Prosecutors Admit to Illegally Seizing Certain Items? – MJEOL Bullet #202 In court papers stamped September 13 2004, the defense team for Michael Jackson continues to question the seizure of property taken from Jackson’s Neverland Ranch.  Through the court filings, we find out the prosecutors have conceded at least 20 items taken were done so illegally because they did not fall under the “plain view exception” nor were they listed on the search warrant.

Since warrantless searches are a violation of the 4th Amendment, anything obtained as a result—even the most innocent info like a financial magazine—is a violation of Jackson’s rights and subject to what attorneys call a “suppression” of what prosecutors have labeled as “evidence”.

The defense’s Reply to the DA’s Supplemental Response in Opposition to Defense Motion to Suppress says that prosecutors try to substantiate the confiscation of property from Jackson’s home by claiming it “may be a lead to other evidence or is indicia of association among certain individuals”.  They write:

The probable cause affidavit does not request and the warrant does not authorize seizure of items that may reflect association among people. (see Defendant’s Reply to the District Attorney’s Supplemental Response in Opposition to Defense Motion to Suppress | pg2)

According to law, there has to be more than just a ’suspicion’ to seize information. And the burden is on prosecutors to explain why the plain view exception is applicable when what police have taken isn’t listed on the search warrant. Just last week we learned of a raid on Jackson’s personal assistant’s residence where police took attorney-client privileged material. This is utterly ridiculous and a violation of both Jackson’s rights and his attorney’s rights. Attorneys and legal experts commented on the prosecution and police illegally taking material clearly labeled with Jackson’s attorney’s name on it. Legal analyst Arthur Barrons spoke with CNN correspondent Thelma Gutierrez about the prosecution’s reasoning for raiding Jackson’s personal assistant just months from trial and months after an indictment has already been handed down. He also says that anything with the attorney’s name on it is obvious attorney-client privilege. Here’s an except from the official transcript:

THELMA GUTIERREZ, CNN CORRESPONDENT (voice-over): Santa Barbara County sheriff’s investigators recently raided this Sherman Oaks home belonging to Michael Jackson’s personal assistant, a move that has stunned some legal observers. ARTHUR BARRONS, LEGAL ANALYST: They either feel that their alleged victim is not totally credible or is inconsistent somehow, or perhaps outright unsupportable, and they’re looking for some other way to salvage their position. GUTIERREZ: Court documents released this week show on September 15 authorities seized personal papers and files kept by Jackson’s assistant, including a fax sent from the pop star to his lawyer about possible trial witnesses, and three files labeled with the name of Jackson’s lead attorney, Tom Mesereau. BARRONS: Anything with counsel’s name on it would involve attorney-client privilege and the attorney’s work product. This is a severe and grievous violation of the attorney-client privilege. (see HOT DOC : Anderson Cooper: Raid on Jackson’s Personal assistant – TRANSCRIPT)

Is this yet another act of desperation? Why are they continuing to obtain search warrant after search warrant when the trial is scheduled to start in a few months? Is this indicative of a weak or non-existent case? Attorney Michael Smerconish says that either they’re getting real leads or they’re scared to death of a possibly disintegrating case. Smerconish tells CNN’s Anderson Cooper in a Sept 24 interview on his show (Anderson 360), when told that some information seized by police involved direct communication between Jackson and Tom Mesereau, his attorney, advising about possible witnesses:

“Then it would absolutely cross the line. I mean, my God, the prosecution may as well go in and serve a search warrant on the defense lawyers’ offices and cut to the chase already. I can’t imagine that that sort of information is going to come into evidence. And that’s why my hunch is, more a sign of desperation than one of strength.” (see HOT DOC : Anderson Cooper: Raid on Jackson’s Personal assistant – TRANSCRIPT)

Judging from the way they have just recently violated privilege, it’s no wonder why Jackson’s attorneys are arguing over illegal searches regarding the Brad Miller raid and the Neverland search. In the motion, we learn that prosecutors admit that at least 20 items seized were done so illegally. The motion says:

Furthermore, [the] prosecution concedes that the seizure of approximately 20 items was not justified by either the warrant or the plain view exception. The import of this concession is that the search was admittedly exploratory. (see Defendant’s Reply to the District Attorney’s Supplemental Response in Opposition to Defense Motion to Suppress | pg2)

The 4th Amendment requires search warrants to be very particular, very specific in what they allow or don’t allow. Just because a search warrant gets police into Neverland, doesn’t mean they have carte blanche to search any and everywhere, or take any and everything. That would be tantamount to legal theft of property by police and prosecutors. Some “case” observers have said that it appears prosecutors seized some of Jackson’s regular property that isn’t “evidence” of anything. This would certainly explain why prosecutors have a financial magazine with Mohammed Al Fayed’s name on it. Personal property like this was taken and labeled as “evidence” probably in an effort to make it appear as if they found more than what they actually did (if anything at all). Also cited in the defense motion is “evidence” that prosecutors claimed they “discovered at the Santa Barbara Sheriff’s Department after Item 329 had already been sized and booked into evidence.” What? They magically “discovered” several DVD-R and CD-R disks at the sheriff’s department? If your “fishy” meter to going off, it should be. Prosecutors are trying to keep these items as “evidence”:

