GateHouse: Volatile ‘sneak and peek’ warrants proliferate

Matthew T. Mangino

GateHouse Media

April 20, 2018

The nation’s capital is a living, breathing civics lesson. The Fourth, Fifth and Sixth Amendments are tossed around more in Washington D.C. these days than in the average high school civics class. Nearly every journalist and talking-head has a spin on the nuances of the hottest issue in town, the Fourth Amendment’s prohibition against unlawful search and seizure.

Setting aside the intricacies of the attorney-client privilege, there are constitutional matters outside the beltway that should raise concern.

Here is something to think about. Federal law permits delayed-notification search warrants commonly referred to as “sneak and peek” warrants. The procedure allows investigators to search a house, business, car, or other property — seize evidence — and not tell anyone, but a judge, about it.

A normal search warrant like the one served on President Donald Trump’s attorney — depending on who you listen to — Michael Cohen requires prosecutors to set forth, in writing, the legal basis for seeking a warrant. This document, commonly referred to as an “affidavit of probable cause” is presented to a judge.

If the judge finds there is a legal basis for the warrant, the request is approved and a written warrant is served on the target of the search. After the search is concluded an inventory of what was seized is handed to the homeowner, car owner or business owner.

Typically search warrants are not secret. Maybe an affidavit can be sealed to protect the identity of witnesses or informants, but a search was always disclosed to the subject of the search. That all changed in 2001.

According to The Oregonian, delayed warrants mean agents can avoid tipping off suspects and jeopardizing an investigation, while potentially provoking them into revealing drug suppliers or other connections when it appears someone has stolen their “stash.”

What that means is that the police can conduct a search and make it appear like a burglary. The “victims” of the burglary can’t go to the police — “someone stole my drugs” doesn’t go over well with investigators.

The concern with delayed notice warrants is that they were never intended for use in domestic criminal activity.

In the wake of the 9/11 terrorist attacks against the United States, Congress swiftly passed the Patriot Act, which expanded the powers of federal agents as they prosecuted the war on terror.

Section 213 of The Patriot Act provides for “sneak and peek” search warrants. In the name of fighting terrorism “sneak and peek” warrants, allow law enforcement officers to circumvent Fourth Amendment’s protections.

According to the Electronic Frontier Foundation, in 2014 out of approximately 11,000 “sneak and peek” warrants only 51 were used for terrorism. A significant majority were used for domestic drug investigations.

The alleged “victims” of “sneak and peek” warrants scramble when their stash turns up missing. They probably owe money to someone higher-up the chain and they’re mad as hell that someone would rip them off, after all who’d want to steal off a hard-working drug dealer. That scenario can create a lethal firestorm that puts innocent people in danger.

In Oregon, the manager of a storage facility was held at gunpoint by two thugs after the authorities carried out a “sneak and peek” warrant and removed 500 pounds of marijuana from a storage locker.

The owners of the marijuana — having never been served with a search warrant — assumed the manager had something to do with its disappearance.

According to The Oregonian, agents with the Drug Enforcement Administration, deliberately made the confiscation look like a burglary, in an effort to intensify the investigation.

“The danger of violence is obviously real, and this case makes it very evident. Someone could have been killed,” Jonathan Witmer-Rich, a law professor at Cleveland State University told The Oregonian. “I think it illustrates this is a dangerous tactic, and the law is not requiring police to reduce such risks.″

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Alabama executes man who killed federal judge with pipe bomb

The  8th Execution of 2018

Alabama executed 83-year-old Walter Leroy Moody on April 19, 2018 for the 1989 pipe bombing death of a federal judge. He became the oldest inmate executed in the United States since the return of executions in the 1970s.

The execution was delayed about two hours after the U.S. Supreme Court issued a temporary stay about 15 minutes before the scheduled 6 p.m. execution time.

The Supreme Court gave no explanation in its orders for the delay or why it later lifted the stay.

The execution began at 8:16 p.m. and according to prison officials his time of death was 8:42 p.m.

Moody kept his eyes closed and head still throughout the lethal injection execution and did not respond when asked by the warden whether he wanted to make a last statement.

