Thread by @chadcmulligan

And I can prove it. As KUSK's resident defender, let me break down Barnes's politically-motivated bullshit for you. Attend.

https://twitter.com/KathrynTewson/status/1795209222088454427

Barnes and some Canadian nudnik with the inauspicious name of "Viva Frei" took to the YuuTuubes to bloviate about the recent arrest of Minnesota demi-lawyer and noted cocaine enthusiast Nickolas "Templeton" Rackets.

I won't link to the video, or tag any of the people, because I'm sure most of them have banned me or I have banned them, so it's best if you just track it down yourself if you're really curious. Otherwise, trust that I'm representing it to you fairly.

First, a few things. You need to be familiar with the documents under consideration, primarily being the Statement of Probable Cause against Rackets, which you can download here: scribd.com/document/73676…

Let me tell you how a criminal defense lawyer reads a document like this. First, survey the allegations of the charges: three counts, one felony, and two "gross misdemeanors."

1. Possession of a controlled substance
2. Possession of ammo/firearm as a user of a CS

...

and 3. Endangering a Child by having them Present for the Sale or Possession of a Controlled Substance.

These are not light charges; I would tell a client facing these charges that they are facing some fairly stiff penalties, beyond the statutory direct punishments.

First, possession of over 25 grams is a significant number, because it brings it within Section 2D1.1 of the Federal Sentencing Guidelines Manual; 28 grams of a mixture of cocaine or cocaine base triggers a 5-year mandatory minimum prison term. ussc.gov/guidelines/202…

Although this is a state offense, that number is significant because it means the feds could pick up the case and prosecute it alongside the State of Minnesota. It's not necessarily likely, but it is possible, and that's worrisome.

Second, Count 2 is something I'm seeing more and more lately, which is that gun charges are being tacked on to drug/alcohol charges to increase their severity and force pleas. I don't consider this charge to be significant in and of itself, but we'll talk about Barnes in a minute

Count 3 is one of those that is only a misdemeanor but contains hidden traps for the unwary: a conviction of this type of offense could have repercussions in the family court system, regarding sanctions up to termination of the parent-child relationship. I don't think that likely

in this scenario, but a competent attorney would warn their client of its possibility so that you could prepare. Very likely the child protection agency will require some type of social services and classes before resuming placement of the children with someone with a charge.

So right away, as matter of advising clients, I would be telling them these charges aren't anything to scoff at; they are real and contain the potential for lasting penalties well beyond their statutory ranges. This means you need to take it very seriously.

Next is the statement of probable cause. Probable cause is an evidentiary standard we utilize in criminal law. Broadly stated, it means: considering all the facts available at the time of evaluation, is there reason to believe that a crime has been committed?

In other words, do the totality of the facts justify a person of ordinary intelligence in concluding that a crime had been committed?

This judgment is made within the "four corners" of the statement of probable cause.

Now, this statement is meant to justify the arrest and subsequent prosecution (pending grand jury indictment) of the defendant; it is not meant to prove them guilty beyond a reasonable doubt. And this is not the affidavit that supported the search warrant.

But we can reasonably infer from its language what information was in the search warrant. And that is important as we begin to discuss Barnes's folly, because the standard of evidence necessary to obtain a warrant is ALSO probable cause.

Although in this case, it is probable cause to believe the evidence the warrant seeks will be found at the location to be searched, and that said evidence is either contraband in and of itself or reasonably related to criminal activity (a "mere evidence" warrant).

The PC statement says that on 5/23/24 at 9:13 a.m., officers executed a warrant at the Rekieta residence. Rekeita himself was not home and was stopped by officers on the road; instead, Rekeita's child answered the door and (wisely) chose not to admit the police.

However, upon presentation of the warrant, Rekieta and his family should have complied. Even if you think the warrant is bogus, you gain NOTHING by fighting it at this point except a broken door frame.

The search revealed cocaine, cocaine paraphernalia, spent ammunition casings, an unsecured rifle, a digital scale, a pan for measuring cocaine, a funnel, an unknown brown substance, and eight Ketamine tablets.

