Category Archives: Suppression

Cop Training Seminar EXPOSED on VIDEO | 1000’s of Cops Nationwide Involved!

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The New Jersey Office of the State Comptroller recently published a scandalous report detailing private for-profit police training of 1000’s of police officers from around the country that, among other things: promoted the use of unconstitutional policing tactics for motor vehicle stops; glorified violence and an excessively militaristic or “warrior” approach to policing; spoke disparagingly of the internal affairs process; promoted an “us vs. them” approach; and espoused views and tactics that would undermine almost a decade of police reform efforts in New Jersey, including those aimed at de-escalating civilian-police encounters; and
which included over 100 discriminatory and harassing remarks by speakers and instructors, with repeated references to speakers’ genitalia, lewd gestures, and demeaning quips about women and minorities.

Specifically, the report details a 2021 seminar held in Atlantic City, NJ, attended by approximately 1,000 police officers from across the country. Along with the report, the Acting Comptroller released video footage…

Here’s the full report: https://nj.gov/comptroller/reports/2023/approved/20231206.shtml

Here’s a media report about one of the instructors subsequently being charged with criminal violations for the video he bragged about, showing him shooting at a fleeing vehicle.

Here’s another media report about the founder of the training company retiring from police-work shortly after being sued for misconduct.

Here’s the list of states that sent police officers to the 2021 seminar featured in the report and video footage:

One Tiny Problem With This Million Dollar Coke Bust

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The Indiana State Police performed a traffic stop on a tractor trailer. Inside the truck they found around two million dollars in cocaine. Here’s the bodycam footage. But will this seizure hold up in court?

Press Release from Indiana State Police:

Thursday, May 26, 2022, at approximately 4:00 p.m., an Indiana State Trooper stopped a tractor-trailer at the thirty-seven mile marker eastbound on Interstate 70 for a routine compliance inspection.  The driver of the tractor-trailer was identified as Leonardo Hernandez, age 38, of Miami, Florida, with one passenger in the vehicle.  During the conversation with the driver and passenger, criminal indicators were observed, and a consent search revealed approximately forty-four pounds of suspected cocaine.  Leonardo Hernandez and Rolando Bermudez Acevedo were taken into custody and transported to the Putnam County Jail.

The tractor-trailer was enroute from Phoenix, Arizona, to Indianapolis, Indiana.

The estimated street value of the cocaine is one million dollars.

Original Video From Cop Cam here.

Pro-Federal Law Enforcement Civil Rights Rulings This Week from SCOTUS and the First Circuit

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The SCOTUS issued an opinion in Egbert v. Boule this week, which made clear that it’s close to impossible to sue federal law enforcement officers for civil rights violations. They essentially declared that border patrol agents have absolute immunity from civil liability due to “national security” grounds. There is some traditional basis of “Bivens” liability still in existence for non-border related law enforcement police-type activities, but for reasons I’ve explained before, it’s hardly worth pursuing anyways….

Also, more shockingly, the First Circuit issued an opinion en banc in U.S. v. Moore-Bush, which found that it probably was not a “search” under the Fourth Amendment for ATF agents to set up a 24/7 live feed camera on a utility pole outside a suspect’s home for a period of 8 months. This was a criminal case dispute over suppression issues.

Federal Judge Finds a Pattern of Illegal Drug Task Force Search Warrants in West Virginia

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Reuters reported a few days ago on a recent set of court orders from a federal judge in West Virginia finding a troubling pattern of illegal search warrants obtained by drug task force officers.

In December, Goodwin issued an order suppressing evidence seized from a house in 2021. The judge questioned the accuracy of certain statements made by law enforcement in an affidavit to obtain a search warrant of the defendant’s house. The government has since filed a new indictment.

After the judge issued the suppression order, the U.S. attorney’s office sent two investigators to interview the state magistrate judge who issued the search warrant. Goodwin said it was “improper” for investigators to seek such an interview and for the judge to entertain it.

