Legal Issues

by Mike Masnick


Filed Under:
due process, warrants



Just Because A Judge Signs A Warrant, Doesn't Make It Legal...

from the just-saying dept

One of the regular "defenses" we've seen in the comments for why Homeland Security's seizures of various domains -- including ones that have substantial protected speech -- are "legal" is because a magistrate judge signed off on the affidavit filed by Homeland Security and the Justice Department. Of course, that's not necessarily true, as it appears that the magistrate judges in these cases failed to abide by the prevailing case law that requires a higher standard of proof than was provided by Homeland Security, but we'll leave that discussion for another day. A separate point is that just because a judge signs off on it, doesn't make such things legal.

As an example of this in a somewhat different context, Julian Sanchez points us to the story of a San Francisco pot bust gone wrong. In this case, the San Francisco police filed for a warrant to search 243 Diamond St. for drugs and associated proceeds for drugs. The warrant described the address as a "two-story, one-unit" building, and the officer claimed he had staked it out for two days and two nights.

It turns out that 243 Diamond is neither two stories, nor is it a one-unit building. It's three stories and two units, and the upper unit (the one raided by the SFPD) happens to be rented to a guy named Clark Freshman... who also just so happens to be a law professor. He told the SFPD and DEA agents who raided his place that they were breaking the law, and they "laughed at" him. Except Freshman may get the last laugh, as he's planning to sue the government. The article quotes another lawyer saying that in similar cases "people have sued and collected substantial settlements" and noting that "whomever is representing the government better get out his checkbook."

While not quite the same, there do seem to be a fair number of similarities with some of the domain seizures. In both cases, the affidavit filed had some very serious errors -- the types of errors that shouldn't have been made. In both cases -- especially with the mooo.com seizure -- perfectly innocent people were severely impacted by these mistakes in the process. Just because a judge rubber stamps a warrant, it doesn't automatically make that warrant legal.

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  1. identicon
    Anonymous Coward, 25 Feb 2011 @ 5:03am

    On a similar tangent...

    This kind of reminds me of the way the Bush administration found a lawyer to tell them that water-boarding (and other torture) was legal. Now they just thumb their noses and say "We were acting under legal advice so that made it perfectly legal. You can't touch us! Nah-nanny-nay-nay!"

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