San Francisco

SF gun felon bids to have gun evidence thrown out

A San Francisco gang member who sent a video of himself via Instagram driving through a rival gang’s “territory” in Hunters Point while brandishing a firearm, is appearing in federal court today in a bid to have the evidence uncovered in the case – multiple guns with extended magazines – ruled inadmissible.

Attorneys for Emonie Bailey say that a succession of San Francisco Superior Court judges had the wool pulled over their eyes by “omissions, either intentional or reckless” in a series of search warrant applications made by SFPD in Summer 2022. Warrants were therefore issued without probable cause and in any event, they claim, resulted in an improper search of a home outside of San Francisco county.

Police were searching for Bailey after he went on the lam from post-release community supervision following a term of imprisonment for firearms offenses.

In an effort to trace him they sought a warrant to obtain subscriber information for an Instagram account – thompsquad_rocko – which they believed was his. This led to the discovery of a video of him armed with a Ruger 57 handgun in what police say was an effort to taunt and show disrespect to members of another gang in the Hunters Point neighborhood. The video had been sent using the application’s direct message function.

It ultimately led to an SFPD SWAT team raiding an address in Oakland associated with Bailey which turned up six guns, two of which were linked by DNA to him plus another which was identical to the one displayed in the video.

Two of the guns found had been used in shootings in San Francisco. One of those, an AR-15-style semi-automatic pistol was used in an August 2022 Bayview shooting where nine vehicles were damaged by gunfire and a “large hostile crowd” had gathered and a fight was taking place.

Another pistol was used in shootings at Anthony Chabot Regional Park in Oakland.

Bailey himself fled during the raid necessitating an hours-long search, which including the deployment of air support, before he was apprehended at gunpoint. He has been in federal custody since.

He has a substantial record of serious violence. In 2014 he robbed multiple people at gunpoint all of whom were terrified that they were about to be killed – including pointing an assault rifle at one victim’s head as he stole his wallet, money and phone.

In 2020 he pistol-whipped his girlfriend and then shot four rounds at the car in which she was trying to escape. In 2021 he was found again in possession of a firearm which he was not allowed to have and, in January 2022, he breached his post-release community supervision after a further gun was found hidden in his residence. He was arrested, then apparently released, which led to police again trying to track him down.

Prosecutors say that he is a member of the “Westmobb” San Francisco street gang.

The legality of the Superior Court search warrants is being litigated in U.S. District Court because the guns found in the investigation triggered a federal prosecution against Bailey and two others.

Defense attorney Shaffy Moeel told the court in a pre-hearing motion that four of the five warrants obtained by SFPD from San Francisco Superior Court judges lacked probable cause.

He argues that there was no evidence that the Instagram account in question was operated by his client. In fact, he says, subscriber records obtained by the police did not include Bailey’s phone number or email address at all. This failure by the investigating officer to link the defendant to the social media account was not disclosed to judges when subsequent search warrants were sought. Instead, they say, the officer implied that she had been able to “prove up” it was Bailey’s account.

That lack of a link fatally flawed the warrant applications and, hence, the issued warrants.

Moeel also says that the warrant to search residences linked to his client in Alameda county oughtn’t to have been issued by San Francisco judges at all.

For the Government, Assistant U.S. Attorney Lina Peng says there was “ample” probable cause for the warrants once police found an Instagram account which, because of the photos and videos posted of Bailey, they had probable cause to believe was operated by him. The account name – thompsquad_rocko – also makes reference to what prosecutors say is a known nickname for Bailey.

Peng says that the search of an Alameda county residence, on the basis of a warrant signed by a San Francisco county judge was entirely proper, pointing out that these are permitted in California when it seems to the judge that the evidence being sought relates to a crime committed in their county and is relevant to a prosecution in it. Even if it wasn’t permitted, but officers undertook a search in good faith based on a defective warrant, then evidence obtained would still be admissible, she says.

The defense hopes to persuade the judge to rule out the evidence completely which would in effect terminate the case. U.S. District Judge Jeffrey White, sitting at Oakland federal courthouse, will hear from both sides at 1:00pm today. 

UPDATE October 4: Judge White denied Bailey’s motion to suppress, concluding that “he has not made the substantial showing necessary to conclude that [the SFPD officer] acted intentionally or recklessly” as to the warrant applications. He will next appear in court on October 17 for a status hearing.

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