Thread by @OrinKerr

John Eastman has filed a motion seeking return of his phone (and all copies) back, after the phone was seized pursuant to a warrant. Are you wondering what the relevant law is on this, and if he's likely to get the phone & copies back?

If so, here's a thread for you.

Before we start, just a heads up: This thread is about the law of executing warrants for cell phones, and motions for their return. It's not whether you like John Eastman, and it's not about what happened on 1/6. It's not really about Eastman at all; it's a generic set of Qs.

Eastman has filed a motion for a return of property under Rule 41(g). 1st thing you need to know: These rarely succeed, *even if* the warrant is illegal. Movants need to show irreparable injury, and lack of a remedy at law, etc., all apart from merits.
(DOJ manual below.)

From what I can tell, Eastman's motion does not address those legal requirements. It argues the warrant was illegal and was executed illegally, but it doesn't argue the additional requirements of a Rule 41(g) motion to return.

But let's assume, for the sake of argument, that those requirements can be met. What about the merits?

Eastman first argues that he believes the agency was acting outside its jurisdiction because he believes it was the FBI acting for the OIG.

(This belief is apparently based on the warrant stating that the phone will be sent to the "DOJ-OIG forensic laboratory in Northern Virginia.”)

Assuming this is true, I'm not aware of it being a basis for saying the warrant is invalid or the item seized must be returned.

Next, Eastman argues that the warrant violates the 4th Amendment because it does not specifically describe the thing to be seized.

This is a hard argument to assess, as we don't have the affidavit and (as far as we can tell) the warrant itself.

Further, Eastman himself doesn't have the affidavit yet; he just has the warrant. So it's hard to know from the motion, or from what Eastman knows, if the warrant was defective on particularity grounds. Maybe; we just don't know enough without the underlying documents.

Eastman next argues that the 4th Amendment was violated in how the warrant was executed, as they were required to give him the warrant before demanding the phone. Instead, they showed him the warrant after getting the phone from him.

But here Eastman relies in 9th Circuit authority, not 10th Circuit authority. And the 9th Circuit authority itself was largely undermined just 10 days ago in US v. Manuku:
cdn.ca9.uscourts.gov/datastore/opin…

(see the concurrence by Judge Collins in particular)

Next, Eastman argues that being compelled to use biometrics violated his 5th Amendment privilege. Most of the authority on this rejects his view, correctly holding that compelling biometrics is not testimonial.

See, for example, State v. Diamond (Minn. 2018), excerpted below.

To be clear, I don't like the provisions the feds use in warrants trying to compel biometrics. They're really All Writs Act orders, that need judicial review. But eve if that's right, I'm not sure how there's a remedy of returning the phone that follows from that.

Finally, there'a section at the end bringing together a bunch of additional arguments. But even assuming for the sake of argument that some of them have merit, they seem to be outside a Rule 41(g) motion, which on its terms is about 4th Amendment violations.

/end

UPDATE: I hadn't seen the warrant itself when I wrote the above thread, but via @popehat, it is here:
storage.courtlistener.com/recap/gov.usco…

Some thoughts below...

It appears that the FBI plans to execute this search with two warrants. The warrant here is only to seize electronic devices from Eastman's custody and to bring those devices into government custody. They'll get a second warrant to actually search the device (his phone).

This is a little unusual in the cases, as federal law allows one warrant to be obtained that allows both the physical search and seizure (searching Eastman and and taking the phone) and also the subsequent digital s&s (doing a forensic examination of the phone).

I would guess they are doing that because Eastman is an attorney, and searching an attorney's stuff raises lots of extra considerations. I gather they wanted to get the phone 1st -- perhaps b/c Clark's house was being searched the next morning? justice.gov/jm/jm-9-13000-…

If the government tried to actually search the phone based on the 1st warrant, I agree that would very likely violate the Fourth Amendment: The warrant appears to violate the particularity requirement if used to justify the electronic search stage. But.....

. . . the warrant itself says they're not going to search the phone without "further order of a judge of competent jurisdiction," which here would be a second warrant to cover the electronic search stage.

This is just speculation, but I would guess the feds wanted to search the computers of both Clark and Eastman, Clark was home, but Eastman was in New Mexico on travel, so the feds got this New Mexico warrant just to cover the preliminary seizure of the phone, the night b4 Clark.

Now that the devices are in law enforcement custody, the question of what procedures will be used for the forensic search stage, given attorney/client privilege, can now be addressed in the application for second-round warrants to cover the forensic analyses.