This is important because those items go beyond mere possession; the scale, baggies, scoop, pan, funnel, and like items are all indicators of intent to distribute, which increases penalties and increases the likelihood of federal prosecution.

The presence of the unsecured weapon is ALSO problematic, not just from a state law perspective, but also because that can lead to a charge under 18 USC 924(c), which has a MANDATORY MINIMUM 5-year sentence for possession of a firearm in furtherance of a drug crime.

So what can we infer from the PC statement about the warrant? Well, we have this image, which seems to be a part of the affidavit itself.

It alludes that the affiant, Sergeant Nester, took a "mandatory reporting call" from the Rekieta's pastor, who reported information that Rekieta was neglecting his children.

In this context, a "mandatory reporter" is someone charged by statute with a duty to report suspected child abuse or neglect within their awareness, or face civil and criminal penalties. Very often, doctors, nurses, teachers, counselors, and pastors are mandatory reporters.

A single mandatory report from a *named* witness is probably sufficient to generate probable cause for a warrant. Judges reviewing warrants may rely on hearsay information so long as either the declarant is named OR the officers state a reason to believe the declarant.

So right away, since we know the warrant is largely based on a mandatory report of child neglect by a named person, this warrant will likely survive all constitutional scrutiny as a sufficient warrant.

Again, merely because a warrant is sufficient does not mean that the evidence is sufficient to convict; only that challenging the warrant on the basis of insufficient support is a fool's errand.

If a person with knowledge of the family stated that Nick was using drugs around his children, had unsecured weapons in the home along with drugs, in all 50 states that will be probable cause to issue a search warrant for drugs, weapons, and other evidence of child neglect.

You may think that harsh, or that there ought to be more evidence required before the government can kick down your door, but I am here to tell you it is not. And when your "job" is to appear on public internet streams, and you do so obviously intoxicated past a healthy limit...

you are GOING to be investigated and a search conducted. If it weren't Nick's pastor, one of his viewers might have tipped the officers off, and any officer watching his recent streams could have applied for, and received, the same warrant.

Now that you know a little about warrants and criminal procedure, let's take Barnes's statements to task. He begins with this:

Barnes helpfully doesn't identify what these "constitutional" issues are beyond saying 1st, 2nd, 4th, 5th, and 6th Amendment. If this were a suppression motion, that would be insufficient.

For non-Americans and those who dozed in civics class, these are the amendments he references:

1 - free expression
2 - right to bear arms
4 - right against unreasonable search and seizure
5 - right against self-incrimination
6 - right to counsel and trial

Barnes believes that because Nick is a "high profile critic" of his local legal community, he is subject to an "extraordinary search warrant raid and questionable charges."

I don't know how much criminal defense work Mr. Barnes practices, but I practice A LOT OF IT.

There is absolutely nothing remarkable about this warrant or these charges. I see two dozen of these a week. You have a basic warrant based on a mandatory report of child neglect that, when executed, turned up drugs and guns. Least surprising narrative ever.

Barnes suggests there is a First Amendment question to be asked because of "false statements."

I can't for the life of me think what that has to do with either the First Amendment or criminal procedure, but let's hear him out. He suggests that a single hearsay statement from an identified source is not enough for probable cause, but it almost always is.

Barnes complains that the information given by the pastor would normally lead to a "wellness check" rather than a search warrant, and highlights that there was a "week delay" between the report and the warrant.

Now, if this were all of the basis for probable cause, that might be meaningful. Warrant information can go stale; typically, a warrant should issue within 1-3 days of the information being known. A week delay might be an issue!

Unless what occurred during that week was additional investigation by the detectives, including doing things like watching publicly available live streams of Nick's conduct, which would (1) lead to fresh information that drugs might be found in the residence or (2)...

talking to additional witnesses who might shed some light on what was going on in the Rekieta household, like April Imholte's estranged husband.

I am of course speculating here, but if either or both of those turn out to be true, I will not be surprised.

