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Law Offices of 

DENA MARIE YOUNG, CSB # 215344

740 4th Street

2

nd

 Floor

Santa Rosa, California 95404

Phone: (707) 528-9479

Fax: (707) 692-5314

E-Mail: dmyounglaw@gmail.com

Attorney for Defendant

THURMAN GAITHER III

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, ) CR-16-0477-VC

)

Plaintiff, ) GAITHER’S SUPPLEMENTAL

) BRIEF RE: STANDING, VIOLATION

v. ) OF PROCEDURAL DUE PROCESS

) AND SUPPRESSION OF EVIDENCE

THURMAN GAITHER III, )

)

Defendant. )

 ) Hon. Vince Chhabria

INTRODUCTION

The defendant, Thurman Gaither III, by and through his attorney of record, Dena Marie

Young, hereby submits this supplemental briefing pursuant to this Court’s February 24, 2018

Order. (Dkt. 214). Gaither generally joins in the briefing filed on behalf of co-defendant

Donnell Artis (Dkt. 218). This supplemental is therefore focused on the issues of standing and

the consequences of applying the exclusionary rule in this case. Gaither concedes that he lacks

standing with respect to the specific targets of the unlawful searches. However, he asserts that

the conduct of Agent Carlson in this case was part of a larger pattern of institutionalized

misconduct on the part of the government. Neither the purposes of the exclusionary rule, nor due

process, would be well served by permitting the government to use illegally obtained evidence

against Gaither or any of the co-defendants. Therefore, Gaither asserts that the illegally obtained

evidenced be suppressed for all purposes.

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GAITHER’S SUPPLEMENTAL BRIEF RE: STANDING, VIOLATION OF DUE PROCESS AND

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I.

STANDING

In order to assert standing for Fourth Amendment purposes, a defendant must have a

legitimate expectation of privacy in the subject of the search. Rakas v. Illinois, 439 U.S. 128,

133 (1978). 

Gaither admittedly cannot assert that he has an expectation of privacy in the contents of

Donnell Artis’ phone. Nor can he assert a privacy interest in the apartment associated with

Chanta Hopkins as there is no evidence that he has ever even visited that location. However, the

fruits of these searches form the basis for the entire prosecution against him. Absent the search

of Artis’ phone, there would have been no investigation of the target practice at the Jackson

Arms shooting range. Gaither’s connection to Artis and indirectly to Hopkins would not have

been discovered. The bulk of the evidence to support the credit card fraud charges consists of

computer and production equipment, blank credit cards and foils (including some with Gaither’s

name on them) which were found in apartments associated with Hopkins. 

II.

THE PRACTICES ENGAGED IN BY AGENT CARLSON AT THE

DIRECTION OF THE FBI AND U.S. MARSHAL SERVICE VIOLATE

GAITHER’S RIGHT TO PROCEDURAL DUE PROCESS AND MUST BE

DISCOURAGED BY SUPPRESSION OF THE ILLEGALLY OBTAINED

EVIDENCE AND ITS FRUITS

The testimony of Agent Carlson establishes that the search warrants were illegal

because a state court judge cannot authorize a federal agent to conduct the search. Because

California law was well-established in that area, Agent Carlson should have known that what he

was requesting was not authorized. Whether he personally knew or not is not critical to this

Court’s determination in this case. A much larger issue exists. 

Agent Carlson, a special agent with the FBI, was working both as an FBI agent in

violent crimes and gangs, and part-time as a member of the U.S. Marshal’s fugitive task force. 

Carlson testified that his job, with respect to the warrants at issue here, was to assist local law

enforcement in locating fugitives. Yet, he admitted that, at that time, the FBI had an open

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“umbrella” investigation into the “Murder Dubs.”1 It is no coincidence that Carlson was tasked

with looking specifically for Artis and Hopkins. Both were of interest in connection with that

investigation. Searching for them as “fugitives” allowed the FBI to bypass oversight of their

investigation by the U.S. Attorney’s Office and the Federal Courts. 

