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View Full Version : Double check re. requirements for search warrant - with bonus RICO question!



Captcha
08-28-2010, 10:48 PM
Jursdiction: US (Montana)

It's my understanding that search warrants are not required if police have reason to believe that a crime is currently being committed inside the premises. That said, I'd like to double-check that my understanding of the law is being properly applied to my (fictional) facts:

One group of outlaws is working with the police to bring down another group. The first group picks up a couple bundles of pot on the Canadian side of the border and brings them across, and places tracking devices somewhere in the bundles. The cops then observe (from a distance) as the first group delivers the pot to the second group (the ones the cops are after). The cops don't have visual contact with the pot all the way to its destination, but they do track it using the planted devices. When it gets to the destination (a biker hangout) - can the cops go inside without a search warrant? And once they find the pot, can they search the place to see what else they can find?

And how would charges work on that - is anyone who was in the building deemed to have been in possession? Like, if there was no one standing near the drugs when the cops arrived. Would RICO play into this, given that it's a biker club with a history of drug trafficking?

Thanks very much for any help - I HAVE done some research on this, but it's nice to have expert opinions to back up my application of the rules to my specific situation.

jclarkdawe
08-29-2010, 12:08 AM
Jursdiction: US (Montana)

It's my understanding that search warrants are not required if police have reason to believe that a crime is currently being committed inside the premises. Providing that there is no time in which to obtain a search warrant. In other words, a stolen painting is hanging on the person's wall, which they have evidence of based upon a picture taken by someone who had visited the house. Possession of stolen property is a crime, but there is no reason to believe that the picture would be destroyed during the time the police to obtain a search warrant. It's a judgment call, made by a judge after the fact. That said, I'd like to double-check that my understanding of the law is being properly applied to my (fictional) facts:

One group of outlaws is working with the police to bring down another group. The first group picks up a couple bundles of pot on the Canadian side of the border and brings them across, and places tracking devices somewhere in the bundles. The cops then observe (from a distance) as the first group delivers the pot to the second group (the ones the cops are after). The cops don't have visual contact with the pot all the way to its destination, but they do track it using the planted devices. When it gets to the destination (a biker hangout) - can the cops go inside without a search warrant? They'd probably prefer to get a warrant. There's no evidence the drugs are going to be destroyed or removed during the time it would take to get a warrant. That being said, a lot of cops would go in. But the search would have problems in court. And once they find the pot, can they search the place to see what else they can find? No, only in the direct proximity of the crime. Even the search warrant has to define where the police can search. But in the process of securing the scene, they would probably enter every room, so anything visible would be observed. Further, once they go in, they can get a warrant at that point to expand the search.

And how would charges work on that - is anyone who was in the building deemed to have been in possession? It depends upon whether there is an argument that they would have been in possession. In a biker hangout, it might not have been shown to all the members. Again, a judgment call. But the police would probably arrest everybody and sort it out later. Like, if there was no one standing near the drugs when the cops arrived. Would RICO play into this, given that it's a biker club with a history of drug trafficking? Yes, RICO would apply, but I'm not sure how you're looking to apply it.

Thanks very much for any help - I HAVE done some research on this, but it's nice to have expert opinions to back up my application of the rules to my specific situation.

Best of luck,

Jim Clark-Dawe

MarkEsq
08-29-2010, 01:05 AM
Just popping in to say that Jim is bang on with his responses. You have a carefully planned LE operation going on here, so it would be unrealistic IMO for the cops to risk the operation by going in without a warrant. In reality, they have one drafted up in advance and they'd fill in the details as the operation progressed. As soon as the warrant is signed, in they go.

As for who they'd charge, they would probably have specific targets in mind and grab them. If they are after the big boys they wouldn't bother sweeping up everyone in the bar, though Jim's right that they could.

Also, RICO is a federal statute and if you're applying Montana law you'd have to look for a state law corollary. They wouldn't bother trying to use a RICO-type statute to charge mere possession, is my guess.

jclarkdawe
08-29-2010, 04:44 AM
Just popping in to say that Jim is bang on with his responses. You have a carefully planned LE operation going on here, so it would be unrealistic IMO for the cops to risk the operation by going in without a warrant. In reality, they have one drafted up in advance and they'd fill in the details as the operation progressed. As soon as the warrant is signed, in they go.

I wanted to expand on this a bit.

As Mark says, as much of the warrant is going to be filled in before the operation starts. A prosecutor would be in contact with the lead for the police. As the information comes in, the warrant would be completed. During normal work hours, finding a judge isn't a problem. The prosecutor would be sitting at the courthouse.

After hours, a judge is on call. In New Hampshire, for a time sensitive operation, the prosecutor would probably be sitting in his car a little ways from the judge's house, who would have been warned about the possible need. As soon as the requirements for the warrant are met, the prosecutor calls the judge to say he's coming in about five minutes.

The prosecutor would then inform the judge of the information that they have on an offer of proof. In other words, the prosecutor may not have the actual affidavits in front of him. But obviously the prosecutor had better be able to put up, because the prosecutor that lies to a judge had better find a new career, even if the lying is caused by some simple communication error.

Judge then signs the warrant, keeping a copy for himself and returning the original to the prosecutor. Prosecutor then calls lead officer, says he's on the way with the warrant. Lead officer decides whether to go in on the verbal warrant or wait until the warrant actually arrives. My guess is the officer would wait unless people started to leave.

Depending upon location and rush, and the amount of resources available to the case, you can get the warrant in as little as fifteen minutes. More usual time would be two to three hours, but it's still quick.