Now, Viva actually brings up a valid point, which is that there might be a "sanctity of the confessional" question regarding what the pastor knew and what he should report. But that kind of misstates the issue.

Ministers of the faith cannot be compelled to reveal what is told to them in confidence; but they have no duty to keep confidences if they believe someone is danger or a crime is being committed. Lawyers often mess this one up...

because we DO have a duty to keep information harmful to our clients confidential, even if a crime is being committed, so long as there isn't a physical danger. I checked MN law, and clergy are mandatory reporters, but DO have a duty to keep confidential...

information learned FROM the parishioner. But if Nick's pastor learned of this information from a third party, or, say, watching Nick's stream, he is not bound by Sec. 59.02(c) from being forbidden from disclosure. So there is no privilege issue, Viva Sorry.

Again, Barnes repeats the canard that this should have been dealt with by a wellness check, but let's unpack that. Let's say the cops showed up for a wellness check one evening. If Nick answered the door high as a kite, as seems likely, it would have led to an immediate arrest.

That would have been followed by a search incident to arrest of his immediate area, followed up by a warranted search of the house for more contraband. That would have happened all in one night, and led to the same result.

Or let's suppose Nick doesn't answer the door for the wellness check. Now the wellness check has been upgraded to "exigent circumstances of potential danger," justifying a potential warrantless search of the house.

In the best case scenario, Nick answers sober and manages to talk his way past the officers doing anything other than seeing the children. It still wouldn't prevent the police coming back with a warrant for the drugs later.

So right away, Barnes is wrong again. The decision to get a warrant always rests with law enforcement, and the review of that warrant is always with a local magistrate. Those decisions will be given deference on review.

Next, Barnes suggests that because Nick is involved in high-profile civil litigation in front of this judge (and not doing well, at that, having just lost his interlocutory appeal), the district court judge for his local county shouldn't be presiding over his criminal case.

Except that, in most counties around this great country, that is EXACTLY what happens, simply because most counties don't have hundreds of judges like our large urban counties do.

One might suggest that Nick, being a litigant (and a lawyer) ought to keep his fool mouth shut while involved in ongoing litigation, but what do I know about that? If he has upset the judge of an ongoing case in which he's involved, that's his own fool fault.

Next, Barnes elides between the judge who signed the warrant and the judge who is presiding over Nick's civil and criminal cases. Barnes takes it as fait accompli they're the same person, but I have no evidence of that.

So when Barnes says that a biased, partisan judge approved the warrant, he's talking out of his ass. And even if the presiding judge of the district court approved the warrant, that's not a conflict. Not even if the judge really, really dislikes Nick because of his practice.

Part of being a smart lawyer is knowing when to piss off a judge (to help your client) and when to placate a judge (to help your client). As a criminal defense attorney, EVERYTHING you do has to be to benefit the client. That sometimes means kissing judicial ass.

Next, Barnes moves onto his 2nd Amendment argument:

I think Barnes is correct that there's at least an argument to be made that pre-trial disarmament under bond conditions could violate the 2nd Amendment, but thus far, SCOTUS hasn't weighed in and lower courts are generally of the opinion it doesn't violate the 2A.

Sorry Robert, I sympathize, but we're facing an uphill battle on that one.

But the charge itself? Does 18 USC 924(c) and its state equivalents violate the 2A? That's a harder sell, even to me. Barnes points out that almost every state makes it a crime to go armed and intoxicated or to possess a gun in relation to drug crime.

I've had this very same issue in the Fifth Circuit in one of my appeals, and lost it there: casetext.com/case/united-st…

The long and short of it is that possession of a firearm knowingly while in possession of drugs and the tools of distribution (scales, baggies, etc.) is almost always going to be sufficient for 924(c) purposes. You may disagree with that, but that's how the law has broken.

It *certainly* isn't enough to say there's a constitutional issue with the warrant itself when any magistrate relying on that warrant could rely in good faith on existing law which says it is illegal to have a firearm while being in possession of narcotics, even if you...

disagree with the law, as I happen to disagree with the law (I also don't think possession of drugs ought to be a crime, but nevertheless, my feels don't supersede the will of state or federal legislatures).