Other than his chest moving during the early part of the execution and his jaw dropping slightly, only once during the event did he move when a few of his left fingers fluttered.

That happened soon after he didn't respond to a consciousness test. The test involves a corrections officer calling out the inmate's name, brushing his left eye brow, and pinching the left arm. It is administered to make sure the inmate is sedated enough to administer the two drugs used to halt breathing and the heart.

One of Moody's attorneys with the federal public defender's office in Montgomery took issue with the execution even though Moody moved less on the gurney than some previous inmates. 

"I have attended two executions. In both, my client moved after the consciousness check. Ron Smith's was more horrific, but both were disturbing, and raise grave concerns about the DOC's (Department of Corrections) process," said attorney Spencer Hahn.

"Further, I'd like to know what they gave him before to knock him out and prevent him from getting to give his last words. There was no dignity in that room. This dishonored the memory of Judge Vance and Mr. Robinson," Hahn said.

Alabama Corrections Commissioner Jeff Dunn said Moody was not given any sedatives prior to the execution.

In 1991, a federal jury convicted Moody of 71 charges related to the pipe-bomb murders of U.S. 11th Circuit Judge Robert Vance and Georgia civil rights attorney Robert E. Robinson, who also was killed in a pipe-bomb blast two days after the judge. He was sentenced to seven concurrent life sentences and 400 years. The federal trial was conducted in Minnesota.

Moody was placed on death row after a jury convicted him of capital murder at a trial in Alabama five years later for the deadly pipe bomb explosion at Vance's Mountain Brook home that also seriously injured Vance's wife, Helen. The jury recommended 11-1 that the death penalty be imposed and the judge agreed.

Moody has maintained that he did not send the pipe bombs.

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DNA transfer has serious implications for the criminal justice system

Back in the 1980s, when DNA forensic analysis was still in its infancy, crime labs needed a speck of bodily fluid—usually blood, semen, or spit—to generate a genetic profile.

That changed in 1997, when Australian forensic scientist Roland van Oorschot stunned the criminal justice world with a nine-paragraph papertitled "DNA Fingerprints from Fingerprints." It revealed that DNA could be detected not just from bodily fluids but from traces left by a touch. Investigators across the globe began scouring crime scenes for anything—a doorknob, a countertop, a knife handle—that a perpetrator may have tainted with incriminating "touch" DNA.

But van Oorschot's paper also contained a vital observation: Some people's DNA appeared on things that they had never touched.

In the years since, van Oorschot's lab has been one of the few to investigate this phenomenon, dubbed "secondary transfer." What they have learned is that, once it's out in the world, DNA doesn't always stay put.

 Objects bearing DNA of a participant who never touched them, reported the Marshall Project. 

In a sense, this isn't surprising: We leave a trail of ourselves everywhere we go. An average person may shed upward of 50 million skin cells a day. Attorney Erin Murphy, author of "Inside the Cell," a book about forensic DNA, has calculated that in two minutes the average person sheds enough skin cells to cover a football field. We also spew saliva, which is packed with DNA. If we stand still and talk for 30 seconds, our DNA may be found more than a yard away. With a forceful sneeze, it might land on a nearby wall.

To find out the prevalence of DNA in the world, a group of Dutch researchers tested 105 public items—escalator rails, public toilet door handles, shopping basket handles, coins. Ninety-one percent bore human DNA, sometimes from half a dozen people. Even items intimate to us—the armpits of our shirts, say—can bear other people's DNA, they found.

The itinerant nature of DNA has serious implications for forensic investigations. After all, if traces of our DNA can make their way to a crime scene we never visited, aren't we all possible suspects?

Forensic DNA has other flaws: Complex mixtures of many DNA profiles can be wrongly interpreted, certainty statistics are often wildly miscalculated, and DNA analysis robots have sometimes been stretched past the limits of their sensitivity.

But as advances in technology are solving some of these problems, they have actually made the problem of DNA transfer worse. Each new generation of forensic tools is more sensitive; labs today can identify people with DNA from just a handful of cells. A handful of cells can easily migrate.

