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Expert: John Doe raids raise ‘troubling’ Fourth Amendment questions

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Part 89 of 127 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Troubling.

That’s how one Fourth Amendment expert describes the manner in which search warrants were executed in a politically charged John Doe investigation into dozens of conservative groups.

“It seems to me somewhat absurd if what (investigators) were looking for were campaign finance violations,” Robert M. Bloom, professor of law at Boston College Law School, said of the predawn searches and seizures at the homes of targeted conservatives in a nearly two-year-old probe critics say is rife with civil rights violations.

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UNREASONABLE SEARCH? A civil right lawsuit against prosecutors in a politically charged John Doe investigation has raised serious Fourth Amendment questions about raids on homes of conservative targets.

While Bloom acknowledges he is only somewhat familiar with the secret John Doe investigation that is the subject of several legal actions, he is troubled by what multiple sources have described as “paramilitary-style” raids related to alleged campaign finance violations debunked by two judges.

“It’s troubling. There is no need for that, but once again that’s something a court will have to decide,” added Bloom, author of numerous publications in the areas of criminal and civil procedure.

The approach of law enforcement officials in conducting the raids prompted one target earlier this month to ask whether “these kinds of armed pre-dawn raids (are) standard operating procedure when investigating potential campaign violations?”

Bloom would suggest, for the most part, they shouldn’t be. And one Wisconsin sheriff tells Wisconsin Reporter such use of force at such an early hour is not common in what arguably would be considered low-risk warrant operations.

According to court documents, armed officers raided the home of R.J. Johnson, an adviser to the Wisconsin Club for Growth, one of at least 29 conservative organizations targeted in the investigation and a consultant to Gov. Scott Walker’s campaign. Sheriffs ‘deputies also served warrants at the home of Wisconsin Club for Growth adviser Deborah Jordahl, and several other targets across the state.

“Sheriff Deputy vehicles used bright floodlights to illuminate the targets’ homes. Deputies executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys,” according to a civil rights lawsuit filed by the club and one of its directors, long-time conservative activist Eric O’Keefe.

On the same day, a flurry of subpoenas were issued, including to O’Keefe, demanding he and other members of the organization turn over “more or less” all of the club’s records from March 2009 until Oct. 3, 2013.

The targets were told to tell no one, with the exception of their legal counsel, on penalty of contempt, according to the lawsuit. Contempt charges in Wisconsin come with potential punitive sanctions, including a jail term of up to one year and a fine of up to $5,000 for each separate act of contempt.

The probe, which operates much like a grand jury investigation without the benefit of a jury of peers, is administered by a judge vested with extraordinary power and bound by a strict secrecy order.

Several sources with knowledge of the secret investigation have confirmed the account in the lawsuit, some adding that law enforcement officials entered the rooms of the targets’ children, taking property belonging to family members.

Dane County Sheriff David Mahoney recently told Wisconsin Reporter he could not comment on the raids because he did not know enough about them, although search warrants were executed in Dane County.

Grant County Sheriff Nathan Dreckman says law enforcement considers a variety of factors when preparing to serve a warrant. Grant County was not involved in the five-county John Doe investigation, but Dreckman has plenty of experience with warrants over the course of his law enforcement career.

He said Grant County generally employs such raids in “high risk” cases, those involving weapons and the threat of violence.

“The whole goal is officer safety and the element of surprise,” the sheriff said. “It keeps everybody safer that way.”

Most often, Grant County deputies deal with warrants during business hours, without a crisis resolution team, Dreckman said.

“Where there is no threat of guns or violence, officers in the past have gone up and knocked on the door. If there is someone there, we tell them why we are there,” the sheriff said.

That’s precisely what law enforcement could have – and should have – done in the case of the John Doe investigation raids, conservative targets assert. The reason for the big display of force and strong-armed tactics, they say, is all about intimidation.

But Dan Richman, professor of law at Columbia Law School and an expert in criminal law, says there will always be debates about the proportionality of police and prosecutorial tactics. It’s a debate that generally is not waged constitutionally in courts.

“What you find is when police have the authorization to go in and exercise a search warrant, they will act like police,” Richman said. “That generally involves some degree of kinetic force and some degree of surprise.”

The law professor said in the not-too-distant past, search warrants were not frequently used as a tool in white-collar crime investigations. They are increasingly used today, from wiretaps in insider trading cases to raids on hedge-fund managers.

