Do Magistrate Judges Have a Power to Refuse To Sign Warrants Based on Expectations of How a Warrant Would be Executed?:
The Ninth Circuit's new computer search and seizure decision is particularly interesting because of the way it empowers magistrate judges. It envisions magistrate judges as activity overseeing the computer search warrant process, and in particular having the power and duty not to sign warrants unless the judge is satisfied that the warrant will be executed in a way that sufficient protects privacy. The opinion goes out of its way to task magistrates with the job of doing what they need to do to protect privacy:
The precedents I am aware of suggest that the answer is "no." See Abraham S. Goldstein, The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U. L. Rev. 1173, 1196 (1987) ("The few cases on [whether a magistrate judge can refuse to issue a warrant on the ground that the search may be executed unconstitutionally] hold that a judge has a 'ministerial' duty to issue a warrant after 'probable cause' has been established."); In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611, 613 (1st Cir. 1979) (noting the limited role of magistrate judges in issuing search warrants); Ex Parte United States, 287 U.S. 241, 250 (1932) (holding that a magistrate judge did not have discretion to refuse to issue an arrest warrant after the the grand jury returned an indictment, and noting that "the refusal of the trial court to issue a warrant . . . is, in reality and effect, a refusal to permit the case to come to a hearing upon either questions of law or fact, and falls little short of a refusal to permit the enforcement of the law.").
I think these authorities make a lot of sense. Under the Fourth Amendment, the magistrate's job is to determine if the warrant is based on probable cause and is sufficiently particular. These are the only requirements of the facial validity of a warrant, and so I would think are the only grounds for a magistrate judge denying a warrant. Otherwise you end up with a tricky situation. Imagine a magistrate refuses to sign a warrant unless the government makes promises as to how the warrant will be executed. On one hand, if the government's promises are enforceable, then the magistrate judge gets to determine the Fourth Amendment as she pleases regardless of what the district judges, circuit judges, and Supreme Court Justices say the law actually is. On the other hand, if the promises the government makes are unenforceable, then you end up with the very awkward situation of the government making a promise to a federal judge and then feeling free to break it.
Neither of these options are very good ones. But in my view neither is necessary, either: I don't think magistrate judges have the power to condition signing warrants on grounds other than probable cause and particularity. The constitutionality of how the warrant is executed is a question for judicial review after the warrant is executed, not negotiations with a magistrate beforehand. At least that's the traditional understanding: It appears to be no longer the law in the Ninth Circuit as of this morning.
[W]e must rely on the good sense and vigilance of our magistrate judges, who are in the front line of preserving the constitutional freedoms of our citizens while assisting the government in its legitimate efforts to prosecute criminal activity. Nothing we could say would substitute for the sound judgment that judicial officers must exercise in striking this delicate balance.Among the new powers that the Ninth Circuit today specifically bestowed on magistrate judges is this one:
The government should, in future warrant applications, forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn’t consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.(emphasis added). This raises a very important question that the Ninth Circuit doesn't address, perhaps because it never occurred to the judges on the en banc court: Does a magistrate judge have the power to refuse to sign a warrant that is based on probable cause and is constitutionality particular but that the magistrate judge fears would be executed in a way that is unconstitutional or otherwise too invasive?
The precedents I am aware of suggest that the answer is "no." See Abraham S. Goldstein, The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U. L. Rev. 1173, 1196 (1987) ("The few cases on [whether a magistrate judge can refuse to issue a warrant on the ground that the search may be executed unconstitutionally] hold that a judge has a 'ministerial' duty to issue a warrant after 'probable cause' has been established."); In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611, 613 (1st Cir. 1979) (noting the limited role of magistrate judges in issuing search warrants); Ex Parte United States, 287 U.S. 241, 250 (1932) (holding that a magistrate judge did not have discretion to refuse to issue an arrest warrant after the the grand jury returned an indictment, and noting that "the refusal of the trial court to issue a warrant . . . is, in reality and effect, a refusal to permit the case to come to a hearing upon either questions of law or fact, and falls little short of a refusal to permit the enforcement of the law.").
