United States v. Manafort
United States v. Manafort
Opinion of the Court
Defendant Paul J. Manafort, Jr. has moved to suppress the evidence obtained when the FBI executed a search warrant issued by the United States District Court for the Eastern District of Virginia, and it seized business records contained in boxes and a filing cabinet in a self-storage unit in Alexandria, Virginia. Manafort argues that the search was unlawful because the agents entered the storage unit and looked around without a warrant the day before they presented their request for a warrant to the court. While they did not open the boxes or review the papers filed in the drawers on that day, they described the exterior of the containers they observed, including the labels on the boxes, in the warrant application. Therefore, Manafort claims, the warrantless initial entry tainted the later search of the files that was authorized by the warrant. He also argues that the warrant itself was too broad to comport with the Constitution for a number of reasons, including that it was not limited to a particular time period and it called for broad categories of financial records.
The defendant's motion will be denied. Law enforcement agents do not need a warrant to enter a location if they have voluntary consent, and they do not need to *217have the consent of the person under investigation if they receive permission from a third party who has, or who reasonably appears to have, common authority over the place to be searched. Here, the agents obtained a copy of the lease for the storage unit. The person identified as the lessee or "occupant" of the storage unit was an employee of a company owned by Manafort who had a key to the premises, and he unlocked the door for the agents and gave them written permission to enter. Therefore, the preliminary inspection of the unit falls within the consent exception to the warrant requirement.
Furthermore, the agents did obtain a search warrant in compliance with the Fourth Amendment for the containers within the storage unit before they opened any of the boxes or drawers or examined the records inside. A review of the warrant affidavit reveals that even if the initial survey of the unit was unlawful, that finding would not invalidate the seizure of the records that was carried out in accordance with the warrant. The affidavit in support of the warrant application set out the agent's reasons to believe that Manafort had been engaged in criminal activity in the conduct of his business, and that his business records had been moved to, and remained in, the locker rented for that purpose. So, if one were to excise the challenged information from the application, and presume that the Magistrate Judge was presented with a warrant application that did not include the few paragraphs describing the contents of the storage unit and the labels on the boxes, the affidavit would still support a finding of probable cause to believe that a crime or crimes had been committed and that records related to those crimes were likely to be found in the unit.
Finally, the warrant was not overbroad since it called for records related to specific offenses detailed in the application and in the warrant itself. And even if this Court were to conclude that the warrant could or should be have been more tightly drawn, the agents relied in good faith on a warrant that had been reviewed and signed by a United States Magistrate Judge, and therefore, the evidence seized during the execution of the warrant should not, and will not, be excluded.
BACKGROUND
I. Procedural History
On April 6, 2018, defendant filed his motion to suppress evidence seized pursuant to the warrant authorizing the search of the premises located at 370 Holland Lane, Unit 3013, in Alexandria, Virginia on the grounds that the search violated his Fourth Amendment rights. Def.'s Mot. to Suppress Evid. and All Fruits Thereof Relating to the Gov't Search of the Storage Unit Located in Alexandria, Virginia [Dkt. # 257] ("Def.'s Mot.") at 1, 19-20. The government opposed the motion, Gov't Mem. in Opp. to Def.'s Mot. [Dkt. # 283] ("Gov't Opp."), defendant replied, Def.'s Reply to Gov't Opp. [Dkt. # 287] ("Def.'s Reply"), and the Court heard argument on May 23, 2018.
II. Applicable Facts
On May 26, 2017, an FBI agent met with a former employee of Davis Manafort Partners, who is currently a salaried employee of Steam Mountain, LLC, another business operated by the defendant. Aff. in Supp. of an Appl. for a Search Warrant [Dkt. # 257-1] ("FBI Aff.") ¶ 28. The employee stated "that he performs a variety of functions for Manafort and his companies as directed by Manafort." Id. He reported that "in approximately 2015, at the direction of Manafort, [he] moved a series of office files of Manafort's business contained in boxes from one smaller storage *218unit at 370 Holland Lane, Alexandria, Virginia to a larger storage unit, at the same storage facility, also at 370 Holland Lane, Alexandria, Virginia. [The employee] advised that he personally moved the office files into Unit 3013 at that location, and that the files were still in that unit." Id.