In other words, the Fourth Amendment guarantees that the “Right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It does not say anything about the mode of searches and seizures.

One of the concerns, however, in the John Doe probe is that the search warrants were overly broad in allowing the seizure of personal property belonging to family members of the targets, particularly electronic devices.

The whole issue of searches of electronic devices — smart phones and personal computing devices in particular — has become a pressing Fourth Amendment issue. Courts are beginning to “rebel” against prosecutors’ bulk requests for email in criminal investigations, according to a story earlier this year in the Wall Street Journal.

Two federal judges, in Washington, D.C., and in Kansas City, Kan., have “rejected or modified a number of applications for warrants” by the U.S. Department of Justice to “search people’s emails and other electronic communications at Internet firms such as Google Inc. and Yahoo Inc.,” according to the Journal.

“The rulings go against the grain of a federal judiciary that has generally approved them, according to current and former law-enforcement officials. They also come against the backdrop of a legal and political debate over the scope of government surveillance that has raged since the National Security Agency’s bulk collection of phone records was revealed last summer,” the article states.

Due to the secrecy of the John Doe investigation, the warrants have not been made public, but the seizures, experts say, suggest the former presiding judge in the proceeding, Kenosha County reserve Judge Barbara A. Kluka, signed off on a broad search and seizure language.

Bloom, the Boston College law professor, said it is probable that within the confines of the warrant was the right to search computers, in the general sense.

“Our Founding Fathers put in the requirements for the use of warrants and those requirements involve the place to be searched, the things to be seized, as well as probable cause,” Bloom said. “The problem that we face during this digital age is how much does that all mean when we are dealing with computers? … Where does it all end?”

In the John Doe investigation, the allegation of investigators rummaging through property of family members may be disturbing, but Bloom said it probably would hold up in court.

At issue now is the question of probable cause.

In January, John Doe presiding Judge Gregory Peterson, who took over in October after Kluka suddenly recused herself without explanation not long after authorizing as many as 100 subpoenas, quashed key subpoenas. He ruled that the prosecutors, including Milwaukee County District Attorney John Chisholm and two of his assistant DAs, failed to show evidence for probable cause.

The prosecutors’ legal theory, that the conservative groups illegally coordinated with Walker’s campaign, didn’t hold water.

Now Peterson’s ruling is being appealed to the state Supreme Court, while it is simultaneously front and center in a federal civil rights lawsuit against the prosecutors. Legal questions surrounding that suit, including a federal judge’s order shutting down the investigation, are pending in two federal courts.