“It is inherently intimidating to send federal officers to question a state magistrate judge,” Goodwin wrote, “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.”

Reuters published yet another article today expanding on the earlier report, noting that more than one federal judge in West Virginia, as well as a unanimous panel of the Fourth Circuit Court of Appeals found that this particular drug task force in West Virginia has been engaged in unconstitutional violations pertaining to search warrants.

Goodwin, in fact, has criticized the practices of the Metropolitan Drug Enforcement Network (MDENT) in particular in at least three other decisions since 2017, a review of court records shows. The MDENT is composed of officers from agencies including the Charleston Police and Kanawha County Sheriff’s Office, the Drug Enforcement Agency and the state police.

The judge tossed out evidence in a drug case last year, holding that the Charleston Police, MDENT, and a Kanawha County magistrate had again failed to respect constitutional limits on searches and seizures. The MDENT’s warrant was based on “unsourced and undescribed” information that someone was selling drugs and the discovery of three marijuana stems in the trash from that person’s home – which the judge said was clearly insufficient.

“I fear this is becoming a pattern,” Goodwin wrote on April 28, 2021, pointing to a similar ruling in another MDENT case from a week earlier.

The MDENT has also been admonished for what courts described as open and purposeful disregard of the legal limits on searches and seizures by at least one other judge of the Southern District of West Virginia, and in a unanimous opinion by the 4th U.S. Circuit Court of Appeals.

This is the same federal court who presided over the Keith Sizemore case I litigated, where the Court denied a police officer qualified immunity in a civil rights lawsuit for providing false information in a search warrant application.

What you’re about to see, demonstrated in black and white courtesy of the federal judiciary, is proof of a pattern and practice of police misconduct. This is a documented pattern of Fourth Amendment violations, where drug task force officers knowingly violate the Constitution, with the complicity, or ignorance, of multiple state-level magistrate judges, who are not required to have law degrees to hold office, and who generally don’t. Moreover, many times the state-level magistrates, elected in countywide elections, are themselves retired law enforcement officers.

West Virginia is in serious need of search warrant reform. By the way, federal investigators in West Virginia, so I’m told, are required to go to Circuit Court judges, rather than magistrates, in federal criminal investigations in West Virginia.

Here’s the Court’s ruling on the motion for reconsideration in the case of U.S. v. Lark, as cited in the Reuters article:

United States v Lark SD WVa 2022Download

Here’s the original suppression order which the government was seeking reconsideration in the Lark case. Note that the federal prosecutors here are not interested in actually having the Court reconsider the admissibility of the evidence, but rather solely with the career prospects of the police officer found by the federal judge to have provided false information in a search warrant application:

United States v Lark SD WVa 2021Download

Here are the other suppression orders to which the Court referred in the Lark orders, of which I’m aware.

United States v Terry (1)Download
United States v TerryDownload
United States v CooperDownload
United States v ColemanDownload
United States v NelsonDownload

Here’s the suppression order from the Keith Sizemore case, to which I referred earlier. This was the criminal case:

SizemoreSuppressionOrderDownload

And here’s the opinion from the subsequent civil lawsuit. Note that this was a different drug task force than is featured in the other opinions, but same federal Court, and same underlying issues:

SizemoreMemorandumOpinionAndOrder(Defendant’sMTD)Download

It would be interesting to find out if a single one of these police officers who were determined by the federal judiciary to have provided false information in a search warrant application were ever thereafter placed on a “Brady List” for disclosure to criminal defendants in cases involving these officers…..

Update, 3/17/22: The West Virginia Record reported that the U.S. Attorney for the Southern District of West Virginia has an open investigation into the matter.

Deanna Eder, public affairs officer for Thompson, declined to comment in the pending case. But she did issue a statement to The West Virginia Record about Goodwin’s concerns.