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Parents sue Sandy Hook truther Alex Jones

Families of two children killed at Sandy Hook Elementary School have filed lawsuits in Texas against controversial radio talk show host Alex Jones for continually claiming the massacre never happened, the Hartford Courant reports. 

Neil Heslin, the father of Jesse Lewis, and Leonard Pozner and Veronique De La Rosa, whose son Noah Pozner died in the massacre, filed separate lawsuits in Travis County, Tx. The lawsuits allege that Jones’ constantly calling the parents “crisis actors” and insisting the shooting was a false flag operation has defamed them and led to victims’ families receiving death threats. 

The lawsuits were filed in Texas because Jones media company, Infowars, is based in Austin. Both lawsuits seek more than $1 million in damages from Jones, Infowars and a related company, Free Speech Systems LLC.

Jones has been a controversial figure and one of the leading voices in the Sandy Hook truther movement, a group that claims the Dec. 14, 2012 shooting never occurred. Adam Lanza shot and killed 26 people, including 20 first graders, inside the school that day using an AR-15 before killing himself with a handgun. Noah Pozner and Jesse Lewis were in separate classrooms.

Virtually no chance the average person will ever use a gun in self-defense

The only way to stop a bad guy with a gun is a good guy with a gun.

It's a common refrain touted by gun rights advocates, who argue that using guns in self-defense can help save lives. But what is the actual number of defensive gun uses?

According to the Pew Research Center, 48 percent of gun owners say they own a gun mainly for protection. But for years, experts have been divided over how often people actually use guns in self-defense. The numbers range from the millions to hundreds of thousands, depending on whom you ask.

The latest data show that people use guns for self-defense only rarely. According to a Harvard University analysis of figures from the National Crime Victimization Survey, people defended themselves with a gun in nearly 0.9 percent of crimes from 2007 to 2011, reported NPR.

David Hemenway, who led the Harvard research, argues that the risks of owning a gun outweigh the benefits of having one in the rare case where you might need to defend yourself.

"The average person ... has basically no chance in their lifetime ever to use a gun in self-defense," he tells Here & Now's Robin Young. "But ... every day, they have a chance to use the gun inappropriately. They have a chance, they get angry. They get scared."

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Mangino discussed Michael Cohen Search Warrant on WFMJ-TV21 Weekend Today

Watch my interview on WFMJ-TV21 Weekend Today regarding President Trump and his attorney Micheal Cohen.
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Black student knocks on door for directions after missing school bus, homeowner shoots at him

Fourteen year old Brennan Walker went looking for help at at a suburban Detroit home when he missed his school bus.  

Walker was trying to walk the bus route to Rochester High School after he woke up late and missed his bus. His mom had taken his phone away, so he didn't have that with him to get directions. So he knocked on a stranger’s door for help --the homeowner shot at him, reported FOX2.

"I got to the house, and I knocked on the lady's door. Then she started yelling at me and she was like, 'Why are you trying to break into my house?' I was trying to explain to her that I was trying to get directions to Rochester High. And she kept yelling at me. Then the guy came downstairs, and he grabbed the gun, I saw it and started to run. And that's when I heard the gunshot," he says.

Thankfully, the man missed. Brennan kept running, hid, then cried.

"My mom says that, black boys get shot because sometimes they don't look their age, and I don't look my age. I'm 14; but I don't look 14. I'm kind of happy that, like, I didn't become a statistic," he says in retrospect.

Oakland County Sheriff Deputies arrived soon after to the home on South Christian Hills Drive and took the woman's husband into custody.

Lisa was at work when she got the call. She says her husband is deployed in Syria, so she was assuming she was getting a call about him until she realized they were calling about Brennan. She dropped everything and immediately went to the substation to be with her son. 

That's where investigators told her the family's Ring doorbell recorded the encounter. Investigators watched the video with Brennan and his mom. She says the video confirmed their suspicions. 

"One of the things that stands out, that probably angers me the most is, while I was watching the tape, you can hear the wife say, 'Why did "these people" choose my house?'" she says, before taking a long pause. "Who are, "these people?" And that set me off. I didn't want to believe it was what it appeared to look like. When I heard her say that, it was like, but it is [what it looks like]."

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