Cool 4th Am Q raised by this new op: If a judge reviews a warrant application, and thinks the facts described may violate the 4A, should she apply the 4A, including the exclusionary rule, to decide whether to sign the warrant?
In the ordinary case, an affidavit describing probable cause will state the facts supporting probable cause. If those facts amount to probable cause, the judge will sign the warrant.
If charges follow and the defense moves to suppress, the defense can argue that the fruits of the warrant should be suppressed because of a prior 4th Amendment violation.
The Q in this case is, can the judge make that call at the warrant application stage, too, and not sign?
In this case, the government has applied for a warrant to search a computer. So far, so good.
But the affidavit does something unusual: It presents a legal argument for why the 4A hadn't been violated by the delay between the computer's seizure and the warrant application.
The legal argument drew the Magistrate Judge's attention. The judge wondered, is that an accurate description of precedent? Is this a good legal argument?
The court invited briefing from the govt (the only party in the ex parte warrant application).
The MJ then writes a 4A opinion on whether the 4A seems to have been violated by the pre-application delay, which the MJ assumes is equivalent to whether the warrant should be rejected. If the 4A was previously violated, the thinking runs, she shouldn't sign the warrant now.
At the end, the MJ concludes that the delay was unreasonable. But she then concludes that the violation was de minimis, and that issuing the warrant is "appropriate."
Lots going on here, but my own take is that a magistrate judge reviewing a warrant application shouldn't consider this issue at all. The affidavit shouldn't include legal arguments, and the judge shouldn't try to rule on those legal arguments. Related: virginialawreview.org/sites/virginia…
I get the other side: If the government violated the 4A up to that point, and warrant search fruits would be suppressed, isn't it better to litigate the issue at the warrant stage so the warrant isn't issued at all? But I don't think this works.
First, you can't know at the application stage whether search warrant fruits would ultimately be suppressed. Maybe the delay, considered alone, would be a problem. But maybe not, for many reasons. For example, perhaps charges would be brought against someone w/o standing.
Second, how do you litigate this at the ex parte stage? There is no adversarial briefing. And if the MJ is wrong, the procedure for having an appeal is tricky. If the MJ wrongly ruled for the govt, there's no opposing party in the case who can appeal it.
And if the MJ wrongly ruled against the govt, do you stop the investigation midstream, with the computer unsearched, for a few years' worth of appeals?
Third, what version of the exclusionary rule do you apply? Do you include the good faith exception, giving deference to what you would have done if you did something you didn't do? Or do you create your own exclusionary rule doctrine? Seems a mess.
Granted, it may be that the government violated the 4th Amendment before they applied for the warrant. And if so, that's bad, and motions to suppress or civil actions can follow. But I don't think the fact of an application should be treated as a moment to litigate everything.
My sense, at least. Interesting issue! More on the Magistrate Judge, Sarah Merriam, below. /end law.yale.edu/yls-today/news…
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When the govt obtains a warrant to track two suspects traveling in a car together using the GPS on one's phone, the other lacks standing to challenge the tracking. CA5, per Oldham.
The Court approaches the standing question by looking first at how the warrant was phrased. The warrant that the location of the phone was the "place to be searched," so that mostly governs. It was not D's phone, so he had no standing in that "place."
But I'm not sure how the drafting of the warrant can be relevant. 4A standing is about whether a person has rights to challenge a search that occurred, not how the govt drafted a warrant to justify the search that occurred.
"Do not let yourself be conned" by those (including me) who object to campaigns against the firms, they say: The lawyers are "suicide bombers trying to blow up democracy" who must be condemned and shamed. To disagree is to argue that lawyers should "never be held accountable."
That is true, Dahlia and Mark argue, even if the lawyers have arguments that might win in court. If judges agree with the lawsuits, that just shows that judges are in on the con. The judges and their false views of "law" are acting just as illegitimately as the lawyers.
Trump's refusal to admit he lost the election is the most predictable thing in the world. Remember, he's the guy who, when asked before the *2016* election if he would accept the results as legitimate, responded that he would -- "if I win." cnn.com/2016/10/20/pol…
And after he won the electoral college in 2016 but lost the popular vote, he insisted that he *did* win the popular vote -- but that massive fraud led to millions of illegal votes being illegally counted against him.
I'll be posting a new article draft in a week or two about government-ordered content preservation -- when the government tells your e-mail or messaging provider to save a copy of your entire account for the govt in case the govt comes back later with a warrant to disclose it. /1
This happens to hundreds of thousands of U.S. accounts every year. The government does it all the time, with no cause. I argue in the article that preservation is a seizure that requires at least reasonable suspicion, and in most cases, probable cause. /2
A key part of the article is the first-ever public explanation of how preservation requests work. How the govt and providers think of it; how requests are made and how providers respond; how it relates to ultimate production; and why it's all secret, hidden from the user. /3
1) Going after lawyers for representing unpopular clients in unpopular legal claims has a really bad history, and tends to not go well. Our legal system needs lawyers to take on unpopular clients. Focus on the clients, not the lawyers.
I'm reminded of when conservatives went after the law firms representing terrorist suspects at Gitmo. (I was one of the conservatives who signed a counter-letter, organized by @benjaminwittes objecting to going after the lawyers.) brookings.edu/wp-content/upl…
I'm not sure I agree with this new 5th Circuit case (per Duncan, J.) allowing the seizure of a trailer that was homemade and therefore lacked a VIN. Quick thread. ca5.uscourts.gov/opinions/unpub…
The opinion case starts with the premise that Texas state law permits a trailer to be seized when the VIN has been removed. But here, the VIN hadn't been removed: it was a homemade trailer, which never was assigned a VIN.
That makes no difference, CA5 says, b/c Tex state law still requires that each trailer has a VIN -- the DMV assigns one if it didn't come with it. So the trailer could still be seized because it lacked a VIN.