The comment thread to yesterday’s post on ex ante restrictions for computer warrants led to some interesting questions, and it also suggested that it might be helpful to explain the historical role of warrants, the particularity requirement, and magistrates, in order to understand how ex ante restrictions strongly depart from the historical norm. So here’s the historical context for readers who are trying to understand the issues.
The Fourth Amendment was enacted in response to a series of historical abuses involving warrants. Back in 18th Century England, the King’s officials were issuing warrants allowing government officials to break into any home and retrieve anything inside that was evidence of disloyalty to the King. These warrants were called “general warrants” because they did not limit where the police could search and what evidence they could look for and take away. The Fourth Amendment was designed to forbid general warrants: it states quite specifically that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In other words, the government had to say specifically where it was going to search, specifically what it was going to seize, and then explain why there was probable cause to believe that thing to be seized was in the place to be searched. The former part is the particularity requirement: The face of the warrant has to say with particularity where the police are going to search, and what they are looking for (and therefore plan to seize if they can find it).
The magistrates who review applications for warrants typically have not been legal scholars. Indeed, historically most were not even lawyers. Even today, there is no requirement that magistrates who issue warrants have any legal training or even serve as judges. The leading modern Supreme Court case is Shadwick v. City of Tampa, 407 U.S. 345 (1972), which expressly rejected the requirement that magistrates must be lawyers or even some sort of judge. In Shadwick, the Court concluded that a court clerk could issue warrants even though the clerk lacked legal training and was not a judge. As long as the clerk was not working for the investigators and was otherwise independent, the clerk satisfied the constitutional requirement and could perform the relatively basic functions of magistrates in checking warrant applications for probable cause and particularity.
Against this historical backdrop, the assertions that magistrates have the power to impose ex ante search restrictions on warrants strike me as rather astonishing. When imposed, such restrictions limit how the police execute the warrant after it is signed and what the rights of the police are going forward: What steps they can take, when they need to file reports, what evidence they can later use, and the like. As a result, the power to impose ex ante restrictions is the power first to look into the future of Fourth Amendment law and imagine what rules the Fourth Amendment might impose on the execution of computer searches, and then to impose a series of prophylactic rules on the police for all time forward as to what they can and cannot do in that case and with the evidence they find. Further, the idea is that each individual magistrate has the power to devise whatever restrictions he or she finds useful every time he or she signs a warrant. Every single warrant application is an entirely new opportunity to peer in to the future and craft a brand new set of prophylactic rules, limited only by the creativity of that magistrate judge and his or her latest personalized sense of what seems “reasonable.” I find this alleged assertion of power quite astonishing.
Defenders of the practice of ex ante search restrictions generally make two arguments. The first argument is that magistrates are often smart people who know how to protect privacy, so we should let them do that. There are three problems with this argument, I think. First, warrant applications are brief ex parte applications with no facts: Judges are smart, but they can’t apply the fact-specific Fourth Amendment in a vacuum. Second, while no doubt some magistrates are smart, some aren’t, and allowing ex ante restrictions doesn’t distinguish between the two: The proposed rule allows magistrates to impose any restrictions they like, no matter how silly they may be. Third, as I explain in my article, the absence of ex ante restrictions will prompt and facilitate ex post restrictions by appellate courts that will make ex ante restrictions unnecessary.
The second argument made by defenders of ex ante search restrictions is that ex ante restrictions are part of the particularity requirement. The thinking is that computer warrants can be incredibly broad because computers store so much information, making computer warrant searches look a lot like general warrant searches. The particularity requirement requires warrants to specifically state on the face of the warrant what the police will search for and seizure in order to narrow the scope of the warrant execution. Expressly limiting the powers of the police as they execute the warrant serves the same function, the thinking goes: Limiting how the police search avoids general searches just like limiting what the police can seize.
This argument is based on fundamental misunderstanding of the Fourth Amendment, I think. The prohibition on general warrants is not a prohibition on invasive searches. Rather, it it is a limitation of such searches to particular places for particular pieces of evidence. As the Court’s cases make clear, where the police can search and for what is an analytically distinct question from how they can search those places. While magistrates have to review warrants to make sure they particularly describe the where and for what based on probable cause, the legal questions of what kinds of ways of executing the warrant are constitutionally reasonable are legal questions for the appellate courts to decide, not individual magistrates (who may not be lawyers or judges) in each individual case.
The leading case here is United States v. Grubbs, 547 U.S. 90 (2006), a case involving anticipatory warrants. Anticipatory warrants are warrants that are triggered by some particular future event, such as the delivery of a package containing drugs. The Ninth Circuit had held that when the police obtain an anticipatory warrant, the warrant had to state the triggering event on its face. The Ninth Circuit reasoned that the particularity requirement applied to the triggering condition, as the condition was the event that permitted the issuance of the warrant. The Supreme Court unanimously reversed the Ninth Circuit with the following explanation:
The Fourth Amendment, however, does not set forth some general “particularity requirement.” It specifies only two matters that must be “particularly describ[ed]” in the warrant: “the place to be searched” and “the persons or things to be seized.” We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters. In Dalia v. United States, 441 U. S. 238 (1979), we considered an order authorizing the interception of oral communications by means of a “bug” installed by the police in the petitioner’s office. The petitioner argued that, if a covert entry is necessary to install such a listening device, the authorizing order must “explicitly set forth its approval of such entries before the fact.” Id., at 255. This argument fell before the ” ‘precise and clear’ ” words of the Fourth Amendment: “Nothing in the language of the Constitution or in this Court’s decisions interpreting that language suggests that, in addition to the [requirements set forth in the text], search warrants also must include a specification of the precise manner in which they are to be executed.” Id., at 255 (quoting Stanford v. Texas, 379 U. S. 476, 481 (1965)), 257. The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant.
I think this discussion refutes the argument that search restrictions are part of the particularity requirement.