Scenario (People v. Miller)

It is your choice to represent either the prosecution or the defense. Review the materials provided in the People v. Miller below (motion to suppress, warrant, and hearing transcript) with the goal of analyzing one or more the following questions:

1. Did the use of the Startron night vision device constitute an illegal search?

2. Did the police have adequate probable cause to obtain a search warrant?

3. Did the police exceed the scope of the search warrant when they a) found defendant's handgun and/or b) seized the tools?

Determine the strongest point(s) on one or more of the above questions from the perspective of the side of the case you are representing (prosecution or defense) and identify potential weaknesses.

Note:This scenario was designed to provide potential arguments for both prosecution and defense, but it is nearly impossible to analyze a scenario that is perfectly balanced between both sides. Your task is to identify the strongest possible points in favor of the party you are representing as well as potential weaknesses.

Defendant Motion to Suppress

IN THE SUPERIOR COURT FOR THE COUNTY OF GEORGE

STATE OF MASON

THE PEOPLE OF )

THE STATE OF MASON )

)

) Case No. 22 CR 324

)

v. )

)

JOHN MILLER, )

)

Defendant. )

DEFENDANT'S MOTION TO SUPPRESS

Defendant, being a person aggrieved by an unlawful search and seizure, moves to suppress for use as evidence all items obtained by said search and seizure and all other evidence obtained as a result thereof on the following grounds:

1. On August 15, 2020, the police received a report of an armed robbery at the George City Art Museum in George City. One of the two robbers beat one of the docents, leaving him in critical condition.
2. Thereafter, the police learned the two robbers got away with three large valuable works of local artist Amalia Lopez, each valued at more than $150,000.
3. The police made no progress in locating the robbers for more than three months.
4. In late November, police received an anonymous tip that indicated Tanner Boyd was one of the robbers.
5. On December 1, 2020, police attempted to question Boyd, but Boyd died of wounds received in a shootout with police.
6. Convinced that Boyd's friend John Miller was involved in the robbery, the police set up surveillance of Mr. Miller's apartment at 169 Fifth Avenue, George City. To learn whether Mr. Miller had the paintings in his apartment, the police gained access to an apartment on the third floor of a building across the street from Mr. Miller's.
7. The police used a Startron night vision device to peer into Mr. Miller's apartment.
8. After prolonged surveillance, the police finally spotted one of the works of art in Mr. Millers's apartment on March 27, 2021.
9. Based on that observation, the police secured a search warrant of Mr. Miller's apartment on March 29, 2021. During the search, the police discovered two of the works of art taken from the museum. In addition, the police seized several items, including a 9mm pistol found in a drawer in Mr. Miller's bedroom and several ordinary tools.
10. The use of the Startron night vision device was a search conducted by the police without probable cause and a warrant. Therefore, use of the information learned through that search should not have been included in the search warrant.
11. Without the illegally obtained evidence, the warrant lacked sufficient information to create probable cause. Therefore, all evidence seized pursuant to the warrant must be suppressed. 12. Even if the warrant was sufficient, the police exceeded the scope of the warrant when they found Mr. Miller's handgun. Therefore, the weapon should be suppressed.
12. The seizure of Mr. Miller's tools was illegal because the police lacked probable cause to believe they had evidentiary value. Therefore, Mr. Miller's tools should be suppressed.

Respectfully submitted,

s/ Jessica L. Kim

Jessica L. Kim

Attorney for Defendant

MEMORANDUM OF POINTS AND AUTHORITIES ON BEHALF OF DEFENDANT

1. Introduction

John Miller has been charged with two counts of violating Mason Penal Code 211 (armed robbery), one count of 245 (aggravated assault), and three counts of 287 (grand theft), all arising out of the August 15, 2020 robbery at the George City Art Museum.

1. Facts

On August 15, 2020, the George City Police Department received a 911 call that two armed men had stolen three paintings from the George City Art Museum. With limited information about the identity of the robbers, the police investigation stalled. Months into their investigation, the police received an anonymous tip that Tanner Boyd was one of the robbers. While trying to question Boyd, the police ended up in a shootout, resulting in Boyd's death. The police received no information from Boyd.

Solely based on rumors that Boyd was friends with Mr. Miller, the police began a prolonged and extensive surveillance of his apartment. The police rented an apartment on the third floor of a building across the street from Mr. Miller. The police set up 24/7 surveillance to see whether Mr. Miller had proceeds of the robbery. Over many weeks, the police collected no incriminating evidence to link the defendant to the robbery. Finally, by using a Startron night vision device, the police were able to view into Mr. Miller's apartment at night through a partially raised window covering. An officer observed what the officer believed was one of the paintings taken in the robbery.

Using that information, an officer from the George Police Department procured a search warrant on March 29, 2021. That warrant necessarily relied on the information gathered through their prolonged search of Mr. Miller's apartment. While executing that warrant, the police not only looked where they might find a painting but also searched Mr. Miller's bedroom drawer. There, an officer found a 9 mm pistol. Further, an officer found several hand tools in a closet in Mr. Miller's kitchen. On April 20, 2021, a grand jury indicted Mr. Miller on two counts of armed robbery, one count of aggravated assault, and three counts of grand theft.

