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Case 1:11-cr-00415-CCB Document 43 Filed 12/13/11 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND


* *************************************************************************** MOTION TO SUPPRESS TANGIBLE AND DERIVATIVE EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT Defendant Barry Landau (Mr. Landau), by and through his undersigned counsel, Andrew C. White and Steven D. Silverman, hereby moves this Honorable Court, pursuant to Rule 12(b)(3) of the Federal Rules of Criminal Procedure, to suppress any evidence seized in violation of the Fourth Amendment to the United States Constitution and as grounds states the following: 1. Mr. Landau is charged in a two count (2) count indictment alleging conspiracy to commit

Theft of Major Art in violation of 18 U.S.C. 371(count 1), and Theft of Major Artwork, in violation of 18 U.S.C. 1028A (counts 2, 4 and 6), and mail fraud in violation of 18 U.S.C. 668 (count 2). 2. Discovery produced by the government indicates that certain tangible evidence to be

introduced by the government at trial was recovered by law enforcement officers after a search authorized by at least one federal search warrant. Mr. Landau was illegally arrested by Baltimore

City Police on July 9, 2011 after police observed suspicious actions by another person, Jason Savedoff at the Maryland Historical Society (MHS). According to the police report about the arrest, officials observed Mr. Savedoff acting suspiciously, and they ultimately recovered numerous historical documents from Savedoffs person and from a locker the MHS for which he had a key. MHS officials did not observe Mr. Landau acting suspiciously, and he did not have any stolen documents in his possession or control. In fact, the report indicates that MHS officials identified only Jason Savedoff as

Case 1:11-cr-00415-CCB Document 43 Filed 12/13/11 Page 2 of 3

the individual who appeared to be in the process of stealing documents and there was no evidence whatsoever linking Mr. Landau to the theft of any documents from the MHS that day. Despite this, Baltimore police arrested Mr. Landau along with Mr. Savedoff and charged them both with Theft, in violation CR-704 of the Annotated Code of Maryland. documents from Mr. Landau on July 9, 2011. 3. Despite finding no incriminating evidence in Mr. Landaus possession or control, an FBI Police did not recover any stolen or historical

Special Agent moved to secure a search warrant for Mr. Landaus residence in New York City. In the application for the search warrant, the FBI Agent stated incorrectly that evidence was recovered in Maryland from both Mr. Savedoff and Mr. Landau, when in fact all of the evidence recovered in Maryland was taken solely from Mr. Savedoff. The FBI Agent went on to state that he felt it was likely that evidence of stolen documents would be discovered in Mr. Landuas apartment despite the fact that no evidence was recovered from Mr. Landau following his arrest on July 9, 2011. 4. The search warrant was signed by United States Magistrate Judge Theodore Katz on

July 12, 2011 and permitted the search of Mr. Landaus apartment as well as all locked and closed containers found therein. Law enforcement officers executed the search warrant on July 12, 2011 and purportedly found items that the government will offer into evidence at Mr. Landaus trial. 5. The affidavit provided to Judge Katz in support the respective applications for search

and seizure warrants failed to establish probable cause to permit the searches authorized. Because there was no evidence recovered from Mr. Landau, and no one observed him stealing any documents or acting inappropriately while at the MHS and prior to his arrest, there was no probable cause to allow a search of his residence and all evidence seized at this apartment pursuant to the search warrant should be suppressed. 6. Because the Mr. Landaus investigation of this case is incomplete, he reserves the right

to move for suppression of evidence based on grounds not now discernible such as, but not limited to, rights under Franks v. Delaware, 438 U.S. 154 (1978). Mr. Landau also reserves the right to

Case 1:11-cr-00415-CCB Document 43 Filed 12/13/11 Page 3 of 3 supplement this Motion in the future. WHEREFORE, Mr. Landau requests that this Court grant an Order of Suppression on the grounds alleged herein, in any supplemental memoranda, and any other grounds that may become apparent upon a hearing on the motion. Respectfully submitted, ___________/s/___________________ Andrew C. White (Federal Bar 08821) Silverman, Thompson, Slutkin & White, LLC 201 North Charles Street 26th Floor Baltimore, Maryland 21201 (410) 576-2200 MEMORANDUM OF POINTS AND AUTHORITIES 1. Illinois v. Gates, 462 U.S. 213 (1983). 2. Fourth Amendment to the United States Constitution. 3. United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993). 4. Wong Sun v. United States, 371 U.S. 471 (1963). REQUEST FOR HEARING Pursuant to Rule 105.6 of the Local Rules of the United States District of Maryland, a hearing is requested on the defendants Motion. ___________/s/___________________ Andrew C. White CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of December 2011, a copy of the foregoing was mailed (and e-mailed) to James Warwick, Assistant United States Attorney, 36 South Charles Street, 4th Floor, Baltimore, MD 21201.

____________/s/______________________ Andrew C. White