Daily Archives: July 20, 2017

Congress must put an end to the Justice Department's flagrant disregard for the Fourth Amendment.

Attorney General Jeff Sessions signed an order this week making it easier for law enforcement officials to seize property from persons who have not even been charged with a crime.

"President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that. We will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet," Attorney Jeff Sessions said Wednesday.

He added, "With this new policy, the American people can be confident knowing that we are taking action to defund criminals and at the same time protecting the rights of law-abiding people."

CBS News' Paula Reid explains how the newly announced DOJ policy, which marks a reverse of Obama-era restrictions, could help law enforcement officials get around state-level legislation meant to curb civil asset forfeiture:

24 states have passed laws limiting the practice, but local law enforcement can get around those restrictions by giving seized assets to the federal government instead of returning them to their owners. This practice is called "adoption" and it's been used to seize almost $1 billion in assets over the last decade.

It's bad enough that this entire practice is a clear violation of our Fourth Amendment right to be secure in our "persons, houses, papers, and effects, against unreasonable searches and seizures." But reversing previous civil asset forfeiture restrictions so that law enforcement agencies can skirt state laws goes far beyond bad.

If you're a conservative and you believe in personal property rights and the virtue of limited government, there's no defending a policy wherein law enforcement officials can work around local and state ordinances to seize an individual's property based entirely on suspicion.

That's some primo, grade-A garbage alright.

Congress has the power to rein in this Justice Department. Call your representative.

Excerpt from:
The new Justice Department directive is garbage. Call your representative. - Washington Examiner

Reidsville police sergeant fired after material in search warrant appeared to be 'reckless, without basis, misleading'

Sergeant Lynwood Hampshire, of the Reidsville Police Department, was terminated July 14. His termination comes after wrong-doing, while executing a search warrant, was documented in a court memorandum opinion and order. Hampshire was also accused of being part of a Fourth Amendment violation.

RPD Major Ronnie Ellison confirmed the news to WXII 12 News Wednesday. Ellison says Hampshire was employed with the department since December 6, 2004, but had been involved with law enforcement for 17 years.

His ending salary was $46,574.96.

Ellison says Hampshire was terminated for violation of department policy and general order: operational duties and responsibilities.

"Members shall establish and maintain sufficient competency to effectively perform their duties and carry out their responsibilities of their position. They shall perform their duties in such a manner as to effectively and efficiently carry out the functions and objectives of the department," said Chief of Police Robert Hassell.

Hampshire was initially placed on administrative leave. That action came after issues were listed in a search warrant involving former Greensboro police officer William White. White faces possession of stolen property charges after police say he was one of four people who stole $44,000 in lawn mowers in March.

Court documents state that on March 5, Hampshire applied for a warrant to search White's property at 7102 Destiny Jo Road in Pleasant Garden, North Carolina. The warrant was issued by a state court judge the same day.

"When asked by the court at the hearing why he waited until March to secure the search warrant from which this case arises, Sgt. Hampshire stated: 'Guilford County didn't want to deal with it. My district attorney (Rockingham County) didn't want it, and eventually, Alamance County took it over. I couldn't find a district attorney that was willing to prosecute it," court documents state.

According to the court memo, the state warrant sought evidence of the following crimes:

"The day following the issuance of the warrant, officers went to White's home to conduct the search. Special Agent Cummings, a 15-year veteran of the SBI, testified he was present at the search and his duties that day were to document the crime scene in photographs, sketches and in words to include in a report later. Cummings was directed to the master bedroom, where Detective Ken Mitchell was already searching. When he walked into the bedroom, Cummings observed several firearms and other items that Mitchell had found in different locations and spread onto the bed. Cummings observed two rifles that contained a collapsible stock, with one of the rifles having a longer barrel than the other. Cummings seized the rifles and suppressors after viewing them. The day after the search, law enforcement checked the national firearms registry and learned that White had not registered the rifle and silencers," court documents state.

White would later challenge the validity of the search warrant, contending:

White also contends that "even if the warrants were valid, seizure of the rifle and suppressors were not authorized because the registration status of these items was not something immediately apparent to law enforcement under the plain-view doctrine," court documents state.

THE SEARCH WARRANT

The Fourth Amendment requires that warrants be based upon probable cause supported by oath and contain a particular description of the place to be search and things to be seized. White contested whether those elements have been satisfied.

STALENESS

White says the affidavit in support of the search warrant failed to provide probable cause because it was based on information that was four to six months old.

White argued that paragraphs one through nine of Hampshire's warrant affidavit involved conduct related to White's alleged acquisition of and sale of the lawn mowers in August and September of 2016; five to six months prior to the warrant being sought. He argues further that paragraphs 10 through 15 of the affidavit contain no dates and fail to demonstrate that there would be evidence present at White's home five to six months after the fact.

