There is no pre-enforcement right to challenge search warrants. There are plenty of post-enforcement proceedings available. In re 381 Search Warrants Directed to Facebook, Inc. v New York County Dist. Attorney’s Off., 2015 NY Slip Op 06201, 2015 N.Y. App. Div. LEXIS 6067 (1st Dept. July 21, 2015):
This appeal raises the question of whether an online social networking service, the ubiquitous Facebook, served with a warrant for customer accounts, can litigate prior to enforcement the constitutionality of the warrant on its customers’ behalf. Rather than complying with the warrant, the online social networking service moved to quash the subpoena. The motion court summarily rejected the pre-enforcement motion, and Facebook appealed. The New York County District Attorney’s Office moved to dismiss the appeal, which we denied. After argument on appeal, we now hold that Facebook cannot litigate the constitutionality of the warrant pre-enforcement on its customers’ behalf.
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We now hold that Supreme Court’s summary denial of Facebook’s motion to quash the search warrants was proper because there is no constitutional or statutory right to challenge an alleged defective warrant before it is executed. The key role of the judicial officer in issuing a search warrant is described generally by the Fourth Amendment and more specifically by state statutes. None of these sources refer to an inherent authority for a defendant or anyone else to challenge an allegedly defective warrant before it is executed.
Criminal prosecutions officially begin with an arrest. However, even before the arrest, the law protects citizens against unconstitutional police tactics. The Fourth Amendment stands as the main protector of individual privacy from government intrusion. This protection is prophylactic, as “[t]he Amendment is designed to prevent, not simply to redress, unlawful police action” (Chimel v California, 395 U.S. 752, 766, 89 S. Ct. 2034, 23 L. Ed. 2d 685 n12 [1969]). Consequently, the specific protections of the Amendment aim to deter violations from occurring in the first place (id.).
The U.S. Supreme Court has recognized that the Constitution, through the Fourth Amendment, provides a significant number of ex ante and ex post protections to citizens. For instance, in United States v Grubbs, the Supreme Court recognized that:
“The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the deliberate, impartial judgment of a judicial officer … between the citizen and the police … and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages” (United States v Grubbs, 547 U.S. 90, 99, 126 S. Ct. 1494, 164 L. Ed. 2d 195 [2006] [emphasis added] [internal quotation marks omitted]).
The main ex ante protection derives from the Fourth Amendment’s Warrants Clause, which states, “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (US Const, Amend IV). The Warrants Clause is the main ex ante protection because it establishes the constitutional requirements for a valid search warrant (id.). More specifically, under the Warrants Clause, a law enforcement official must swear, under oath, that the information contained within the search warrant is true (id.). Like the Fourth Amendment, article 1, § 12 of the New York State Constitution requires an oath or affirmation in support of the warrant. Moreover, the Warrants Clause requires that the search warrant contain statements or facts that form probable cause to perform the search, as well as identify what items the police intend to seize and what places the police intend to search (id.). Any search warrant that does not contain the aforementioned requirements is per se unconstitutional and may not be issued by the court or executed by the government (see e.g. People v Gavazzi, 20 NY3d 907, 981 N.E.2d 256, 957 N.Y.S.2d 660 [2012]).
Whereas the Fourth Amendment provides a general framework, New York’s warrant statutes explain the procedural details of who can obtain the warrant, how it can be obtained, when it can be executed, and how a return on the warrant must be filed (see CPL § 690.45). Specifically, these statutes are designed to protect the constitutional rights of criminal suspects and defendants, beginning with the initial police investigation of a suspect. In promulgating the requirements of the warrant application, the legislature apparently wanted the judge considering the application to take nothing for granted. Accordingly, the application must include the name of the court where the application is being made, the applicant’s name and title, and a request that the court issue a search warrant directing a search and seizure of the designated property or person (see CPL 690.35[3][a] and [d]). The warrant application must also provide the judge with “reasonable cause” to believe that evidence of illegal activity will be present at the specific time and place of the search (see CPL 690.35[3][b]) and specify that the property sought constitutes evidence of a specific offense (see CPL 690.10[4], 690.35[2][b]).
