Vermont Files Cert Petition in Case on Ex Ante Search Restrictions for Computer Warrants

I have blogged a few times about the significant Vermont Supreme Court case on ex ante search restrictions for computer warrants, In re Appeal of Application for Search Warrant. For prior posts, see here and here. Last week, Vermont filed a petition for certiorari in this case. I have posted a copy of the cert petition here.

As readers may recall, the Vermont case involves whether magistrate judges have the power to impose ex ante search restrictions on warrants. Some individual magistrate judges have begun to condition the issuance of warrants to search computer warrants on specific conditions on how the warrant is to be executed. The magistrate in the Vermont case followed the Ninth Circuit’s controversial decision in United States v. Comprehensive Drug Testing (“CDT“) and refused to issue the warrant unless the government agreed to a comprehensive set of conditions including that the government agree to waive plain view. In the Vermont Supreme Court case, the court struck down the condition of waiving plain view as improper but upheld the remaining CDT restrictions. However, the court rejected my view, articulated in my 2010 article Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. 1241 (2010), that all such restrictions are improper and that the law of executing searches should be developed ex post by appellate courts rather than ex ante by each individual magistrate judge.

Here are some of my thoughts on the petition.

First, I agree with the state’s view that this is a hugely important question that is causing major confusion in the lower federal and state courts. Right now, each individual magistrate acts as as world unto himself when reviewing applications for computer warrants. Each individual state or federal magistrate picks and chooses whether to add search restrictions, and if so, what those restrictions are. Magistrates don’t know whether they have the power to impose these restrictions or what restrictions they should impose. Investigators aren’t sure if they can appeal denials of applications (at least in the federal system) or what the implications are of a failure to follow one of the restrictions. It’s a mess, and I strongly suspect that the Supreme Court will have to clear up the mess eventually.

With that said, the Vermont case is the first decision that squarely addresses whether magistrates have the power to impose ex ante search restrictions. There is disagreement among the circuits (and the concurring opinion in CDT) about the wisdom of such restrictions. The magistrates who issue such conditions think that they have the power to issue them, as cases such as this suggest. But my sense is that the Vermont case was the first state Supreme Court or federal appellate decision to answer squarely whether magistrates have the leal authority to add those restrictions.

With that said, this may be a rare opportunity for the Supreme Court to take such a case. The procedural posture of challenges that best raise the issue — challenges to denials of warrant applications — is rarely seen. To set up such a challenge in the federal system, for example, prosecutors have to have their request for a warrant denied, and then would have to appeal the denial; if the district court rejected the application, they would then have to appeal that denial, as well; and if they lost again, they would need to file their cert petition. Even assuming there is appellate jurisdiction to appeal such orders — dubious, in my view, except for mandamus jurisdiction — such ex ante litigation of a criminal case comes with a major practical problem. The problem is that taking the case on a multi-year trip through the appellate process means putting a criminal case on hold for several years while the statute of limitations is ticking and the rest of the evidence is growing stale. Putting a case on hold for so long would very likely jeopardize the case even if the appellate courts agree with the government. (And if any court agrees with the government along the way, there can be no appeals and therefore no Supreme Court review.) As a result, it will be the exceedingly rare case in which prosecutors are willing to put a case on hold for long enough to litigate the issue for a few years, just to get a ruling on the legality of ex ante search restrictions, that can lead to possible Supreme Court review. The Vermont case is a unique example of that happening. And even though there is no lower appellate court system in Vermont, it took a while to get there: just getting to a ruling from the Vermont Supreme Court took two years, during which the criminal case has been on hold.

Finally, who will file a Brief in Opposition in this case? It is an ex parte proceeding: The government is the only party. Before the Vermont Supreme Court, the Office of the Defender General acting as amicus curiae effectively played the role of opponent (see, for example, this brief). [UPDATE: I should have mentioned that EFF and the ACLU were also amici.] But justing looking quickly at the U.S. Supreme Court Rules, I don’t think they can file a Brief in Opposition; at most they can file an amicus brief opposing certiorari. That’s my guess, at least. I’m sure Stern & Gressman has something on this, but I’m not near my copy right now.