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The doj and creative justice

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The doj and creative justice

Judge Tells DOJ It Can't Un-Suppress Evidence By Starting The Indictment Process All Over Again

from the if-at-first-you-don't-succeed,-upend-the-Bill-of-Rights dept

Sure, we like the DOJ when it's handing down scathing reviews of local law enforcement agencies and belatedly issuing warrant requirements for IMSI catchers, but we're not nearly as thrilled when it argues against warrant requirements for cell phone searches, demands backdoors in phone encryption, or beats mild miscreants over the head with the CFAA.

In fact, there's very little to like about the DOJ outside of its civil rights division. Here's yet another reason why the Department of Justice often seems like a misnomer. (h/t Brad Heath)

A decision [PDF] has been handed down by a federal court in Puerto Rico, presumably with an eyeroll and an exasperated sigh.

In 2014, Homeland Security agents searched Jose Silva-Rentas without reasonable suspicion, probable cause, or a warrant. Silva happened to be next to somebody HSI agents did search with probable cause.

Rentas moved to suppress the evidence and the court agreed that the government's theory of probable cause osmosis wasn't enough to salvage the search.

The government makes much of Colón's unwise response to the agents' arrival, arguing that his evasive (and criminal) conduct not only gave rise to probable cause for his arrest, but also provided the agents with grounds to arrest Silva and the other individuals in the area.

But probable cause as to one individual does not necessarily extend, as though by osmosis, to those in his company.

It "must exist with respect to each person arrested, and `a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to [arrest and] search that person.'"

The government then tried to salvage the results of the search with a motion for reconsideration.

This was also denied.

The court here found the tip from a confidential informant too unreliable to form the probable cause needed for the detention and search of Silva.

    The government moves for reconsideration, claiming again that the agents relied on trustworthy confidential sources.

In this regard, it points out that the confidential sources' identities were previously known to Agent Clemente, and that the sources had provided reliable information on illegal activities allegedly carried out by members of Silva-Rentas' drug trafficking organization.

The motion, however, is silent as to how the agents were aware of the confidential sources' identities, or what reliable information they previously provided.

They may have been denied twice by the same judge, but federal prosecutors weren't going to let the judicial system stand in the way of a conviction.

 So the did they only thing they could do, which turns out to be the sort of thing they can't actually do: they rang Rentas up for a completely identical prosecution.

The DOJ's lawyers tried to find a gap in case law to exploit, hoping that some sort of technicality (it's great when it works for the home team, right?) would allow it to use evidence already suppressed by the same court to pursue a second prosecution against someone it had already dismissed charges against.

The Puerto Rico court -- entertaining the same prosecutors and same defendant for a second time -- isn't amused by this ploy.

It cites the case law the DOJ's lawyers should have read before making their Double Jeopardy Lite maneuver.

    Here, the prosecuting entities in the case before Judge Delgado and the case at bar are identical.

Federal prosecutors litigated Defendant’s prior suppression motion and prosecutors from the same office are litigating the instant motion.

Further, both parties had a full and fair opportunity to be heard on the matter during the prior case as the Motion to Suppress was filed on December 30, 2014 and the matter was not fully disposed of until August 27, 2015 when Judge Delgado denied the United States’ Motion for Reconsideration of the Court’s ruling suppressing the evidence.

Between the two dates, Judge Delgado analyzed the parties’ briefs, held an evidentiary hearing, and published a detailed opinion with findings of both fact and law.

Thus, the parties were fully heard on the issue and the Court adjudicated the matter through a valid and final on the merits.


The government argued that "final" doesn't always mean "final." The court disagrees.

    n his prior case, Defendant was indicted on several charges relating to possession of weapons by a convicted felon and possession of a machine gun.

Soon after the ruling suppressing the search and seizure which yielded weapons on Defendant’s person, the United States moved to dismiss all charges against Defendant.

For the Court to now find that Judge Delgado’s detailed ruling suppressing all firearms seized from a defendant charged with possession of said firearms is not essential to the judgment of dismissal would be nonsensical.

 Accordingly, the Court finds this element has, too, been satisfied.

As the court points out, to buy into the DOJ's argument would be to allow it to go judge shopping repeatedly until it found a court willing to admit evidence a court had previously suppressed.

    To hold to the contrary would imply that the United States is afforded infinite opportunities to use previously suppressed evidence against a defendant in subsequent proceedings in separate cases.

This would also allow the United States to reargue admissibility of evidence in perpetuity until they find a judge that holds the evidence admissible.

Obviously, that would not be in tune with the Constitution’s protections against Double Jeopardy nor the Fourth Amendment’s prohibition against unreasonable searches and seizures.

The DOJ probably isn't thrilled its arguments have been boiled down to a latent desire to overturn Constitutional protections and pursue multiple prosecutions for the same criminal allegations, but that's what its arguments are when all the legalese prettying it up is stripped away.

This is the DOJ's farcical interpretation of the word "justice."




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