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  • WisBar News
    November 19, 2015

    Seventh Circuit: Investigators Exceeded Scope of Consent in Milwaukee Arson Case

    Joe Forward

    Nov. 19, 2015 – A three-judge panel for the U.S. Court of Appeals for the Seventh Circuit has ruled that investigators exceeded the scope of a suspect’s consent to search a commercial and residential building that burned down five years ago in Milwaukee, effectively reversing a federal false information conviction.

    In January 2010, the building that housed a café, two restaurants, a lounge, and 10 apartment units on Milwaukee’s eastside caught fire and caused about $3 million in damages. The owner of the café, Feras Rahman, was ultimately charged with starting the blaze, and also providing false information to arson investigators.

    Arson investigators had asked Rahman to sign a consent to search for the “origin and cause” of the fire. Rahman said he kept a safe in the basement, and thought his laptop containing business files was in the basement or on the first floor in the café.

    Before entering the building to investigate, a certified fire inspector with the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF agent) reviewed surveillance footage from a nearby restaurant, which showed a brief illumination in the café. The video indicated that the fire originated inside the café, not in the basement.

    The ATF agent later entered the basement to retrieve the alarm system’s mother board, which held data that could be helpful in determining the cause and origin of the fire. The next day, the agent fully examined the basement, confirming the fire did not start there.

    But the agent and other investigators also did a “line search” in the basement to look for clues, including the safe and Rahman’s business laptop. The agent would later testify that a line search was necessary to help determine whether a possible arsonist was trying to hide theft or other criminality by starting the blaze, which often happens.

    Investigators did not find Rahman’s safe or his laptop, and used a detection canine and lab tests to determine that gasoline was present in several places on the first floor.

    Rahman became the primary suspect after more surveillance footage showed him leaving the café with a rectangular box on the night of the fire. Police executed a search warrant of Rahman’s home and found a box with a laptop inside.

    The laptop did not contain any business files. But the search history indicated that Rahman used the laptop to conduct Google Earth searches of the area surrounding the café, suggesting Rahman was hatching some sort of escape plan.

    Rahman blamed the owner of the restaurant next door, alleging the owner was having business problems, owed a large debt, and carried a $250,000 insurance policy.

    Nevertheless, the government ultimately charged Rahman with arson, mail fraud, arson to commit mail fraud, and making false statements to government investigators.

    Rahman filed a motion to suppress evidence obtained during the arson investigation, claiming the ATF agent and other investigators exceeded the scope of his consent to search the premises to determine the origin and cause of the fire.

    The district court ultimately denied the motion and the case was tried. The government argued that Rahman started the fire to collect on a $102,000 insurance policy that would allow him to pursue other business opportunities beyond the café, among other things.

    After a two-week trial, a jury acquitted Rahman of all counts but one. The jury did find that Rahman provided false statements to investigators, in violation of federal law, when he said the laptop was inside the building but knew his laptop was actually at home.

    At sentencing, the court indicated that it would consider Rahman’s acquitted conduct of arson if the government established the conduct by a preponderance of the evidence.

    The sentencing court then concluded that Rahman was responsible for the arson, and sentenced him to 30 months in prison, but allowed him to remain free pending appeal.

    Motion to Suppress

    In U.S. v. Rahman, No. 13-1586 (Nov. 9, 2015), a three-judge panel for the Seventh Circuit Court of Appeals ruled that certain evidence obtained during the basement searches should have been suppressed under a common law trespass theory.

    “After careful review, we conclude that the fire investigators’ search of the Café’s basement violated Rahman’s Fourth Amendment rights, and that certain pieces of evidence collected in the basement as a result of the search should have been suppressed,” wrote Judge Ann Claire Williams.

    Under the common law trespass theory, the panel noted, the government agents violate a person’s constitutional rights if they physically intrude upon a constitutionally protected area to obtain information without a warrant and no warrant exception applies.

    There was no dispute that arson investigators intruded upon protected property to gather information without a warrant. But the panel ruled that consent, in this case, was not an exception to the warrant requirement.

    Rahman argued that the written consent allowed investigators to search for the “origin and cause” of the fire, not to search for evidence of an arson crime.

    The panel relied on the U.S. Supreme Court’s decision in Michigan v. Clifford, 464 U.S. 287 (1984), to determine that “if investigators’ primary object for conducting a search is to gather evidence of criminal activity, then they need a criminal search warrant.” That is, an administrative warrant to search for the fire’s “origin and cause” is not enough.

    “Relying on Clifford, we find that based on the totality of the circumstances, an objective reasonable person would conclude that when investigators asked Rahman for consent to determine the origin and cause of the fire, they would understand the request to be for consent to determine where the fire occurred and what sparked the fire, not for a search whose primary object is to look for criminal activity,” Judge Williams wrote.

    The panel noted that if the government wanted to expand its ability to search for signs of criminal activity, it could have obtained a warrant or informed Rahman that they wanted consent to look for evidence of criminal activity and that could it be used against him. In that case, Rahman may have thought twice about providing his consent.

    Based on the law, the panel determined that the district court should have suppressed certain evidence obtained from the basement after investigators ruled out the basement as the origin of the fire, including observations regarding the absence of the laptop.

    The observations helped investigators obtain a search warrant for Rahman’s home, where they found a laptop, which served as the basis for the false information claim.

    The panel rejected the government’s claim that an exception applied under Davis v. United States, 131 S. Ct. 2419 (2011), which held that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” The panel noted that the common law trespass theory allows courts to find violations regardless of other cases applying an “expectation of privacy” test.

    “As the common-law trespass theory has always bound government actions, the government cannot rely on the Davis good faith exception,” Judge Williams wrote.

    The panel noted that Rahman could not be convicted of lying about a laptop’s location inside the café, just because agents found a laptop in his home. The panel reversed on the motion to suppress and remanded the case. The government could retry it.

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