1. Argument

Mr. Miller had a right to be free from unreasonable searches and seizures. By using a Startron night vision device, the police conducted a search. That search was illegal because the police lacked probable cause to believe that evidence of the crime under investigation would be found in Mr. Miller's apartment. Further, because the police relied on their observations, use of that information in procuring a search warrant for Mr. Miller's apartment renders the warrant illegal because, without the results of the illegal search, the warrant did not state adequate probable cause to believe Mr. Miller's apartment contained evidence of a crime.

Alternatively, the police exceeded the scope of the warrant when they looked in Mr. Miller's bedroom drawer where they found a handgun. In addition, the police lacked any justification for the seizure of ordinary hand tools from Mr. Miller's premises.

1. Conclusion

For the foregoing reasons, Mr. Miller requests the court to suppress all of the evidence obtained as a result of the violation of his Fourth Amendment rights.

Respectfully submitted,

s/ Jessica L. Kim

Jessica L. Kim

Attorney for Defendant

Transcript of the hearing on Defendant John Miller's Motion to Suppress

Wednesday, January 6, 2022

The matter of People of the State of Mason v. Defendant John Miller, case number 22-CR-324, came before the Honorable Michelle Varela, Judge of the Superior Court of Mason, County of George.

THE COURT: Good afternoon, ladies and gentlemen. For the record, this is People of the State of Mason v. John Miller. Okay, Ms. Kim, Ms. Connell, enter your appearances for the record.

MS. CONNELL: Alicia Connell for the People of Mason.

MS. KIM: Jessica Kim for Mr. Miller.

THE COURT: The procedure is, well, we need to discuss the order that you are going to be arguing. Ms. Kim, are you attacking the sufficiency of the warrant?

MS. KIM: In part, Your Honor. Mr. Miller has challenged the police conduct in using a night vision instrument to search his apartment. If you find that conduct to be a search, as I think you must under the prevailing case law, then we get to the warrant question. There is also a scope of the warrant concern, Your Honor.

THE COURT: Okay. Thanks for the clarification. So, Ms. Connell, you agree that you carry the initial burden of going forward on the search question, now that Ms. Kim has put it in issue?

MS. CONNELL: Yes, Your Honor, that is certainly my understanding.

THE COURT: Well then, let's get going. Ms. Connell would you call your first witness or do we have more preliminary matters to get out of the way?

MS. CONNELL: Nothing else, Your Honor. The People call Officer Joy Fisher.

Officer Joy Fisher was called as a witness, being duly sworn, was examined and testified as follows:

DIRECT EXAMINATION BY MS. CONNELL: Officer, would you please state your name for the court and spell your name for the court reporter?

A. Joy Fisher: J-O-Y F-I-S-H-E-R.

Q. Would you tell the court your background with the George City Police Department?

A. Sure. I graduated from the George Police Academy in 2014. I went into the Army and did two years of service after I graduated from the academy. I have been on the force here in George since I got my honorable discharge from the service.

Q. Take us back to August, 2020, around August 15. Were you involved in investigating an armed robbery?

A. Actually, I was involved in several investigations. But I assume that you mean the robbery at the Museum.

Q. I do mean that robbery.

A. Well, I was not part of the response team that went to the crime scene on August 15. But I took statements from one of the victims a couple of days later. I interviewed John Christopher. He is an elderly man, working as a guide or a, you know.

Q. A docent?

A. Yeah. He took a pretty bad beating from one of the robbers.

Q. Was he able to give you a description of the robbers?

A. He gave me some useful information.

Q. Anything in particular?

A. Yes. The robbers wore masks, but he described their physiques. Both were big men, big chests, and big hands.

Q. Any other identifying features?

MS. KIM: Your Honor, I hesitate to object, but I am not quite sure where this line of questioning is going. I know how Your Honor likes us to stay on point, so I wonder, like I said, where we are going.

THE COURT: Ms. Connell, any light on the matter?

MS. CONNELL: Yes, Your Honor. I am getting some background before we go to the complained of conduct. And this information will be relevant to the probable cause question when we get to the warrant discussion.

THE COURT: Ms. Kim, does that clear up the point?

MS. KIM: No, Your Honor. The officer seems to be testifying about facts outside the four corners of the warrant. If so, those facts are not relevant to the probable cause issue.

THE COURT: Ms. Connell, Ms. Kim has a point. Any response to her argument before I rule?

MS. CONNELL: It helps explain the background; it helps set the stage for what the officer did next.

THE COURT: Alright. Keep it brief.

MS. CONNELL: Thank you, Your Honor. Officer Fisher, so you took a description from the victim. Did he include any other information of relevance?

A. Well, he described a brutal beating. It was unprovoked; the guys who did it were bad operators.

Q. Anything else that you learned at the time?

A. Nothing comes to mind. But I was not assigned to the caseI asked to be.

Q. Okay. So, you got assigned to the case, and what happened to the investigation?

A. Officer Gibney got a tip from a CI.

MS. KIM: Objection, pure hearsay.

