Judge upholds search of Exposedat computers

Sheriff’s warrants raise questions and ire
August 5, 2016
2016-17 Terrebonne Parish Bus Routes
August 8, 2016
Sheriff’s warrants raise questions and ire
August 5, 2016
2016-17 Terrebonne Parish Bus Routes
August 8, 2016

Attorneys for a Houma police officer whose computers and cell phones are being held in connection with a thorny criminal defamation case will seek relief from state and federal courts, following a Friday hearing at which a state district court judge refused to invalidate the warrant that authorized the seizure.


The officer, Wayne Anderson, is not charged with a crime. But Terrebonne Parish authorities say the devices hold evidence relating to the alleged defamation of insurance broker Tony Alford, who does business with several parish agencies. An affidavit based on Alford’s complaint, Judge Randy Bethancourt ruled, gave probable cause for a warrant to be issued, and so he refused to quash the warrant.

“The items law enforcement is attempting to search could arguably lead to them charging someone with the crime of defamation,” Bethancourt said.

NOT A CRIME


Anderson’s lawyers say the threshold needed to overcome violation of free speech had not been reached. Large parts of the law in question have been declared unconstitutional by the U.S. Supreme Court, which requires that prosecution be limited to cases where defamation against a public official occurs with actual malice, and that the statements must be false.

“Whether Tony Alford’s complaint showed there was probable cause that a crime was committed was not the point, when the very statute involved is not constitutional,” said attorney Jerri Smitko, who represents Anderson, after the hearing. “We intend to seek relief in federal court. There’s not a crime because it’s an unconstitutional statute. No amount of probable cause makes the warrant good.”

Smitko and other attorneys representing the Andersons also plan to seek a writ from the Louisiana 1stCircuit Court of Appeal in an attempt to have Bethancourt’s ruling reversed, and an injunction in federal court. 


Bethancourt issued the warrant Monday, the third of three in connection with the Sheriff’s Office investigation of the case, which began July 13th, after receiving Alford’s complaint. The first thing detectives tried to do was determine the identity or location of the fictitious John Turner. A court order was sent to Facebook, seeking information on the John Turner account. Facebook returned information that the account was affiliated with a specific IP address, a unique string of numbers separated by periods that identifies each computer using the Internet Protocol to communicate over a network. The IP address was assigned to AT&T Internet Services. A separate court order was then directed to AT&T, which supplied the physical address in Houma associated with the IP address.

“ANY COMPUTERS”

Armed with that information Det. Glynn Prestenbach Jr., prepared an affidavit for another warrant and approached Bethancourt. Law enforcement sources say they don’t know why, since Judge David Arceneaux, and not Beathancourt, was the duty judge for that week.


The next day Bethancourt signed the warrant for a search of the home for “any computers, laptop computers, IPads, tablets, cell phones or any other electronic device that may be used to post information on the internet.”

Detectives arrived at the house Tuesday afternoon and began their search.

Three laptops and four cell phones were seized. 


Smitko, upon being notified by Anderson, immediately sought to challenge the warrant’s validity, and an agreement was made for Clerk of Court Theresa Robichaux to take custody of the items pending a hearing.

Friday afternoon attorney David Ardoin, part of a team that includes Smitko and another attorney, Matthew Ory, attempted to make his case, arguing that the affidavit on which the warrant was based did not establish that a crime had been committed, alleging that the elements of the criminal defamation law had not been met.

“On seeking the search warrant to obtain property … there must be a fair proposition that evidence of a crime will be found in a particular place,” Ardoin said. “The magistrate shall not just be a rubber stamp of the police officer’s allegation.”


Because Alford, in his statement to the Sheriff’s Office, admitted that he was a beneficiary of a contract with that agency, the statement regarding that on the blogsite was not false, Ardoin said. Additionally, he noted that Alford is president of the Terrebonne Parish Levee and Conservation Board, making him a public official. Insurance contracts with the Sheriff’s Office and the Terrebonne Parish Consolidated Government, he added, make the matter a public affair.

“IT’S A BAD WARRANT”

Ardoin said that since case law has mandated that the statute does not apply in regard to public officials where an allegation is true, or if the matter at hand is a public affair, the warrant authorizing the seizures was not validly issued.


Bethancourt asked if Ardoin was trying to say that when a warrant is presented a judge “is supposed to investigate every name that is on an affidavit that is either a public official or matters to do with public affairs. How is a magistrate to know?”

“The court is well aware – “ Ardoin responded, to which Bethancourt gave a shrug and shook his head indicating a “no.”

Because District Attorney Joe Waitz Jr. – who is also accused of inappropriate activities in the blog – recused himself from the case, the state was represented by an assistant attorney general, Barry Milligan.


“The state’s position is we presume the court found probable cause,” Milligan said. “We reiterate that the warrant is presumptively valid.”

“It is unconstitutional,” Ardoin fired back. “It is a bad warrant, it should be quashed.”

Bethancourt was unmoved, and ordered that the laptops and phones could be searched.


Smitko stood up and protested “my client’s computer has been taken and he has been removed from his job.”

She was referring to a decision by Anderson’s boss, Houma Police Chief Dana Coleman, to place him on paid administrative leave. Bethancourt said he would continue to stay full execution of the warrant – searching of the computer contents – pending appeals.

NO DETAILS 


In an interview earlier this week, Coleman said that when a police officer is implicated in a crime, the routine action for management to take is imposition of paid administrative leave, but did not address the question of why Anderson will remain suspended even though he is not accused of a crime.

Although Anderson still receives his salary, he is not while on leave eligible for extra-duty details, which provide a big income boost for officers.

At the Sheriff’s Office, officials said it is likely that next week Attorney General Jeff Landry’s own investigators will take over the case. No statute bars Larpenter from having his detectives investigate a crime where his wife works for the victim. But criticism has loomed large that his office’s involvement gives an appearance of heavy-handedness. 


The case has also cast a spotlight on whether Louisiana’s criminal defamation statute should become a thing of the past. It is rarely used, and when it has lengthy legal battles have ensued.

Actions under civil law to remedy defamation are common and have success, but don’t have the negative cachet of criminalizing speech.

“When you have a government charging someone criminally for their speech against government it is especially troubling, because it involves arrest and jail time,” said Michael Lambert, a fellow at the Reporter’s Committee for Freedom of the Press in Washington D.C., who noted that now more than ever free speech cases raise important questions, because of technology used by people like the Exposedat blogger. “Widespread communication has accelerated access to a microphone, with one click.”


 

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