Later the same day, the employee led the agent to the storage facility, where the agent obtained a copy of the lease for Unit 3013 from the manager of the facility. FBI Aff. ¶ 29. The lease identifies the employee as the "Occupant" of the unit, and also identifies defendant as "Occupant's Authorized Access Person[ ]" and Richard Gates, with whom defendant worked in Ukraine, as "Alternate Contact."
The employee provided law enforcement with a key to unlock the unit, and he described the contents of the unit: boxes of office files from defendant's business and a metal filing cabinet containing additional, more recent office files from defendant's business. FBI Aff. ¶ 30. He explained that he moved the filing cabinet from defendant's former residence in Virginia in the spring of 2015, and he "indicated that Manafort was using his former residence as an office at the time." Id. The agent noted in his affidavit that the employee stated that the cabinet was extremely heavy, "indicating that it contained a large amount of records." Id. The employee was unable to describe the contents of the filing cabinet in detail, but he stated that Manafort occasionally sent him emails directing him to put certain records, which the employee described as "brown, legal-sized files," into the filing cabinet on Manafort's behalf. Id. His recollection was that he last added to the filing cabinet in the spring of 2016. Id.
The agent provided the employee with a written consent form which stated:
1. I have been asked by Special Agents of the Federal Bureau of Investigation to permit a complete search of [the unit].
2. I have been advised of my right to refuse consent.
3. I give this permission voluntarily.
4. I authorize the agents to take any items which they determine may be related to their investigation.
Consent Form [Dkt. # 283-2]. The form identified the storage unit, and the employee signed the consent form. See Consent Form; FBI Aff. ¶ 31. The employee then used the key in his possession to open the unit in the presence of the agent. FBI Aff. ¶ 31. The agent reports that "[w]ithout opening any boxes or filing cabinet drawers," he observed "approximately 21 bankers' boxes that could contain documents, as well as a five-drawer metal filing cabinet" inside the unit. Id. None of the file drawers were marked as to their contents, but some of the boxes bore labels such as "Admin," with subcategories including "Tax Returns," and "Box 12 Ukraine Binders,"
*219including subcategories such as "Surrogates," "Political," and "Media," which led the agent to conclude that they contained information related to, among other things, taxes, finances, and international activities connected to Ukraine and a company called Manhattan Productions International, in which defendant has a stake. Id. ¶¶ 31-35.
Afterwards, the unit was locked and surveilled while the agent sought a warrant authorizing the search of the unit and its contents. Id. ¶¶ 38, 46; Application for a Search Warrant [Dkt. # 257-1]. United States Magistrate Judge Theresa Carroll Buchanan signed the warrant on May 27, 2017. Search and Seizure Warrant [Dkt. # 257-2] ("Warrant").
The warrant authorized agents to search the storage unit, including "any locked drawers, locked containers, safes, computers, electronic devices, and storage media," Warrant, Attach. A, and to seize certain records. Specifically, the warrant authorized seizure of eight categories of "[r]ecords relating to violations of
Law enforcement agents executed the warrant on May 27, 2017, and created an inventory listing nine categories of records seized: eight labeled "documents" and one labeled "documents and binders." Warrant at 2. There is no indication that any computers or electronic storage media were seized. See
LEGAL STANDARD
The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. This protection extends beyond the walls of a private dwelling: "[t]he privacy that is invaded may be sheltered by the walls of a warehouse or other commercial establishment." Michigan v. Tyler ,
ANALYSIS
Defendant asserts that the search of the storage unit violated his Fourth Amendment rights because the initial entry and inspection of the unit was conducted without a warrant, the warrant obtained based on the initial search was overbroad, and the agents who executed the search exceeded the warrant's search parameters. Def.'s Mot. at 1.
*220I. The agents had the consent of a person with the authority, or apparent authority, to consent to their initial warrantless entry into the storage unit.
A search without a warrant is presumed to be unreasonable, but law enforcement agents may rebut that presumption with a showing that a person with authority to do so permitted them to enter the premises. Illinois v. Rodriguez ,
when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.
United States v. Matlock ,
As the D.C. Circuit emphasized in Peyton , " '[c]ommon authority' does not refer to some kind of 'technical property interest.' "
arises simply from "mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."