“Upon taking office on October 13, 2021, U.S. Will Thompson began a thorough review of all of his office’s policies and procedures to determine what, if any, changes were needed,” Eder told The Record. “The United States Attorney served as a state circuit court judge for almost 15 years prior to his role as U.S. Attorney and brings that experience analyzing constitutional and suppression issues to the U.S. Attorney’s Office.

“As a result of his review of policies and procedures, and prior to the order in the Lark case, U.S. Attorney Thompson implemented a new process for reviewing search warrant applications. The U.S. Attorney’s Office has reviewed the court’s order in the Lark matter and takes the Court’s concerns seriously.”

Update on the Walker Case (Fourth Amendment Open Carry Lawsuit)

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In case you’re following along with the Walker v. Donahoe, et al. Fourth Amendment open carry civil rights lawsuit, we have a jury trial scheduled for February 19, beginning at 8:30 a.m. at the federal courthouse in Huntington, West Virginia. As of right now it’s still on.  Both sides have asked the court for summary judgment, which basically means that both sides claim to have the law completely on their side.  The court has not ruled as of yet. Pretrial documents have been submitted, including motions in limine, which are trial issues anticipated by the parties, which are best argued prior to the start of the trial.  If you haven’t seen the video of the incident in dispute, here it is:

The defendants are seeking to exclude portions of this video showing the “investigatory detention” of Michael Walker by the Putnam County Sheriff’s Department.  Not surprisingly, they want the part of the video where the police officer calls Michael a “co*ksucker,” repeatedly, among other things to be kept away from the jury.  Here’s their argument:

Also not surprisingly, we strongly disagree.  Here’s our response.  The judge will decide at some point, and generally has the broad discretion to control the flow of what the jury gets to see, and what they don’t:

We also filed a few motions in limine of our own, including our attempt at stopping the defendants from bringing up the Parkland school shooting, which they have announced is their attention, and which has absolutely nothing to do with the case.  They are also seeking to make the case that because Michael had an AR-15 style rifle, that a reasonable officer could suspect him of being a potential school shooter, or something to that effect.  Which is of course highly offensive, and antithetical to both the Fourth Amendment and the Second Amendment to the U.S. Constitution:

In case you’re curious about the current status of laws pertaining to the open carrying of firearms in West Virginia, check out the last post I did on it.  It should still be the same. Of course, this case could change that if it doesn’t go our way…..

New Civil Rights Case Filed out of Fayette County: Sizemore vs. Members of the WV Drug Task Force

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Here is the copy of a civil rights lawsuit we filed in the U.S. District Court for the Southern District of West Virginia late last week.  It has now been assigned to Judge Goodwin in Charleston, WV. The case comes out of Fayette County, West Virginia, and involves a criminal investigation and prosecution gone awry.

Sizemore Complaint

My client, Keith Sizemore, had his home searched, via a SWAT team style raid, while he and his 16 year old son were home.  In the subsequent federal prosecution, the federal judge presiding over the case ended up suppressing evidence obtained during the search, and issuing an order finding that members of the Drug Task Force had lied to the Magistrate Court of Fayette County in order to obtain the search warrant for Mr. Sizemore’s residence.  It’s really an astonishing order:

Sizemore Suppression Order

The order shines the light on what has become a common scenario: a drug raid with some sort of seizure of illegal drugs, and then there is a civil forfeiture proceeding in WV State Court, in which the owner of the items has all the items confiscated under color of law.  In this case, our lawsuit alleges that the state civil forfeiture machine had already seized and became the new owner of Mr. Sizemore’s home and 2017 pickup truck, before the criminal indictment was even served on him.  However, interestingly, the criminal prosecution exploded with the suppression order finding that the task force members lied to obtain the warrant.

I wonder what will happen?  We shall see…..

