The USMJ’s requirement of a taint team to review the materials seized in execution of the search warrant is unnecessary in this case and not required by the Fourth Amendment, and it is set aside. United States v. Sealed Search Warrant, 2017 U.S. Dist. LEXIS 125792 (N.D. Ala. Aug. 8, 2017):
B. The Government Is Permitted To Review Documents That May Be Non-Responsive to the Warrant To Determine Which Documents Are, in Fact, Responsive.
While the magistrate judge is likely correct that there are innocuous emails amongst any incriminating ones, “some perusal” is generally necessary to determine the “relevance of documents to the crime.” United States v. Slocum, 708 F.2d 587, 604 (11th Cir. 1983); see also Andresen v. Maryland 427 U.S. 463, 482 n.11, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976) (“In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.”). In noting that “an officer executing a warrant is entitled to examine any document he discovers” (Slocum at 604), the Eleventh Circuit has shown that it has contemplated the fact that officers executing a search of documents will inherently be exposed to documents and information that are not the subject of the warrant, but the Circuit does not consider such cursory review alone to be a violation of the Fourth Amendment. However, the Government’s perusal must cease once the inapplicability of the warrant becomes clear. Id.
When an officer comes upon a container that might contain incriminating evidence, that container “may be opened immediately.” United States v. Ross, 456 U.S. 798, 823, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). The allowance of searching with immediacy suggests that the investigative team itself is allowed to search despite the possibility that innocuous materials might be present. Indeed, the Court stated that the privacy interest “must give way to the prompt and efficient completion of the task at hand.” Id. at 821 (emphasis added).
Clearly, both the Supreme Court and the Eleventh Circuit have contemplated the realities of warranted searches. They both have carefully considered the Fourth Amendment protection that should be afforded to innocuous documents and found that searches must be allowed unimpeded despite the document owner’s privacy interests. Accordingly, the Government will be afforded deference in determining the search protocol for the fruits of this warrant.
C. The Reasonableness of a Search Is Appropriately Judged After the Fact; Therefore, the Government Will Be Shown Deference in Executing the Search.
In the application for an arrest warrant, the Fourth Amendment interposes the “impartial judgment of a judicial officer” between citizens and the police “to assess the weight and credibility of the information which the complaining officer adduces as probable cause.” Wong Sun v. United States, 371 U.S. 471, 481-482, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The Supreme Court later clarified that this ex ante protection also applies to search warrants, adding that the Fourth Amendment provides, “ex post, a right to suppress evidence improperly obtained and a cause of action for damages.” Grubbs, 547 U.S. at 99. That ex post protection is the “later judicial review as to [the] reasonableness” of a search that is required by Dalia. 441 U.S. at 258; see supra Part II at 7; see also Warshak v. United States, 532 F.3d 521, 528 (6th Cir. 2008) (en banc) (Noting that Fourth Amendment reasonableness is judged “after [factual] circumstances unfold, not before.”).
Despite this guidance from the Supreme Court, magistrate judges have at times attempted to dictate the method that the Government should use to execute a warrant; however, district courts have found these attempts to be inappropriate. In the Matter of the Search of Information Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc., 25 F. Supp.3d 1 (D.D.C. 2014) (hereinafter “Apple I”). …
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)