I think these authorities make a lot of sense. Under the Fourth Amendment, the magistrate's job is to determine if the warrant is based on probable cause and is sufficiently particular. These are the only requirements of the facial validity of a warrant, and so I would think are the only grounds for a magistrate judge denying a warrant. Otherwise you end up with a tricky situation. Imagine a magistrate refuses to sign a warrant unless the government makes promises as to how the warrant will be executed. On one hand, if the government's promises are enforceable, then the magistrate judge gets to determine the Fourth Amendment as she pleases regardless of what the district judges, circuit judges, and Supreme Court Justices say the law actually is. On the other hand, if the promises the government makes are unenforceable, then you end up with the very awkward situation of the government making a promise to a federal judge and then feeling free to break it.
Neither of these options are very good ones. But in my view neither is necessary, either: I don't think magistrate judges have the power to condition signing warrants on grounds other than probable cause and particularity. The constitutionality of how the warrant is executed is a question for judicial review after the warrant is executed, not negotiations with a magistrate beforehand. At least that's the traditional understanding: It appears to be no longer the law in the Ninth Circuit as of this morning.
Related Posts (on one page):
- What Happens When Comprehensive Drug Testing Meets the New Rule 41?:
- An Interesting Consequence of United States v. Comprehensive Drug Testing:
- How the Ninth Circuit Tried To End Plain View for Computer Searches Without Ending Plain View for Computer Searches:
- Do Magistrate Judges Have a Power to Refuse To Sign Warrants Based on Expectations of How a Warrant Would be Executed?:
- Ninth Circuit Enacts Miranda-Like Code for Computer Search and Seizure:
- Ninth Circuit Hands Down En Banc Decision in United States v. Comprehensive Drug Testing:
- Oral Argument in United States v. Comprehensive Drug Testing:
- An Analysis of United States v. Comprehensive Drug Testing:
Do you know what (if any) rulings there have been on requiring special procedures in other types of searches?
For instance, I understood (but only from fairly casual reading) that affidavits for search warrants seeking information from a lawyer's files stated they would use certain procedural mechanisms (like a filter team) to prevent priviliged information from being seen--the implication being that the magistrate would deny the request if such procedures were not in place.
If that were the case, this seems at least conceptually similar--though obviously protecting priviliged information is different than protecting against a broadening of the search in general.
My initial inclination is to disagree. First, the text of the Fourth Amendment appears to state a set of necessary, not sufficient, conditions for issuance of a warrant: "No warrants shall issue but upon probable cause . . . ." It does not say that every time executive officials go to a magistrate and ask for a warrant, they must get it as long as they fulfill the issuance requirements. It would have been easy enough to write: "Warrants shall issue upon probable cause . . . ." (Granted that we have long since abandoned a truly textual approach to the Fourth Amendment). Second, my sense, given the anti-federalist underpinnings of the Bill of Rights, is that the framers and ratifiers of the Fourth Amendment would have welcomed the wise discretion of the local federal magistrate as a buffer between a zealous prosecutor and "the people." If a local citizen were in violation of federal law, but that law were unpopular in a particular locale, I think the framers and ratifiers of the Bill of Rights would desire a kind of "magistrate nullification" in the same way that they so fought for a robust jury-trial right because they wanted local juries to nullify in the face of an unpopular federal prosecution. Third, I think that the institutional correctives discussed in U.S. v. Leon vis-a-vis keeping magistrate judges in line should assuage some of your concerns.
Okay, let's say you're right, and DIstrict Judge I.M. Nuts in the Central District of California genuinely believes that the Fourth Amendment requires the police to sing Barry Maniow tunes when they execute search warrants. The police don't want to, but Judge Nuts won't sign the warrant unless they go in hollering "Mandy" the whole time. The police finally agree, as they want the warrant.
When they execute the warrant, though, the police refuse to sing. What result? Suppression of the evidence for the Manilow violation?