The District Attorney now asserts that this seizure was justified by the portion of the search warrant that authorizes seizure of computers and all things computer related. The Fourth Amendment does not permit the government to seize all computers and computer related equipment based on an assertion that documents are commonly stored on computers, without some amount of particularity as to what computers are to be searched and what materials are expected to be seized. There is not an exception to the Fourth Amendment’s particularity requirement for computers or computer disks. (see Defendant’s Reply to the District Attorney’s Supplemental Response in Opposition to Defense Motion to Suppress | pg3)

The defense also calls into question other items, Item 333-A and 334-A, seized under the “plain view” doctrine. But it’s not possible to know how these items related to the “case” using the plain view doctrine. One item, Item 340, was unlabeled. And police used the fact that it was unlabeled to seize it because it may have “contained depictions of the types authorized for seizure”. What? That is not a reason to seize material not listed in the search warrant:

The seizure of tape recordings on the grounds that they “might reveal something” was held to be unconstitutional by the California Supreme Court. (People v Hill (1974) 12 Cal. 3d 731, 763, overruled on other grounds by People v. DeVaughn (1977) 18 Cal. 3d 889, 896 fn 6.) (see Defendant’s Reply to the District Attorney’s Supplemental Response in Opposition to Defense Motion to Suppress | pg5)

The defense goes down the list citing item after item of which they say police illegally seized. At one point, prosecutors tried to claim that the significance of the item to Jackson was a reason why it was seized. This makes no sense and is not a reason to take things that are not listed in the search warrant. They also seized clothing, another thing not listed in the search warrant according to the defense. As mentioned earlier, some items also have nothing to do with the “case”. These would be considered some of Jackson’s personal property that police took just because they could. These would be the items listed as having “no evidentiary value.” Speaking of bad searches, this comes on the heels of other information regarding who knew what about the raid on private investigator Brad Miller. As reported earlier in MJEOL Bullet #178, we learned that even after police were informed (for the second time) that Miller worked for Mark Geragos, police continued to search. Not only that, but they obtained a second search warrant in which they didn’t mention being told or knowing Miller worked for Jackson’s attorney. Appearing on Fox News Live back on Aug 15 2004, defense attorney John Dolan told Fox that the Jackson “case” is a train wreck waiting to happen because of the misconduct of current lead prosecutor and DA Tom Sneddon. Dolan says that prosecutors initially lied to Judge Rodney Melville when they first claimed they didn’t know Miller was working for Geragos in written papers. Dolan tells Fox News:

“In the written papers filed with the court, Sneddon and his offices say they didn’t know Brad Miller was hired by Mr. Geragos. But in a telephone conference call with the defense and with some prosecutors, he admitted that he did know, before this investigation and before this entry by sledgehammer into Brad Miller’s office, that Miller was working for Geragos” (see FoxNewsLive: Sneddon Admitted to Knowing Miller worked for Geragos Aug 15 2004)

They were looking for a storage box of some kind. Evidently they didn’t find what they were looking for the first time because Dolan reports that after they were told (again) Miller was working for Geragos—and after Miller’s attorney showed up at the scene during the initial raid—they obtained a second search warrant. This second warrant was obtained, again, without mention that Miller was a part of the defense team:

“And that storage locker, by the way, was discovered during the initial search. And then a second search warrant was obtained compounding the problem because they again didn’t mention that Brad Miller was Mark Geragos’s investigator. And Brad Miller was there and told them that before they went and got the second search warrant.” (see FoxNewsLive: Sneddon Admitted to Knowing Miller worked for Geragos Aug 15 2004)

There’s a pattern emerging here regarding what prosecutors and police think they can get away with. And let’s not forget that this isn’t even the first “case” in which the sheriff’s department has been accused of illegal search and seizure. Currently, the judge is expected to issue a written ruling as to what he’s going to allow and disallow. There’s been no word as to when he will issue his order. However, most observers report that it is obvious the Miller search was bad. Some other analysts also say that even the Neverland search may be refined because of the particularity/specificity rule required when seizing evidence. Also, the latest raid on Jackson’s personal assistant, too, should be thrown out as well and sanctions should be issued as a result, sources say. If the judge issues a ruling as if it could have been written by prosecutors, it will certainly raise suspicions and put a big red mark on this judge by the Court of Appeals. Stay tuned. -MJEOL

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