D.P.R.: Search of room six hours before SW issued (not to mention lies about it) leads to suppression

The search of defendant’s room was six hours before the search warrant was issued. It was an investigative search and not a protective sweep. The officer admitted that he was looking for something to put in the affidavit for the search warrant. His testimony is “rather remarkable.” Deleting this information from the affidavit leaves the remainder without probable cause. The officer is called out for lying to the court, proved by the forensics on pictures taken. United States v. Mercedes-Abreu, 2020 U.S. Dist. LEXIS 38489 (D.P.R. Feb. 28, 2020):

2. Candor with the Court

The Fourth Amendment requires that warrants be issued “upon probable cause, supported by Oath or affirmation,” rendering the “affiant’s good faith as its premise.” Franks v. Delaware, 438 U.S. 154, 164, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) (citation and internal quotation marks omitted). Because a judge “must determine independently whether there is probable cause” for a search warrant, “it would be an unthinkable imposition upon [a judge’s] authority if a warrant affidavit, revealed after the fact to contain a deliberately or reckless false statement, were to stand beyond impeachment.” Id. at 165.

“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.” Mincey, 437 U.S. at 395 (citation and internal quotation marks omitted). Rather, “[i]ts 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.” Id. (citation and internal quotation marks omitted).

Agent Medina’s sworn statement presents to the reviewing judge a different course of events and observations, totally contradicted by the metadata of photographic evidence (photos taken by officers of the Forensic Institute) and his testimony at the evidentiary hearing. Agent Medina attested in the warrant application that he simply observed rice in the wastebasket, the numbers on the box, and “[u]pon entering into one of the bedrooms,” “we found on the bed empty Café Crema wrappers,” “a black firearm magazine on the dresser, several boxes of Ziplock bags, several transparent bags with pressure seals full of rubber bands,” and “a large sum of money in cash.” ECF No. 61 at 26. Scientific evidence available established the falsehood of such statements. See comparison of Exhibit A1-A44 and Exhibits A1A-A44A (metadata for each photograph taken by personnel from the Forensic Science Institute).

As stated above, none of these items were actually in plain sight: the coffee bags were concealed under items on the bed, the gun magazine was concealed under a red cloth, and the kitchen trashcan was rifled through before agents could identify the contents cited in the warrant application. Most egregious is Agent Medina’s description in the warrant application that he simply happened upon “a large sum of money in cash” in the locked bedroom. The cash was concealed in a closed, non-transparent bag that the forensics team later found hidden out of plain view behind a chair and under a curtain. At the evidentiary hearing, Agent Medina conceded that he had to open the grey bag to see its contents, at which time he learned that it contained a large sum of cash. Additionally, his sworn statement claiming that he simply “enter[ed] into the bedroom,” contradicts his testimony that he entered the locked bedroom to conduct a protective sweep. And, it contradicts the government’s entire theory in opposition to suppression, that an exigency necessitated all of the warrantless searches at issue.

Last, the Court admonishes Agent Medina’s flagrant dishonesty before this Court and the court issuing the search warrant. Indeed, the Court considers his behavior sufficiently egregious to warrant a perjury and/or obstruction of justice investigation. The Court has no means to determine if this is the first time that Agent Medina lies to this Court. However, as it relates to this case, he blatantly lied to the state judiciary while submitting a sworn statement with firsthand information he clearly knew to be false. Secondly, he appeared in federal court and after taking an oath to testify truthfully, he once again testified falsely. Agent Medina’s behavior and testimony may be suggestive of a routinary practice as a law enforcement officer to lie under oath and mischaracterize evidence to serve his investigatory purposes. If so, Agent Medina’s disregard of constitutional rights and basic rules of criminal procedure and investigation, poses a threat to individual’s rights and to the community he purports to serve and needs to be addressed and investigated.

Update: See techdirt: Federal Court Blasts Lying Cop Using His Warrantless Search Of A Room To Fraudulently Obtain A Search Warrant by Tim Cushing