Attorneys representing accused racketeering boss Mike Miske have come up empty handed so far in their attempts to block certain evidence from being introduced by prosecutors at the upcoming trail of Miske and three remaining co-defendants, which is scheduled to begin on January 8.

Federal Judge Derrick Watson issued court orders denying two motions filed back in September by Miske’s attorneys.

While denying arguments made in a third motion, prosecutors said they do not intend to introduce evidence collected during a search of Miske’s XX-foot Boston Whaler, which was seized by federal agents who executed a search warrant in August 2017. Accordingly, Watson denied the motion as moot.

A decision on a fourth motion is still pending.

Watson’s orders followed a pair of court hearings last month during which Miske’s attorneys questioned three federal agent about affidavits they submitted in support of search warrants that were being challenged. After cross examination by prosecutors, and oral arguments on legal points, Watson deferred a decision and indicated he would issue written orders.

In their first motion, Miske’s attorneys challenged a warrant authorizing the use of a a canvassing cell-site simulator that mimics a regular cell phone tower and prompts all cell phones in its vicinity to check in. It is then able to identify all cell phones active in a wide area.

The warrant authorized investigators to use a canvassing cell-site simulator in several areas where Miske was present as he moved around during the day, or in a single spot at several different times when Miske was there for a longer period. Theoretically, the phone that was present each time could be identified as belonging to Miske.

Courts are still grappling with the implications of this new technology. Several recent decisions have held that sweeping up thousands of telephones in order to identify a single target is a search that violates the Fourth Amendment’s protection against unreasonable searches and seizures.

Miske’s attorneys argued that the warrant was unconstitutional because use of this technology does not allow searches to be narrow enough to meet the requirements of the Fourth Amendment.

Watson disagreed, and spelled out his reasoning in a 13-page order.

…the Court finds that it is unnecessary to address whether the Warrant satisfied the requirements of the Fourth Amendment. This is because, as Miske acknowledges, even if the Warrant did not comply with said requirements, that alone does not result in the suppression he seeks. Rather, suppression is not appropriate if law enforcement relied in good faith on the Warrant. Here, that undoubtedly occurred.

In addition, the order found, “Miske points to no case that would have reasonably alerted law enforcement in 2016 that the Warrant was somehow deficient.”

In a second order, Watson denied a motion that sought to suppress and exclude historical cell site location information produced by AT&T for a cell phone Miske used during the period from July 25, 2016 to January 11, 2017. The dates are important, because they include nearly a week before, a months after, the July 30, 2016 disappearance of Jonathan Fraser.

Miske’s attorneys argued several different points. They argued the government failed to obtain a search warrant, and that the phone had originally been identified by the canvassing cell-site simulator, and that later obtaining location data should be considered tainted as “fruit of the poisonous tree.”

However, Watson’s order concluded:

“…suppression is not warranted if the government can establish that it satisfied the requirements of the Stored Communications Act (“SCA”). The government argues that it did by, inter alia, submitting a “detailed” application in support of the Order (“the Application”). In reply, Miske argues that the Application was based upon “conjecture” and “speculation.”

Having reviewed the Application, the parties’ written and oral arguments, the supporting documentation, and pertinent case law, the Court agrees that the Application satisfied the requirements of the SCA. Notably, the SCA required only that the Application set forth “reasonable grounds” to believe that the evidence sought was “relevant and material” to an ongoing criminal investigation. For the reasons discussed more fully below, the Application satisfied this far from onerous standard.

Reference:

Document 1021:
ORDER DENYING DEFENDANT MICHAEL J. MISKE, JR.’S MOTION TO SUPPRESS EVIDENCE AND FRUITS DERIVED FROM SEARCH AND SEIZURE WARRANT 16-00693

Document 1022:
ORDER DENYING DEFENDANT MICHAEL J. MISKE, JR.’S MOTION TO SUPPRESS CELL-SITE LOCATION INFORMATION EVIDENCE DERIVED FROM AN ORDER IN CASE NO. 17-MC-00006