ALEXANDRIA, Va. (CN) – Attorneys for former Trump campaign chairman Paul Manafort on Monday renewed their call that evidence found in Manafort’s home and storage unit be suppressed and that a federal judge reconsider the legal theory used by special counsel Robert Mueller to expose the findings.
Manafort’s attorney, Kevin Downing, has argued that the search warrants issued on his client’s Virginia home and storage unit were improperly made because evidence collected there was done in bad faith.
Downing contends Manafort’s Fourth Amendment rights were violated when authorities relied on a salaried Manafort employee – instead of Manafort himself - to gain access to the storage unit.
At his Alexandria, Virginia home, Downing says Manafort’s rights were violated because of the warrant’s issued to search his Alexandria, Virginia home were overly broad.The attorney specifically objects to a provision in the warrant requiring the removal of all media storage devices found in the home like cell phones, computers and iPads.
But on Monday, Downing filed a new challenge to special counsel’s May 14 motion in which Andrew Weissman, special assistant to special counsel, argued law enforcement was within its rights to search the unit and residence thanks to third party consent established in United States v. Matlock.
In Matlock, Weismann cited the ruling’s take on consent, stating it “need not come from the target of a search” and further, that common authority doesn’t necessarily require “mutual use.”
In order to follow this theory, it would mean U.S. District Judge T.S. Ellis III – the judge overseeing Manafort’s trial in Virginia -- must follow Ninth Circuit precedent “that no other appellate court has adopted,” Downing argues.
It boils down to how common authority and mutual use diverge, he explained. Common authority is the principle which permits a person to give authorities consent to search another individual’s property.
But according to Downing, common authority requires “evidence of mutual use by one generally having joint access or control for most purposes.” While Weissman relied on Matlock to legitimize the search warrants, Downing argues that theory ignores precedent established in United States v. Buckner and United States v. Whitfield.
In Whitfield, it was determined that even if a third party’s ability, or legal right, to access a property established joint access or control, it does not establish mutual use.
Notwithstanding “the Supreme Court’s and the Fourth Circuit’s plain language, the Special Counsel argues that mutual use is satisfied by a showing that an ‘employee is authorized to enter a location to perform his [job] duties and in fact performs those duties there,” Downing writes.
“An employee’s authority to enter a location to do his job does not constitute mutual use, and none of the Special Counsel’s cited cases hold otherwise,” the filing states.
Though Mueller’s team argues the Manafort employee who let authorities into the unit “had the right and capability to gain access to [it] at anytime without Manafort’s knowledge or permission,” this position is “legally incorrect,” Downing said.
It conflates the right to enter the storage unit with “the informant’s physical capability to do so,” he adds.
