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 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
    RD, 25 Feb 2011 @ 6:40am


    "I am sure the warrant will be revealed at some point in the future, and will be shown to valid on it's face (which is pretty much the standard)."

    You think its going to turn out to be legal to seize 84,000 website domains that had NOTHING to do with whatever laws were broken by a FEW of the domains? Really?

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