THE COURT: It looks pretty pure to me too. Sustained. Ms. Connell, you will have Officer Gibney on the stand for that purpose, to get at what he heard?

MS. CONNELL: Yes, Your Honor. Back to you, Officer Fisher; what happened next in your investigation that you can testify to doing or learning yourself?

A. Well, let's see. After the shootout with Tanner Boyd, I decided that we should take a look at the defendant.

THE COURT: Let me stop you for a second. Ms. Connell, I read the papers and know about the shootout. But there is nothing in the record about it. I guess you are trying to avoid the hearsay problem. Ms. Kim, before we get into objections and counterarguments, I am going to let Ms. Connell get to the heart of the matter. Officer, tell us about the shootout.

A. Sure. Based on the tip that I was telling or trying to tell you about, Ms. Connell, Officers Hassani and Gibney tried to interview Tanner Boyd. He was a known criminal with a long record of violent crime. He also was a big man, with a big chest, and a big gut. Rather than talking to the officers, though, he decided to fight his way out of a jam.

Q. After you learned about Boyd's involvement...

MS. KIM: Objection. There is no evidence that Tanner Boyd was involved in the crime, other than an uncorroborated tip.

THE COURT: Can you link it up, Ms. Connell?

MS. CONNELL: Your Honor, with a little leeway, we already have a tip and then, at least when we get Officer Gibney on the stand, you will hear that he and his partner told Boyd what they were investigating. That creates a strong inference of his involvement. If he had nothing to do with the robbery, why would he start shooting at the officers?

THE COURT: Okay. I am not going to tell you how to present your case, Ms. Connell. But I would like to hear the evidence on the first issue that Ms. Kim has raised, whether the use of technology was a search.

MS. CONNELL: Thank you for your forbearance, Your Honor. I will get right there. Officer Fisher, so after Tanner Boyd resisted arrest and got shot, you focused on the defendant as a prime suspect in the crime because he was Boyd's criminal associate, didn't you?

MS. KIM: Again, with deference, Your Honor, I don't like to object on technical grounds, but apart from leading the witness and testifying herself, there is no evidence that Mr. Miller was a criminal associate of Tanner Boyd's.

THE COURT: Sustained.

MS. CONNELL: Officer, did you focus on the defendant as a suspect after the shootout?

A. I did.

Q. Why?

A. Not only was Miller reputed to be a Boyd associate, but also, I arrested the defendant and Boyd in 2019.

Q. What for?

A. Prostitution.

Q. You don't mean that they were prostitutes?

A. No. But they ran a prostitution ring together.

Q. Other than that fact, do you have any idea of why Miller had the reputation for being a Boyd associate?

A. Check out their rap sheets. I see that Ms. Kim is on her feet. Should I continue?

THE COURT: Officer, you can continue unless an attorney says the magic word.

MS. KIM: I object.

THE COURT: Do you dispute that their rap sheets show that they were arrested together on other occasions? Everyone in this courthouse knows about Boyd and Miller. I am sure that Ms. Connell can bring in their records.

MS. KIM: I withdraw the objection.

MS. CONNELL: Officer, so why else did you believe that the defendant was a Boyd associate?

A. We often set up surveillance in Boyd's neighborhood, to check out who hung out with who.

Q. And what did you learn from those observations?

A. They spent a lot of time together.

Q. After you learned about Boyd's involvement in the robbery and art theft, what did you do?

A. We started to watch the defendant.

Q. Did you call him in for questioning?

A. No.

Q. Why not?

A. We did not want to have another shootout. And we did not want to let the defendant know that we suspected him. We didn't want him to try to get rid of the paintings.

Q. So you set up a surveillance of the defendant's apartment, you said?

A. We did.

Q. Where did you set it up?

A. The landlord of the building across the street from the defendant's place is an honest guy. He let us use an empty third floor apartment across from the defendant's apartment.

Q. Were you able to see what went on in the defendant's apartment?

A. From time to time we did. Sometimes, he had the lights on and the shades up; during the day, we could see right into his apartment. And there was a streetlamp near his window; it shined a lot of light in the area.

Q. You eventually saw that the defendant had one of the paintings in his apartment, didn't you?

A. I did.

Q. How did you get that particular viewing?

A. I requisitioned a Startron, a Starlight scope from the department.

Q. Would you describe this instrument?

A. The full name of this item is Night Vision Sight, Individual Served Weapon, AN/PVS-4. Night vision technology allows vision at night. It has been around since the 1950s, but really with the first Gulf War, the technology really came on line. This particular unit that I used was developed in the 1970's, back when we were still in Vietnam. More recently, there is even a newer generation. But we still work with the ones that we have had for several years. They are less expensive and pretty easy to get hold of.

Q. How does this kind of equipment work?

MS. KIM: Objection. Ms. Connell has not qualified him as an expert on this device.

THE COURT: Ms. Connell, go ahead and qualify him.

MS. CONNELL: Do you have any experience with night vision devices?

A. I do. When I was in the service, I was assigned to acquisitions. I had to secure materiel for my unit. Among those items I had to procure were night goggles and other kinds of night scopes. My army training included training in the technology that I had to order.

