Defendant’s challenge to 18 search warrants for Franks violations fails for not showing what was false provided by the affiant and for lack of materiality to the finding of probable cause. The failures of the source documents, if any, aren’t attributable to the government. United States v. Stone, 2019 U.S. Dist. LEXIS 163252 (D.D.C. Sept. 19, 2019)*:
A. Defendant has not shown that the affidavits contained false statements that were made knowingly and intentionally, or with reckless disregard for the truth.
The fundamental problem with defendant’s motion is that he has not identified any statements in the eighteen affidavits that he claims are deliberately false or were made in reckless disregard of the truth. Defendant’s original motion completely failed to “point out specifically the portion of the warrant affidavit that is claimed to be false,” as required by Franks, 438 U.S. at 171, and it could have been denied on that basis alone. Defendant endeavored to cure the problem in his reply, but as was apparent at the hearing, his efforts still fall short. See Tr. at 26-29 (defense counsel pointed to certain paragraphs in the affidavits summarizing the conclusions of the intelligence community or Crowdstrike, but failed to explain where or how the affiants made false or reckless statements to the courts).
The statements in the affidavits simply set forth conclusions reached in the Assessment and/or the Crowdstrike report that Russia infiltrated the DNC’s computers or provided stolen DNC data to WikiLeaks. …
. . .
Stone contends that these statements are false because. Crowdstrike failed to properly preserve evidence of the DNC intrusion, and the intelligence community merely relied on Crowdstrike’s “assumptions” that Russia was behind the hack and the source for WikiLeak’s release of the DNC data in making the Assessment. Def.’s Mot. at 3. But the declarations he provides do not indicate the affidavits contained deliberate falsehoods; at most, the declarations reflect that two potential experts have expressed an opinion — based on the limited public information available to them — that some of the evidence they reviewed is consistent with a finding that the DNC hack came from the inside. See Binney Decl. ¶ 14; Clay Decl. ¶¶ 5-7.9
But it is not enough to show that an affiant may have erred in his own account of the facts, and it is certainly not enough to show that a report he summarized could be flawed in someone else’s opinion. Neither the defendant nor the declarants assert that any of the affiants knowingly mischaracterized either the Assessment or the Crowdstrike finding. And they certainly do not supply any non-conclusory reasons to believe that any affiant lied or played fast and loose with the truth. The affiants set the stage for the factual allegations related to Stone by explaining what prompted the HPSCI to launch an investigation, and where Stone fit into the inquiry.
B. The statements defendant challenges are not material of the issue of probable cause.
Even if the statements included in the affidavits were false, they were not necessary to the issuing courts’ probable cause determinations. While the warrant applications may have grown out of a larger investigation into Russian interference in the presidential election, they sought information related to the theft and release of data from the DNC computers and other targets in general, as well as alleged actions by the defendant to impede the HPSCI’s investigation into possible foreign interference in the election.
If the opinion is accurate, and we must presume beyond reasonable doubt that it is, why would a criminal defense lawyer waste $50-75,000 of client funds pursuing a doomed motion to suppress?
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)