Posted by Orin Kerr:
Do Magistrate Judges Have a Power to Refuse To Sign Warrants Based on
Expectations of How a Warrant Would be Executed?:
http://volokh.com/archives/archive_2009_08_23-2009_08_29.shtml#1251311240
The Ninth Circuit's [1]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:
[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 declines to 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.
References
1. http://www.ca9.uscourts.gov/datastore/opinions/2009/08/26/05-10067eb.pdf
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