A USMJ issued a search warrant for defendant’s computer and hard drive that had not yet been searched. The USDJ declines to issue a stay to stop the ongoing search because the defense cannot show a likelihood of irreparable harm because of other possible remedies. United States v. Boozer, 2017 U.S. Dist. LEXIS 205529 (D. Ore. Dec. 13, 2017):
Defense counsel received a copy of the new warrant and supporting affidavit on December 1, 2017, On December 11, 2017, defendant filed the instant motion to stay execution of the second warrant, noting his intent to file a motion to suppress all evidence obtained from the seized computer and hard drives. Defendant also requests an evidentiary hearing and discovery in advance of that hearing. In a December 12, 2017, email to the Court, the government reported that the second search was already underway and had begun before defendant filed the motion for a stay. The government took the position that a district court judge lacks jurisdiction to stop an in-process search when a warrant authorizing that search has already issued.
I cannot accept the government’s position that I lack jurisdiction to overturn a magistrate judge’s probable cause determination. It is well-established that such determinations, though “accord[ed] great deference,” are subject to review to ensure that there was a “substantial basis” to issue the warrant. See, e.g., United States v. Hamilton, 434 F. Supp. 2d 974, 984 (D. Or. 2006). Like other nondispositive pretrial decisions, the probable cause determination is reversible if it is clearly erroneous or contrary to law. Id.; see also 28 U.S.C. § 636(b)(1)(A). This authority should be exercised judiciously, particularly when a search is already in process. But a district court judge does not lose her authority to correct a grave injustice simply because a search has already begun.
Having established that I have jurisdiction to consider defendant’s motion for a stay, I nonetheless conclude that a stay is not warranted here. In determining whether to grant a stay, courts consider “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009). Defendant’s theory is that both the first and second searches were fruit of the poisonous tree because no exception to the warrant requirement applied, rendering the seizure of the computer and hard drives illegal.
I am compelled to deny defendant’s motion for a stay because he has not shown a likelihood of irreparable harm. Defendant argues that permitting the second search to continue will compound the unlawfulness of the original search by making it “more difficult to separate and identify the primary taint of the original unlawful search[.]” Def.’s Mot, Stay 29. But if defendant succeeds on his Fourth Amendment argument, then all evidence recovered via either search of the computer will be subject to suppression. I do not mean to diminish the seriousness of an alleged violation of the Fourth Amendment; an unconstitutional search does not magically become constitutional simply because it violates the same rights the government already violated. But Nken requires not just harm, but irreparable harm. Because the remedy for a Fourth Amendment violation is to suppress all illegally obtained evidence, I cannot find that standard is met here.