Judge Rejects Warrant Application, Because He Thinks None Is Needed

from the this-is-troubling dept

Orin Kerr has a post about a bizarre decision by DC Magistrate Judge John Facciola, who decided to reject a warrant application not because he thought there wasn’t probable cause, but rather because he didn’t think that the government needed a warrant at all, and could do the search it wanted without such a warrant. This is problematic on a variety of different levels, and Kerr covers them all. The story involves a police chase of a suspect with a gun. During the chase, he threw away the gun. The police found the gun, and while they were at it, the guy’s mobile phone. The warrant was to do a thorough search of the phone. Facciola said they didn’t need a warrant since the phone had been “abandoned.” Whether or not the phone was actually abandoned, the ruling is problematic (in part because Facciola has no way of knowing if the phone was actually abandoned). But, just in general, it seems that he doesn’t have the discretion to make this kind of ruling anyway:

Judge Facciola seems to be assuming that warrants only should be obtained when the Fourth Amendment would be violated without them, and that he, as a magistrate judge, has the power to say ex ante when that will be. But I think that’s pretty clearly wrong. Magistrate judges do not have the discretion to deny applications if they don’t think one would be necessary. The language in Fed. R. Crim. Pro. 41(d)(1) is mandatory: “After receiving an affidavit or other information, a magistrate judge. . . must issue the warrant if there is probable cause to search for and seize a person or property” (emphasis added).

As Kerr points out, the law is structured to encourage police to get warrants (for the obvious reason of making sure such searches are constitutional). If a magistrate judge is taking it upon himself to decide that no warrant is needed, then it seems to be going against the Supreme Court’s belief that police should be encouraged to get a warrant.

The second problem is that Facciola seems to be making a constitutional determination (i.e., there’s no 4th Amendment issue here) based on seriously incomplete facts. He only has the request for the warrant, which just seeks to present enough evidence for probable cause for the warrant. He doesn’t know anything beyond that, and he doesn’t know the other side of the story. It’s entirely possible that the search doesn’t need a warrant, but that’s not the kind of thing a magistrate judge should be determining at this stage, especially when the police themselves have asked for a warrant.

And, as Kerr notes, this actually puts the police in quite a bind about whether or not to do the search:

Further, Judge Facciola’s decision puts the government in a bind. Under his ruling, the police cannot get a warrant. But if they search the phone without a warrant, they run a serious risk that a future court will rule that Magistrate Judge Facciola’s prediction was wrong and that they should have obtained one. If so, it’s damned if you do and damned if you don’t…. The way out is for magistrates to issue warrants based on whether the government has satisfied the facial requirements of probable cause and particularity, as Rule 41 requires, not to hinge the issuance of the warrant on whether the magistrate expects such a warrant to be a legal necessity.

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Comments on “Judge Rejects Warrant Application, Because He Thinks None Is Needed”

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Anonymous Coward says:

Re: Police should be commended for refraining from this warrantless search

As the latter part of the Techdirt article cites from the piece by Orin Kerr, the police have a dilemma here. If they think that searching the phone will yield evidence useful in prosecuting the case, and that the defense could convincingly argue that without the evidence of the phone, there is no case, then searching without a warrant exposes them to the possibility that the defense will convince a court that (1) the search required a warrant, (2) no warrant was issued for the search, leading to (3) the evidence recovered from the phone must be suppressed (rendered unusable to the prosecution). If the police expect that the suppression would ruin their case, then they would be motivated to avoid suppression. This analysis hinges only on their desire to see the suspect convicted, not any direct interest in upholding his civil rights.

Jack says:

Re: Re: Police should be commended for refraining from this warrantless search

Meh, if they searched the phone and a higher court ruled they needed a warrant for the search, it still probably wouldn’t be suppressed because of the Good Faith Exception to the exclusionary rule. In this case, it seems clear the police were acting in good faith by attempting to get a warrant when the judge claimed none was needed.

However, I do commend the police for not searching. That gives me a little hope.

Zonker says:

Ooh! No search warrant needed if property is deemed “abandoned”. So we get to search Judge John Facciola’s car when he “abandons” it in the parking lot for a couple hours, his office when he “abandons” it to go home for the evening, his home when he “abandons” it to go to work, and his cell phone when he “abandons” it at his desk while he steps out for a break. This will be fun!

zip says:

Re: Re: Let's call it the Hotmail Effect

“A search warrant authorizes the government to find and confiscate evidence of a crime. A search warrant cannot be issued in aid of civil process.”

It’s done all the time. All it takes is for one side to make the claim that evidence is being or will be destroyed, and then a search warrant gets issued to find and “protect” this evidence from (supposedly) imminent destruction.

The Anton Piller Order (UK) is one such tool for “civil” searches.

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