Home Invasion Search Warrant: Two Knocks is One Too Many

April 20, 2017

Screen Shot 2017-04-20 at 12.02.57 PM(United States v. Juan Olaya, D-2, Case No. 15-cr-20200, EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION)

On December 5, 2014 a group of 6 that was attached to a spree of home invasions was finally broken after arrests were made in a home-invasion in Flower Mound, TX. The group was attributed to home invasions in New Jersey, Michigan, and Texas and charges varied from federal racketeering to weapons, kidnapping and violent assault.

In Texas, one of the group’s members left a cell phone in a vehicle that was found to be associated with the crimes. According to court documents (linked below), Texas’ officer Mark Esparza obtained a warrant to examine the Samsung phone and photo documented a number of text messages and other evidence related to the crimes. The phone did not, however, have a full forensic acquisition.  After photo documenting the evidentiary information, officer Esparza returned the warrant. Nine months after Esparza’s search, the FBI, without obtaining a new warrant, searched the cell phone again and this time they did a full forensic acquisition of the phone.

This final acquisition of the phone brought the number of searches of the phone to three: Pre-warrant search for IMEI and phone number, warranted search for the phone evidence, and Federal search through the acquired phone image. Presumably, the search through a forensically acquired phone would yield additional information, and reading between the lines I am guessing this was the case for the evidentiary Samsung phone. Certainly it would assist in authenticating the evidence.

Defendant Jaun Olaya, the owner of the phone and one of the group members charged, moved to suppress the results of all three searches.  Mr. Olaya argued that “even if the screenshots that Esparza obtained should not be suppressed, the results of the more comprehensive FBI search should be.” On 4/19/2017 the Eastern District of Michigan, Southern Division court agreed with Olaya: The FBI’s acquisition of the phone and subsequent search was found to be warrantless and a violation of Olaya’s 4th amendment.  Pages 14 through to the end of the Court’s opinion and order contain the Court’s reasoning on this point.

What would be interesting to me (and potentially to criminal defense attorneys) is whether the same logic of the court could be applied if officer Esparza HAD done a full forensic acquisition of Olaya’s phone: Under those conditions, would the government’s use of Esparza’s acquisition required a second warrant?  The fact is, there is a lot of data in a phone acquisition that has nothing to do with specific crimes so I am guessing that the argument could be made.  If any criminal attorneys know of some good cases to answer the question, feel free to post below!

 

United States v. Juan Olaya, D-2, Case No. 15-cr-20200, EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

 

 

 

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Changes to FRCP 8, 26 and 56 Just Around The Corner

November 16, 2010

December 1, 2010 marks the date that some important changes to Federal Rules of Civil Procedure will take effect.

The changes will affect the following:

1. Rule 8:  General Rules of Pleading  (Last amended Aug. 1, 1987)

2. Rule 26:  Duty to Disclose; General Provisions Regarding Discovery (Last amended Dec. 1, 1993)

3. Rule 56: Summary Judgment (Last amended Dec. 1, 2009)

As an expert witness, Rule 26 is the change that has most impact to me and how I interact with my cases and my clients.  For this reason I have focused on outlining the more significant changes.  I have provided a link to the full House Document 111-111 at the bottom of this post.

The biggest change is in the wording and interpretation of Rule 26(a)(2)(C) regarding disclosures of draft copies and communication of the expert witness.  While the previous 1993 interpretation meant that all drafts, notes and communications are to be disclosed, the new Rule 26 fixes this interpretation.

Citing the “profoundly practical” argument for extending work-product protection to certain communications and all drafts of the written report, the Civil Rules Committee went on to point out the loss of “robust communication” between the attorney and the expert [1] (we all know the wild gyrations we take to avoid discoverable material) , the “tortuous steps to avoid having the expert take any notes”, and the “often futile” attempts to show that the expert was unduly influenced by the retaining lawyer. [2]

On a real-life level, I never take notes unless they are to document methodology, and unless given specific permission I avoid email and other written communication to my retaining attorney.  Report generation (unless it violates a specific order) means that I generate a report without saving it and have a remote viewing session with my retaining attorney.  This tends to create:

  • Extra phone calls to verify recollection of information,
  • Unnecessary phone tag,
  • Additional report generation time, and
  • A decrease in the retaining litigant’s view of the efficiency and effectiveness of the process.