Peyton,
It is the government's burden to establish that the third party had the authority to consent to a search. Rodriguez ,
Applying these principles, the Court finds that the initial warrantless entry into the storage unit was lawful.
A. The person who leased the unit possessed actual authority over the premises.
The starting point of the analysis in this case is the fact that the "occupant"
*221who signed the lease for the premises located at 370 Holland Lane, Unit 3013, was a person other than Paul Manafort. See Lease at 1. It was that person who gave the agents written permission to enter, see Consent Form, and it was that person who opened the door with his key and let them in. FBI Aff. ¶¶ 30-31. The person is "a salaried employee of Manafort's company," FBI Aff. ¶ 28, and Manafort's name appears on the lease only as the "Occupant's Authorized Access Person[ ]." Lease at 1. Thus, the record supports a finding that permission to search was obtained from a person who possessed-at the very least-common authority over the premises to be inspected, and a warrant was not required.
Manafort points to the statements in the agent's affidavit concerning the actions taken by the employee "at the direction of Manafort." FBI Aff. ¶ 28; see also
In paragraph 28 of his affidavit, the agent reports that the employee "advised that in approximately 2015, at the direction of Manafort, [he] moved a series of office files of Manafort's business" from a small unit at Holland Lane to the larger one at issue in this case. FBI Aff. ¶ 28. Paragraph 30 reports that the employee moved a filing cabinet from Manafort's former residence to the unit in the spring of 2015, and that he "advised that Manafort occasionally sent emails to [him] directing [him] to put certain records into the filing cabinet on Manafort's behalf." FBI Aff. ¶ 30. So the affidavit connects the defendant to the storage unit by establishing that he instructed the employee to place materials in it, but it does not explicitly or implicitly delineate any limits on the employee's right of access at any other time.
*222This conclusion that the employee had the authority to consent is consistent with the legal precedent amassed by both parties. The briefs in this case were thorough, and it appears that there have been few reported cases from any circuit that present similar facts. The only two cases presented to the Court involving storage units both concluded that an individual with joint control had actual authority to consent to the search of the unit, and in each of those cases, the facts supporting common authority were not even as strong as they are here.
In United States v. Kim ,
The Court in Kim began its analysis with the Supreme Court's opinion in Matlock : "[t]he Court defined common authority as 'joint access or control for most purposes.' "
Here, Kim dispatched Wee to rent the storage units. By instructing Wee to lease the units in Wee's name, Kim assumed the risk that Wee could exercise his rights as lessee to have the storage company open the unit. In addition, Kim allowed Wee to keep possession of the leases, supervise unloading of the goods and retain keys on occasion. At any time, Wee could have accessed the storage locker without Kim's knowledge or permission. Because Kim ceded partial control of the [ ] lockers to Wee at all times, and allowed him total control on *223occasion, he assumed the risk that Wee would allow a search of the units.
The Tenth Circuit reached a similar conclusion ten years later in United States v. Trotter ,
Because the storage unit at issue was leased in Mr. King's name, he could at any time have exercised his rights as lessee to have the storage company open the unit, without Appellants' knowledge or permission. Additionally, Appellants allowed Mr. King access to the storage unit ... to retrieve or drop off items. We conclude the Mr. King's position as lessee of the unit and his active participation in renting and using the facility gave him a 'sufficient relationship to the premises' to justify the searches based upon his consent.
This case presents the factors that pointed towards common authority in Kim and Trotter without any of the complications. As in Kim , the third party here rented the storage unit in his own name; the defendant was simply listed on the lease as an additional authorized person; and the employee loaded items into the unit on his own. FBI Aff. ¶¶ 28-29. Neither the Ninth Circuit nor the Tenth expressed reservations based on the fact that the associates in those cases rented the units at the defendants' direction; what was persuasive in each situation was the fact that each lessee could have exercised his right to enter the premises at any time, and that each had actually made use of his right of access by depositing material in the unit. Those facts are present here as well.
Most important, unlike the associates in Kim and Trotter , the employee in this case retained possession of a key. FBI Aff. ¶ 31. It was defendant Kim's retention of the only key to the unit that led the Kim court to characterize Wee's control over the premises as something other than "joint control for most purposes" under Matlock .
