CAUSE NOS.

1390114
1390115
THE STATE OF TEXAS IN THE DISTRICT COURT OF
VS. HARRIS COUNTY, T E X A S
WALTER H. BALLARD, JR. 183 JUDICIAL DISTRICT
RD
DEFENDANTS SUPPLEMENTAL MOTION TO SUPPRESS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES the Defendant, WALTER H. BALLARD, JR., and would urge to the
Court:
1. That the search warrant, on its face, in failing to use appropriate language incorporating
the affidavit and referenced attachments that were not presented with the search warrant was
void (a true and correct copy of said Federal Search Warrant is hereto attached and made
reference herein the same as if copied in full and set forth at length);
2. That the affidavit in support of the search warrant was insufficient to support issuance of
the search warrant for Defendant's residence, business, computers and computer related
items;
3 The agent's testimony (by affidavit) regarding information he obtained from computer
technicians and other sources related to his investigation and supported in application for the
search warrant, should be stricken.
4. All evidence derived from illegal search of suspect's Ballards residence should be
suppressed.
In support of said motion, the Defendant would show unto the Court as follows:
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I.
GENERAL LAW ON SEARCH WARRANTS
Freedom from general searches is a fundamental right, and search warrants issue only on
probable cause. U.S.CONST., amend. IV; see Marron v. United States, 275 U.S. 192, 195 (1927).
Before a magistrate may issue a warrant, the officer must supply her with facts under oath. These
facts must be of a weight and reliability that would lead a reasonable person learned in the law to
conclude that the law has probably been violated. See Steele v. United States, 267 U.S. 498, 504-
505 (1925); Stacey v. Emery, 97 U.S. 642, 645 (1878). Next, the facts must support the conclusion
that the specific items relate to the commission of that crime and are to be found in the place to be
searched. See Aderhold v. United States, 132 F.2d 858, 859 (5 Cir. 1943); United States v.
th
Maestas, 546 F.2d 1177 (5 Cir. 1977). Then the warrant must describe--in a particularity congruent
th
with the supporting facts--the place to be searched and the things to be seized. U.S.CONST.,
amend. IV; see United States v. Shugart, 117 F.3d 838 (5 Cir. 1997). When the false, irrelevant,
th
nonspecific parts of an application are eliminated, what remains must support a finding of probable
cause, failure to do so results in a failure of the search warrant and all evidence derived from the
search should be suppressed. United States v. Carlson, 236 F.Supp.2d 686 (S.D.Tex. 2002).
Franks v. Delaware, 438 U.S. 154 (1978).
II.
SEARCH WARRANT FACIALLY INVALID
The search warrant that issued failed to incorporate by appropriate language or otherwise
Russell Ackleys affidavit that was presented to the federal magistrate. Groh v. Ramirez, 540 U.S.
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551, 557 (2004). In fact, Russell Ackleys affidavit remained sealed for several months after the
1
search warrant was executed on Ballards home. A review of the search warrant that was issued
from U.S. Magistrate Nancy Johnson and executed by Russell Ackley and a team of federal and State
law enforcement officers failed to use appropriate language incorporating any document and
therefore, on its face, was essentially a blank check with which Deputy Ackley led a raid team into
Ballards home where a general exploratory search was conducted and the seizure of private property
was removed to and remained concealed under the general prying eyes of the Government.
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011). Upon review of the face of the search warrant,
In Groh v. Ramirez, 540 U.S. 551 (2004), Justice Stevens wrote:
1
The fact that the application adequately described the things to be seized does not
save the warrant from its facial invalidity. The Fourth Amendment by its terms requires
particularity in the warrant, not in the supporting documents. See Massachusetts v.
Sheppard, 468 U.S. 981, 988, n.5 (1984)([A] warrant that fails to conform to the
particularity requirement of the Fourth Amendment is unconstitutional); see also United
States v. Stefonek, 179 F.3d 1030, 1033 (CA 7 1999)(The Fourth Amendment requires that
the warrant particularly describe the things to be seized, not the papers presented to the
judicial officer ... asked to issue the warrant (emphasis in original)). And for good reason:
The presence of a search warrant serves a high function, McDonald v. United States 335
U.S. 451, 455 (1948), and that high function is not necessarily vindicated when some other
document, somewhere, says something about the objects of the search, but the contents of
that document are neither known to the person whose home is being searched nor available
for her inspection. We do not say that the Fourth Amendment prohibits a warrant from
cross-referencing other documents. Indeed, most Courts of Appeals have held that a court
may construe a warrant with reference to a supporting application or affidavit if the warrant
uses appropriate words of incorporation, and if the supporting document accompanies the
warrant. See, e.g., United States v. McGrew, 122 F.3d 847, 849-850 (CA9 1997); United
States v. Williamson, 1 F.3d 1134, 1136, n.1 (CA 10 1993); United States v Blakeney, 942
F.2d 1001, 1025-1026 (CA6 1991); United States v. Maxwell, 920 F.2d 1028, 1031 (CADC
1990); United States v. Curry, 911 F.2d 72, 76-77 (CA8 1990); United States v. Roche, 614
F.2d 6, 8 (CA 1 1980). But in this case the warrant did not incorporate other documents by
reference, nor did either the affidavit or the application (which had been placed under seal)
accompany the warrant. Hence, we need not further explore the matter of incorporation.
