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Attorneys representing former Honolulu business owner Michael J. Miske Jr. are locked in a legal battle with federal prosecutors over the admissibility of a wide swath of evidence that could link Miske to the sudden disappearance and alleged murder of 21-year old Jonathan Fraser in 2016.

The outcome could have a significant affect on the outcome of the trial, potentially making it more difficult for prosecutors to obtain a conviction of Miske on the most serious charges he faces.

In a blistering attack on the government’s case, Miske’s attorneys argue that nearly 20 search warrants used to collect evidence were legally flawed. They say FBI agents conducted overly broad and therefore unconstitutional searches, and made “intentional and reckless false statements and omissions” in sworn affidavits required by law to get court approval of those warrants.

Miske’s attorneys claim these actions violated his rights under the Fourth Amendment to the U.S. Constitution which prohibits unreasonable searches and seizures, and they are asking that any evidence obtained, directly or indirectly, be excluded from use in the upcoming trial, scheduled to begin in January.

In response, federal prosecutors have fired back, arguing the challenged warrants were in fact constitutionally valid, and even if they were not, the evidence would still  be admissible under several exceptions to the rule against illegally obtained evidence.

Prosecutors also made the surprising announcement that they “do not intend to, and will not,” introduce at trial any evidence obtained from the search of the 37-1/2 foot Boston Whaler model 370 Outrage named “Painkiller,” which Miske purchased for $550,000 just a month before Fraser’s disappearance. The FBI seized the boat in August 2017, a year after Fraser was kidnapped, and even at that late date containing possible forensic evidence. 

Miske’s attorneys had challenged the 2017 search warrant that authorized “a forensic search and inspection” of Painkiller, but that motion was filed under seal, and the basis for their objections have not been publicly disclosed. The government says their decision not to utilize any items seized from the boat makes the challenge moot.

Excluding Evidence

The so-called “exclusionary rule” in federal law prohibits the use of illegally obtained evidence in criminal trials.

Miske and his five remaining co-defendants are charged with being part of a racketeering organization, directed and controlled by Miske, that was allegedly involved in offenses including murder, kidnapping, murder for hire, armed robbery, and drug trafficking.  

Miske’s two co-counsel, Honolulu attorney Lynn Panagakos and Nevada-based Michael Kennedy, filed five motions to suppress evidence on Sept. 15, the deadline set by Judge Derrick Watson for such pretrial motions. None of Miske’s remaining co-defendants sought to exclude evidence in their respective cases.

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If the search warrants are ruled to have been illegal, evidence obtained using them would be barred from trial, along with any additional evidence that was later found when investigators followed-up on the initial findings.

This cascading, domino effect results from a legal rule referred to as the “fruit of the poisonous tree,” which requires excluding further evidence “if it was derived from that was illegally obtained,” according to a summary by the Legal Information Institute of Cornell Law School. “As the metaphor suggests, if the evidential ‘tree’ is tainted, so is its ‘fruit.’” 

Prosecutors made their case opposing the claims of government misconduct in a series of legal memos filed on Friday. They provided extensive legal citations as well as fact-specific explanations to show FBI agents did not make intentional or recklessly false statements in order to obtain search warrants, and also argued that the portions of the affidavits that were not challenged were sufficient in themselves to establish probable cause for warrants to be approved. 

In addition, they cite records showing investigators had already obtained much of the evidence, such as the numbers of “burner” cell phones used by Miske, even before applications were filed for the search warrants that are being challenged, relying instead on other sources, including confidential informants and basic investigative techniques,.

A hearing before Judge Watson is scheduled for Friday, Oct. 13.

The Disappearance Of Johnny Fraser

Miske’s attorneys appear to be targeting potentially damaging evidence linking Miske to Fraser’s disappearance and alleged murder.

Johnny Fraser was a close friend of Miske’s son, Caleb, and the two were together when their car was involved in a high speed crash on Kaneohe Bay Drive next to Windward City Shopping Center in November 2015. Both young men were critically injured. Fraser survived and was eventually released from the hospital, but Caleb died several months later of complications from his injuries. 

Prosecutors allege Miske wrongfully believed Fraser had been driving at the time of the accident, and blamed him for Caleb’s death. They allege Miske responded by setting in motion a murder-for-hire conspiracy leading to Fraser’s kidnapping and murder. Fraser’s killing gave new focus and impetus to an ongoing federal investigation, eventually leading the the indictment of Miske and ten associates.

