Ross Ulbricht's defence team has filed a new pre-trial motion calling on the court to dismiss charges in the Silk Road case on the grounds of Fourth Amendment privacy protections.
Ulbricht's lawyers argue the charges should be dismissed due to the nature of the FBI's investigation. In particular, they allege the FBI acted without a valid search warrant when it discovered Silk Road servers in Iceland, and thereby violated Ulbricht's Fourth Amendment rights.
The fourth amendment to the US Constitution is a part of the Bill of Rights and prohibits 'unreasonable' searches and seizures. It requires investigators to carry out searches with a judicially sanctioned warrant, supported by probable cause.
Ulbricht has indicted on various charges including conspiracy to distribute narcotics, operating a continuing criminal enterprise, conspiracy to commit computer hacking, and money laundering.
Evidence battle begins
The latest 90-page memorandum filed by Ulbricht's lawyers argues that all material seized and searched in such a way has been "contaminated at its source" rendering it inadmissible in court under the 'fruit of the poisonous tree' doctrine. This metaphor effectively means that, if evidence is obtained illegally (tainted), anything gained from that evidence is also tainted and therefore inadmissible in court.
"Thus, the Fourth Amendment and relevant statutes require suppression of the fruits of the searches and seizures, and any evidence or other information derived therefrom," the motion states.
The document specifically names 14 different searches of Ulbricht's computers and online accounts, and claims that investigators carried out several surveillance operations either without warrants or with inappropriate warrants "issued on information establishing less than probable cause". These actions included asking Comcast for information on Ulbricht's IP address.
The defence argues that investigators used so-called 'general warrants' that allowed them to use all personal data they could obtain, rather than more specific information. In addition, the motion points out that it is still unclear how investigators managed to locate Silk Road servers in Iceland.
'Unlawful searches and seizures'
Ulbricht's defence went on to list a total of 14 search warrants that were issued following the discovery of Silk Road's servers in Iceland.
The motion states:
"A vast trove of material and information, including ESI, should be suppressed because the government obtained it as a result of unlawful searches and seizures – either directly because the specific warrant or order authorizing the search and/or seizure was unlawful, or because the search and seizure constituted the 'fruit of the poisonous tree' of a previously conducted invalid search and/or seizure – that violated the Fourth Amendment to the US Constitution, as well as certain applicable statutes."
The document goes on to cite numerous precedents to its fundamental argument, and further demands discovery of the means by which the US government located the Silk Road servers.
The court should compel the government to disclose all information relevant to the efforts to locate the servers, the defence argues.
Dropping murder references
In addition to Fourth Amendment arguments and dry precedents, the motion also makes a request to drop prejudicial statements related to the defendant's alleged murder-for-hire solicitation. The defence seeks to dismiss any reference to these allegations as irrelevant, arguing that such language violates Ulbricht's Fifth and Sixth Amendment rights.
"Accordingly, since there is no concrete link between the murder-for-hire allegations and the unrelated drug trafficking and other charges in this case, it is clear that all references to 'murder-for-hire' are irrelevant to the charges, and their inclusion in the Indictment is highly prejudicial to Mr. Ulbricht," the motion states.
Ulbricht still faces one murder-for-hire charges filed in Maryland, but since he was not charged in the New York case and has not been convicted yet, the defence argues all murder-for-hire references should be struck from the indictment.
So far, Ulbricht's lawyers and backers have tried using several different arguments to dismiss some or all of the charges, including citing IRS guidance that labeled bitcoin property in an attempt to have the case's money laundering charges dismissed.
More broadly, FreeRoss.org, the non-profit that seeks to raise money and awareness for Ulbricht's case has attempted to make the case that larger Internet freedoms will be affected by an Ulbricht conviction.
Ross Ulbricht image via FreeRoss.org