The Department of Justice obviously knocked over a hornet’s nest when it decided to indict 55 members and associates of the Pagans Motorcycle Club in Charleston, West Virginia. Maybe Charleston should be famous for its defense lawyers.
Last Thursday an attorney named Tim Carrico acting on behalf of a client named Eric W. Wolfe attacked the legality of indicia search warrants. Carrico called an indicia warrant executed on his client’s home an illegal violation of Wolfe’s rights “as protected by the Fourth Amendment and First Amendment to the United States Constitution.”
Indicia (in-DISH-hee-uh) search warrants are issued to search for “signs” or “indications” that somebody the police already do not like belongs to a motorcycle club. The judges who issue these warrants assume that proof of membership in a motorcycle club equals proof of criminality. On the west coast, all the cool cops make an even more astounding logical leap. Indicia warrants in California, Arizona and Nevada often include boiler plate language that a warrant to search for items like “Support Your Local 81” tee shirts is a warrant to seek proof of “participation in a criminal street gang.”
Indicia Searches In Tha Newz
Thousands of indicia searches have been carried out in the United States in the last two years and the spectrum of results begins with burlesque and terminates in tragedy. The auto burglaries supervised by ATF Special Agent John Ciccone in a sweltering parking lot in Lancaster, California –in the Mojave– last summer as part of a frantic search for “MFFM” patches was almost funny enough to be forgiven. If Ciccone were French he would have already joined Jerry Lewis as an Officer of the Order of Arts and Letters.
The search of a paraplegic’s home in Los Angeles around the same time by commandos in body armor and Fritz helmets and the subsequent seizure of his Mongols calendar was disquieting. The videos of the indicia searches that accompanied “Operation Quiet Riot” in Arizona and Nevada late last year were Altmanesque. All they seem to prove is that Hells Angels are very good natured when the police wake them up in the middle of the night.
The indicia warrant served on James Hicks’ home last fall was tragic and contemptible. In the darkest hour before dawn, Hicks was awakened by the sound of someone breaking into his home. He picked up a shotgun and he and his wife went to investigate. When he was confronted by police in his kitchen he acquiesced to their demands that he put down his gun. When Hicks turned to lay his weapon on his kitchen table a “Tactical Team” officer shot him multiple times in the back and side and killed him.
His wife was dragged out of her home and away from her husband’s body to facilitate the following indicia search. The search lasted hours while the widow Hicks grieved in the bathroom of a nearby gas station. The items actually seized included a “shotgun, a bank statement, assorted photos, (2) motorcycle helmets, MC Club patches, 2 Pagan walking sticks, camera, Samsung video camera” and “assorted ammunition.”
Eric W. Wolfe
Eric Wolfe’s home in St. Albans, West Virginia was the target of a similar indicia search related to the same case. Briefly stated, Wolfe’s home was searched because he belonged to the Pagans. So proof of his membership was sought –in order to observe anything that might happen to be in plain sight after all his dresser drawers were pulled out and upended.
A supporting affidavit asserted that a man paid by the Bureau of Alcohol, Tobacco, Firearms and Explosives to spy on the club in Charleston had been beaten up by members of the club in New Jersey. And, that this beating “was a criminal act on behalf of or in furtherance of the Pagans.” And, Wolfe was a member of the Pagans.
So, voila! A warrant was issued seeking “evidence constituting indicia of the Defendant’s association with the Pagans Motorcycle Club;” specifically the seizure of club “colors and club memorabilia such as patches, shirts, cuts, jewelry, belts, wristbands, wallets, walking sticks, posters, glassware, statues, plaques, business cards or club cards, and the PMC constitution or any document containing PMC membership information or PMC rules.”
Document searches are always interesting because they usually allow the search of personal computers. And every single byte on a personal computer is considered to be “in plain sight.”
The motion Wolfe’s lawyer filed last week notices that, “There is no allegation in the affidavit that the alleged subject racketeering enterprise is wholly illegitimate, or that such a large portion of its activities are illegitimate so that it could be considered, in effect, wholly illegitimate. Therefore, evidence of mere association would not necessarily aid in obtaining a conviction.
“The affidavit in support of the search warrant authorizing seizure of indicia of membership or association does not provide probable cause to believe that the defendant has conducted affairs of the PMC, at least in part, through a pattern of racketeering activity.
“Consequently,” the motion argues, “the search performed by the government of the defendant’s residence and vehicle on October 6, 2009, for indicia of membership or association evidence was illegal and in violation of the defendant’s rights” and that “all evidence located, seen, and obtained as a result of the illegal search must be suppressed.”
And, these searches are unconstitutional.
The First Amendment to the Constitution guarantees a person’s right to belong to any church or motorcycle club he wants. It also guarantees your right to read these words. It states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”