The prosecution of criminal gangs is oftentimes premised upon evidence that gang members participated in a criminal organizationeither a conspiracy or racketeering enterprisewith a shared identity and criminal purpose. The U.S. Constitution prohibits the criminalizing of mere association with a particular organization. See Scales v. United States, 367 U.S. 203, 225 (1961). However, association with a group of individuals engaged in criminal activity is not protected conduct and, indeed, may implicate federal criminal law. In order to establish the existence of a criminal gang, prosecutors frequently rely on search warrants to collect evidence of the criminal gang's organizational structure, membership, and of the criminal activity conducted by gang members.
Indicia search warrants are frequently used in biker gang investigations to collect indicia of affiliation, such as items bearing the logo or symbol of the biker gangthe leather jackets (colors), vests, belts, jewelry, plaques, t-shirts, tattoo stencils, hats, photographs, membership lists, club or gang documentation, calendars, clocks, or motorcycles. See generally United States v. McConney, 728 F.2d 1195, 1198 (9th Cir. 1984) (en banc) (affirming conviction involving an indicia search warrant that authorized search and seizure of indicia of membership in or association with the Hell's Angels Motorcycle Club), overruled on other grounds by Estate of Merchant v. Comm'r, 947 F.2d 1390, 1392 93 (9th Cir. 1991). Indicia search warrants are powerful tools that can be used to establish compelling evidence of the defendants' membership in a gang or enterprise. Indicia search warrants can also facilitate the collection of evidence to support the Government's contention that the defendants' association in the gang or enterprise was, at least in part, for purposes of criminal activity. However, the use of these warrants may raise unique First and Fourth Amendment issues for both prosecutors and agents.