Realize that warrant here would probably include one or more search warrants, and arrest warrants in the names of any known individuals, as well as maybe some John Doe arrest warrants.

Best of luck,

Jim Clark-Dawe

RJK
08-30-2010, 12:34 AM
When prosecuting criminals for drug trafficking, you try to get the guys as far up the supply chain as possible. In your scenario, The gang smuggling the drugs over the boarder would fit that criteria. My question is, why would the cops give them a buy, cooperation or not, to get the smaller fish down the line? If they were going to go after anyone, they'd put a tracker on the money, and go after the guys in Canada (with the cooperation of the Mounties and Provincial Police).

You're going to need to address this inconsistency.

Captcha
08-30-2010, 12:56 AM
The Canadian side may or may not go after the growers, but the reason the US cops are giving the smugglers a buy is because the smugglers came to them with the offer to cooperate (the smugglers are trying to get rid of the biker competition). If the cops are encouraging the smugglers to carry the drugs across, they can't bust them, right? (entrapment)

Let me know if that logic is off.

RJK
08-30-2010, 05:14 PM
If the police ask them to commit a crime, it's entrapment. If they planned to commit the crime anyway, which seems to be their history, it is not entrapment. I don't think the smugglers would expose themselves to the police in the hopes of eliminating competition. The prosecuting attorneys would offer the smugglers lighter sentences for their cooperation, but they would definitely be putting them out of business, not helping them grow.

The cops could pull a sting on the smugglers. Get them to help catch the biker gang, but again, why would the smugglers go to the police in the first place? Find a good reason for their cooperation first, then the other stuff will work.

PeterL
08-31-2010, 09:24 PM
The lawyers did a good job with the warrant. The idea of police expecting to successfully prosecute a drug case without a good warrant is absurd.

My thought was what the moose brought up, entrapment. A good defense lawyer could get the charges dismissed and successfully sue the police for what they did, unless the gang being used would have done the same thing anyway.

Rowan
09-01-2010, 02:28 AM
Kate--
I know you were talking DEA a while ago...is your MC now a state/local LEO? If you're still going with DEA, let me know as I've got some things to add--a few issues! ;)

Captcha
09-01-2010, 05:37 AM
Rowan - my MC is state, now, I think. She's working with the local law, but begins to believe that the sheriff is corrupt (taking a payoff from the bikers to look the other way or even to actively help them). So I think she'll appeal to the DEA or other larger body for help with the case. So, yes, I think it would be the DEA who would actually be making the arrests, in this case.

Rowan
09-01-2010, 02:10 PM
Rowan - my MC is state, now, I think. She's working with the local law, but begins to believe that the sheriff is corrupt (taking a payoff from the bikers to look the other way or even to actively help them). So I think she'll appeal to the DEA or other larger body for help with the case. So, yes, I think it would be the DEA who would actually be making the arrests, in this case.

These are just some ideas, etc. :) How big is this DTO that's working with her to take down the other DTO? Consider having just one guy helping the cops, ie., maybe the 2nd in command or even the guy leading the DTO. It's not very common to have an entire DTO willingly helping the cops out--that leads to more possible leaks/headaches for the cops as well. (Plus, they're not all going to get deals so what's their motivation? To wipe out their competition? Not likely as it's not like they can just go about their business afterwards, etc.). And I'm thinking based on the scenario, these aren't 2-3 man operations. ;) If you've got one guy helping the cops--he'll act as their CS and he'll get consideration for a deal. It also sets up some "revenge" scenarios for later down the line if you're going that route.

DEA works most big cases with CS involvement. That's another way to determine who or what is inside before executing a warrant. Not just drugs but number and placement of targets and weapons, layout of the bldg, etc. Especially when dealing with a biker gang. On that front, does the department have a UC in this gang??--when you're trying to take down a large scale op, this is common practice. Hard to answer your question re: how many would be arrested without knowing more specifics like how many people are in this DTO/gang, are they all involved. Sometimes you take everyone in and see who will flip...if you've got a UC or CS inside, then you'll know your focus beforehand and it won't be a free for all. Of course you'll arrest the UC and/or CS just for appearances (which often means arresting more individuals). Note, you'll secure everyone upon entry, regardless of whether or not they'll be placed under arrest. Agent/Officer safety and all that...

Your drug charges should be pretty obvious but as MarkEsq said--RICO = federal statute. http://en.wikipedia.org/wiki/Racketeer_Influenced_and_Corrupt_Organizations_Act

Hells Angels Motorcycle Club
In 1979, the United States federal government went after Sonny Barger (http://en.wikipedia.org/wiki/Sonny_Barger) and several members and associates of the Oakland chapter of the Hells Angels (http://en.wikipedia.org/wiki/Hells_Angels) using RICO. In United States v. Barger, the prosecution team attempted to demonstrate a pattern of behavior to convict Barger and other members of the club of RICO offenses related to guns and illegal drugs. The jury acquitted Barger on the RICO charges with a hung jury (http://en.wikipedia.org/wiki/Hung_jury) on the predicate acts: "There was no proof it was part of club policy, and as much as they tried, the government could not come up with any incriminating minutes from any of our meetings mentioning drugs and guns".[7] (http://en.wikipedia.org/wiki/Racketeer_Influenced_and_Corrupt_Organizations_Act #cite_note-6)[8] (http://en.wikipedia.org/wiki/Racketeer_Influenced_and_Corrupt_Organizations_Act #cite_note-7)


http://www.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_96.html
I'll defer to MarkEsq to answer specific questions re: this! :)