Here are some of the highlights of the Rule 26 changes that fix the above issues:

  1. 26(a)(2)(B)(ii) has been amended to read that disclosure is to include all “facts or data considered by the witness in forming” their opinions.  This changes the previous wording of “the data or other information” verbiage that was used to imply all communications, written notes and drafts.
  2. The “Time to Disclose Expert Testimony” has been shifted to 26(a)(2)(D) and specifies the time limit for rebuttal evidence for both 26(a)(2)(B) and 26(a)(2)(C).  The new 26(a)(2)(C) deals with witnesses that are not required to provide a report.
  3. 26 (b)(4)(B) protects “drafts of any report or disclosure required under 26(a)(2), regardless of the form in which the draft is recorded.”  Essentially this makes the verbiage change in 26(a)(2) explicit.
  4. 26 (b)(4)(C) provides protection for “communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications”.  There are three types of communications that are exempted from this protection, though:
  • Communications that relate to compensation for the expert’s study or testimony;
  • Communications that identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed (emphasis added)
  • Communications that identify assumptions that the party’s attorney provided and the the expert relied on in forming the opinions to be expressed (emphasis added)

In short – better communication, less wild gyrations by the experts and their retaining attorney and shorter deposition without all the attempts to show undue influence. I was excited to see this discussed at Sedona and am thrilled to see the results just around the corner.

The only thing I will miss is the competitive advantage actually knowing FRCP gave me in this area vs. the numerous experts that didn’t seem to take the time.

The benefits, though, definitely outweigh this one advantage.

The link to the Supreme Court’s Approved Rules page is here:

Approved Rules Page

Direct links to the component PDF documents are below:

Rules (Clean Version)

Excerpt of the Judicial Conference Report

Excerpt of the Report of the Advisory Committee on Civil Rules

[1] 111th Congress, 2d Session House Document 111-111, page 35
Civil Rules Committee Report 5/8/2009, page 3

[2] 111th Congress, 2d Session House Document 111-111, page 25
Excerpt From The Report of the Judicial Conference 12/18/2009, page 3

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Please Disseminate:  Abused Women and Electronic Trace Information (in memory of Sandy B)

February 12, 2010

As many of you know, I recently had a case that ended tragically in a murder/suicide.

My client was an incredible woman who was trying to escape an abusive situation.  She had already fled her home and was working with a safe house.

It is my opinion that her husband used a specific electronic method to obtain information and identify her location.  He then followed her and waited until she came out of a store, ran her down with his vehicle and then took his own life.

Since this occurred I have spoken with a few safe house organizations and have come to realize that, while there is a marked increase in the use of electronic means to track an abused spouse, there is not a corresponding level of information on how to “Cut The Electronic Cord”.

In a recent Houston Chronicle article (Mary Flood, “Till Texts Do Us Part”, Houston Chronicle, Front Page, 12/17/2009) I covered with Ms. Flood a few of the areas that can be abused on cell phones and mobile devices.  While the article was helpful to a number of people, for some of them it was helpful in a way we had not intended — they were planning to use the information to further their own nefarious ends.

Realizing all of this, I have developed a web seminar that I will offer free to safe house organizations, divorce and family attorneys and abused women to attempt to share my knowledge base in the area of cutting electronic trails.  The webinar is entitled “Cutting the Electronic Cord: Managing Electronic Trace Information” and runs approximately 30 minutes.  I will provide the web seminar facility, call in number, and other resources to make this available.  There will also be a facility to handle live questions.

The seminar is NOT a marketing ploy and there will be absolutely NO commercialization or pitching of any products.

I have chosen my cause – and this is it.

If you are a family attorney or safe house organization you may contact me and schedule the webinar on your timetable.  Please be ready with at least three dates and times so that we can correlate calendars more efficiently.

On a go forward basis, I invite attorneys, safe house organizations and abused women to contact me free of charge for consultation.  I will supply safe house organizations with my direct cell phone for emergency events regarding questions related to electronic tracking means.

I am asking my business contacts, Facebook and Twitter contacts to disseminate this information, as well as my contact information, to appropriate sources so that we can start an education program in earnest.

With regards,

Aaron Hughes, CISSP
Vidoc Razor, LLC
Aaron.Hughes@VidocRazor.com
713-474-2286

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