Q. Did you learn about the kind of night vision instrument that you used in this case?

A. I did. That was still available when I was in the service, even though it was being phased out.

Q. So, tell us about the instrument that you used in this case.

A. Because of its use of an electrostatic inverter, this device is suitable for night conditions, even without starlight.

Q. So, what did you see in the defendant's apartment on March 27?

A. I saw him come into the room, open a closet, and take out a large cardboard tube.

Q. Why did you think that was the painting taken in the August 15 armed robbery?

A. He opened the tube and unrolled the painting.

Q. You could tell that it was the Dancing Woman painting?

A. Yes.

Q. How could you tell?

A. The defendant unrolled it and placed it on a sofa where I could see it pretty clearly.

Q. What did you do next?

A. After I saw the painting, two days later, I swore out a search warrant. We kept surveillance on the apartment hoping the defendant did not try to run with the painting.

MS. CONNELL: Your Honor, at this point, I am done with Officer Fisher as far as the discovery of the painting goes. Would it be best to continue and discuss her role in finding evidence when she executed the warrant?

THE COURT: Ms. Connell, it is your case to try, but why don't you just go ahead and finish up with the direct evidence? Let's get all of the evidence in the record before we end the hearing.

MS. CONNELL: Okay. Officer Fisher, so did you execute the search warrant that was issued for a search of the defendant's apartment?

A. I did.

Q. Would you describe what happened when you arrived at the apartment?

A. Sure. I was there with backup, this time it was Gibney and Hassani, as well. I knocked and announced at the front door of the apartment. Two other officers were stationed at the back of the house to be sure that the defendant did not try to leave. Gibney and Hassani were with me in the hallway.

Q. They were? Did the defendant come to the door?

A. He did.

Q. Did he open the door, or did you have to force it open?

A. No, he was cooperative.

Q. Once you entered, how did you proceed?

A. I told the defendant that we were here to execute the warrant, and I showed him the warrant. Meanwhile, Gibney drew his weapon and did a quick sweep through the apartment to be sure that no one else was there. Hassani told the defendant that he had to be handcuffed during the search. The defendant was all cooperative.

Q. How many rooms are in the apartment?

A. It is a two bedroom, so I guess four rooms.

Q. And then, after you knocked and entered and had the defendant cuffed, what did you do?

A. Well, Hassani stayed with the defendant to keep an eye on him. Gibney went into the back bedroom. I went into the master bedroom; I looked quickly into a dressing table next to the bed. That is where guys often keep weapons. And bingo, I found a nine-millimeter.

Q. Where did you find the painting?

A. I searched the bedroom pretty quickly and then came into the living room and found the cardboard tube in the closet near the sofa. I opened it and saw what I knew was the painting.

Q. Alright. And the tools?

A. I did not find them.

Q. Who did?

A. Steve. I mean Officer Gibney.

MS. CONNELL: That is all I have, Your Honor.

CROSS EXAMINATION BY MS. KIM: Officer, how are you doing today?

A. I am fine, Ms. Kim.

Q. I am glad to hear that. I would like to go back to the surveillance of the defendant's apartment. I don't think that the warrant stated when the surveillance began. Can you tell me when it began?

A. It was in early January, last year.

Q. And you said that the surveillance was 24/7, didn't you?

A. Yes.

Q. So, someone, often you, was watching the apartment from across the street for almost three months, 24 hours a day, 7 days a week, is that what you just said?

A. Not three months; whatever.

Q. Well, early January through the end of March is almost three months, isn't it?

MS. CONNELL: Objection, argumentative.

THE COURT: Well, technically, you are right. And Ms. Kim, I can do the math.

MS. KIM: So, Officer Fisher, during the day, you couldn't see into the defendant's apartment, could you?

A. Sometimes.

Q. Why not all the time?

A. The defendant kept his shades drawn some of the time. But sometimes, he had the shades up, and we could see in without difficulty.

Q. During those times, though, you never saw him take the painting out of the closet, did you?

A. No.

Q. And at night, over three months or almost three months, 24/7, you watched the defendant's apartment by using night goggles or a night vision scope, correct?

A. Yes.

Q. So, by using the night vision scope, you could see into his apartment even with the lights out, right?

A. Yes.

Q. And, I mean, that is the point of using the night vision scope, isn't it?

A. Yes. But we might have been able to see in because of the streetlight nearby.

Q. So, during about three months, 24/7, you must have seen the defendant engaged in some pretty intimate activities while he had no idea you were looking into his apartment, right?

A. Not really.

Q. Why not?

A. Well, he kept his shades or blinds closed a lot.

Q. So on most evenings, you did not have much of a view into his apartment because the blinds were drawn, is that what you are telling me?

A. I just told you that.

Q. And did you ever see into the apartment using the night vision scope? Wait, let me rephrase the question. You continued to watch 24/7 for almost three months but never got a view into his apartment; that makes no sense to me.

MS. CONNELL: Objection; that is not a question. It is argumentative.

THE COURT: Sustained.