Miske faces five criminal counts related to the Fraser murder. Two of these charges — murder in aid of racketeering, and murder-for-hire conspiracy resulting in death — carry a mandatory minimum sentence of life in prison if he is convicted, so they are an obvious focus for his defense team’s legal efforts.

Among the evidence being challenged are records of text messages and phone calls, along with location data, from cell phones used by Miske to communicate with Jacob “Jake” Smith and Lance Bermudez, who prosecutors have alleged were paid by Miske to kidnap and kill Fraser. This includes information documenting unusual patterns of communications, such as a flurry of text and phone messages, between Miske and alleged co-conspirators during the crucial weeks before and after Fraser’s disappearance, as well as location data gleaned from cell phone records tracing their movements during the same period.

Smith and Bermudez are among seven of Miske’s co-defendants who have already pleaded guilty, and are expected to be key witnesses against Miske and other former associates during the upcoming trial. 

Both men are currently being held in protective custody at undisclosed federal facilities on the U.S. mainland for their own safety, and all information about them has been scrubbed from the online Federal Inmate Locator maintained by the Federal Bureau of Prisons.

The motions to suppress evidence appear aimed at blocking prosecutors using evidence obtained with the challenged warrants to corroborate the expected trial testimony of Smith, Bermudez, and other defendants. 

That evidence would be important to prosecutors as they try to overcome jurors’ common distrust of  testimony by admitted criminals who have made deals to testify in exchange for favorable consideration when they are eventually sentenced. 

Defense attorneys routinely challenge the testimony of those who have “flipped” by questioning whether their testimony should be trusted.

Former criminal defense attorney Ken Lawson, now a specialist with the University of Hawaii’s William S. Richardson Law School and co-director of the Hawaii Innocence Project, said the availability of independent evidence, such as phone logs, text messages, and location data, helps prosecutors by confirming testimony obtained through plea deals.

Lawson said it allows prosecutors to tell the jury, “Yeah, he’s getting a deal, but here’s the evidence to corroborate what he’s saying.”

‘False Statements And Omissions’

The challenges raised by Miske’s attorneys involve search warrants for information from cell phones used by Miske or his associates, including contacts lists, telephone messages, records of past phone calls, email, photographs, calendars, social media accounts, location data, and so on. 

The first three search warrants obtained by investigators were approved by a magistrate judge in November 2015. They targeted information from several cell phones that confidential sources said Miske had used over the previous year. These sources told investigators Miske used each phone only for a few months, then switched to a new phone, usually obtained using a false name and address.

The applications for each of these warrants was supported by an FBI agent’s affidavit summarizing evidence from six confidential informants and four cooperating witnesses, which was used to demonstrate the “probable cause” required for a judge to approve the warrant.

In their pending motions to suppress evidence, Miske’s attorneys allege the affidavits, all virtually identical and prepared by the same FBI agent, “contain intentional and reckless material false statements and omissions,” without which the affidavits would not be sufficient to support a finding of probable cause.

For example, they argue the agent’s affidavit misled the magistrate judge by improperly concealing the fact Miske had been , each of which ended without any criminal charges being filed against him.

Although Miske’s lawyers make much of the lack of charges resulting from these earlier investigations, prosecutors dismiss their concern. 

“This is a red herring,” prosecutors responded. “Double jeopardy does not attach to investigations,” and the information wasn’t relevant to the “probable cause” decision two years later.

Miske’s motions also argue the FBI agent’s affidavit “failed to disclose” important information when it described a confidential source’s allegation that Miske’s longline fishing vessel, Rachel, had carried drugs from California and Mexico back to Hawaii. The source, himself a commercial fishing boat captain, told investigators drugs were then attached to buoys and dropped into the ocean off of Oahu, where they were retrieved by Miske’s associates, before the vessel entered port in Honolulu.

What the agent “failed to disclose,” according to Miske’s attorneys, is that the FV Rachel was under surveillance in early 2013 by the U.S. Department of Homeland Security and the U.S. Coast Guard while in port in California for several days and, later, at sea returning to Hawaii. When the Rachel arrived in Honolulu, it was searched at the pier by a multi-agency law enforcement team. 

“No evidence of drug activity, or any criminal activity, was obtained,” according to Miske’s lawyers.

