For Kim Weeks, Nothing Left To Try Against 5 Remaining Felony Counts But a Trial

In her variably successful quest to beat back 12 felony charges against her, former Elections Supervisor Kimberle Weeks and her lawyers sought to exploit vulnerabilities and inconsistencies in the charges, and over two and a half years managed to pare down the dozen to just five. It only takes conviction on a single count one, of course, to brand her a felon, demolish what she might be holding onto by way of a legacy, and cost her every penny of a state pension.

Weeks has kept fighting, but now appears out of options aside from going to trial in April: the circuit judge who’s presided over her case ruled recently against her in her last attempt to throw out the search warrant used to gather the evidence that the state then used against her to build its case.

That case rests on charges that Weeks recorded and disseminated a series of in-person or telephone conversations either without the knowledge or the consent of the persons at the other end. That’s a third-degree felony in Florida. Some of the people she recorded included the Palm Coast city clerk and Florida’s secretary of state. Several other charges were thrown out after Weeks’s lawyers successfully argued that they applied to conversations that took place in public settings where the persons recorded did not have a reasonable expectation of privacy, or that they took place in the context of public meetings.

Charges that Weeks illegally disseminated one of those conversations after first playing it in a public meeting were also thrown out. In fact, the recorded conversation that started it all, a supposed whispered conversation between County Attorney Al Hadeed and County Commissioner Charlie Ericksen, which had been the basis for the county’s push to have the recordings investigated, was deemed legally recorded. But the warrant had led Florida Department of Law Enforcement agents to many more conversations. In the court’s words, “Based on what law enforcement discovered by listening to those recordings, further investigation and interviews were conducted, with individuals involved in those recorded conversations. The recordings and subsequent investigations resulted in other charges being filed in this case based upon recordings other than the original recording provided to Investigator [Phil] Lindley and identified in the affidavit and the search warrant.”

In November, Weeks and her lawyer argued that the search warrant was itself too broad. It had included items, in the words of the warrant, such as “computer(s), hard drive(s), multiple cellphone(s) with different operating ‘platforms,’ email transaction records, stored electronic communications including electronic mail—to include any attachments thereto, data, recordings, electronic recording equipment, compact discs, memory devices,” and so on.

But, her lawyer argued, what he called an overbroad warrant turned into a fishing expedition, and should be thrown out. Had the lawyer been successful, the state would have been left with almost nothing against Weeks. And Weeks had a chance of making it stick, because it was a novel argument in a legal field that hasn’t been tested yet: there were no precedents the judge or lawyers could point to that were contemporary with the age of cell phones, when a search warrant could uncover thousands of bits of data when searching for just one. Should that be permissible?

Hudson ruled that yes, it’s permissible. So the case must go on.

Part of her analysis rested on precedent set by drug searches: just because a search warrant may have stated that it permitted a search for cocaine doesn’t mean that a defendant may not be charged for having possession of heroin, if found. Assistant State Prosecutor Jason Lewis extended the analogy to child porn—in this case applying experience from two notable and ongoing cases Lewis is prosecuting: he argued that while investigators may find evidence of one type of images on a defendant’s computers, they would not fail to add charges should they find additional images or videos they had not been looking for. The same approach applies to Weeks, in the judge’s view: just because the initial search warrant was seeking information related to the Hadeed-Ericksen conversation doesn’t mean it should overlook additional conversations found on any of the devices.

Hudson recognized that in cell phones, large amounts of personal information may be intermingled with other data, leading to an “invasion of privacy” (in Hudson’s words) by police in the course of a search. But, she ruled, cell phones should also be considered to be similar to computers, therefore “this court will look to the cases involving the particularity requirement for a computer search to supply the necessary guidance in this context,” Hudson wrote. She was relying on two precedents. But her reasoning also exposed a contradiction: she recognized the higher privacy threshold required in a cell phone search yet lowered that threshold by redefining a cell phone as a computer, an analysis similar to comingling, say, the search of a car with that of a house—a comingling that would not be permissible under the 4^th amendment absent separate search warrants for each. There were no such separate search warrants in Weeks’s case.

But since Hudson had comingled cell phones and computers, she could then rule that the language used in the search warrant “satisfies the particularity requirement for a computer search.”

“In addition, the type and character of property sought in this case was sufficiently identified and, therefore, easily identifiable without interpretation,” Hudson continued. “The search warrant referenced the specific alleged criminal activity and the objective of the search. Law enforcement was not at liberty to look through [Weeks’s] personal files unless they were identifiable as related to the interception and disclosure of oral communication.” Yet law enforcement would not have been able to distinguish between allegedly illegally and legally recorded conversation without listening to all recordings on Weeks’s phone.

That became a moot point by the end of Hudson’s six-page ruling, which denied Weeks’s motion to suppress the search warrant as overbroad.

Next on the agenda? Kevin Kulik, Weeks’s attorney, and Lewis appear before Hudson on Feb. 22 for a status hearing—essentially, a chance for the lawyers to certify whether the case is still on course for its April 2 trial date. Lewis has extended an offer to the defense for a settlement. He did not explain what it was, but it is likely to be a plea that would have Weeks admit to one of the five counts in exchange for serving what would end up being a modest probation period, but no prison time. (Each felony count carries a penalty of up to five years in prison.) Weeks has already rejected one plea offer, and her hiring of Kulik last year may have indicated her thinking: Kulik is a trial lawyer specialist. And Weeks may yet want to seek public office again, something she may not be able to accomplish with a felony conviction. 

Still, Weeks as a public official had also been known to push confrontations to the absolute limit then either compromise or pull back.

Hudson’s ruling is below.

Circuit Judge Margaret Hudson’s denial of the motion to suppress the search warrant:

Click to access weeks-denial-order.pdf