Manafort likens the situation to a search of a hotel room authorized by a hotel employee, and he points to authority that holds that the mere fact that the employee has a key to a guest's room does not establish that the employee had the right to admit others and intrude upon the guest's reasonable expectation of privacy in his room during his stay. Def.'s Mot. at 7-8; Tr. at 12, citing United States v. Toan Phuong Nghe ,
*225B. It was reasonable for the agent to believe that the occupant of the unit had the right to permit the inspection of the premises.
The facts that underlie the Court's view that the search was approved by a third party with authority over the premises also made it reasonable for the agent to conclude that the occupant of the unit had the authority to consent to the search, even if that conclusion was incorrect. In other words, whether he had the actual authority or not, the occupant had the apparent authority to consent, and that made the entry into the premises lawful. The touchstone for resolving a challenge to government action under the Fourth Amendment is reasonableness, and the Court finds that the agent's actions were reasonable in this case.
Manafort argues, though, that the information provided to the agent-in particular, the statement that the employee moved items into the storage unit "at the direction of Manafort," FBI Aff. ¶ 28-made the terms of the employee's control of the premises sufficiently ambiguous that it was unreasonable for the agent to conclude that the employee could grant permission to enter without additional investigation. But a common sense analysis of the situation points in the opposite direction, and the cases Manafort relies upon are not analogous.
It is worth noting that the agent's understanding was not simply derived from the unambiguous lease and the key; the other significant fact in the calculus is that the agent presented the employee with a formal consent to entry form and the employee signed it. See Consent Form. If the person who signed the lease did not equivocate, and he did not act as if he perceived the situation to be ambiguous, why would it have been unreasonable for the agent to fail to treat it as if it was?
Defendant points to Whitfield ,
The bedroom itself was not a "common area" and the agents had no grounds for believing otherwise.... The agents never asked Mrs. Whitfield whether she cleaned her son's room, visited with him there, stored any of her possessions in the room, watched television there, or made use of the room at any time for any purpose.
Second, the Court of Appeals in Whitfield was struck by the lack of clarity in the record. The Court reported:
One of the agents ... asked Mrs. Whitfield whether the defendant's room was open or locked. She said it was open. The agent testified that his purpose in asking this question was to determine whether Mrs. Whitfield had "free access" to her son's room. He construed her answer to mean that she did, although she did not use those exact words. Whether the agents asked Mrs. Whitfield anything else is unclear.
Manafort places great emphasis on the statement in Whitfield that while Mrs. Whitfield plainly had "access" to her son's room, it was not clear to the agents at the time that she had "mutual use" of it, and therefore, the agents could not have reasonably concluded that she had authority to consent to the search under Matlock . See Def.'s Reply at 2, citing Whitfield ,
Finally, Manafort argues that the fact that the agent sought a warrant the day after he gained entry into the unit without a warrant demonstrates that the agent knew that he had entered unlawfully the day before. This is a mischaracterization of the circumstances. The application for a warrant to search the storage unit sought the court's express permission not only to enter the unit, but to open the boxes and filing cabinet inside. The agent's application for the warrant before he did so is a manifestation of the government's adherence to the cases cited by Manafort, in which courts have recognized that an individual may have a heightened and separate expectation of privacy in a container or enclosed space that is located within otherwise shared premises. See Peyton ,
II. The affidavit would have supplied probable cause to justify the search even without the additional information obtained inside the unit.
Even if the agents did not initially gain entry to the unit with the permission of a person with the authority or apparent authority to consent, and the survey of the inside was therefore unlawful, there would still be no need to suppress the evidence obtained when the warrant was executed. Manafort argues that the agent's warrantless observations tainted his application to the Magistrate Judge and the resulting warrant. But the Supreme Court has held that "if sufficient untainted evidence [is] presented in the warrant affidavit to establish probable cause, the warrant [is] nevertheless valid." United States v. Karo ,
An affidavit in support of a warrant application "must provide the magistrate with a substantial basis for determining the existence of probable cause," and it cannot consist of "wholly conclusory statement[s]." Illinois v. Gates ,
An examination of the warrant application reveals that the affidavit contained sufficient grounds to believe that there may be evidence of a crime in the storage unit, even without the information the agent gathered after stepping inside the unit.
