by Mike Masnick
rom the this-is-troubling dept
Orin Kerr has a post about a bizarre decision by DC Magistrate Judge John Facciola, who decided to reject a warrant application
not because he thought there wasn't probable cause, but rather because
he didn't think that the government needed a warrant at all, and could
do the search it wanted without such a warrant. This is problematic on a
variety of different levels, and Kerr covers them all. The story
involves a police chase of a suspect with a gun. During the chase, he
threw away the gun. The police found the gun, and while they were at
it, the guy's mobile phone. The warrant was to do a thorough search of
the phone. Facciola said they didn't need a warrant since the phone had
been "abandoned." Whether or not the phone was actually abandoned, the
ruling is problematic (in part because Facciola has no way of knowing
if the phone was actually abandoned). But, just in general, it seems
that he doesn't have the discretion to make this kind of ruling anyway:
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:
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.
