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Challenge the search, always

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Success or loss in drug cases often, but not always, relies on whether the defendant wins his or her motion to suppress evidence.

Congratulations to appellants Lonnell Glover and Jonathan Wright and their respective appellate attorneys Adam Kurland and Robert Becker, for obtaining a reversal last month of their convictions of conspiring to possess and distribute more than five kilograms of cocaine. U.S. v. Glover, et al., ___ U.S. ___ (D.C Cir., Nov. 8, 2013).

Glover and Wright obtained a reversal because the convictions were based on information obtained from the bugging of Glover’s vehicle that at all relevant times was in Maryland, when the bugging was done on a search warrant issued not by a Maryland-based judge, but by a District of Columbia federal trial judge.

The D.C. Circuit granted the reversal on plain error grounds, seeing that the appellate court determined that Glover and Wright had not sufficiently preserved the issue for appeal, not because the trial defense lawyers did not raise the issue at all, but because they did not raise it clearly enough (it was only raised orally) for the trial judge to have perceived the issue that was being raised.

The D.C. Circuit’s holding was based on a review of the Omnibus Crime Control and Safe Streets Act of 1968 ("the Act"), covering bugging surveillance, and Rule 41 of the Federal Rules of Criminal Procedure. Under the Act:

[A] a judge cannot authorize the interception of communications if the mobile interception device was not validly authorized, and a device cannot be validly authorized if, at the time the warrant is issued, the property on which the device is to be installed is not located in the authorizing judge’s jurisdiction. A contrary reading would render the phrase “authorized by a Federal court within such jurisdiction” completely superfluous.