Contact M.D. Kittle at mkittle@watchdog.org

Part of 127 in the series Wisconsin's Secret War
  1. Sources: Secret probe targeting conservatives is abuse of prosecutorial powers
  2. Scary! Phantom prosecutor in Dems’ war on conservatives disappears inside courthouse
  3. EXCLUSIVE: Judge in Democrat-led John Doe probe recuses herself
  4. Democrats’ ‘intelligence-gathering’ spreads in Wisconsin
  5. Democrats tap anti-terror expert to head secret probe of Wisconsin conservatives
  6. Sheriff Clarke: John Doe case shows Milwaukee DA is ‘weaponized for political purposes’
  7. Clarke: John Doe into conservatives ‘unbridled,’ ‘dangerous’ and ‘tainted’
  8. Sources: New judge named in Democrat-led secret probe
  9. Vendetta justice? Criticism growing about John Doe prosecutor Bruce Landgraf
  10. Will Wisconsin’s own ‘Miserable’ inspector jail conservative activist for speaking out about Dem probe?
  11. Conservative targets bring in big guns to Democrat-led John Doe fight
  12. ‘Dangerous’ game: Former FEC official blasts Democrats’ secret investigation of conservative groups
  13. Center for Media and Democracy: Liberals are morally superior
  14. Wisconsin Dems suddenly support political investigations
  15. WI Republican attorney general to represent judges in Democrat-led John Doe probe
  16. Republicans speak out about silent John Doe targeting conservatives
  17. Biggest secret in John Doe may be just how judges and special prosecutors are selected
  18. WSJ: John Doe judge deals body blow to secret probe targeting conservatives
  19. Vos: Wait until John Doe in ‘rearview mirror’ before revisiting law
  20. Lawsuits looming in Wisconsin’s crumbling John Doe probe?
  21. Conservative to Democrat prosecutors: Shut down secret political probe or face civil rights lawsuit
  22. John Doe target O’Keefe taking on IRS, too
  23. Lawmaker: Wisconsin’s John Doe like Christie’s ‘Bridgegate’
  24. Target files civil rights lawsuit against Wisconsin’s John Doe prosecutors
  25. Disparate treatment: Civil rights lawsuit claims conservative speech trampled
  26. Liberal group looking to take Wisconsin’s John Doe national
  27. John Doe judge: ‘Results of the John Doe speak for themselves’
  28. John Doe special prosecutor appeals judge’s ruling quashing subpoenas
  29. John Doe prosecutor pushed for brain-damaged man’s conviction in ATF debacle
  30. Conservatives counterpunch John Doe prosecutors’ move to stall injunction
  31. Shadowy John Doe investigator invokes federalism in civil rights lawsuit
  32. John Doe prosecutors wanted higher-priced lawyers, source says
  33. Secret agent Dean Nickel’s defense: ‘Dean Nickel is not responsible’
  34. D’oh! John Doe prosecutors claim secrecy protection – after filing secret documents
  35. Recusal in John Doe case raises questions of fairness, purpose
  36. Absolute immunity makes it tough to prosecute the prosecutors of John Doe
  37. Poll suggests Dems’ big ‘secret’ weapon against Walker is backfiring
  38. ‘Easy target’: Kelly Rindfleisch breaks silence about John Doe probe
  39. SCOTUS ruling on campaign finance shows abuse of John Doe, targets say
  40. Nobody will say what John Doe’s shadow man did, but taxpayers are paying his legal bill
  41. Judge denies John Doe prosecutors’ move to dismiss civil rights suit
  42. Civil rights expert: John Doe law is ‘un-American,’ like something from ‘Nazi Germany’
  43. Target: John Doe prosecutors making up campaign law as they go along
  44. John Doe, as it is being used, must go, WI senator says
  45. John Doe target says prosecutors latest move another delay tactic
  46. John Doe prosecutors sound defensive in latest court filings
  47. Federal judge denies John Doe prosecutors’ motion to stall civil rights case
  48. Media coalition asks judge to open sealed John Doe documents
  49. Are John Doe prosecutors sweating out federal judge’s decision?
  50. John Doe is dead: Judge stops WI prosecutors’ probe into conservatives
  51. This is what the Fourth Amendment looks like?
  52. What’s next for now-defunct John Doe probe?
  53. Appeals court stalls judge’s order halting John Doe probe
  54. Federal judge’s ruling could open up sealed John Doe records
  55. Federal judge orders John Doe probe shut down again
  56. Lawmakers call for review of GAB’s secret John Doe activities, funds
  57. Lawyers, lawyers everywhere and other dispatches from John Doe Land
  58. Secret’s out: The world is beginning to learn more about WI’s John Doe
  59. Still their little secret? Questions remain on John Doe gag order
  60. Appeals Court declares portions of Wisconsin campaign finance law unconstitutional
  61. John Doe prosecutors suddenly support opening sealed court records
  62. Expert: It’s as if GAB decided ‘Citizens United didn’t exist’
  63. John Doe prosecutors voice phony outrage, legal source says
  64. GAB still reviewing court ruling declaring WI campaign finance law unconstitutional
  65. State Farm still doesn’t want to cover John Doe prosecutor’s legal bills
  66. For the Walker-hating left, John Doe is ‘Mission Accomplished’
  67. Sources: No urgency in WI Supreme Court on John Doe
  68. Would Walker settlement with John Doe prosecutors be a deal with the devil?
  69. Contempt questions surround reported John Doe deal talks
  70. Walker’s John Doe response raises more questions than answers
