BoS: Tucker Awaits Ruling on Motion to Suppress

24 October 2007

Penelope Tucker, a defendant in the case against BetonSports (BoS), is waiting to find out if U.S. Magistrate Judge Mary Ann Medler feels the FBI had probable cause to search her two properties prior to her arrest and whether the statement she gave during the search was legally obtained.

Medler on Tuesday heard from four witnesses regarding the search warrant executed on Feb. 15, 2007 on Tucker's Miami properties: Special Agent Michael Paul Betancourt, Special Agent Stuart Reynolds, Special Agent David O. Rizi and Agent Joseph Ludewig--all of whom had an active role in the events of the search.

Tucker's attorney, Miami-based Michael Rosen, requested the hearing in an effort to suppress the evidence taken during the search, as well as the statement given by Tucker to FBI agents.

Rizi, who has been investigating BoS since 2003, obtained a search warrant from a magistrate judge in Florida based partially on information provided by two confidential informants.

Rosen's motion to suppress questions the credibility of the informants because of the wording of Rizi's affidavit. Rizi described informant one as a confidential source who has "never been proven to be knowingly wrong in the information provided to law enforcement." But Rosen argued that this language did not inspire confidence in the informant. He said it sounded as though the source had been proven wrong in the past.

Medler disagreed with Rosen's analysis of Rizi's language, saying that no one was being tested on their English language skills.

Meanwhile, the government's objections to Rosen's repeated attempts to get Rizi to reveal the identities of the informants were repeatedly sustained. The government argued that Rizi is not required to reveal privileged information.

Tucker and her attorney also took issue with the way her interview was conducted at the time of the search.

According to Tucker's motion, she was taken aside by Agents Rizi and Ludewig and questioned for an hour-and-a-half during the search. Furthermore, the motion states, Tucker was not read her Miranda rights before the interview.

Each witness, including Rizi and Ludewig, said they did not read her the Miranda rights because she was not under arrest, and they had advised her of that. Furthermore, Rizi said Tucker voluntarily participated in the interview, leading him and Ludwig to the back patio so she could smoke.

Furthermore, all witnesses agreed that the interview was not preplanned.

California-based I-gaming attorney Martin Owens said it is not unusual for law enforcement officials to interview a person of interest without reading them their Miranda rights.

"Miranda rights mostly come into play when somebody is a suspect, or being placed under arrest," he said. "Then the subject must be informed. The rules are looser when the cop or agent is simply gathering information. It will all depend on the circumstances of what the interview was all about. The thing to remember about talking to law enforcement is that such things as Miranda rights and search warrants are aimed at the admissibility of evidence, rather then governing the particular behavior of a particular cop or agent at a given time."

Ultimately, Medler has taken the testimony and evidence under advisement. She said she would take a look at the affidavit and determine if it shows probable cause for a search without the information provided by the informants. If not, she would have no choice but to grant Rosen's motion.

No ruling has been reached yet.

Emily Swoboda is the senior staff writer at IGamingNews. She lives in St. Louis, Mo.