MS. KIM: Okay, Officer Fisher, let me ask again. Are you testifying that you did not get a view into the apartment over a three or almost three-month period even though you and members of the department watched all night long for that period of time?

A. No. We could see in from time to time.

Q. So tell us about how often you could see into the apartment and what you saw.

A. When?

MS. KIM: Your Honor, would you instruct the witness to answer the question?

THE COURT: Ms. Kim, okay. The question was too open-ended, but I see where we are having trouble. Officer, let me interfere for a second. Other than on the night of March 27, can you estimate how often you saw into the apartment at night by using the night vision scope?

A. Maybe a half dozen or a dozen times.

THE COURT: Thank you. Ms. Kim, I will leave the rest to you.

MS. KIM: Thank you, Your Honor. Officer, tell us what you saw when you could see into the apartment.

A. It depended.

Q. Well, the first time you saw into the apartment, what did you see?

A. I saw a woman who appeared to be the defendant's girlfriend changing her clothes.

Q. The defendant left his window wide open for all to see in?

A. No.

Q. Then describe how you were able to see into the apartment.

A. We had the night scope trained on the window that we could see; the shade was drawn but the window was cracked open and the shade was pulled up a foot or so. And a breeze may have moved the window covering. That allowed us to see in.

Q. But you could not have seen into the apartment and known what was going on without the night vision device, could you?

A. Maybe.

Q. So you said that you saw into the apartment only a half dozen times; what did you see on those occasions?

A. That's not what I said. It was a dozen times, maybe.

Q. My apologies, but the question standswhat did you see on those occasions?

A. Not much. Sitting, we saw him sitting by himself in the dark. Not much else. We saw him watching television; we could see the light of TV set a lot.

Q. And during that time, when you could see into the apartment, you did not see anything else that tied the defendant to the robbery or theft, did you? I mean, you did not include anything else in the probable cause section of the warrant, did you?

A. I am not sure which question you want me to answer.

Q. Well, you did not see anything else that tied the defendant to the crimes he's charged with, did you?

A. Yes, we saw him come outside and talk with Boyd associates.

Q. No, I mean in the apartment.

A. No, nothing else, until March 27 when we saw what we needed to see.

Q. And from what I see in the probable cause section of the warrant, the only other evidence that you learned through surveillance was that on two or three occasions, Mr. Miller talked to some of Tanner Boyd's friends, isn't that correct?

A. Boyd's criminal associates.

Q. How do you know that . . . I withdraw that question. You did not see any money pass hands between the defendant and Boyd's friends, did you?

A. No.

Q. Okay. So on the night of March 27, when you saw the painting or what you thought was the painting, how could you determine that this was the painting through a slit in the shades, or a six-inch opening in the shades?

A. I didn't.

Q. What do you mean?

A. On the night of 27th, the shades were up more than a few inches.

Q. But no lights were on in the apartment, were they?

A. No.

Q. You still needed the night vision scope to see into the apartment, didn't you?

A. Maybe.

Q. Do you remember if there was any outside lighting shining into the apartment, a streetlight or moonlight? I should mention that I have the weather report for that evening here.

A. Some light from the streetlight, a little moonlight.

Q. And that little bit of light would not have allowed you to view the painting without the night device, correct?

A. That isn't what I just said, is it? I might have seen it without the vision scope.

Q. Also, you saw the painting through a small opening in the window covering; this must be a pretty big painting for you to have recognized it from across the street?

A. It is what it is.

Q. Well, what is it, if you can tell me how large it is?

A. Four feet high, six feet long.

Q. The cardboard tube in which it was stored must have been pretty big, yes?

A. Depends on what you mean by pretty big, Ms. Kim.

Q. How long was the tube, officer?

A. Tall enough to hold the painting.

Q. So six feet tall, isn't that correct? I have a ruler if we need to measure it.

A. I guess, six feet, about that.

Q. By the way, the museum robbers took three paintings, isn't that the case?

A. Yes.

Q. Correct me if I am wrong, but all three were large paintings, weren't they?

A. You are right.

Q. So, they could not be stuffed in a dresser drawer, could they?

A. I have no idea.

Q. Moving on, Officer, so on March 29, you were one of the officers who executed the search warrant, weren't you?

A. Yes.

Q. So, once you gained entrance into the defendant's premises, you followed proper procedure and handcuffed the defendant, didn't you?

A. I did not put on the handcuffs, but we did follow routine procedure.

Q. Then, once he was handcuffed, you said that Hassani determined that no one else was in the home, isn't that correct?

A. Pretty much so.

Q. And while you began to search, Gibney stayed with the defendant to make sure that he was not a risk to you and Hassani, isn't that correct?

A. That is correct.

Q. When you opened the drawer in the otherwise empty bedroom, you were not looking for a large painting in the bedroom nightstand, were you?

A. No.

Q. One more question. I am sorry, that is it for me. I was going to ask the officer about the tools, but he admitted that he did not find them.

REDIRECT EXAMINATION THE COURT: Ms. Connell, do you have any more direct examination?

MS. CONNELL: I do have one or two more questions. Officer, you looked in the bedside table to be sure that the defendant did not have a weapon hidden there, didn't you?

