Judge Rejects Warrant Application, Because He Thinks None Is Needed
from the this-is-troubling dept
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.