Court records indicate that the prosecution’s case for a former CIA agent , accused by the Mexican government of sexually abusing over 20 women who were incapacitated in Mexico City, is at risk. This may be because the Justice and State Departments botched an execution of a search warrant to seize his iPhones.
A federal judge will hear arguments on Thursday regarding whether or not nearly 600 pictures of the defendant abusing women who are allegedly incapacitated should be thrown away. This dispute could lead to a new law about what constitutes a proper search in this digital age.
Former CIA officer Brian Jeffrey Raymond has been in jail without bail for almost three years. In July 2021 he made a plea deal with the court, admitting to sexually abusing women he met on dating websites in the U.S. and abroad while performing his clandestine duty.
The former spy retracted his plea in 2013 after his legal team realized that there were serious problems with the way the evidence was obtained. The federal judge allowed Raymond to withdraw his plea after determining that his former lawyer had failed to raise major concerns regarding the way investigators gained access Raymond’s iPhones. The judge found that Raymond may have been violated by law enforcement agents under the Fourth Amendment which protects against unreasonable searches and seizures, as well as the Fifth Amendment which states that a person cannot be forced to testify in his own defense.
Colleen Kollar Kotelly is the same judge who will decide if she grants the defense’s request to suppress almost all of the evidence. If she did that, it would seriously undermine the charges brought against a man Kollar Kotelly described in her report as “a sexually predator who uses dating apps to find unsuspecting girls, drugs them, abuses them and leaves them with no memory or ability to inform law enforcement of his deviant plans.”
In denying Raymond bond, Kollar Kotelly stated that the “video and photographic exhibits show that the defendant has violently enacted his fetish of unconscious women by drugging, sexually assaulting, and interviewing victims.” The evidence also included Raymond’s interactions on dating websites, photos of him sexually aroused manipulating the bodies unconscious women, and interviews with the victims. He had also repeatedly searched for terms such as “passed-out girl,” “ambien, alcohol, and pass out,”
The FBI stated that as part of his plea agreement for two charges, Raymond admitted to having sexual relations with two women in the photos when they were both unable to understand the nature of their conduct. “He also acknowledged that over a period of 14 years he photographed and/or recorded unconscious women, some of whom were nude, or were partially nude, and touched them on the breasts, buttocks and/or genitalia without their consent.”
Now, his defense attorneys have withdrawn this admission and disputed all charges (with the plea voided, he may face up to 25 count). His lawyers also argue that all electronic evidence should be thrown away. The attorneys claim that the pictures of women on the phone was used to establish probable cause, which led to the seizure and destruction of nearly all the other evidence in the case. This included Raymond’s iCloud accounts, laptop and other devices.
“Mr. Raymond asks the Court to do the right thing in this case – to suppress any evidence that comes from the fruit of a poisonous tree, wrote defense lawyers in a brief.
In a ruling, the judge acknowledged that there were “viable concerns” about the way the warrant was executed and “troubling actions” by agents of law enforcement due to their “admissible technological ineptitude” as well as their lack of planning. She will now have to decide if those concerns amount to constitutional violations.
Raymond’s lawyers and the Justice Department declined to comment. The State Department also refused to comment.
Legal experts consulted for NBC News had mixed opinions on whether the defense would prevail.
Chuck Rosenberg, NBC News’ contributor, said: “The defense raised a number of interesting and non-frivolous constitutional questions regarding the search.” In the end, and it may be just my bias as a federal prosecutor, I think that the government is the winner. The search was lawful, even if it was unusual in certain ways. And the evidence that has been seized is admissible.
Nellie Queen, a Florida lawyer and president of the National Association of Criminal Defense Lawyers had a very different opinion of what she described as a “bungled execution of a warrant”.
She told NBC News via email that “the government’s efforts” to “contort and contrive a search for the many constitutional violations committed in the case strain credibility.” Law enforcement had “crossed the constitutional boundaries in their desperate attempts to access the phone data, and in their zealous pursuit to arrest Mr. Raymond.” The Court has ample grounds to suppress evidence. No matter what type of investigation or how valuable the target is, the end does not justify the means.
State Department agents obtained the warrant to seize Raymond’s phones following an incident that occurred in May 2020 in his apartment at his government in Mexico City. The police were called when a woman was found naked on his balcony, screaming for help.
