Virginia Police State: No Motorcycle Club is Safe.

On July 24 the Virginia State Police conducted an unconstitutional and over-militarized search and seizure of the Wicked Few Charity Brotherhood in Virginia. According to NBC News, “families watched armored vehicles move into position Friday evening, investigators from Virginia State Police executed a search warrant inside a motorcycle clubhouse, leaving residents with few clues as to the goal or intent of the sweeping search.” (NBC News, July 24, 2015) After two hours and no arrests, the VSP seized club property and then pointed AR-15’s directly at an unarmed member as he requested to see the warrant. The request was denied.

THE VIRGINIA STATE POLICE’S RESPONSE WAS IRREFUTABLY OVER-MILITARIZED

The VSP operation was more reminiscent of a military operation than a domestic police action. Armored vehicles, AR-15’s, drug dogs, and after searching for more than two hours troopers made no arrests. Consider the following description from the primary witness on the scene.

I felt like I was in Iraq and an IED has just been found, said Jeremiah Dabney in an interview Friday. We watched them in and out of our house. They brought drug dogs out. They searched the property, kicked the doors in.”

 But after floorboards were pulled off, and safes cracked open, Dabney said he approached troopers to ask what was happening.

They all pointed AR-15s at me, Dabney said. I’m in shorts and nothing else. I pulled my shirt off and dropped my pants to show him that I had no weapons. I said, ‘I want to see my search warrant.’” (NBC News, July 24, 2015)

 Troopers refused to show the sealed warrant, and left the neighborhood. “According to members of the social club, investigators took three biker vests, a large banner displaying the organization’s name, and a photo album.” (NBC News, July 24, 2015)

The level of militarization displayed by the VSP is unjustified and completely inappropriate considering the known circumstances. The Wicked Few Charity Brotherhood, as the name makes clear, is a charitable social organization. The Wicked Few are a new club that has only been around for two years. According to previous interviews, the club is completely dedicated to charity and community involvement. It’s a requirement of membership. Other than inaccurate stereotype, there is absolutely no apparent circumstances justifying a militarized response.

The over-militarization of American law enforcement is an obvious reality with potentially devastating consequences. Militarized police eliminate any chance of community policing by installing fear and mistrust in average citizens. As the relationship between law enforcement and the community breaks down there is a much higher probability of unjustified use of deadly force and civil liberty violations on a massive scale. This breakdown also erodes the safety net that has irrefutably led to mass demonstrations and even violent rioting.

The response should be commensurate to the threat. And what we know about this incident reveals no justifiable threat.  And refusing to reveal the sealed search warrant is a mechanism that law enforcement is increasingly using to circumvent the constitutional requirement to demonstrate probable cause required in legal search and seizures.

REFUSING TO REVEAL A SEALED WARRANT AFTER THE SEARCH IS COMPLETE IS UNCONSTITUTIONAL AND VIOLATES ESTABLISHED CRIMINAL PROCEDURE

The government’s most recent strategy involves motions to seal search warrant affidavits. Despite the fact that there is no statutory authority and precedent concluding the unconstitutional nature of sealed search warrants, prosecutors have often persuaded judges to continue the secrecy of search warrant affidavits long after the warrants have been executed based on the argument that unsealing would compromise an ongoing investigation.

Although initially sealing a search warrant may arguably preserve investigatory integrity, the moment that property is seized the search warrant must be unsealed.  David F. Axelrod, a former an Assistant U.S. Attorney for the Southern District of Florida and Trial Attorney for the U.S. Department of Justice says, “Until the application has been unsealed, it is impossible to identify any but the most obvious defects in the warrant or its execution. In particular, it is impossible to determine whether there was probable cause to search and, if so, for what.”  (see Litigating Sealed Search Warrants: Recent Cases Limit Indefinite Seal in Pre-Indictment Investigations)

 The Virginia State Police acted unconstitutionally the moment that they seized the Wicked Few’s property and refused to show the warrant.  Sealed search warrants become particularly problematic after property is seized. Federal Criminal Procedure “clearly establishes the right of a person aggrieved by the execution of a search warrant to challenge the propriety of the seizure of his property. The subject of the warrant suffers the deprivation of property and has more than just an academic interest in knowing the basis for the warrant. Without the affidavit, it is impossible to assess the legitimacy of the warrant, and, therefore, the deprivation of property.”

