finding out what lawyer it is that you think you need and what particular areas of law that you need and whether or not he has the experience, the capability, and the confidence to handle the case for you. Something that helps that out is what the State of Florida has called Board Certification. My firm, we have three partners who are Board Certified in Criminal Trial Law and that means that we are experts in Criminal Law. We’re the only folks who get to say we’re experts, and we’re the only folks who get to advertise as specialists in a particular area of the law, which is criminal law.
B: Alright, Mike, in closing what kind of advice would you give someone if the authorities show up at their house with a search warrant?
M: The advice is cooperate. I don’t mean sit down and have a conversation and tell this person your life story who is searching your house. What I mean is get out of the way because they are authorized by the law even if the warrant is bad, if the officers come in and they have a warrant to search, they’re going to at least get to do that search. Fighting them and stopping them isn’t going to be very helpful. Get out of the way. Pick up the phone. Call a lawyer and find out what needs to be done to defend you if something is going to develop. I will tell you that the worst thing that happens is when the search warrant is executed the officers may want to have a conversation with a person and that’s probably the most vulnerable time a person has. He’s caught off guard, he doesn’t really know what to expect, and he just starts talking and answering questions which he may think is helping him which later turn out to hurt him.
B: Alright. Anything else, Mike?
M: No, thank you very much.