Furthermore, the U.S. Supreme Court has required that a neutral and detached judicial officer or magistrate determine if a search warrant is valid under the Fourth Amendment (see Shadwick v City of Tampa, 407 U.S. 345, 349-350, 92 S. Ct. 2119, 32 L. Ed. 2d 783 [1972]). In addition to deciding if the warrant application establishes probable cause, the neutral and detached judicial officer must also ensure the law enforcement official has sworn, under oath, that the information contained within the warrant application is true and that it identifies the places being searched and the items being seized (see U.S. Const amend IV). In effect, the neutral and detached judicial officer serves as a constitutional gatekeeper and protects citizens from the actions of an overzealous government (see Johnson v United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed. 436 [1948] [noting protections of Fourth Amendment include having a neutral and detached judicial officer determine if the government has established enough probable cause to issue a search warrant]).
The motion to suppress is the most important ex post protection available to citizens. The motion to suppress is vital, because it can lead to the suppression of unconstitutionally seized evidence. Once evidence is suppressed, the government’s case could become impossible or significantly more difficult to prove. The reasons for making a motion to suppress can be quite broad. However, in the context of search warrant cases, motions to suppress typically cover several specific areas. For instance, a motion can be made on the ground that the search warrant was not properly executed by the government (see e.g. People v Sciacca, 45 NY2d 122, 379 N.E.2d 1153, 408 N.Y.S.2d 22 [1978] [warrant to search a car did not authorize entry into garage, where the car was parked, to effectuate the search]). In addition, a motion can be made on the ground that the government lacked probable cause. Even though the neutral and detached judge determined that there was probable cause, the defendant has a right to have the appellate court decide whether the judicial officer’s rulings were correct (see e.g. People v Bigelow, 66 NY2d 417, 488 N.E.2d 451, 497 N.Y.S.2d 630 [1985]). Likewise, a motion to suppress can be made attacking the search warrant itself, if a defendant believes the search warrant is invalid on its face or does not properly describe the place being seized and the property being seized (see e.g. People v Rainey, 14 NY2d 35, 197 N.E.2d 527, 248 N.Y.S.2d 33 [1964]; People v Henley, 135 AD2d 1136, 523 N.Y.S.2d 258 [4th Dept 1987], lv denied 71 NY2d 897, 523 N.E.2d 314, 527 N.Y.S.2d 1007 [1988]).
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Judges, as guardians of our Constitution, play an indispensable role in protecting the rights and liberties of individuals entrenched in the Constitution. Charged with the indispensable responsibility of reviewing warrant applications, they protect the rights and interests of individuals by remaining mindful of the reasonableness embedded in the Fourth Amendment’s delicate balance. The procedural rules attendant to the Fourth Amendment’s warrant requirement both reasonably protect the innocent and permit investigation of suspected criminal conduct. A judge reviewing a warrant request must always balance the nature and quality of the intrusion on an individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. Further, this balance invokes carefully weighing the extent to which each level of intrusion in the execution of the warrant is needed. Each level of intrusion involves an implicit assertion by the government that the intrusion is “reasonable” to recover the evidence described in the warrant despite the compromise of the individual’s interests in privacy. Ultimately, to be fair and effective, the overall assessment of reasonableness requires the judge reviewing the warrant to carefully evaluate the need for each additional level of intrusion in the process of seizing evidence.
Accordingly, the appeals from the order of the Supreme Court, New York County (Melissa C. Jackson, J.), entered on or about September 20, 2013, which denied the motion of Facebook, Inc. to quash 381 search warrants requiring Facebook to locate and produce user information, and placing Facebook Click for Enhanced Coverage Linking Searches under an order of nondisclosure, and from the order of the same court (Daniel P. FitzGerald, J.), entered on or about August 13, 2014, which denied Facebook’s motion to compel the District Attorney’s Office of the City of New York, New York County, to disclose the investigator’s affidavit submitted by the District Attorney’s Office in support of its application for the search warrants, should be dismissed, without costs, as taken from nonappealable orders.