Fourth Circuit Open Carry Decision

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The Fourth Circuit issued a decision bolstering our 2nd Amendment rights.  The case is styled  USA v. Nathaniel Black, out of the Western District of North Carolina.  Essentially, a guy who was a convicted felon was open carrying a firearm.  He was then seized by police, who were subsequently able to determine that he was not allowed to possess a firearm.  But, was it an unconstitutional seizure since they didn’t know before they seized the guy that he was committing a crime by possessing a firearm?

The 4th Circuit held that it was unconstitutional to seize the man merely because they observed him with a holstered handgun, since they had no reason to believe that he was legally barred from possessing firearms, or that he was engaging in any other illegal activity.  The importance of this decision is that it protects our 2nd Amendment rights.  If it is legal for us to openly carry a handgun, then law enforcement is unable to seize us in order to determine our criminal record, harass us, etc.  The case has all the goodies when it comes to search and seizure case law in the Fourth Circuit (WV, VA, NC, MD).

New West Virginia Search and Seizure Statute

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New legislation has been passed in West Virginia dealing with search and seizure.  It was pushed by the ACLU, who of course were only concerned for minorities having their rights disregarded.  But the fact is that everyone, across the board, has had their rights trampled when it comes to traffic searches and seizures.

It essentially provides that no longer can law enforcement merely testify after-the-fact that the vehicle owner consented to a search of his or her vehicle.  This, by the way, is pretty much the foundation for 80% of criminal prosecutions.  Either people are too dumb/ignorant/naive  to realize that they can say “no” to the officer who is asking to search their vehicle, or the cop just “testi-lies” after-the-fact that consent was given, when in fact it was not.  Who do you think the judge is going to believe, the law enforcement officer, or the guy who had marijuana/concealed weapon, etc. in his car?

Pursuant to this new statute, consent must now be recorded, either in writing through an approved form, or through an audio/video recording.  It must be communicated to the suspect that he or she has the right to refuse the search.  It also provides that he or she can revoke their consent at any time.  Though this may be dicey, because the revocation would not be recorded unless there was a dash cam, or other recorder, recording the audio.  The one exception for the recordation of consent is if there is an issue of officer safety.  Basically, if the cop can articulate some justification for believing there may be some weapon that could potentially harm him or her, then the statute flies out the window.

Remember, states are generally free to provide greater protection of civil liberties than is provided for in the U.S. Constitution (i.e., the US Supreme Court), which West Virginia has done here.  However, states are not free to provide less protection.  Hence, West Virginia could not pass a statute (that would be constitutional) which would allow officers to search vehicles without probable cause or consent.

The statute will take effect January 11, 2011.

Here is the statute:

A BILL to amend of the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all relating to searches of motor vehicles by law- enforcement officers; establishing criteria; and requiring rules.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all to read as follows:

ARTICLE 1A. SEARCH AND SEIZURE.
§62-1A-10. Motor vehicle searches.

(a) A law-enforcement officer who stops a motor vehicle for an alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the law-enforcement officer:
(1) Has probable cause or another legal basis for the search;
(2) Conducts a search for weapons based on an articulation of a reasonable fear for the officer’s safety or the safety of others;
(3) Obtains the written consent of the operator of the vehicle on a form that complies with subsection (b), section eleven of this article; or
(4) Obtains the oral consent of the operator of the vehicle and ensures that the oral consent is evidenced by an audio and video recording that complies with subsection (c), section eleven of this article.
(b) This section takes effect on January 1, 2011.

§62-1A-11. Rules for certain evidence of consent to vehicle search.