The Constitution sets necessary requirements for the issuance of warrants, but does not seem to exclude additional requirements. I would guess that adding requirements is a legislative function, hence vested in Congress and not the Courts, but I think I'm a bit behind the times regarding who gets to exercise legislative functions.
This seems to be especially worrisome when innocent 3rd parties who are not accused of a crime are affected. A recent case where the FBI seized many or all servers in a datacenter containing the target of a search warrant. The exclusionary rule obviously won't help the innocent affected companies. This case mentions returning the records / computer within 60 days. Going without computers ( or having to rebuild everything ) for 60 days would kill a good number of companies.
Mandamus. I don't see this as a likely problem.
Suppression, it seems to me, is the proper remedy (your hypo implies that the failure to comply was intentional and perhaps even foreseen). What other alternative would be even mildly meaningful?
Also, because I really don't know the answer: cannot the police/prosecutor seek assistance if they believe the magistrate is improperly limiting (or refusing to sign) their requested warrant, presumably through some sort of appeal? I gotta believe the answer is yes. If so, the danger of unreasonable warrant limits is substantially limited. Even in the absence of such an appeal, the p/p could always begin a compliant search, then seek looser reins based on a more experienced showing.
I thought Kozinski's opinion was remarkably rule-makey. But I don't have a problem with the proposition that a magistrate may take steps to ensure that a search will actually comply with the 4th Amendment.
"You came and you gave without taking, but I sent you away, oh, Mandy..."
Seems to me that judges are supposed to make sure the Constitution is followed at every step of the way, not just on appeal afterward.
Or does it go well beyond that?
As a non-lawyer, I would agree, but it seems to me that there is a presumption built into our judicial system that the Government agents are always acting in good faith.
The more I read this decision, the more I believe it was written particularly harsh because the Government has been abusing computer searches for years and the 9th Circuit felt a need to put a tight leash on them.
For example, if the government wants a warrant to search for illegal ammunition, the Magistrate does not expect that everyone on the premises will be strip searched. Your rectum is container. And ammunition could theoretically be hidden there. But unless there is probable cause to think the ammunition would be hidden in someone's rectum, the probable cause does not justify a body cavity search.
This is simply about ensuring the search does not extent beyond the bounds justified by the probable cause presented.
Is Judge Kozinski's opinion not essentially concerned about a problem of particularity here? "The point of the Tamura procedures is to maintain the privacy of materials that are intermingled with seizable materials, and to avoid turning a limited search for particular information into a general search of office file systems and computer databases." (11876)
The court's language about "waiver" and "forswear" that you quote is a little odd, and you certainly know more about warrant procedures than I do. But in substance, a warrant expressly limiting the government's ability to use intermingled nonseizable materials seems like a reasonable attempt to narrow the scope of the warrant to legitimately seizable material -- and consistent with the role of the magistrate you outline, about which I assume you are wholly correct.
The earlier commenters' arguments that the government's remedy if it doesn't like a warrant that is limited in that way is mandamus -- probably under a looser advisory mandamus approach the first time in a circuit to establish the governing law, then under a stricter supervisory mandamus standard to enforce that law against an erratic magistrate if necessary in the future. If the government doesn't pursue that avenue and violates the terms of the warrant, then suppression (or Bivens / section 1983) is the remedy for the owner of the information.
This is an amusing response given that my law review article on this topic argues that the plain view exception should be abolished for computer searches. (Not to mention that I often blog for the defendant in prominent S&S cases, like Virginia v. Moore.)
Seems to me if the judge is an impartial finder of fact and issuer of rulings of law, he has no business whatsoever closely supervising the police in the conduct of their duties. The decision seems to me to be a step towards the civil inquisitions prevalent in Spain and France. Seems to me this would also give rise to a pretty serious conflict of interest when the individual searched later seeks to surpress.
(1) Evidence on a computer hard drive cannot be "plainly viewed" in the process of looking for something else. If you see the content of "C:\Oren's illegal stuff\Child_porn.jpg" it's because you specifically and intentionally requested the data from that file to be displayed.