The affidavit starts by setting out the reasons behind the agent's conclusion that there was probable cause to believe that Manafort-at times in connection with his associate Richard W. Gates-had been engaged in a series of criminal offenses related to his business as a consultant and lobbyist. Those offenses included: violations of
The affidavit then goes on to set forth the agent's reasons to believe that evidence related to those offenses, that is, Manafort's business records, could be found on the premises.
In paragraph 28 of the affidavit, the agent reports that on May 26, 2017, he met the former employee of Davis Manafort Partners, and current employee of Steam Mountain, LLC. FBI Aff. ¶ 28. The employee "advised that, in approximately 2015, at the direction of Manafort, [he] moved a series of office files of Manafort's business contained in boxes" from a "smaller storage unit" at the Holland Lane facility to a "larger storage unit, at the same storage facility."
Paragraph 30 of the affidavit also reports that the employee moved a filing cabinet from Manafort's former residence to the storage unit in the spring of 2015, and that "Manafort was using his former residence as an office at the time." FBI Aff. ¶ 30. Further, the employee reported that he last added to the filing cabinet on Manafort's behalf in the spring of 2016.
Next, the affidavit outlines the reasons for the agent's belief that the boxes and filing cabinet contain evidence of the alleged crimes listed in the warrant application. The agent avers that it was "reasonable to believe that this storage unit is a collection point for Manafort's and Gates's business records from their work in Ukraine," FBI Aff. ¶ 35, because "[the employee] advised the affiant that he moved business records for Manafort into the storage unit, and ... Manafort and Gates-who is listed on the lease as a contact for the lessor-worked together in Ukraine."Id. The agent went on:
It is also reasonable to believe that these records and those in the filing cabinet will include financial records for several reasons. These include, but are not limited to, IRS guidelines recommending that persons and corporations generally retain business records for three years from filing of returns for and seven years if the tax payer had certain losses or bad debts.
FBI Aff. ¶ 35. Further, the agent was "aware" from training and experience "that individuals and businesses often retain copies of contracts and other business and financial records in anticipation of litigation," and that "[p]ublic sources reveal that Manafort was sued by his former client, Oleg Deripaska, sometime in or *230about 2008."
At the hearing on the motion to suppress, counsel for the defendant questioned whether the affidavit supplied probable cause to believe that relevant documents would still be in the storage unit at the time the agent applied for the warrant. He made the point that the last date it was known that the employee placed documents was a year before the search, and that the events at issue in the investigation occurred years before that, and he pointed the Court to the D.C. Circuit's recent opinion in United States v. Griffith ,
The warrant for Griffith's apartment called for the seizure of cell phones. Griffith ,
But the comparison to the Griffith case is not apt. First of all, the property to be searched here was not a friend's apartment, but a storage unit -where, by definition, people place things to secure them for some period of time. The affidavit explains that the boxes Manafort initially had placed in the unit contained business records that had already been preserved for some period of time and were simply being moved to a larger storage unit. FBI Aff. ¶ 28. The affidavit reflects that Manafort continued to give the employee files to add to the unit after it was first leased in 2015, the lease was still in force in May of 2017, and the employee still had the key. Id. ¶¶ 28-30. Moreover, there was no evidence that the employee who leased the unit and delivered items to it had ever been directed to remove any of the files. Most important, he specifically informed the agent that the items he loaded into the storage unit were still there. Id. ¶ 28.
Manafort argues that without the FBI agent's description of the labels he observed on the boxes in the unit, the Magistrate Judge "would have been left with bare assertions from an informant whose reliability and current basis for knowledge (as a former DMP employee) had not been established." Def.'s Reply at 12. But the affidavit indicates that the employee acquired his information concerning the contents of the storage unit "from personal knowledge, an inherently reliable method of obtaining such information."
*231United States v. Davis ,
Defendant raises the question of whether, without the agent's observations, there was adequate reason to credit the employee's description of the use and contents of the unit. See Def.'s Reply at 12. But in evaluating the validity of the information the employee provided, the Magistrate Judge was able to consider the fact that the Davis Manafort representative was designated as the occupant on the lease of the storage unit to which Manafort and Gates also had access. What is more, the employee held the key to that unit, and that lends credibility to his claimed knowledge and statements that he moved the records and filing cabinet into it.