(a) To facilitate the implementation of section ten of this article the Director of the Governor’s Committee on Crime, Delinquency and Corrections, in consultation with the Division of Motor Vehicles, shall propose emergency and legislative rules in accordance with article three, chapter twenty-nine-a of this code to establish the requirements for:
(1) A form used to obtain the written consent of the operator of a motor vehicle under section ten of this article; and
(2) An audio and video recording used as evidence of the oral consent of the operator of a motor vehicle under section ten of this article.
(b) At a minimum, the rules adopted under subsection (a) of this section must require the form to contain:
(1) A statement that the operator of the motor vehicle fully understands that the operator may refuse to give the law- enforcement officer consent to search the motor vehicle;
(2) A statement that the operator of the motor vehicle is freely and voluntarily giving the law-enforcement officer consent to search the motor vehicle;
(3) A statement that the operator of the motor vehicle may withdraw the consent at any time during the search;
(4) The time and date of the stop giving rise to the search;
(5) A description of the motor vehicle to be searched; and
(6) The name of each law-enforcement officer conducting the stop or search.
(c) At a minimum, the rules adopted under subdivision (2), subsection (a) of this section must require the audio and video recording to reflect an affirmative statement made by the operator that:
(1) The operator of the motor vehicle understands that the operator may refuse to give the law-enforcement officer consent to search the motor vehicle;
(2) The operator of the motor vehicle is voluntarily giving the law-enforcement officer consent to search the motor vehicle; and
(3) The operator of the motor vehicle was informed that the operator may withdraw the consent at any time during the search.
(d) The Director of the Governor’s Committee on Crime, Delinquency and Corrections shall adopt the rules required by this section no later than December 31, 2010.

NOTE: The purpose of this bill is to provide procedures to protect motor vehicle operators with regard to searches of their motor vehicles by law-enforcement officers.

§§62-1A-10 and 62-1A-11 are new; therefore, strike-throughs and underscoring have been omitted.

“Nasty Little Surprises” and “discovery”

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Back in July of 2008, I posted about one of Mark Bennett’s posts on “NSL’s” – nasty little surprises.  A NSL is essentially exculpatory evidence which either the prosecution/State has not provided, or which they are completely unaware of.  The point was, since the deck is stacked against you to begin with, why disclose NSL’s which you discover in the course of investigating and preparing for your criminal jury trial?  After all, the chances of us winning to begin with are slim, and much of that is due to the way the system is set up.  If we let the prosecutor on to our theory of the case before our opening argument, he or she will inevitably do everything possible to shoot it down – either by offering deals to slum rats to testify to something different than what they have previously said, or by prepping the investigating officer to pontificating on the subject in such a way as to steal our thunder.  Of course, in a perfect world you should share exculpatory evidence with the prosecution/State so they could dismiss the case.  But that’s not usually how prosecutors work unfortunately.  They want a conviction, they want to win.  Many would rather diffuse your NSL and move ahead with prosecution.

The only problem is that in West Virginia, the defense is obligated to provide “discovery” to the State/prosecutor.

First of all, someone please tell me how that doesn’t violate the 5th Amendment of the US Constitution?  As defense attorney, I represent the defendant obviously.  In the United States, defendants in criminal trials have no obligation to ask even a single question, call even a single witness, or introduce even a single item of evidence.  They have the 5th Amendment right to remain silent.  But the state rules say that if I do call a witness or present evidence, I have to provide disclosure of such before the trial – sometimes by a particular date.

As if the system didn’t make it easy enough for prosecutors already….  If you hear prosecutors talk about trying cases, they make it sound as if they have such a difficult task.  They have to come up with such an enormous amount of evidence, and they have to prove so much….  In reality, being a prosecutor is a piece of cake.  You are set up to win.  In fact, to actually lose a case due to an acquittal in West Virginia, all 12 jurors have to unanimously vote “not guilty.”  With that low of a bar, it’s pretty hard not to win.  And yet, the State has mandated that we cannot ambush prosecutors with some types of NSL’s.

The practice of prosecution is basically preparing for, and conducting, direct examinations.  They’re their witnesses, they’re mostly cops or victims, or people with plea deals that come with a noose around their neck, held by the prosecutor, which require them to do the prosecutor’s bidding, or else.  And they prepare the witnesses and ask open ended questions and check off on their legal pad everything the person is supposed to say.  That’s pretty much it.  As defense attorneys, we engage in guerilla warfare with all of these witnesses.  We almost exclusively cross examine witnesses.  We have to learn, develop and master the art of cross examination.  It is much, much more difficult.  And more unpredictable.

