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Why the McFadyen warrant was invalid; from the start
Topic Started: Mar 3 2010, 02:19 PM (356 Views)
Quasimodo

From the Ekstrand suit:


b. The McFadyen Warrant Affidavit

The only additional “fact” asserted [by the DPD] in the Affidavit for the McFadyen Warrant was text claimed to be excerpted from an email provided by an “anonymous source”.

Because the Affidavit stated that the source of the text allegedly extracted from an email was from an “anonymous source” the Affidavit needed to contain some indicia of the anonymous source’s reliability to be considered in the probable cause determination.

Six years prior to the McFadyen Search Warrant, the United States Supreme Court issued a unanimous decision holding that an anonymous tip claiming that a juvenile standing on an identified street corner unlawfully possessed a gun was not sufficient to satisfy the reasonable suspicion standard required to justify the brief . . . stop of the individual when police found him standing on the corner.

The Court held that the anonymous tip, standing alone, lacked sufficient indicia of the anonymous informant’s reliability.

(“[Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, ‘an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity,’” (internal citations omitted) (quoting Alabama v. White, 496 U.S. 325, 329 (1990)).

Like the anonymous tip in J.L., Gottlieb and Himan’s Search Warrant Affidavit contained no factual material whatsoever relating to the reliability of the “anonymous” source of the disembodied text.

In addition, Gottlieb and Himan’s “anonymous source” had taken affirmative steps to ensure there would be no way for police to discover his identity. Himan, in sworn testimony, later admitted that the other officers tried to identify the anonymous source through an inquiry with the source’s email account provider (Google); however, Google advised them that Gottlieb’s anonymous e-mailer created the email account used to send the ‘tip’ without providing Google any of his or her identifying information.

The source’s deliberate effort to prevent police from discovering his or her identity is devastating to the e-mailer’s reliability. Cf. J.L., 529 U.S. at 276 (“If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip.”).

Gottlieb omitted that material fact from the Search Warrant Affidavit also.

Information from an anonymous source, be it the location of a young man with a gun or disembodied text alleged to have been sent from a person’s email account, is presumptively unreliable, even as a basis for a minimally intrusive . . . stop on the street.

Therefore, standing alone, as it must in the corrected Affidavit, Gottlieb’s disembodied email text would not have justified even a . . .stop of Ryan McFadyen under the Supreme Court’s cases.

It goes without saying that “reasonable suspicion” is a far cry from probable cause, and probable cause is what Gottlieb was required to establish in his Affidavit for a Warrant to Search Ryan McFadyen’s dorm room.

The corrected affidavit offers no indicia of the reliability of the e-mailer. The disembodied e-mail text is, therefore, unreliable as a matter of law, see J.L., 529 U.S. at 271-73, and it could not be used to support the probable cause determination at the time Gottlieb applied for the McFadyen Search Warrant.

Gottlieb and Himan may not use it in this forum.

No reasonable officer would believe that supplementing the corrected affidavit with the disembodied text of an email sent by an unknown and unknowable “anonymous source” would establish probable cause. See generally J.L, 529 U.S. 266, and the cases cited therein; Illinois v. Gates, 462 U.S. 213, 239 (1983); United States v. Tate, 524 F.3d 449, 457 (4th Cir. 2008) (officer’s affidavit “provided no details regarding the source or context” of information, and, as such, the information could not support issuance of a search warrant); United States v. Wilhelm, 80 F.3d 116, 119-21 (4th Cir. 1996) (officer’s search warrant affidavit failed to establish “anonymous” caller’s reliability where caller provided information that almost anyone who “occasionally watches the evening news” could have given, reversing conviction based on fruits of the search).
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Quasimodo



2) Gottlieb Knew No Evidence of A Crime Would Be in
McFadyen’s Dorm Room

In addition, the AC alleges ample proof that Gottlieb and his co-conspirators knew the disembodied email text was not evidence of any crime.

For example, Gottlieb did not seek a warrant to search the room or home of the young man who replied, “I’ll bring the Phil Collins.”

Upon the release of the Affidavit, the police department advised Ryan’s counsel that Ryan was free to go to his home in New Jersey because the police department had no plans on arresting him for the conspiracy to commit murder. Finally, many of the “things to be seized” were already in the police department’s possession, including, for example the “dancer’s white shoe.”

Taken together, these allegations are sufficient to establish an actionable § 1983 Claim against Sgt. M.D. Gottlieb for causing the Plaintiffs to be subjected to NTID procedures without probable cause to believe that the felonies alleged had been committed, or “reasonable grounds” to believe that Plaintiffs committed them.

They are also sufficient to state an actionable § 1983 claim against Sgt. M.D. Gottlieb for causing Ryan McFadyen to be subjected to searches and seizures of his home, papers and effects without probable cause to believe a crime had been committed or probable cause to believe that evidence of any such crime would be found in his dorm room two weeks hence. Gottlieb’s motion to dismiss these causes of action must be denied.
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Jason Trumpbour

Following the NTO, this event thus marked the second time that Judge Stephens signed an order or warrant without probable cause. The whole idea of having neutral and detached magistrates evaluate warrant applications is to prevent harassment and fishing expeditions exactly like this one. The law you cite about the need for corroboration where an anonymous informant is used is so basic and so well settled that there is no way that Stephens, a man who was a career prosecutor, could have been mistaken about it.

Ordinarily, the police are allowed to rely on a warrant if it is issued by a magistrate even if it is later ruled invalid as long as they act in good faith. Police are not expected to be experts on the law. However, the failure to corroborate information supplied by an anonymous source is such a critical omission by the police that you can argue that, for that reason alone, the warrant was invalid on its face and that the police could not have relied on it in good faith, hence, a civil rights violation.

If I recall correctly, there were other statements in the affidavit supporting the application for the warrant that were false and misleading. Such statements would also preclude good faith reliance on the warrant.

I would take Himan’s sworn testimony with a grain of salt. The easiest way to corroborate the anonymous tip would have been to subpoena the original e-mails. There is no other information that they would have needed from the anonymous source so why look for him or her. Moreover, this tip supposedly came through Crimestoppers. The whole idea of Crimestoppers is that citizens are encouraged to provide tips by the promise of anonymity. I have never heard of police officers anywhere trying to breach that promise by trying to trace a tip.

I have always been suspicious of the Crimestoppers claim. The affidavit recited that the source was a confidential informant. A confidential source is subtly different than an anonymous source. A confidential source is someone known to police, but whose identity is not being revealed by police. Even so, police still have to show that this source has been reliable in the past or corroborate the information he or she provided. The Crimestoppers claim was made later when people started asking who the source was.

Remember, Duke was giving personal information to police about its students upon request without a subpoena as evidenced by the key card information. I think it is highly likely that Duke was the source of the e-mail as well.

I suspect that the reason police never went the subpoena route is that it would have shown the context of the message, which would have clearly shown that it was a joke. (Not that most people could not have already figured that out.) From what I have been told, the McFadyen e-mail was part of a chain of messages among the players that went on and on and was quite funny even if the American Psycho reference was not your cup of tea.
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nyesq83
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Excellent, Jason, thank you!
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