However, prosecutors responded that the FBI was not one of the law enforcement agencies involved in the surveillance and search of the FV Rachel, and had not been part of that investigation.

Further, although another informant advised the agent that a search of the Rachel didn’t find any evidence of drugs, he did not provide dates or further details, and did not mention surveillance, so the agent would not have known whether the voyage tracked from California was the same one described by his informants.

Miske’s lawyers also argued the agent’s affidavit concealed the fact that certain other statements by confidential informants were second-hand or hearsay obtained from others.

The agent’s affidavit “gave the false impression that uncorroborated hearsay was actually the statement of a percipient witness,” the attorneys argue.

But in response, prosecutors say this is largely irrelevant, because the source who conveyed the information to the agent had been “a reliable source, much of whose reporting has been corroborated over the past three years.”  

More broadly, prosecutors argued, citing an earlier U.S. Supreme Court case, the affidavits submitted to demonstrate probable cause “need not be ‘truthful’ in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily.” 

Technology Issues

One motion put forward by Miske’s attorneys challenges a warrant authorizing use of a relatively new and controversial piece of equipment known as a canvassing cell-site simulator to find an unknown cell phone Miske was using. They ask that any evidence produced by the identification of an AT&T phone identified by the simulator be tossed.

This type of equipment, sold under several brand names including Stingray, Triggerfish, Kingfish, and Hailstorm, mimics a cell phone tower when it is turned on. This prompts all cell phones within its range to “ping” it with their identifying international mobile subscriber identity (IMSI), an identifier unique to each cell phone on a cellular network.

In the Miske case, the FBI applied for a search warrant on June 7, 2016 to use a canvassing cell site simulator.

According to the search warrant application, Miske would be followed by a surveillance team, and the simulator turned on in several locations where he was seen, or at the same location at several different times. This would allow investigators to collect the IMSI number of each cell phone in the immediate area, and to identify Miske’s phone or phones, which would be the ones present at each location or time. The terms of the warrant required that all information about other cell phones be immediately discarded as soon as the targeted phones were identified.

In practice, the simulator was only used during one 8-hour shift.

“Investigators conducted visual surveillance of Miske at locations across Oahu, only using the simulator when Miske was present,” Assistant U.S. Attorney Mark Inciong wrote. “By using the simulator at no less than three of the six locations where Miske was present, investigators seized two identifiers from two cellular telephones.” 

Miske’s attorneys, relying on a recent opinion of a magistrate judge in the Northern District of Illinois, challenged the use of the cell-site simulator in this way, arguing that the resulting search was unconstitutionally broad and, hence, illegal, and demanding that evidence subsequently gathered from the AT&T cell phone account be disallowed as “fruit” of an illegal search.

In response, prosecutors defended the legality of the warrant, and noted “no federal appellate court had— then or now — decided whether using a simulator requires a search warrant,” although they did seek and obtain a warrant in the Miske case. 

More importantly, perhaps, they noted investigators were already aware of the AT&T account by May 6, 2016, weeks before an application for the warrant had even been submitted.

As a result, prosecutors argue the identification of the AT&T account, and other evidence that led to, falls under two other exemptions from the exclusionary rule that allow information to be used that was obtained from an independent source rather than from the search warrant being challenged, or that would have inevitably been discovered through normal investigative procedures. The government’s memo argues that both exemptions apply in this matter, and therefore the question of the constitutionality of the canvassing cell-site simulator does not need to be addressed by the court.

Even if Miske is successful in preventing prosecutors from introducing some or all of this information in the trial, there will still be a mountain of evidence available to them.

Earlier this year, his attorneys said evidence in the case included more than 2 million pages of documents, data extracted from 51 digital devices, including phones, iPads, and computers, eight search warrants for contents of social media accounts, “in excess of 11,000 native files,” along with more than 200 hours of audio and visual recordings, 53.6 terabytes of pole camera data from surveillance of the exterior of the Kamaaina Termite offices on Queen Street, and 40 terabytes consisting of scanned financial records from Miske’s various businesses. And there was still more expected to be released.

The evidence being challenged is only a small part of this mass of documents and digital files that has been gathered over the course of the investigation.

Miske’s defense team has a final opportunity to rebut the arguments put forward by prosecutors. Their reply memo is due on Friday, and the hearing before Judge Watson follows a week later.