When we call a NSL witness, we reverse the roles and put the prosecutor on defense – something they are not used to.

The “discovery” rules do not mandate that we provide all of our NSL’s to prosecutors.  We have to disclose the names and addresses of any witnesses, though generally not the substance of their testimony (as in civil cases).  Of course the prosecutor is free to have someone contact or interview the person to see what they are going to say.  Unfortunately, sometimes that consists of running criminal background checks on the person, and otherwise investigating the person as if they were a suspect in a crime.  We also have to provide copies or access to any exhibits or tangible evidence we intend on presenting.

The loophole here is in the substance of the witness testimony.  The prosecutor doesn’t necessarily have any idea what I will ask the witness on the witness stand.  He can interview the person before hand, but he may not be able to put 2 and 2 together before I do so for him/her in front of the jury.

I recently revealed some NSL’s to a prosecutor/court/jury during the course of a criminal jury trial.  The prosecutor was upset because I only revealed the identities of the witnesses the day before the trial, and he strenuously asked the judge to “suppress” my witnesses due to failure to comply with discovery rules by disclosing the witnesses well in advance of trial.

There are several problems with this:

(1) I only found these particular witnesses at the last minute, and therefore I could not have disclosed them earlier; (2) The witnesses had exculpatory evidence and law enforcement knew about them in advance, yet failed to disclose them to the defense; (3) If these witnesses had exculpatory evidence, shouldn’t the prosecutor, who’s job it is to see that “justice” is done, also be interested in that information – in finding the truth – and is it ever proper for the prosecution/State to suppress exculpatory evidence from a jury – a jury who is in the process of deciding the fate of a young man who otherwise would have a long, hopefully happy, life to live?

Of course the practical reality also is that, if the court did exclude/suppress these witnesses, it would be per se ineffective assistance of counsel and a mistrial would have to be declared.  So in reality, even if the court sympathizes with the prosecutor, the greater interest is in judicial economy, and no judge wants to declare a mistrial if it can be avoided.  Moreover, no judge wants to invite a reversal if no mistrial is declared and exculpatory evidence is suppressed due to failure of counsel to disclose or provide “discovery.”

When you really think about these things, you come to the realization that this is a scary world we live in.  There are so many damn laws, just about everything is illegal.  And prosecutors can be like dictatorial tyrants.  If they, or law enforcement, want you convicted of something, they will do it.  Only a defender of people – a defender of the constitution – may be able to save you.  And if you have to depend on the public defender or court appointed defense counsel to do this, they may not have the time/motivation/resources to conduct their own investigation and find exculpatory evidence.  The best protection from wrongful conviction is money.  Even if you have to borrow it, do so.  Hire a criminal defense attorney, the best you can afford.  Hire a private investigator.  Fight for your life.

– John H. Bryan, West Virginia Attorney

Interesting Appeal Filed to the West Virginia Supreme Court of Appeals

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About a month and a half ago, I mentioned that I was working on a petition for appeal that contained a factual scenario extremely similar to the Arizona v. Gant holding.  Well, it was filed early this month, and now my client has authorized me to post a copy of the filed petition.  I think it contains some interesting legal issues which have yet to be examined in West Virginia, one of which will be the use of Arizona v. Gant as it applies to “inventory” searches in West Virginia.

Additionally, this is an extremely odd case (factually).  And its one of those where the police and the prosecutor really went after the guy and he ended up getting the proverbial “book” thrown at him.  It illustrates the danger of jury trials, and the power of the prosecutor.  If they want you punished, there are enough laws out there that they can bend the facts around, that they can turn you into a felon pretty quickly – not to mention a registered sex offender.  And then they can charge you with multiple counts, basically restricted only by their whim.  The only way to stop them is to appeal.

Also, a H/T to Tom Rist for assisting with the case.