Barnes next clarifies that this 4th Amendment complaints aren't with the warrant itself, but rather Nick's bail conditions:

This is oft-tread ground for defense attorneys, and again, we are trying to change existing law that is very much against us. Courts have routinely upheld bail conditions for things like travel restrictions, drug tests, etc. against our challenges.

Yes, the state is trying to use bail as a pre-trial control mechanism. Yes, that sure seems like it violates the presumption of innocence. But in this case, the question is how much process is "due" to someone arrested or indicted?

The point is, none of that has any bearing on the sufficiency of the evidence to issue a warrant, arrest someone, or continue their prosecution. It's just generalized bitching about the criminal justice system, which, yeah, I get it. But don't act like it's an injustice.

Don't act like it's somehow particularized or special to this case. It's just how things are.

Barnes next opines as to why he thinks there's a Fifth Amendment problem:

According to Barnes, there is something in 5A "due process" clause that implicates parental rights. Which, no, there isn't.

There's something in the 14th Amendment due process clause about it (Troxel v. Granville), but not the Fifth.

In terms of criminal procedure the 5th Amendment is more usually cited as proof against self-incrimination, the presumption of innocence, and the right not to testify. In this case, it would have been wise to plead the Fifth, but Nick didn't; he chose to talk to officers on scene

So any of Nick's words given on scene that are later used against him do not create a 5A violation, and that wouldn't affect the validity of the warrant or Nick's detention at any rate.

So what is Barnes on about? Barnes's complaint is largely that it ought not be considered child neglect to have children around unsecured weapons and drugs in the home. Which, OK, that's a fine opinion to have.

But that's all it is. An opinion; if the legislature makes it a crime, you'd have to show that something in the Constitution forbids making that a crime, and I don't think Barnes is going to get there whinging about parental rights and due process.

The Legislature has said that having children around unsecured drugs and weapons in the home is a potential gross misdemeanor, and that means that the family court system can institute their own proceedings to see if that justifies restriction or removal of parental rights.

It is hard to see what more "process" Barnes believes is "due," except that Barnes seems to really be arguing that the government ought not to have that power. Again, that's a fine opinion to have, but unsupported by current law.

And you can always tell me the current law is wrong and you'd like to change it, but here Barnes is pretending that MN law is as he sees it, and it is the judge who is violating the blackletter law. That's just not the case.

Here we get to the crux of what Barnes really wants to say:

According to Barnes, he thinks this is a grand conspiracy by a local Minnesota county to go after their "critic" because their critic posts online streams to a shrinking audience of NEET dorks and fans of his particular brand of jackass-braying commentary.

Sadly, I don't think Barnes hit that nail on the head either. I suspect far fewer people care about Nick Rekieta that anyone knows.

I do not agree with Barnes that the conduct of law enforcement in this case was trying to "eviscerate [Nick's] constitutional rights." I think Nick was treated like virtually every client and defendant I've seen.

If that is what it takes for you to believe that our Constitution is being shredded by law enforcement, I've got stories that would turn your hair white.

But those stories largely involve clients that are poor, non-white, or otherwise disfavored by society because of their immutable characteristics, not the choices they make in lifestyles or the words they choose to broadcast.

Which leads to the funniest fucking quote of the whole exercise:

How many times have I heard about that? About three a day, Roberrino. About three times a fucking day.

To sum up:

The unverified hearsay statement of an identified witness is almost always sufficient probable cause to grant a search warrant.

There very well may have been more than that in the search warrant affidavit.

The search warrant turned up a large amount of contraband, some of which implies the possibility of greater and/or federal charges down the road once grand juries have had a look at it.

There are likely no constitutional infirmities with the warrant or the prosecution, despite wishful thinking otherwise, and Nick and his family members would do well to shut the fuck up and hire competent defense counsel.

Whether anyone follows that advice, well, let's watch and see.