A mistrial was declared in the case of an accused Rochester Hills drug dealer this month after it was disclosed his defense attorney never received pretrial information about a mobile tracking device placed on his client?s vehicle by investigators.
Christopher Khalil Dukes, 34, is charged in Oakland Circuit Court with possession with intent to deliver 450 to 1,000 grams of heroin, a felony that carries a 30-year prison sentence. He remains free on $150,000 bond pending a retrial set for June 19.
But still in dispute —and possibly to be addressed at a pretrial hearing Tuesday— is whether the tracker that monitored his movements was legally attached to Dukes? 2015 Cadillac. Officials have been unable to locate the original search warrant reportedly obtained from a Pontiac district judge by Detective Charles Janczarek, a member of the Oakland County Narcotics Enforcement Team.
Defense attorneys and civil right advocates said the case underscores concerns about the potential for abuse of GPS trackers by law enforcement and the need for proper search warrants.
Dukes? attorney, James W. Amberg, said if authorities can?t prove the Cadillac was legally tracked, it would impact a subsequent search warrant for Dukes? Rochester Hills apartment, where NET investigators arrested him in August 2015 and seized a kilogram of heroin, drug packaging materials, cash and guns.
?The apartment warrant was obtained based on information that the tracking device had established suspected drug sales activity,? Amberg told Oakland Circuit Judge Rae Lee Chabot at a March 8 hearing after Janczarek disclosed under cross-examination that a mobile tracker and a telephone tracking app had been used to monitor Dukes? movements.
?If that information was false, then the second warrant was improper and the argument can be made that it has to be thrown out, along with any evidence obtained with it,? Amberg said.
At the hearing, assistant prosecutor Shannon O?Brien said efforts would be made to find the elusive warrant but it ?may be just a miscommunication on a document in a very long-term case.?
Amberg told Chabot he did not think the warrant existed: ?If this happened in federal court, the ax would come down hard,? he said.
?This may be the most serious issue I have ever encountered during a trial,? Chabot said as she granted Amberg?s request for a mistrial.
Pros and cons of trackers
Trackers are commonly used on vehicles suspected in criminal activity, but police must first obtain a search warrant from a magistrate or judge, just as they do to search a home or office. Officers swear on an affidavit why the tracking device is needed, supported by information about active or past criminal investigations, informant and witness statements, and other evidence.
The affidavit request in the Dukes case —which includes the above elements— has been found, but not the warrant itself.
Paul Walton, Oakland County?s chief deputy prosecutor, said NET officers ?are checking 50th District Court files to locate the missing search warrant.?
?We expect they will be able to locate it,? Walton said. ?That court handles a lot of paperwork, and it is possible that it was mislaid.?
Oakland County Undersheriff Michael McCabe said Judge Ronda Fowlkes Gross of 50th District Court approved using the vehicle tracker. ?This is a paperwork snafu of some sort. We have the affidavit signed by Judge Gross authorizing the tracking device, which is signed at the same time as the warrant.?
McCabe said investigators personally surveilled Dukes for 30 days before seeking a warrant for the GPS device.
?The only thing that is missing is the first page, the actual warrant,? McCabe said. ?We don?t know if it was misplaced or lost or what happened to it. But we are 100 percent confident that we had a valid warrant and that this is a solid case and we expect a conviction.?
Legal experts and others who follow such cases say tracking devices are powerful tools for catching criminals but that safeguards are needed to protect suspects? rights and ensure that warrant requests are accurate and accessible.
David Moran, a University of Michigan law professor, said the U.S. Supreme Court has ruled that police must obtain a search warrant to use tracking devices or risk violating the 4th Amendment?s prohibition against unreasonable search and seizure. He questioned why the warrant authorizing the search of Dukes? home included no mention of the tracking device.
?It surprises me if they didn?t note that (tracking device was used) in the subsequent warrant to search the apartment,? said Moran. ?It smells bad.?
?It doesn?t sound right,? said Nathan Wessler, an ACLU attorney in New York who specializes in technology used in searches. ?You have to have a warrant to put a tracking device on a vehicle. We?ve known that since 2012.?
Problems with warrants have led to other Oakland County cases being dismissed.
Last month, Circuit Judge Denise Langford Morris dismissed a marijuana dispensary case, finding there had not been probable cause to search warehouses in Waterford and Lake Orion in February 2016, though NET officers had obtained warrants signed by judges; the Oakland County Prosecutor?s Office is appealing Morris? ruling.
In 2013, an NET officer, Sgt. Marc Ferguson, was fired for lying two years earlier to obtain a warrant to search a Pontiac shipping company where he had already opened a package of 78 pounds of marijuana. The incident led prosecutors to seek the dismissal of 17 cases in which Ferguson was a chief witness, including the charges against the recipient of the marijuana, Anastacio Payan of California.
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Mike Martindale
The Detroit News