Even without any understanding of the employee's motivation, his "explicit and detailed description ..., along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case." Gates ,
III. The search warrant was particularized and not overbroad.
The Constitution limits searches by law enforcement to "the specific areas and things for which there is probable cause to search," and it requires that a search "be carefully tailored to its justifications" and "not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Maryland v. Garrison ,
A. The search warrant was particularized.
Search warrants must " 'particularly describ[e] the place to be searched, and the persons or things to be seized,' which operates to 'prevent[ ] the seizure of one thing under a warrant describing another.' " Jones v. Kirchner ,
Manafort's initial motion complained that the use of the words "any and all" or "any" in several paragraphs of the attachment listing the items to be seized violated the Fourth Amendment. Def.'s Mot. at 15 (emphasizing this language in quoting paragraphs 1.a., 1.b.(1), 1.b.(2), 1.c., and 1.g.). But in his reply brief and at oral argument, he focused his arguments solely on paragraph 1.a. See Def.'s Reply at 8 (emphasis in Reply); see also Tr. at 32. That paragraph authorized seizure of:
1. Records relating to violations of31 U.S.C. §§ 5314 , 5322(a) (Failure to File a Report of Foreign Bank and Financial Accounts),22 U.S.C. § 618 (Foreign Agent Registration Act), and26 U.S.C. § 7206 (a) (Filing a False Tax Return), including:
a. Any and all financial records for Paul Manafort, Richard Gates or companies associated with Paul Manafort or Richard Gates, including but not limited to records relating to any foreign financial accounts[.]
Warrant, Attach. B ¶ 1.
"[A] warrant generally satisfies the particularity requirement when it allows officers 'to seize only evidence of a particular crime.' " United States v. Young ,
Defendant's argument ignores the introductory clause in paragraph 1, which provides that the seven categories of records subject to seizure must relate to three specified offenses: failing to file a foreign bank account report or "FBAR" under the
Defendant argues the introductory clause in paragraph 1 cannot save the warrant because the three federal offenses listed in it are themselves broad. Tr. at 33-34; Def.'s Reply at 10, citing United States v. Maxwell ,
Both the Bank Secrecy Act and FARA regulate a small set of people and entities. The Bank Secrecy Act requires those with an interest in or control over a foreign account containing more the $10,000 to report to the government specific information about their transactions. See
And while the federal tax code covers a wide territory, and
*234Finally, the nature and volume of defendant's international dealings supported the broad request for records in paragraph 1.a. Law enforcement agents were investigating whether defendant maintained or controlled foreign bank accounts and whether he performed work on behalf of foreign principals without registering. Given what was set forth in the sealed and unsealed portions of the affidavit, see FBI Aff. ¶ 21, it was necessary to examine a significant number of records to obtain evidence of these alleged offenses. See United States v. Logan ,
In sum, the Court holds the paragraph 1.a. was sufficiently particularized because the categories of records to be seized were related to three specific criminal allegations that require an examination of an extensive paper trail to determine the scope of any violations.
B. The search warrant was not overbroad.
Defendant also challenges the search warrant as overbroad. "Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based." Hill ,
Defendant asserts that the warrant's failure to impose a time frame renders it unconstitutional because it left "the decision of what to seize to the discretion of the agents." Def.'s Mot. at 16. He argues that the storage unit had file boxes bearing dates going back thirty years, and the agents knew the relevant dates for the alleged crimes but failed to include a time limit in the warrant. Def.'s Mot. at 16-17 (noting that warrant for the search of his residence included a time limit), citing United States v. Ford ,
Warrants need not contain specific time limits, when "dates of specific documents" relevant to the offenses at issue "could not have been known to the Government," United States v. Shilling ,
But even if the warrant is overbroad given the absence of a specific time frame, the warrant falls within the good faith exception established by United States v. Leon ,
IV. The agents relied in good faith on a warrant signed by a federal Magistrate Judge and therefore, the exclusionary rule does not apply.
