No Probable Cause, So Search Away

Orin Kerr is a law professor and a smart guy.  So when he was explaining at the Volokh Conspiracy (in its new home at the Washington Post) just why Magistrate Judge John Facciola of the U.S. District Court in DC was completely fucking wrong in his opinion (opinion, frgodsakes) explaining why he was refusing to issue a search warrant - well, he didn't say "completely fucking wrong."  Instead, he gave this point-by-point, analytical, legal and policy explanation of just how far off the tracks Facciola went.

Which is fine if you're interested in that sort of careful, lawprof thing.  (I am, which is part of why I read much of what the conspirators at Volokh have to say - at least, as long as I can still get at it for free.)  But if you want the down and dirty explanation?  And if you want to know what the real problem is with Facciola's opinion (and maybe why he wrote one), then you come to guys like me.

Start with the story.  

John Wright, who's not just a DC cop but a Narcotics and Special Investigation Division Gun Recovery Unit Officer (NSIDGRUO if you're feeling the need for an initialism), along with one Officer Sheehan, see some guy walking along one February day with an open coat over his hoodie and his right hand in the hoodie's pocket and pressed against his waist.  Sheehan asks the guy if he's got a gun.  The guy says no.  Sheehan asks to see his waistband.  The guy steps behind a car.  Sheehan asks again and the guy runs.

So then there's a chase through the DC highways and byways, streets and alleys.  Eventually the guy is caught, but not before he tosses something away which pretty clearly seems to be the gun that had been in his waistband.  After they get the guy (and the gun) they go back over the route of the chase and come upon a smartphone.  Public spirited citizens that these NSIDGRUOs are, they check out the phone to try and figure out who lost it.  Lo and behold, Wright finds photographs.  And naturally, well, he is trying to identify the owner after all, he 

looked through the photographs and included in the photographs were numerous pictures of firearms.

Bingo, as they say.  Surely the owner is the guy with the gun.  Who's probably a gun runner or a drug dealer or maybe a hired killer out for a stroll.  Surely the answer is in the phone.

So Wright goes to Facciola and swears out an affidavit for a warrant and figures he'll get it because why the hell not and then he'll check out all the goodies in the phone.  

Except, well, except for Facciola who makes two points in his opinion, one impressively right, the other grossly wrong.

1. There's no probable cause to search the phone.
2. It would be wrong to issue a warrant because the law doesn't require one.

Let's look at these in turn.

Item 1.  No probable cause.  Here's Facciola's explanation (footnote deleted).

The Application requests "any and all electronically stored digital media, including but not limited to, evidence of ownership, subscribers, address books, call logs, phone books, photos, images, text messages, contact information, voice mails, images,1 video, and any other stored electronic data." Affidavit at 6. However other than with respect to the pictures and videos there is no evidence to support a finding of probable cause with respect to these broad categories of information. Officer Wright's suggestion of a link between cell phones and "possession of firearms and distribution and possession of illegal narcotics" may be generally true, but he has provided no evidence that this phone has been used for any purpose relating to firearms other than taking pictures. Id. at 5.

When there's no probable cause, there should be no warrant.  Wright wants one.  Can't get it.  End of story.  Or it should be.  And when a judge turns down a request for a warrant - well, it's both unusual and kinda ballsy.

Except that there's also

Item 2.  Can't get a warrant because you don't need one.  See, Facciola follows that explanation of why Wright hasn't made a showing sufficient for a warrant by explaining,

This is, however, an academic discussion in light of the specific facts presented to this Court in the Application.

Academic because they won't get a warrant anyway - because they don't need one.

This Court recognizes that it only has one version of events, which have been presented ex parte. Nevertheless, the Court can only rule on a warrant application based upon what is presented to it. In light of that, the only conclusion that the Court can reach is that Rivers abandoned the phone.

Hey, the cops said it was abandoned, and I haven't heard from anyone else, so it must be true.  And since it's abandoned . . . .

Because Rivers abandoned the cell phone, Officer Wright had a right to search it. See United States v. Nordling, 804 F.2d 1466. 1469 (9th Cir. 1986). It is settled law that a warrantless search of abandoned property does not violate the Fourth Amendment. See Abel v. United States, 362 U.S. 217, 241 (1960) ("So far as the record shows, petitioner had abandoned these articles.... There can be nothing unlawful in the Government's appropriation of such abandoned property."). Thus, because Rivers has abandoned the cell phone, no warrant is needed to search it and the Application is therefore moot.

And so the warrant is denied.

Let's take a moment and step back.

First, Orin's right.  The judge has to issue a warrant if there's probable cause for one.  Refusing to do that has all the legal and policy problems he points to.  But Facciola's probable cause analysis makes clear that he shouldn't have issued the warrant because there is no probable cause.

No warrant.  No search.  Everyone goes home.  (Well, maybe not Mr. Rivers, he of the open coat, the hoodie, and the abandoned gun.  But everyone else.)  

But Facciola's not playing that game.  He's not the detached and neutral magistrate simply telling the cops it's a no go.  Instead, he's joining the team.  Hey guys, he says, I could and should turn down your warrant application because you haven't got probable cause to search.  But then you wouldn't get to search.  Instead, I'll give you an out.  Search away because I'm declaring that you don't need one.

Typically, what happens is that after the cops conduct their warrantless search and find incriminating stuff, the defendant moves to suppress the results because the cops needed a warrant.  The defense makes its pitch, the government makes its.  Then the court rules for the government.  (Actually, the government goes first when challenged if the search is done without a warrant because the gov has to prove it had a right to search anyhow, but that's a quibble.)  The thing is, everyone gets a chance to make the argument.  And once in a while the defense even prevails. (It's rare, but it happens.)

Except this isn't typical.  This time the judge doesn't bother waiting for the defense arguments.  He rejects the defense argument and evidence out of hand because the cops said the phone was abandoned, so it must be so.

The courts talk about warrants issued by a "neutral and detached magistrate."  They don't say anything about a magistrate who puts his thumb on the scale and gives directions about how to search when there's no probable cause.

Law of Rule.

  Facciola Warrant Refusal Opinion