WHO HERE WANTS TO SEE A JUDGE’S SMACKDOWN OF A HOMELAND SECURITY AGENT?
by Anne P. Mitchell, Esq. – zero hyperbole and 100% facts in plain English about what’s going on with this administration and the law
This is a beautiful, beautiful smackdown of a Department of Homeland Security agent’s request for 5 search warrants in the case in which Don Lemon and colleagues were arrested for going into a church (you remember that, right? From back in January?) Keep in mind that the pastor of that church was also an ICE agent.
Following the arrests, Special Agent Timothy Gerber asked the Court to issue fives separate – but substantially similar – search warrants.
Fortunately, as you will see, each was defective in articulating *any* probable cause (required for the issuance of a search warrant) and thank goodness for that and for Judge John F. Docherty for denying the warrants (denying all five in a single order), because they were *so freakin’ overreaching!!*
For example, “subscriber information for Lemon’s show which is hosted on YouTube, including the names of subscribers, the mailing addresses, residential addresses, business addresses, and email addresses of subscribers, the telephone numbers of subscribers, and the Internet Protocol addresses from which the “Don Lemon Show” was accessed, among other information.”
And as the Court explains, “There is no attempt made to explain why the compilation by the government of a comprehensive index of subscribers to “The Don Lemon Show” is evidence that a crime was committed.” Yet, Judge Docherty goes on, the warrant application explains that the government is looking for “evidence indicating how and when the Account was accessed or used… to determine “events relating to the crime under investigation and to the Account owner”.”
As the Court observes, “since subscriber information is not needed to prove or disprove the commission of a crime – indeed, it is hard to see how such information could be relevant evidence of the commission of a crime.”
Remember, the crime is Lemon going into the church, having absolutely nothing to do with his show. In other words, Agent Gerber is attempting to get at the defendant’s YouTube channel subscriber information because, well, he thinks he can. Even *if* Lemon had talked on his YouTube show about planning to go into the church, that has *nothing* to do with his subscribers!
Another two of the five warrant requests are similar in that they are asking for access to the subscriber information of various YouTube channels.
But the 4th and 5th are warrant requests of a different colour. In these requests they are trying to get access to information on the defendants’ phones. For example, as they were arresting Ian Austin, Mr. Austin tossed his cellphone to a group of people nearby telling them “don’t let them get my phone.” Based on this, Agent Gerber asks for a warrant to be issued to Apple to get at, among other things, his iTunes purchase history! But I’ll let Judge Docherty explain the ridiculousness of this:
“From this, the government seeks to collect information from Apple about telephone number 267- 294-XXXX without, however, stating how it connected that phone number to Mr. Austin (if it did) or even that it retrieved the “apparent” cell phone that Mr. Austin tossed. Nor is there any reason to believe, even taking all the allegations in the affidavit as true, that Mr. Austin did not want his phone seized because it might contain evidence concerning Cities Church (the indictment, for one thing, is completely silent on Mr. Austin using a phone). It is equally likely that Mr. Austin did not want messages with family members to be found on his phone, or conversations with a therapist, or any of innumerable innocent reasons a citizen would not want the government going through his phone. And it is absolutely impossible for the Court to conclude that these facts, even taken as true, support the seizure of much of the information sought by this warrant – App store logs? iTunes store records? Records of web-based access to Apple services? If any of this is remotely relevant, the government has not explained how.”
The fifth is a similar phone warrant request for attorney Nekima Armstrong’s phone.
But it is here below that the Judge *really* spanks Agent Gerber, because instead of actually detailing any probable cause in the warrant applications, he essentially tells the Court “go read it for yourself in the indictment”. 😂
Says Judge Docherty “As noted, the search warrant affidavits direct the reader to consult the indictment for probable cause. But search warrants are required to be self-contained wholes, capable of being evaluated on “the four corners” of the application. A direction that the reader go look up some other document and review it for probable cause is improper, and the Court would be justified in stopping its probable cause analysis at this point. In fact, if the Court had found probable cause after consulting the indictment, each defendant would have a motion to suppress that in the Court’s opinion would be guaranteed success. In addition, it is the job of the government, not of the Court, to connect the facts that are claimed to constitute probable cause into a coherent narrative. In these five cases, the Court is simply directed to go read the indictment and make of it what it will, without any effort at all on the government’s part to explain how the facts in the indictment constitute probable cause.”
Oh Agent Gerber, what a maroon!
But, the Court then adds, “In order to be thorough, the Court consulted the indictment. It found no facts at all that support probable cause.”
Ha! *It found no facts at all that support probable cause.* In the indictment. That Agent Gerber said would support probable cause. That wasn’t the Court’s job to read, but did anyways in order to be thorough.
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P.S. If you actually read all the way to the bottom please leave a comment that includes the words “probable cause”. It will show me that my efforts aren’t in vain and that people actually *do* read these things, and it will drive those who just skim crazy wondering just why everyone is talking about probable cause! ;~)
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