Id., 557-558.
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any reasonably well-trained law enforcement officer should have known that the search warrant was
void on its face and that the authority being exercised by the poilce was patently illegal.
In sum, the search warrant did not provide a description of the premises to be searched but,
after reviewing Deputy Ackleys affidavit, revealed that the premises described was that of a prior
incident where it became clear that Ackley had used a pro forma document having nothing to do with
Ballards premises. Thus, Ackleys affidavit failed to estasblish probable cause that a crime had
been committed at Ballards premises, there being no probable cause that a violation of Section
43.26 of the Texas Penal Code had occurred.
Upon eventual receipt of Ackleys affidavit and review of Federal Rule of Criminal
Procedure 41(b) authorizing only federal law enforcement officers or an attorney for the government
to make application for a federal warrant, it became clear that Harris County Sheriffs Deputy
Russell Ackley had deliberately deceived and misled Federal Magistrate Johnson to issue the search
warrant and therefore failed to provide the issuing federal magistrate with sufficient evidence
establishing a nexus between the items sought and the place to be searched and the authority of
Ackley to make application for the federal search warrant.
The search warrant that issued for Ballards residence was plainly void, overbroad,
unparticularized, and, upon review of Russell Ackleys actions and the team of Federal and State law
enforcement officers accompanying him, these officers engaged in conduct that was patently illegal
and exceeded the reasonableness requirement of the Fourth Amendment to the United States
Constitution.. Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
While under the leadership and directions of Deputy Ackley who had engaged the assistance
of the federal magistrate and office of the United States Attorney who entrusted their office to
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Ackleys fraud upon the court and deliberate misrepresentations, Deputy Ackley was blindly assisted
by Federal and State law enforcement officers who ejected Ballard and his guests from the home,
subjected the residents and their guest to unlawful seizure and detention, and the extraction of
information under guise and color of law to the end that Ackleys acts and practices are seen as
criminally culpable conduct committed in utter reckless disregard for the law that violated the U.S.
Constitutions unambiguous prohibitions against unreasonable searches and seizures, shall not be
violated, but likewise crossed beyond the boundaries of legitimate actions to those for which
Congress and the Texas Legislature has deemed malum prohibitum. See and compare Title 18,
United States Code, Sections 241 and 242 with Sections 39.02(a)(1) and (2) and 39.03(a)(1) and (2).
In sum, as in Groh, the search warrant issued by Magistrate Johnson in this case failed to
incorporate either Ackleys affidavit or any other document and thus rendered the search warrant
facially deficient and the officers search and seizure activity in violation of the Fourth Amendment
to the United States Constitution. These officers thereafter acted without authority and conducted
an exploratory general search. The warrant did not particularize the items to be seized and failed to
describe the home to be searched. Ackleys flagrant violation of Federal Rule of Criminal Procedure
41 and deceptive inclusion in his affidavit in reckless disregard for the truth that misled the Federal
Magistrate to issue the facially invalid search warrant, as in Groh, rendered the search warrantless
and the police conduct presumptively unreasonable. Groh v. Ramirez, 540 U.S. at 559. As in
Groh, it was not reasonable for officer executing search warrant to rely on warrant that, in utterly
failing to describe the persons or things to be seized, was obviously defective on its face for purposes
of good faith exception to exclusionary rule. Id., at 560 n.4 (citing to and rejecting application of
United States v. Leon, 468 U.S. 897, 915, 922, n.23 (1984)).
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WHEREFORE, for all of the foregoing reasons set forth herein and above and on the basis
of those issues and contentions set forth in the Defendants heretofore filed Motions, Supplemental
Motions, and Amended Motions to Suppress, Article 38.23 of the Texas Code of Criminal Procedure
prohibits the evidence seized in this case from the private residence located at 3317 Columbia Street,
Houston, Texas, in violation of Article 1, Section 9 of the Texas Constitution and the Fourth
Amendment to the United States Constitution from being admitted in evidence against Ballard on
the trial of this criminal case. Accordingly, an order should be entered granting Ballards motion to
suppress.
Respectfully submitted,
/s/ Maverick J. Ray
Maverick J. Ray
Attorney for Petitioner
State Bar No. 24080451
1419 Franklin St., 2 Floor
nd
Houston, Texas 77002
Ph: (713) 389-0940
Fax: (713) 714-2225
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and forgoing Motion has been this
day delivered to the Office of the Harris County District Attorney by hand delivery or by placing
same in the U.S. Mail, postage prepaid.
Dated: __________, 2014.
/s/ Maverick J. Ray
Maverick J. Ray
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CAUSE NO. 1390114
1390115
THE STATE OF TEXAS ] IN THE DISTRICT COURT OF
]
VS. ] HARRIS COUNTY, T E X A S
]
WALTER H. BALLARD, JR. ] 183 JUDICIAL DISTRICT
RD
O R D E R
Having this day considered Defendants Supplemental Motion to Suppress
and the attached Federal Search Warrant and having heard the evidence and
argument of counsel for the parties, if any, it is the considered opinion of this
Court that the motion should be and is, hereby, in all things
_____ GRANTED.
_____ DENIED, to which action of the Court Defendant hereby excepts.
SIGNED and ENTERED this ____ day of ____________, 2014.
_____________________________
DISTRICT JUDGE PRESIDING
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