Interesting opinion by MJ Faruqui on why he found probable cause in a case involving bitcoin transactions, although at times it seems to presuppose a power I don't think judges have: To do a 4A analysis to the investigation and ignore fruits. (Thread.)
dcd.uscourts.gov/sites/dcd/file…
dcd.uscourts.gov/sites/dcd/file…
If I'm reading that part of the discussion correctly, it seems to me that MJ Faruqui is reading the facts that form the basis for probable cause as if there were an implicit motion to suppress as to those facts and the fruits they yielded.
I don't think judges have that power when they review warrant applications. As I see it, the task at that stage is just to see if the facts as alleged amount to probable cause, the warrant is particular, there is venue, etc.
Granted, it's always possible that the government may know facts because of prior constitutional violations. And if so, the government shouldn't be applying for a warrant based on that. But I think that's an issue that gets litigated later, in a motion to suppress, not here.
Warrant applications can get a lot more interesting if reviewing them includes an authority to do an ex parte constitutional analysis of the facts alleged in affidavits. But I don't think it does, which is partly why opinions on why magistrate judges issued/denied them is rare.
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