If we must reason by analogy (even in cases where straightforward reasoning seems to be sufficient), then the files on a computer are analogous to closed containers with the filename (and other metadata such as last-modified time, security and such like) stamped on the front. Since officers conducting a warrant may not look into random closed containers without them falling under the particularity requirement, they should not be able to open files except those relevant to their search.
(2) Applying (2) to a computer search is likewise illogical, since this is all done by forensics folks in a back office. One might read "lawful" to mean "within the scope of the warrant", but that's circular.
(3) File have no external "character" that can be incriminating. Each has only a name (which may or may not reflect the contents) and some generally-useless metadata. So the idea that you can discern the "obviously incriminating" nature makes little sense.
Since there should be no plain-view doctrine for these computer searches, there is no need for the magistrate to deny searches that will be conducted in an overly broad manner since anything discovered outside the particulars of the warrant ought to be supressed.
Doh! I totally missed that part and cluttered up the thread with a poor version of that argument.
So the 9CA is making one bad rule to fix the obvious problems in applying another bad rule. Given that PVE in CS might continue for some time, this bad rule might be a net positive.
Yes, I think that's pretty much what is happening; I have a post coming up on that soon.
If these provisions are troubling to Orin, so should be the exclusionary rule. That's originally a court-created rule designed to give teeth to the search and seizure protections of the 4th amendment by manipulating the evidentiary rules. Congress can always step in here, but if the 9th Circuit wants to protect the 4th amendment in digital search situations by threatening use of the exclusionary rule whenever law enforcement or magistrates fail to observe the 9th Circuit's prophylactic rules, there is precedent for it.
Interestingly, the text of the 4A also does not limit the officer's search to the particular items described. Taking the text far too literally would then suggest that so long as the affidavit particularly describes some item to be searched, other things may be searched as well. This is utter nonsense.
Surely the particularity requirement is meant, in some fashion, to restrict the search to things actually described in the warrant. I agree that the 9CA solution in this instance is not appropriate, but I sympathize with the desire to impose this requirement in some fashion.
But they are not threatening to exclude (which would be proper for a court), they are asserting the right to supervise the search from the inception.
Or rather, to the extent that the search exceeds the warrant, we're back to the original rule, which is that searches (and seizures) may not be "unreasonable".
You may want to note somewhere that this is the BALCO case. I realize it's not relevant to the substance, but I suspect many fans/lawyers were waiting to see how it came out and I completely missed the connection until I read the "official" case name on ESPN.
No, because there is no Fourth Amendment violation!
You are conflating the question whether the Fourth Amendment prohibits the magistrate from imposing additional requirements with the question whether any positive law authorizes the magistrate to take such an action. I was answering only the first question, as your original post, if I read it correctly, seems to argue that the Fourth Amendment imposes not only the constitutionally necessary conditions for issuance of a warrant but also the constitutionally sufficient conditions for issuance of a warrant. ("Under the Fourth Amendment, the magistrate's job is to determine if the warrant is based on probable cause and is sufficiently particular. These are the only requirements of the facial validity of a warrant, and so I would think are the only grounds for a magistrate judge denying a warrant.")
Suppose Congress passes a statute (the Manilow Execution of Warrants Act, or MEWA) requiring federal agents to sing "Mandy" while executing a warrant. Agents fail to do so, though the warrant itself is valid and otherwise executed properly. There would be no suppression, unless that were the remedy prescribed by the statute, because there is no Fourth Amendment violation -- only a violation of the statute. But as I read your remarks, you seem to think the statute would be unconstitutional because it adds to the bare minimum prescribed by the Fourth Amendment (a la Powell v. McCormick, perhaps). For the reasons I have already stated, I disagree.
Now that I have answered your question, maybe you can address my arguments based on the text and and original public meaning of the Fourth Amendment.
The only question is whether this power lies only with the legislature, or also with the courts or even magistrates.
I'm not sure why Grubbs would be a relevant precedent here. There doesn't seem to have been any attempt at judicial discretion there. The only question there seems to have been whether an anticipatory warrant is possible given the requirements that the fourth amendment explicitly sets.
