You pull over, hand the cop your license and registration. Give proof of insurance. He explains that you were violating some provision or other of the traffic code.
And, oh, do you happen to have any illegal drugs in the car?
Next thing you know there's a dog wandering around your car, then your stuff is being piled up on the side of the highway, a couple of high fives between the cop who stopped you and the one who came by with the dog, and it's off to the local lock-up.
If you've got the money (or know someone who does and is willing to front it), you hire a lawyer. Otherwise, one gets appointed. Maybe you get out on bond. Maybe you sit in an orange jumpsuit eating bologna sandwiches on stale Wonderbread.
Six months later you're in court. Maybe you're pleading guilty. Maybe you're there for a hearing on a motion to suppress the drugs because, you say, that traffic cop had no lawful basis to pull you over. More, even if he could have lawfully stopped your car, he had no lawful basis to ask about drugs or bring out the dog or search the car. And those statements you made.
OR you're sitting at home minding your own business when there's a knock on the door and it's a bunch of cops, and one of them shows you a warrant to search your house for books and records and computer files and guns and ammunition and god knows what all. And then it's off to the local lock-up.
OR instead of knocking on the door the first thing you know is that while you're watching the latest episode of CSI - You're Fucked, there's a smash and a dozen guys wearing black face masks are charging through the house, yelling, maybe shooting the dog, and throwing you face-down on the floor, kneeling on your back and holding the business end of a gun against the back of your neck. And then it's off to the local lock-up.
Six months later you're in court. Maybe you're pleading guilty. Maybe you're there for a hearing on a motion to suppress because, you say, that warrant was no good or the search exceeded its scope or. And those statements you made.
Or, of course, they found nothing and nothing ever came of it except that you were left on the side of the road with all the crap you keep in your car or maybe your suitcases and dirty clothes and maybe some of the pieces of your car spread out on the ground in the mud and the rain.
Or they found nothing but the neighbors saw the SWAT tank and figure where there's smoke, and now nobody will talk to you and there's a note in your mailbox scrawled in crayon saying
We've got our eyes on you
And the dog is still dead.
* * * * *
Magistrate Judge Facciola has issued another opinion. Again he's denied a search warrant.
No, he tells the government agents, you can't have a warrant to seize e-mails and then search them. Sure, that may be the way you agents typically do it. And that may be what you do with computers because the logistics of searching them on-site for the specific stuff you're looking for are too great, and you can't expect that the prospective bad guy will just point you to where he's got the stash of illegal kiddie porn or the plans to blow up the Golden Gate Bridge or the names of all the folks he's bribed.
But while it may be unreasonable for agents to do that search on site so they get to seize first, e-mail is different. Google can run a quick search and give you the stuff you want. You don't need first to seize all the e-mail and then paw through it at your leisure hoping to stumble across something incriminating.
The Fourth Amendment, see, protects against unreasonable searches and seizures. And seizing more than you need is inherently unreasonable. And in this case, you don't get to seize, then search.
So, in a nutshell, said Facciola. So he denied the warrant.
Volokh Conspirator and law prof Orin Kerr says he's wrong. Not wrong to have denied the warrant, he's silent about that. But wrong to have denied it for the reason he does.
The time to decide whether the seize first procedure is unconstitutional is after it happens. At a motion to suppress the allegedly unconstitutional procedure. Then there can be full briefing and evidence about how and why this was or was not a proper process. That, after all, is how Fourth Amendment cases work. The government allegedly violates the law, then the courts decide. Maybe evidence gets suppressed (if the marginal benefits of suppression outweigh the enormous costs of potentially letting the bad guy off). Maybe not. And in some truly extraordinary case, maybe the guy with the dead dog but nothing to suppress gets a few bucks for the burial.
First, Judge Facciola’s new opinion reminds me of why I think it is necessary for such reasonableness issues to be litigated ex post in the context of adversarial litigation rather than announced ex ante in response to ex parte warrant applications. The reasonableness of executing the warrant is something that ordinarily would be analyzed ex post in the context of adversarial litigation. The defense would say that the execution of the warrant was unreasonable, and the government would disagree. A court could have a hearing into the specific facts, and witnesses could be called to testify. The parties could file briefs and argue the cases and principles on their side.
By predicting ex ante that the means of executing the warrant will be unreasonable, and then denying the warrant application on that basis, Judge Facciola’s opinion is essentially making a factual finding without facts and a legal conclusion without any briefing on the law. In my view, that’s not the way Fourth Amendment litigation should work. As I argued in my amicus brief in the Fifth Circuit, I don’t think there is yet a ripe dispute on which a court can enter a Fourth Amendment ruling about the reasonableness of the future search. If DOJ ends up appealing Judge Facciola’s denial to the district court, I may end up rewriting my amicus brief for DC Circuit caselaw and filing a version of it in the district court. But it’s too early to know, so that’s just a possibility.
Of course, he's right that there's a benefit to full adversarial briefing and the taking of evidence if the judge is going to decide if the cops violated the Constitution. But here's a question:
- Is it better that the cops violate the Constitution and then, if there's a motion to suppress (which there won't always be - remember those times at the top of this post when my hypothetical you just entered a plea), get told they did a bad?
- Or is it better that they be prevented from doing a likely bad?
- Clean up the mess on the floor?
- Don't make the mess on the floor?
The judge, in issuing the warrant, is supposed to favor the second. Don't let them do the unconstitutional thing. And if he's wrong? Well, a guilty guy may get another few days or weeks before being arrested. And there may not be the chance for full adversarial testing of the judge's call.
But we know, for sure, that the Constitution will not have been violated.
Which is supposed to be the idea. The very reason the agents are supposed to get a warrant.
* * * * *
The story is that Lyndon Johnson, when asked why he kept Bobby Kennedy on as Attorney General given that they hated each other, said
It's better to have the bastards on the inside of the tent pissing out than on the outside pissing in.