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August 2018
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Court Tells Government It Can't Search A House Just Because A Suspected Drug Dealer Once Parked In Its Driveway

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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.

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posted at: 12:24am on 14-Aug-2018
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Chicago Court: Yeah, Billy Goat Tavern Is Probably Going To Lose Trademark Case, But It Can Go Forward Anyway

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Earlier this year, we discussed a trademark lawsuit brought by the famous Billy Goat Tavern in Chicago against a chip company in Missouri called the Billy Goat Chip Co. At issue was the tavern's claim that the chip company's name and logos infringed on its trademarks. Interestingly, Billy Goat Chip Co. countersued with seemingly important information, including that it had been operating for a decade, had trademarks for its business for a decade, and that its branding differences were such that the potential for public confusion didn't exist. The Billy Goat Tavern, on the other hand, only had trademarks for its name for the tavern industry and didn't begin selling packaged food until 2017, at which time the tavern applied for marks in that industry as well.Honestly, the whole thing seems fairly cut and dry. Different markets, different products, and the very real potential that the chip company could get the tavern's trademarks cancelled based on its own first use. Yet, despite the Chicago judge presiding over the case essentially agreeing when ruling on Billy Goat Chip's motion to dismiss, the court is allowing all of this to go trial.

The main argument was that the tavern’s Lanham Act claims should be dismissed because owners should’ve known about the chips in 2010, and expressly knew the chips were on the market in Chicago in 2014, yet didn’t initiate a lawsuit until 2017.“In this case, there are too many unknown and disputed facts that preclude judgment,” Dow wrote, explaining that the Lanham Act itself has no statutory limitations, but courts in the same circuit routinely apply the three-year limits enumerated in the Illinois Consumer Fraud Act. He said the proceedings thus far give the appearance the chip company is correct about the tavern’s constructive notice in 2010 and actual notice in 2014, but he “cannot determine from the pleadings and exhibits whether Plaintiff’s delay in filing suit was inexcusable or whether Defendant would be prejudiced by allowing plaintiff to bring its claims now.”
It's always important to remember for motions to dismiss that the court is generally supposed to interpret the facts of the case in the most favorable light of the plaintiffs. That appears to be the whole story here, with Dow essentially saying that, yeah, the chip company is probably right, but procedurally the judge is just going to let this be decided at trial. I understand why courts tend towards this leniency, but I also understand the judges make a habit of hinting to plaintiffs what the proper course of action is regardless of its ruling.In this case, Dow appears to be sending Billy Goat Tavern a fairly clear message: you probably don't actually want to bring this trial to its conclusion. While that message is made on the legal merits, it sure seems to make all kinds of general business sense for the tavern to pack this up and go home, as well. There is no real competition or confusion in any of this. And, if Billy Goat Tavern wants to keep the trademarks it has, a ruling in this trial could present a threat to lose them entirely.

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posted at: 12:24am on 14-Aug-2018
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