The court’s finding of the officer’s recklessness in this search warrant affidavit leads the government to file a motion to reconsider, presumably because it will become Brady/Giglio material in future cases as to the officer. Not only is that denied, the AUSAs in this case failed their duty to head this off before it blew up in court. United States v. Lark, 2022 U.S. Dist. LEXIS 33664 (S.D.W.Va. Feb. 22, 2022) (under the category of “watch what you ask for” or “no good deed goes unpunished”*):
While the reconsideration issue does not require further analysis, the myriad events in this case, including this motion and its supporting exhibits, convince me that I have an obligation to say more about the roles we each play in protecting the integrity of our criminal justice system. The oaths of office taken by police officers, prosecutors, lawyers, and judges each have the central promise to uphold the Constitution of the United States. It is the common bond necessary to bind together this participatory democracy. Neither the police, the prosecutor, nor the judge may cast the personal burdens imposed by their oaths of office upon one of the others.
In the first instance, a police officer must act with regard to his trained understanding of the constitutional strictures upon his official behavior. The prosecutor, acting under the same sworn obligations, must discourage police misconduct and even punish it where necessary. The widespread notion that it is for judges alone to decide the constitutionality of an act or statute is simply wrong. It is not for the prosecutor to minimize unconstitutional conduct or advocate for ignoring such behaviors to curry favor or enhance the relationship between police departments and prosecutor’s offices. Rather, a prosecutor should work with the police to ensure the practical and proper application of constitutional principles. When prosecutors overlook, tolerate, or fail to intervene in the Constitutional failures of law enforcement, they abdicate the responsibilities imbued by their oaths of office.
Under their constitutional oath, prosecutors have an independent responsibility to evaluate the legitimacy of the evidence they put forth to make their case. In that regard, they should analyze whether the evidence was gathered constitutionally and not focus solely on the question of the likelihood of admissibility. See Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 U.C. Davis L. Rev. 1591, 1595 (2014). The Assistant United States Attorneys should have learned there were glaring problems with important evidence in this case when they presumably talked with Det. Daniels in preparation for the suppression hearing. Instead, the Assistant United States Attorneys did not either recognize or address the problems with the warrant until Det. Daniels’s testimony at the hearing, after which they nevertheless filed briefing arguing that the term “delivered” could fairly describe a situation where no delivery occurred. Attached to that briefing they filed the audio recording of the controlled delivery attempt excerpted above, which is clearly damning of Det. Daniels. Most recently, they filed a superseding indictment which removed the firearm charges and added a new charge, attempted possession of methamphetamine and fentanyl on March 17, 2021, the date of the attempted controlled delivery. [ECF No. 75]. It is surely apparent to the government that their concern with the damage to Det. Daniels’s career would have been alleviated had these actions been taken when they first learned of the evidentiary problems.
Every Assistant United States Attorney is taught that the prosecutor’s role transcends the role of adversary. The United States Attorney “is the representative not of an ordinary party to a controversy, but of a sovereignty … whose interest … in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Strickler v. Greene, 527 U.S. 263, 281 (1999) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). This brings me finally to the actions of the United States Attorneys Office in preparation for this motion to reconsider. In an event unique to me in my half-century as a lawyer and as a judge, the Assistant United States Attorney sent two investigators to interview the state magistrate judge who issued the search warrant for Mr. Lark’s home. Those investigators questioned the magistrate judge regarding his judicial decision-making process, then wrote that process down in a memorandum that the government filed as an exhibit to this motion. See generally [ECF No. 66-1].
The Assistant United States Attorney’s decision to interview a judicial officer and the judge’s decision to entertain the interview are both improper. It is inherently intimidating to send federal officers to question a state magistrate judge, and it is clearly out of bounds for the magistrate judge to provide the interview regarding his judicial decision-making in a matter pending before this court. There are other serious concerns brought to light in the report of the magistrate judge’s interview. See id. I will leave those to the West Virginia Office of Judicial Disciplinary Counsel and the West Virginia Supreme Court of Appeals. Moreover, I am anecdotally aware of the unusual number of suppression motions that have been granted in this district in the past two years. I defer to the new United States Attorney to review this area of concern.
*“No good deed goes unpunished.” Winter v. NRDC, Inc., 555 U.S. 7, 31 (2008); Ferguson v. City of Charleston, 532 U.S. 67, 103 (2001) (Scalia, J., dissenting).
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)