Unless the search warrant application is open to review, counsel and the property owner cannot evaluate whether the affidavit is based on false or erroneous information. There is zero basis for the Wicked Few to challenge the taking of their property.

The denial of access to a warrant affidavit precludes a property owner from the most effective forms of challenging the warrant, depriving the property owner of procedural and substantive due process. “[M]inimum due process requirements are violated when a government agency permits its officers to carry out a seizure . . . without providing the owners any meaningful opportunity to challenge the seizure at the earliest possible time.”

Recent case precedent confirms that sealed search warrants were not intended by Congress. In the Southern District of Ohio (889 F. Supp. 296 (S.D. Ohio 1995) the court was clear that asserting an “ongoing criminal investigation,” is not enough to justify continued sealing. Criminal procedure “nowhere provides for the secrecy of warrant applications. This stands in sharp contrast to Fed. R. Crim. P. 6(e), which explicitly provides for the automatic secrecy of grand jury materials. The failure to include such a secrecy provision in Rule 41 is a plain indication that Congress did not intend for search warrant applications to be kept secret.”

CONCLUSIONS

The epidemic of over-militarized and discriminatory law enforcement actions targeting motorcycle clubs are perfectly demonstrated by the actions of the VSP.  The Wicked Few, a charitable organization, are victims of an over zealous and constitutionally unconscious search and seizure, conducted by armored vehicles, at the end of AR-15’s.  The pattern of evidence justifying legislative protection against law enforcement profiling is self-evident.

Every American should be highly concerned. The Virginia State Police must be held accountable. Every instance of over-militarized, abusive, and unconstitutional search and seizures erodes the concept of Due Process and risks large scale violence, unjustified deadly force, and a general breakdown of peaceful civil society.

David Devereaux is the Spokesperson for the Washington State Confederation of Clubs and US Defenders,  The Motorcycle Profiling Project, and also works with the Confederation of Clubs and US Defenders at the national level. Contact: doubled@motorcycleprofilingproject.com, motorcycleprofilingproject.com)

11 thoughts on “Virginia Police State: No Motorcycle Club is Safe.

  1. Pingback: How To Prevent Another Militarized Police Massacre | Motorcycle Profiling Project

  2. Pingback: How To Prevent Another Militarized Police Massacre | Motorcycle Profiling Project

  3. Yeah especially the mcs that law enforcement operate. Who do you think has the best drugs? Are they saying all the HOG Chapters and these weekend warriors that bought a bike, vest and joined a club are trouble? Or are they talking about my brother and sisters who “look” like the bikers on tv? If you believe what you see on tv is what we are about then please never except another dime raised for the many charities and families we help year round!

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  4. Virginia… Your big problems are NOT MC’s! I may be a lonewolf, but I know MC’s are not the problem anywhere that requires such extreme show of force like this.

    You have plenty of Domestic Abusers, PEDOFILES, and GANG BANGING PUNKS….. how about go full military on that trash of our society…. assholes.

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  5. It is absurd to say a search warrant should be sealed. It was the intent of the 4th amend. that a search warrant be provided to the owner of a property be for the search is conducted. The search should not even begin until the warrant has be provided and the items to be seized are stated. These protection are for reason, a warrant is not a license to prod every inch of a property, but only those where the items of the search are likely to be found. Courts have held if you are looking for a person then the opening of a drawer would be illegal, likewise in a search for a rifle a small jewelry box is off limits. So if we are to allow sealed warrants what protection does the owner have?

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  6. We gave them all this power and refuse to take it back. Americans have become the biggest pussies in the world. Our government is outta control.

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  7. Pingback: Virginia Police State: No Motorcycle Club is Safe. | kmfisher1

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