Agent Carlson received training from the U.S. Marshal Service that, when he requested

search warrants from the state courts, he should request that a federal agent be authorized to

conduct the search. As a federal law enforcement agency, the U.S. Marshals must be held to

know the laws, whether state or federal, which govern their day-to-day operations. It was longestablished state law that federal agents are not peace officers and that non-peace officers cannot

execute state warrants. The inclusion of language in a search warrant purporting to authorize a

federal agent to conduct the search is a deliberate attempt to circumvent these laws. The problem

lies not just with Agent Carlson, but in the practices of the agency which trained him.

Further, the search warrant applications before this Court show clearly that, in practice,

it is much simpler to get a warrant signed by a state court judge than by a federal magistrate. 

The warrants at issue were not reviewed or approved by the U.S. Attorney’s Office as would

have otherwise been required. Thus, the agents were operating without any real oversight. The

absence of any specific information regarding the credibility of the informant is one example.

The applications also show that the scope of the investigation exceeded fugitive

recovery. The nature of the items sought suggest a broader criminal investigation than simply

locating a missing person. For example, the warrant applications specifically sought information

relating to credit card fraud, one possible subject of the FBI “umbrella” investigation. This kind

of information would not be of any assistance in locating a fugitive.

In short, the FBI deliberately utilized the U.S. Marshals fugitive-finding function as a

means to conduct a criminal investigation without the oversight of the U.S. Attorney’s Office or

the federal courts. That method was intended to give them access to the state courts and

 

1

It is unclear whether the name “Murder Dubs” refers to the neighborhood in Oakland, or

whether the FBI deemed it a gang. 

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permitted them to obtain warrants far more easily than they could have done in the federal courts. 

This is especially true of the request for the use of cell site simulators where federal procedure

requires a more detailed application. The fact that the use of state judges to authorize federal

agents to conduct searches was illegal was apparently not a consideration. 

This institutionalized circumvention of law amounts to a denial of procedural due

process. The violation extends beyond those defendant with Fourth Amendment standing to all

defendants charged based on the illegally obtained evidence. The tactics used here to circumvent

procedural due process protections are, in their nature, analogous to the techniques utilized by

law enforcement to thwart the procedural protections of Miranda v. Arizona, 384 U.S. 436

(1966). 

In Missouri v. Seibert, 542 U.S. 600 (2004), police officers had been trained to question

suspects in phases using the the “question-first” method of interrogation. They arrested the

suspect and questioned him without a Miranda advisement. Once they had obtained a

confession, they advised the suspect of his Miranda rights then asked him to repeat the

confession. As a result of this technique, the initial un-warned statement was suppressed, but the

post-warning statement was admitted. Seibert, at pp. 609-611. 

The Court found that the technique was “a police strategy adapted to undermine the

Miranda warnings.” Seibert, at p. 616. It was intended to elicit a confession from someone who

might be less inclined to confess if he understood his rights from the outset. Id. at p. 613-614. 

The suspect was never told that his initial statement would not be admissible. Id. at p. 616. 

Once the confession was made and the Miranda advisement was given, the suspect would not

believe that he had any rights remaining when the officers asked the same questions again. Id. at

p. 613-614. By utilizing this two-stage interrogation technique, the officers’ conduct effectively

rendered Miranda advisements meaningless. Id. at pp. 613-614. As a result of this violation of

procedural due process, both the warned and unwarned statements must be suppressed. Id., at p.

617. 