Neither of these cases speak to the possibility of enacting an additional requirement by statute, or by "common law" lawmaking in the Court of Appeals, as in this case.
I disagree with your reading if those cases. For example, Grubbs seems to me to say that you can't just start imposing additional requirements on the warrant: That's what the 9th tried to do, and that's what the SCT said was not permitted. Or do you read Grubbs as saying that courts are free to invent new common law requirements, but just that the SCT didn't agree that those were good common law requirements to add?
I would think that also means that the Ninth Circuit could do so, so long as everything else was silent.
Anyway, I took a look at the law review bit you did Orin, and saw where you argued for abolishing plain view (as one possible outcome). In the absence of action by the Supreme Court, could Kozinski et al have just eliminated it more head-on, rather than by requiring the government to "waive it" lest magistrates not issue the warrant? Seems like a more straightforward way to do it, but I always thought those were bugaboos with whether a lower court can abolish a legal rule of general application in what it believes a new circumstance.
This is curious, given that I'd imagine the overriding purpose of the warrant requirement is to protect against "unreasonable" searches and seizures, but I guess it only serves to show that the US is less of a common law country than they like to think.
That leaves the possibility of enacting the Barry Manilow rule in the legislature, as suggested by Michael J.Z. Mannheime in his 5:38 comment. It also leaves the possibility of bringing a new requirement within the existing ones, or arguing it from another amendment entirely. (Privacy = Griswold = 5th, 9th, &14th?)
If the police want to search for illegal ammunition and show probable cause and state the place to be searched, the magistrate cannot say "you cannot burn down the house to find the ammunition" or "you cannot strip-search everyone to find the ammunition". Though those are reasonable restrictions that may prevent fourth amendment violations in the execution of the warrant, that's simply not the Magistrate's job.
Let me give you an example. The police have tracked a series of computer hacking incidents to an IP address, and from the IP address, to a partiuclar apartment. As part of the warrant for the home, they include a reqeust to search for evidence of dominion, ownership and control of the apartment. The warrant also authorizes the officers to search for a computer, for files relating to the hack, and includes specific authorization to search for items showing who has dominion, ownership and control over the computer at the time the hack occured.
They hit the apartment, and find a photo album of the suspect. In the back of the album are printed CP pictures- found during the search for dominion and control evidence in plain view.
During the search of the computer, the examiner searches the my pictures folder and finds in addition to family pcitures that match those of the suspect in the album, images of CP that were downloaded.
Why should plain view be different for the computer?
What leagal principle gives cops gr8ter discretion than judges here? The obvious answer is that judges absolute discretion under 4A.
The examiner of the computer should not have looked in "My Pictures" since it cannot possibly contain evidence of the crime of computer hacking for which the warrant was issued.
selective cites -- in a hed up dark place bias in selective citing -- 4A makes it clear that judges, not cops, are primary 4a tribunal -- bvut, hey, 9/11 and stuff!!!1!!
A tribunal judges actions after they have transpired. It doesn't monitor them or place conditions, ex ante.
The proper thing is to suppress the fruits of searches that are outside the particularity of the warrant, not to concoct whimsical schemes to be applied at the point of search.
In Grubbs, the court found conditions ex ante on a warrent to be constitutional. So they do place them ex ante.
Now that is change I can believe in!
I agree, it's incorrect to say the evidence "can't possibly" be there. But the additional and unusual intrusiveness of the search is unreasonable unless justified by additional and unusual probable cause.
Then let's just have the magistrates conduct raids and traffic stops and criminal investigations, since the interest vindicated by those activities, apparently, is safeguarding the constitution.
On the other hand, some would argue that the executive branch has some interests to vindicate in its law enforcement activities. Why do they hate the Constitution?
But isn't that what the various abstention doctrines, and similar things like prudential standing, do? You'd think they can refuse to do anything unless there's an indistinguishable case saying there's no abstention applicable, correct?
You're joking, right?
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