Even if the warrant was drafted too broadly, the evidence will not be suppressed. The agents were acting within the scope of a valid warrant when they conducted the search, and their reliance on *236the warrant issued by the federal Magistrate Judge was objectively reasonable. According to the Supreme Court, in those circumstances, the exclusionary rule does not apply. Leon , 468 U.S. at 920-22,
In Leon , the Court made it clear that suppression is not available as a remedy in every situation in which a reviewing court concludes that there has been a constitutional violation, and the D.C. Circuit has reiterated that a mere disagreement with the issuing court is not sufficient to justify the exclusion of evidence. "That is because the 'exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges.' " United States v. Spencer ,
Manafort maintains that it was not reasonable for the agent to rely on the warrant here because it did not limit the records to be seized to any particular time period, and it authorized the seizure of any and all financial records of defendant and his companies. See Def.'s Mot. at 16-18. But as explained above, the warrant is sufficiently particularized, and the criminal offenses under investigation justify a search for records that predated the alleged offense, so it was not objectively unreasonable for the same reasons.
Defendant points the Court to the opinion of the D.C. Circuit in United States v. Griffith , in which the Court found a search warrant to be both so lacking in probable cause to believe that evidence would be found on the premises, and so overbroad in its description of the items to be seized, that it ordered the evidence to be excluded notwithstanding Leon . Def.'s Mot. at 15-16, citing
Griffith is inapposite primarily because the decision to suppress was based on the unique combination of the Court's finding that the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,"
Thus, there is little in the opinion that bears on the case at hand. The claimed overbreadth is not comparable since the application did not ask for devices or files with no connection to Manafort. And the application did not seek the seizure of every device or container found in the storage unit that might contain paper records or electronic information, but rather records stored within the boxes and cabinet related to particular topics. And unlike the affidavit that failed to aver that Griffith even had a cell phone, much less, a cell phone that might still contain messages that had been exchanged about a murder a year before, the affidavit here supplied reason to believe that the business and banking records that were the object of the search were placed and remained in the location to be searched.
CONCLUSION
For the reasons stated above, defendant's motion to suppress the evidence obtained from the search of the storage unit [Dkt. # 257] is DENIED.
On February 23, 2018, Gates pled guilty to conspiring with Manafort to defraud the United States and to making false statements. See Superseding Information [Dkt. # 195]; Plea Agreement [Dkt. # 205] at 1.
The prosecution did not argue here that the defendant does not have standing to object to the search and seizure of his business records.
In his motion, Manafort asserts that the employee lacked actual authority:
Here, the former employee was named as an occupant on the lease agreement simply for administrative convenience and only because he happened to be the DMP employee tasked with setting up the storage lease on DMP's behalf and moving DMP's business records into the unit. This is bolstered by the fact that the former employee's DMP email address was listed on the lease agreement and the fact that Mr. Manafort appears on the agreement as the only person with authorized access to the storage unit.
* * *
It was clear to the former employee and others at DMP that he had no authority to enter the storage unit for any reason absent prior express permission from Mr. Manafort . On no occasion did Mr. Manafort do or say anything that manifested an express or implied desire to allow the former employee to consent to a law enforcement search of the premises for DMP's records. Put simply, he did not have actual authority in connection with the storage unit and did not have the actual authority to consent to the FBI Agent's search.
Def. Mot. at 5 (emphasis in original); see also Tr. 11 (Defense Counsel: "[T]hat is a summation, essentially, of what is reported here in the affidavit ....").
Obviously the statement that Manafort was the "only " person on the lease with authorized access to the storage unit is belied by the lease itself, which was in the employee's name. The lease provides that "Occupant shall provide, at Occupant's own expense, a lock for the premises .... Occupant shall not provide a key and/or combination to Occupant's lock to Owner or Owner's agents." Lease ¶ 15(a). The employee provided the agents with access to the unit with a key in his possession; there is no evidence in the record about whether Manafort or anyone else possessed a duplicate key.
The rest of the factual recitation in defendant's pleading is devoid of any citations to the record, and the defense presented no testimony or evidence of its own at the hearing, agreeing with the government that the motion could be decided based on the face of the affidavit alone. Tr. at 6. Thus, the Court need not consider these wholly unsubstantiated assertions concerning the scope of the employee's agency in its assessment of the evidence.
This is true whether or not this Circuit joins the Ninth Circuit and others to recognize "assumption of the risk" as an independent predicate for the finding.