He resigned as CIA director and went to Virginia where agents of the Diplomatic Security Service served him with a warrant in June 2020 for the search of his phones. He told the agents that he had pictures of naked women on his phones just moments before they seized them.
Court records reveal that the agents were hampered by their apparent inability to understand the layers of security built into iPhones and the complex law governing the way law enforcement is required to deal with these security measures.
The two iPhones Raymond owned — one for personal use and one for business — were encrypted, but could be unlocked by a fingerprint or passcode. The warrant, as is usual, allowed the agents force Raymond to use a finger to unlock his phone. The courts have ruled that the law enforcement cannot force someone to reveal their passcode because it would violate the Fifth Amendment’s ban on forced self-incrimination.
The agents took the phones after Raymond met them in the lobby of the hotel. However, he had already turned them off. The agents didn’t have the passcode to access the phones at this point. After consulting with a Justice Department Prosecutor, they returned to the hotel and told Raymond that he had to use his thumbprint in order to unlock the phones. The agents were unable to prevent the phones from locking. They returned a third and final time, at the urging of the prosecutor, to get Raymond’s passcodes. This allowed them to make the necessary changes to the settings to continue accessing the phones.
Lawyers for the defense claim that the agents broke two fundamental rules, which rendered the search unconstitutional. They claim that a search warrant is only valid for one search except in very specific circumstances. The agents claim that the search ordered by the court was completed once they left the phones for the first time.
They claim that the agents badgered Raymond, making him feel compelled by law to give up his passcode.
In court documents, defense lawyers stated that “the agents’ plan” for executing the search warrant showed they were doomed for failure because they did not have a viable plan to maintain access to the phones after they used biometrics to unlock them. The agents, who were present during the arrest, made things worse by allowing Mr. Raymond’s phone to be turned off. This disabled the biometric features which would have allowed them to gain compelled access to the phones. To gain and maintain access, they needed PIN codes, and eventually passwords. But Mr. Raymond refused to give them the codes and passwords. He asked for an lawyer. The agents were thwarted by Mr. Raymond’s refusal to give codes. They acted on the advice from prosecutors and unlawfully and unreasonable seized Mr. Raymond, his phone and two other times.
The agents recorded all the interactions between Raymond and them. The defense argues that at least 27 occasions, the agents asked Mr. Raymond to give his passwords and passcodes. After their repeated insistence, Raymond eventually relented and gave his Apple password and PIN code to allow the agents to reset the codes. The agents did not use the standard PIN consent form, even though they said it was voluntary. They also did not inform Mr. Raymond about his rights and memorialize his consent, despite blatantly stating that this was voluntary.
The Justice Department has responded to the complaint by stating that the execution of the warrant was legal.
In court documents, prosecutors state that there was no Fourth Amendment violation. They also add that “reengaging defendant to use biometrics” was not a “second or third seizure,” but rather a “reasonable continuation of the initial seizure.”
The lawyers add that the Fifth Amendment was not violated “because the act was entering the passcodes in the phones was a voluntary self-incriminating declaration to law enforcement.” The defendant was not detained and he was not forced to give his passcode.
They add that investigators “would have invariably been able discover the evidence on the phones and, separately, the Government would have invariably discovered the hundreds photographs and videos on the defendant’s devices and storage platforms.”
Prosecutors say that even if a judge disagrees, mistakes made by the government can still be ignored due to “good faith”. The prosecutors say that the “good faith” exception allows the government to overlook mistakes made by the government.
Defense responded: “The exception for good faith does not apply in the case of unlawful execution of a valid warrant.” The Supreme Court never used the good-faith exception to excuse a police officer whose negligence led directly to the violation defendant’s constitutional right.
The FBI issued a request for information in 2021 that acknowledged Raymond’s CIA membership. This was an unusual move by the government.
It says: “Raymond worked at the Central Intelligence Agency for many years.” Raymond met his victims in the United States as well as internationally on dating apps. He is fluent in both Mandarin Chinese and Spanish.
Raymond is the second CIA officer to have been accused in recent years of sexually abusing incapacitated woman on assignment abroad. In 2011, a former CIA agent was sent 5 1/2 years in prison for molesting and drugging an Algerian woman when he was the head of agency operations there. He was accused of raping two or more women.