By analogy, all evidence obtained as a result of the deliberate violation of procedural due

process must be suppressed. In this case, this Court should look, not just to the two warrant

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applications presently before it, but to the existence of other unlawful searches affecting these

defendants. The searches of apartments at Jefferson Street and Ellis Street were also conducted

in violation of the Fourth Amendment. It is impossible to believe that, with so many illegal

searches in the same case, that government agents made reasonable efforts to operate within the

law. Rather, the number of illegal searches suggests a pattern of misconduct. Agents chose

expedience over the rights of the defendants. On these facts, to permit the use of illegally

obtained evidence against some defendants while suppressing it as to others would result in a

great injustice. Further, it would embolden federal agents to continue the institutionalized

practice of avoiding federal scrutiny by utilizing the state courts. While such a practice greatly

simplifies the work of the federal agents, it is an end run around the procedural and constitutional

protection afforded to federal defendants and must be stopped. This Court has the opportunity to

send a strong message that the practice is unacceptable by suppressing the illegally obtained

evidence as to all defendants.

Also by analogy, due to lack of standing, suppression would serve the purposes of the

exclusionary rule. The “prime purpose of the exclusionary rule is to deter future unlawful police

conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable

searches and seizures.” Illinois v. Krull, 480 U.S. 340, 347 (1987) (internal quotation marks

omitted). In order to deter future conduct, “evidence should be suppressed ‘only if it can be said

that the law enforcement officer had knowledge, or may properly be charged with knowledge,

that the search was unconstitutional under the Fourth Amendment’” Krull, at 348-349. 

The Ninth Circuit has identified three factors to consider in determining whether the

exclusionary rule should be applied in a particular case: 

“(1) whether suppression would affect the group conduct that the exclusionary

rule was designed to punish, i.e., police misconduct; (2) the source of the error in

the particular case and whether any evidence suggested that the source, e.g.,

issuing magistrates, was inclined to ignore or subvert the Fourth Amendment; and

(3) the basis for believing the exclusion of evidence will have a significant

deterrent effect upon the source of the error.” 

United States v. Sears, 411 F.3d 1124, 1128 (9th Cir. 2004), citing United States v. Luk, 859 F.2d

667, 676 (9th Cir. 1988).

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All three of these factors are applicable in this case. Suppression would send a message

to law enforcement that utilizing state courts to avoid federal scrutiny is unlawful and should not

be rewarded. The evidence shows that established California law forbade the execution of state

search warrants by federal agents, yet Agent Carlson admitted he had been trained by the U.S.

Marshal Service to seek such unlawful authorization. As it appears that these practices are

institutional in nature rather than individual to Agent Carlson, suppression of the illegally

obtained evidence as to all defendants would deter the agencies from engaging in such conduct in

the future. 

Finally, it is within he inherent supervisory powers of ths Court to fashion an appropriate

remedy to correct governmental misconduct and to deter such conduct in the future. "[G]uided

by considerations of justice," and in the exercise of supervisory powers, federal courts may,

within limits, formulate procedural rules not specifically required by the Constitution or the

Congress. United States v. Hastings, 461 U.S. 499, 505 (1983); citing McNabb v. United States,

318 U.S. 332, 341 (1943). The use of the supervisory powers serve three purposes: (1) to

implement a remedy for violation of recognized rights, McNabb, supra, at 340; Rea v. United

States, 350 U.S. 214, 217 (1956); (2) to preserve judicial integrity by ensuring that a conviction

rests on appropriate considerations validly before the jury, McNabb, supra, at 345; Elkins v.

United States, 364 U.S. 206, 222 (1960); and (3) as a remedy designed to deter illegal conduct,

United States v. Payner, 447 U.S. 727, 735-736, n. 8 (1980). Given the number of illegal

searches, the total disregard for the defendants’ rights , the deliberate practice of asking state

courts to violate state law by authorizing searches by federal agents, and the intentional; use of

state courts to bypass federal scrutiny, this is a case which demands that this Court exercise its

supervisory powers to send a message to federal law enforcement agencies that this total

disregard for law and procedure cannot continue.

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CONCLUSION

For the foregoing reasons, Gaither respectfully requests that this Court suppress all

illegally obtained evidence in this case, not just as to those who have traditional standing under

the Fourth Amendment, but as to all defendants directly affected by government misconduct.

Dated: March 9, 2018

Respectfully submitted,

 s/ 

DENA MARIE YOUNG

Attorney for Defendant

THURMAN GAITHER

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