A. Yes.

Q. You knew the defendant's reputation for violence, didn't you and you suspected that the defendant would be armed?

A. Yes, I did. I saw Mr. Christopher and knew how he'd been pistol whipped by the robbers.

MS. CONNELL: Nothing further, Your Honor.

RECROSS EXAMINATION BY MS. KIM: Officer Fisher, you can't point to anything that took place on March 27th that led you to believe that the defendant was armed or dangerous, can you?

A. I knew that he was one of the robbers and that he and Boyd had pistol-whipped an elderly gentleman, almost killed him. I knew that faced with this crime, Boyd had been willing to kill a police officer rather than be taken into custody. I knew that this guy was mobbed up. I knew that this guy is over 200 pounds and a mean SOB. But no, nothing more than that. Oh, yeah, I knew that he could at any moment overpower Gibney and grab a weapon.

Q. Really? Gibney, Officer Gibney had the defendant handcuffed in the other room, didn't he?

A. Yes.

Q. And did Gibney have out his service revolver, surely, he would have done so, had he been afraid of the defendant, wouldn't he?

A. I guess so.

MS. KIM: Nothing further, Your Honor.

THE COURT: Officer, you are excused. Folks, let's take a break. This has been a long session. Reconvene in thirty minutes, and let's see where we are. (Recess: 2:30 PM)

(Court in session: 3:15 PM) THE COURT: So, let me see where we are. Are you ready to argue the case and the sufficiency of the warrant?

MS. CONNELL: I have one more witness.

THE COURT: My apologies. I forgot that you said so earlier today.

Officer Steven Gibney was called as a witness, being duly sworn, was examined, and testified as follows:

DIRECT EXAMINATION BY MS. CONNELL: Officer, would you please state your name for the court and spell your name for the court reporter?

A. Steven Gibney. S-T-E-V-E-N G-I-B-N-E-Y

Q. And would you tell the court your background with the George City Police Department?

A. Well, I went to the Mason Police Academy in 2017. I was hired first by the Spring Garden Police Department in 2018 and then by McGeorge in 2019.

Q. Take us to the events surrounding the robbery, beating, and theft at the George City Art Museum on August 15, 2020.

A. Okay. My partner and me responded to a 911 call that the robbery had taken place. Officer Hassani and I arrived at the museum right after the call.

THE COURT: Ms. Connell, may I make a suggestion? You need this officer to talk about the confidential informant, don't you? In the interest of time, can we skip this testimony?

MS. CONNELL: Of course, Your Honor. Officer, you were assigned to investigate this case, weren't you?

A. Yes, I was.

Q. Between the time of the robbery and November 20, 2020, did you get any information about who committed these crimes?

A. I interviewed some folks on the street who sometimes hear rumors and who occasionally give me some information. Word on the street...

MS. KIM: I have to object, Your Honor. This is irrelevant to any possible legal issue in this case.

THE COURT: Sustained. Ms. Connell, I am not sure where you are going with this.

MS. CONNELL: Okay, officer, what did you learn on November 20, 2020 relevant to this case?

A. I got a call from a CI.

Q. A CI?

A. A confidential informant.

Q. Was this someone whom you knew?

A. No. During the months when I was working the case, I put the word out on the street that I was looking for information. This person seemed to know that.

Q. Did you ask the person for his or her identity?

A. I did. And she sounded too scared to give me her name.

MS. KIM: Objection. The officer could not see the witness; he has no personal knowledge if she was scared.

THE COURT: Let's hear his answer.

MS. CONNELL: Officer, how could you tell that she was scared?

A. She told me so.

Q. Did she indicate why?

A. No. I asked. But she said she would not tell me.

Q. So what did she tell you?

A. She said that she knew I was looking for the perps who did the museum job. She gave me a detailed tip of the plan, how they waited until near closing time in the summer when the museum would be empty. They knew that the museum cut its security force and that usually just a couple of old folks were working as docents. She told me the names of the paintings taken and why they were taken. And she told me that Boyd was the guy who planned it and was one of the guys who did the job.

Q. Did she tell you anything else about the planned crime?

A. She said that she thought that the backup plan was to break in after the place closed for the night, in case too many security guards were on hand. She said Boyd knew how to disarm the security.

Q. And what did you do with that information?

A. I told Officer Fisher. She was in charge of the investigation.

Q. You also tried to follow up by interviewing Tanner Boyd, didn't you?

A. I did.

Q. We have heard about the shootout that took place. Have you been charged with any crime arising out the shootout?

A. No. I was not even placed on leave.

Q. Did you say anything to Boyd about what you wanted to talk about before the shootout?

A. Yes, we let him know that we wanted to talk about the museum heist. That is when he pulled a pistol and started shooting.

Q. Let me jump to March 27, 2021. You were on the scene of the search of the defendant's apartment, weren't you?

A. I was.

Q. Would you tell the court what you did on that occasion?

A. Yes. I entered along with Officer Fisher. The defendant let us in without a problem. Officer Hassani cuffed the defendant. He was playing it nice and just sat there while we made a quick sweep to be sure that this was a secure facility. And then, while Olivia stayed with the defendant, Fisher and I searched the apartment.