  71. Sources: Attorney General passes on defending GAB in John Doe cases
  72. Attorney to judge: Don’t let John Doe prosecutor ‘moot’ injunction
  73. John Doe targets sue Wisconsin’s Government Accountability Board
  74. Federal judge says his order halting John Doe probe should be clear to prosecutor
  75. John Doe special prosecutor’s bill still shrouded in secrecy
  76. ‘Are these kind of armed pre-dawn raids standard operating procedure?’
  77. John Doe special prosecutor obeys judge’s order
  78. ‘Never-ending’ John Doe never ended, WSJ reports
  79. Appeals court upholds judge’s order shutting down John Doe probe
  80. O’Keefe keeps collecting big wins in John Doe lawsuit
  81. John Doe I judge says he’s not responsible for John Doe II
  82. Will taxpayers have to pay for frivolity of John Doe prosecutors?
  83. John Doe prosecutors jump back into the dark?
  84. What about those prosecutors? Questions surround other John Doe DAs
  85. Humiliated in court, WI Dems take their anti-conservative John Doe probe to the media
  86. Federal judge blasts John Doe prosecutors – again – as he denies records release
  87. Right on cue: Document dump fuels anti-Walker donation drive
  88. Wall Street Journal points out ‘disgrace’ of mainstream John Doe reporting
  89. Expert: John Doe raids raise ‘troubling’ Fourth Amendment questions
  90. Kelly Rindfleisch tells conservatives, ‘Don’t back down’
  91. Mainstream media forced to walk back Walker ‘criminal scheme’ narrative
  92. John Doe prosecutors engaged in premature justification, conservatives say
  93. Is John Doe probe a case of a mini NSA in Wisconsin?
  94. AG opinion means accountability board’s John Doe secrets are safe — for now
  95. Senator asks attorney general to compel GAB to open up its books
  96. GAB now playing secrets in state John Doe lawsuit
  97. Will John Doe prosecutors launch lengthy probe against Trek Bicycle?
  98. John Doe prosecutors engaged in war of words — lots and lots of words
  99. Judge denies conservatives’ request to add GAB to civil rights lawsuit
  100. Oral arguments set in John Doe prosecutors’ appeal
  101. In John Doe Land, the left doesn’t illegally coordinate
  102. John Doe document blitz must have broken mainstream media’s heart
  103. Senator: Looks like accountability board is hiding something
  104. Kelly Rindfleisch appeal to test validity of John Doe digital searches
  105. Conservatives in John Doe battle know disclosure comes with a heavy price
  106. Appeals court orders release of some John Doe documents
  107. Taxpayers on the hook up to $25,000 for GAB’s legal maneuvers
  108. Overheated media erroneously bring back Walker ‘criminal scheme’ theme
  109. ‘Retaliation’: Docs show state prosecutors launched mini-NSA probe of WI conservatives
  110. John Doe prosecutors take desperate, unethical slap
  111. Walker ‘smoking gun’ story has tiny glaring flaw
  112. Wisconsin prosecutors aim to shut down conservatives
  113. Conservatives appeal to common sense in John Doe appeals case
  114. Conservatives say ‘incorrect disclosure’ of John Doe docs no ‘tiny error’
  115. First Amendment big guns back targets of John Doe probe
  116. Was John Doe judge a rubber stamp?
  117. $25,000 and counting: WI taxpayers’ bill so far to defend GAB and its ‘monster’
  118. Another blow for Wisconsin’s restrictive campaign finance law
  119. Wisconsin prosecutors appeal for protection from blowback in partisan probe
  120. Is John Doe story colored with a bit of ‘Macbeth?’
  121. GAB director says agency just following the law in John Doe probe
  122. Kelly Rindfleisch: Where are the tears for the kids the Milwaukee school system failed?
  123. Rindfleisch attorney: Appeals court can protect the Fourth Amendment in Digital Age
  124. Source: Wisconsin Supreme Court doesn’t want political heat of John Doe case
  125. Appeals court reverses John Doe injunction, but Wisconsin’s secret war far from over
  126. A whistleblower’s story: Taking on a ‘hyper-partisan’ district attorney
  127. Conservative O’Keefe seeks investigation into John Chisholm and his John Doe

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Kittle is a 25-year veteran of radio, newspaper and online journalism. In July 2011, Kittle joined Watchdog.org as bureau chief for Wisconsin Reporter. He has spent much of the past three years covering the seismic political changes taking place in the Badger State. Last year, Kittle joined Watchdog’s national reporting team, covering everything from energy policy to governmental assaults on civil rights. Beyond being published in Wisconsin’s daily newspapers and in multimedia news outlets, Kittle’s work has appeared on Fox News, and in Human Events, Reason Magazine, Newsmax and Town Hall. His special investigation into a politically charged John Doe probe, “Wisconsin’s Secret War,” was the basis of a 2014 documentary on Glenn Beck’s TheBlaze. Kittle has made several appearances on Fox News, including “On the Record with Greta Van Susteren. He serves as weekly politics commentator for Lake 96.1 FM in Lake Geneva, and WRJN-AM 1400 in Racine. His resume includes multiple awards for journalism excellence from The Associated Press, Inland Press, Wisconsin Broadcast Association and other journalism associations. Contact Kittle at mkittle@watchdog.org.