In United States v. Cos ,
The defendant urges this Court, then, to forego any reliance on Kim and Trotter , see Def.'s Reply at 2-3, but the Court finds the analysis in those cases to be useful even if one does not adopt the same approach to the Matlock test, and it notes that in Cos , the Tenth Circuit concluded that the facts in Trotter warranted a finding of actual authority under the correct standard as well. Cos ,
The D.C. Circuit has not weighed in on this issue directly, but the Court notes that Matlock is not the only Supreme Court case where assumption of risk language appears. In Frazier v. Cupp ,
The facts of this case are also not analogous to the other situation invoked by counsel: when a person gives a key to his home to a pet sitter or cleaning service. See Tr. at 12. Courts take particular care when scrutinizing claims of third party consent to enter a defendant's home, the personal sanctuary where he has the greatest expectation of privacy. See Peyton ,
Manafort relies upon Whitfield for the proposition that agents confronted with an ambiguous situation must make further inquiries. It is true that the Whitfield opinion states: "[i]f the agents do not learn enough, if the circumstances make it unclear whether the property about to be searched is subject to 'mutual use' by the person giving consent, 'then warrantless entry is unlawful without further inquiry .' "
In Rodriguez , the defendant's daughter summoned the police to report that he had assaulted her earlier that day at an apartment where he could still be found.
But that hypothetical, "conceivable" situation does not pertain here. In this case, there were no "surrounding circumstances" that would have given the agent reason to doubt the employee's apparent ability to enter.
As with other factual determinations bearing upon search and seizure, determination of consent to enter must 'be judged against an objective standard: would the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief' that the consenting party had authority over the premises? ... If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.
The reply also states, "[t]his Circuit has held that the government must prove the existence of both mutual use of the property and joint access to or control of the property by the third party and the target of the search." Def.'s Reply at 2 (emphasis in original). The Court does not believe that the D.C. Circuit articulated the principle quite that crisply on the page cited, although the absence of information concerning "mutual use" was certainly critical to its ultimate decision. In Whitfield , and again in Peyton , the D.C. Circuit recited the Matlock test in its entirety, see
The Court stated in the body of the Matlock opinion that the prosecution may show that permission to search was obtained from a third party who possessed common authority over the premises, "or other sufficient relationship to the premises."
Counsel for the defendant agreed at the hearing that "whether we're talking about Ninth Circuit, D.C. Circuit, in the end Matlock is the test." Tr. at 8.
The Court also notes that the defendant points to no facts that would raise questions about the employee's credibility.
Section 5322 of Title 31, referenced in paragraph 1, sets forth criminal penalties for willfully violating
Section 618 of Title 22, referenced in paragraph 1, sets forth criminal penalties for willfully violating its provisions, and 22 U.S.C. 612 sets forth the reporting requirement.
Anyone "having a financial interest in, or signature or other authority over, a bank, securities or other financial account [over $10,000] in a foreign country shall report such relationship ... for each year in which such relationship exists." United States v. Kelley-Hunter ,
Defendant also asserts that the limitation in the introductory clause cannot save the warrant here because "there is no similar limiting language in the next clause" as the First Circuit relied on in United States v. Kuc ,
Given defendant's failure to address the other subparagraphs of paragraph 1 in his reply brief or at oral argument, it appears he abandoned his challenges to them. See Def.'s Reply at 8 (referring only to paragraph 1.a.); Tr. at 32 ("MR. ZEHNLE: So while I see what Your Honor is saying in paragraph 1, the prefatory language to paragraph A, which talks about any and all financial-THE COURT: That's the language you challenge. MR. ZEHNLE: Yes, it is the language that we're challenging."). He also complained in his motion that paragraph 2 was overbroad, Def.'s Mot. at 15, but presented no argument in response to the government's opposition on the issue and did not address it at the hearing. See Def.'s Reply at 8-11; Tr. 4-39 (not addressing the issue of electronic devices as they relate to the search of the storage unit); cf. Tr. 55-100 (addressing electronic devices in the context of the search of defendant's residence). Accordingly, the Court will not address these portions of the warrant. See United States v. Moore ,
Defendant argues that the agent's affidavit cannot be considered in analyzing the warrant because the warrant does not incorporate the affidavit, Def.'s Mot. at 18, citing Groh v. Ramirez ,
Reference
- Full Case Name
- United States v. Paul J. MANAFORT, Jr.
- Cited By
- 5 cases
- Status
- Published