Q. What, if anything, did you find?

A. I found a set of burglary tools.

Q. What specifically did you find?

A. A set of six flathead screwdrivers in a small case and a six-piece BROCKAGE brand set of locksmith tools.

Q. Where did you find them?

A. I found them in the back bedroom.

Q. Specifically, where did you find them?

A. Under a dresser.

Q. Thank you, Officer. I have nothing further.

CROSS EXAMINATION BY MS. KIM: Well, officer, you told us today a lot of information about the informant. Never mind. I just want to ask you about the information that the CI gave you. She did not tell you anything about the defendant, did she? I mean she only mentioned Boyd as the perp, correct?

A. No. She said the other guy was another Boyd goon.

Q. Was that her description of the other guy?

A. Yeah. Big, mean and hairy.

Q. Okay. And then when you were executing the warrant, you found the tools in the bedroom. Why did you take the screwdrivers?

A. They are a common burglar tool.

Q. But this was not a burglary, was it?

A. No. But my CI told me that the perps had a backup plan.

Q. Was anything special about these screwdrivers that showed they might have special use in this crime?

A. We know now that the docent's blood is on one of the screwdrivers.

MS. KIM: Judge, I guess I asked the question, but the officer's answer is not responsive.

THE COURT: Do you dispute the blood evidence? Is that going to come into evidence today?

MS. KIM: No; but of course, that is why Ms. Connell wants the screwdrivers admitted at trial.

THE COURT: So, where is the harm in the officer's answer?

MS. KIM: I see. I will continue. Officer, I don't have a picture of the defendant's apartment with me. But would you tell me about the dresser where you found the tools and screwdrivers; I mean how big a dresser.

A. Normal size.

Q. Well, is it a tall one? And how wide?

A. About this tall and this wide. (Indicating).

MS. KIM: For the record, Your Honor, he is indicating about five feet tall, isn't he? And about three feet wide?

THE COURT: That looks about right.

MS. KIM: And how high off the ground is the dresser; from what I can tell, this is not a really big dresser, high off the ground?

A. No. About this high. (Indicating).

Q. Again, for the record, he is indicating that the dresser was about a foot off the ground.

THE COURT: Yes, that is about right.

MS. KIM: So, as you walked into the room, if a six-foot-tall cardboard tube was under the dresser, you would have seen it immediately, wouldn't you?

A. Maybe.

Q. Was there some visual obstruction so that you could not have seen the tube?

A. No, I guess not.

Q. And, as indicated, the other paintings were very large as well, correct?

A. Yes.

MS. KIM: Thank you, Officer. I have nothing further.

THE COURT: Ms. Connell, I hope that we are almost done. If not, I don't think that we will have time to hear argument this afternoon. I don't want to have to put this off any longer.

MS. CONNELL: Nothing further, Your Honor.

THE COURT: Officer, you may step down. Well, here is how we will proceed. Ms. Connell, you need to address the first issue. I want you to address the search question. Then if I rule against you on that question, Ms. Kim must convince me that the warrant fails. Then we will get to the third problem, whether the search exceeded the scope of the warrant. My question for both of you is whether you can argue today. This case has been on my calendar for some time. Do you need more time to prepare?

MS. CONNELL: I apologize, but I would like to do some additional research, and if Your Honor would permit, I would like to submit a memorandum of points and authorities as well.

THE COURT: What about you, Ms. Kim? Do you want to submit more paper in this case?

MS. KIM: Your Honor, I agree with Ms. Connell. Briefing the main points would be helpful. We can't do the argument justice in the time that we have before 5:00 today.

THE COURT: We can work past 5:00. Oh well, okay. Check with my clerk for a briefing schedule and hearing date.

SUPERIOR COURT

for the

County of George, State of Mason

In the Matter of the Search of )

John Miller, 169 Fifth Avenue, George City

)

) Case No. 22 CR 324

)

)

)

SEARCH WARRANT AND AFFIDAVIT

Name of Affiant: Joy Fisher

swears under oath that the facts expressed by him/her in this Search Warrant and Affidavit and in the attached and incorporated statement of probable cause are true and that based thereon he/she has probable cause to believe and does believe that the property and/or person described below is lawfully seizable pursuant to Mason Penal Code Section 1524, as indicated below, and is now located at the locations set forth below. Wherefore, affiant requests that this Search Warrant be issued.

Joy Fisher

(signature of affiant)

THE PEOPLE OF THE STATE OF MASON TO ANY PEACE OFFICER IN THE COUNTY OF GEORGE:

Proof by affidavit having been made before me by that there is probable cause to believe that the property and/or Person described herein may be found at the locations set forth herein and is lawfully seizable pursuant to Mason Penal Code Section 1524 as indicated below by "x"(s) in that:

X it was stolen or embezzled

___ it was used as the means of committing a felony

___ it is possessed by a person with the intent to use it as a means of committing a public offense or is possessed by another to whom he or she may have delivered it for the purpose of concealing it or preventing its discovery,

___ it tends to show that a felony has been committed or that a particular person has committed a felony,

___ it tends to show that sexual exploitation of a child in violation of Section 311.3, or depiction of sexual conduct of a person under the age of 18 years, in violation of Section 311.11, has occurred or is occurring

___ there is a warrant for the person's arrest.

YOU ARE THEREFORE COMMANDED TO SEARCH:

See attached and incorporated description page.