Paragraph 16 of Hampshire's affidavit states that based on his training and experience, suspects often keep these types of evidence readily accessibly in residences, vehicles, businesses, or on their person. Further, with respect to the omission of certain relevant dates, the affidavit does contain a number of investigatory steps Hampshire undertook to determine White's involvement with the stolen tractor, albeit without the dates.

"Considering all of the facts and circumstances, specifically the nature of the evidence to be seized in this case, and giving the issuing judge's determination great deference as required, (the) court concludes that White's staleness argument must fail," court documents state.

THE PARTICULARITY REQUIREMENT

The warrant affidavit in paragraphs one to 11, under the heading "Property to be Seized," lists specific items of the property that are to be taken away. White had an issue with the language in paragraph nine of Hampshire's affidavit, which stated: "any and all property belonging to the victims and/or suspects of this [sic] crimes." He contends the broad language makes the warrant an unconstitutional general warrant.

"While the language in paragraph nine appears overly broad, the other ten paragraphs under the section entitled "Property to be Seized" outlines with specificity the types of evidence to be seized and connects the language to the alleged crimes under North Carolina law," court documents state.

The court concluded the warrant does not fail because of lack of particularity.

FRANK'S HEARING REQUEST

White argued the warrant affidavit contains an intentionally false and misleading statement, or a statement made in reckless disregard for the truth.

White said paragraph 14 of the warrant affidavit includes false statements. The court agreed.

Paragraph 14 of the warrant affidavit states, in relevant part:

During the interview, William White made the comment "he was here to talk about the mower he stole[.]" He immediately recanted the "stole" to say "sold."

"Upon review of the video recording introduced at the hearing, the Court concludes that this statement in the warrant was so totally taken out of context that it was intentionally misleading and demonstrates a reckless disregard for truth," court documents state.

The relevant portion of the video of White's interview with Hampshire and Agent Denny demonstrates the following:

Denny: Has [Sgt. Hampshire] explained to you why we're here today?

White: He has told [pause] he told me a lawn mower I stole was stolen. First he told me I stole it. It was stolen. But, uh, he told me it was stolen.

Denny: Okay, alright. Do you remember selling [inaudible]

White: I guess I'll have to explain to you guys I flip stuff. So, you'll have to be...

Denny: [interrupts] Okay.

White: [continues] ...very specific with me. Houses, cars, lawn mowers, you name it. I do it all. So, you have to be extremely specific with me.

Denny: Okay.

The court document stated that not only is the statement in paragraph 14 of Hamphsire's warrant affidavit not a direct quote from White, the recording makes it clear that White was responding to the question that was posed to him by Agent Denny about whether he knew the basis for the interview.

"No reasonable person would conclude that White's statement was anything other than a response to Agent Denny's question," the court document reads.

"Specifically, Hampshire testified: 'I originally told [White] that I needed him to come in to speak to me about the lawn mower that he had stolen and then I said sold,'" court documents state. "Clearly, White was responding not only to Agent Denny's question, but was sharing what Hampshire had said to him in the message the day before."

According to the court memo, the statement made by Hampshire was intended to mislead the judge into believing White had admitted to stealing a tractor and, further, had recanted that admission.

"There is no question that the statement in paragraph 14 would compel a judge to find probable cause under the circumstances of this case. Thus, Hampshire's inclusion of the statement outlined in paragraph 14 was reckless in that it was without basis, was misleading, and further it was material to the state court's finding of probable cause," court documents state.

PLAIN-VIEW DOCTRINE

White's final argument is that the lawfulness of the rifle and silencers was not readily apparent to officers seizing them and the plain-view doctrine should not apply.

The government stands by the seizure of the rifle because the "incriminating character of the short-barreled rifle and modified suppressors was immediately apparent to Cummings."

"Cummings testified that when he entered the master bedroom, he observed the short-barreled rifle and two suppressors lying in a gun case on the bed. The third suppressor was lying open in another gun case, likewise on the bed. Cummings testified that he did not observe Mitchell, who was in the room when he entered, move any of the items from their original location; nor could he tell the court why Mitchell needed to move these items from their original location to the bed," court documents state.

According to the court memo, the government presented no evidence regarding the circumstances involving the search and the subsequent removal of the firearm and suppressors from their original location. The court, therefore, could not evaluate the government's assertion that the items were in plain view when discovered, or whether the original seizure was valid.

"The government presented no argument as to how the rifle and silencers present in White's home would be an immediately apparent violation of the statue prohibiting the possession of unregistered firearms," court documents state.

White's motion to suppress the evidence, the rifle and silencers seized from his home, from trial was granted.

The court document ends with: "The Fourth Amendment of the United States Constitution requires that individuals must be protected, particularly in their homes, from unreasonable searches and seizures. When it appears that law enforcement treats this sacred constitutional right as nothing more than an impediment to making their case, we all lose."

Read the rest here:
Reidsville police sergeant fired after material in search warrant appeared to be 'reckless, without basis, misleading' - WXII The Triad