FOR FOLLOWING PROPERTY/PERSON:

See attached and incorporated description page.

AND TO SEIZE IT IF FOUND and bring it forthwith before me, or this court, at the courthouse of this court.

This Search Warrant and incorporated Affidavit was sworn to as true and subscribed 13 before me this 29th day of March, 2021, 10:15 A.M. Wherefore, I find probable cause for the issuance of this Search Warrant and do issue it.

Jeremy Taylor

(Signature of Magistrate)

YOU ARE THEREFORE COMMANDED TO SEARCH:

The premises at: 169 Fifth Avenue, George City, Apartment 3 F.

THE FOLLOWING VEHICLE: N/A

AND THE FOLLOWING PERSONS: John Miller

FOR THE FOLLOWING PROPERTY: a painting by Amalia Lopez entitled "Snow in August," a painting by Amalia Lopez entitled "A Dancing Woman; and a painting by Amalia Lopez entitled 'Darkest Night.'

STATEMENT OF PROBABLE CAUSE:

• August 15, 2020, the George City Police Department received a 911 call of a robbery in progress at the George City Art Museum. Responding Officers Olivia Hassani and Steven Gibney learned that two armed and masked men had badly beaten a docent, threatened the docent and a Museum security guard, and stolen three highly valuable paintings by local artist Amalia Lopez. Those paintings are listed above. On November 20, 2020, Gibney received an anonymous phone call from a person who demonstrated a great deal of familiarity with the facts surrounding the robbery of the art museum, including the method of planning and operation of the robbery. For example, the informant explained that they intended to enter at the end of the day when no patrons would be there, and the security force would be limited to one or two employees. Further, the informant stated Tanner Boyd was one of the robbers. The informant did not know the other robber's name but described him in some detail.
• confirm that tip, Officer Hassani attempted to interview Boyd on December 1, 2020. Boyd refused to cooperate and pulled a weapon on the officer, which resulted in a shootout and led to Boyd's death from a gunshot wound. Specifically, Officer Hassani told Boyd before the shootout that the police were investigating his and his gang's involvement in the museum robbery. Because affiant knew that John Miller was a criminal associate of Tanner Boyd, and because both men fit the descriptions of the robbers, affiant set up surveillance of Miller's apartment at 169 Fifth Avenue in George City.
• better view the apartment, affiant secured cooperation from landlord Jim Corso, owner of 156 Fifth Avenue. Corso allowed George City Police officers to use a third-floor apartment to set up surveillance of Miller's apartment. To enhance our sense of sight, affiant secured a Startron Night Vision Scope and placed it in the apartment for officers assigned to surveillance. On several occasions during the period of surveillance, affiant saw known associates of Tanner Boyd enter Miller's apartment building. On three occasions, said affiant witnessed said associates confer with Miller in the front of 169 Fifth Avenue. Further, during the period of time, affiant was able to confirm that Miller has no visible means of support.
• March 27 of 2021, affiant was able to see into Miller's apartment and watched him unroll what affiant knew to be "Dancing Woman," one of the three paintings stolen in August 15 armed robbery. Continued surveillance of Miller's apartment has led affiant to believe the painting is still located in Miller's apartment at 169 Fifth Avenue in George City. Wherefore, your affiant requests a warrant to issue to search said apartment. The affiant's opinion is based upon her experience and training as an officer and the facts set forth in this affidavit.
• NO. 13, 2021 STATE OF MASONCOUNTY OF GEORGE RETURN TO SEARCH WARRANT

Joy Fisher, Name of Affiant being sworn, says that he/she conducted a search pursuant to the below described search warrant:

Issuing Magistrate: Jeremy Taylor, Magistrate's Court: Superior Court, Judicial District City and County of George

Date of Issuance: March 29, 2021, Date of Service: March 29, 2021, and searched the following location(s), vehicle(s), and person(s): Apartment 3F, 169 Fifth Avenue, George City, Mason.

And seized the items* described in the attached and incorporated inventory described below:

One painting, Dancing Woman by Amaia Lopez; One 9-millimeter Walther P99 German semi-automatic pistol; Set of six flat head screwdrivers; One six-piece BROCKAGE locksmith kit.

I further swear that this is a true and detailed account of all the property taken by me pursuant to the search warrant and that pursuant to Mason Penal Code Sections 1528 and 1536 this property will be retained in my custody, subject to the order of this court or of any other court in which the offense in respect to which the seized property is triable.

Joy Fisher, (Signature of Affiant) Sworn to and subscribed before me this 29th day of March 2021 Jeremy Taylor, (Signature of Magistrate) Judge of the Superior Court, Judicial District City and County of George

*List all items seized, including those not specifically listed on the warrant.