88 days wasn’t stale in a child pornography case. You can’t legally or factually compare marijuana possession to possession of child pornography. Denial of one search warrant application is not res judicata to another. [Usually, the second application is different with more facts to overcome the first denial.] United States v. Prine, 2018 U.S. Dist. LEXIS 93982 (W.D. Ky. June 5, 2018). As to the latter:
The doctrine of res judicata prohibits a plaintiff from relitigating a claim that was asserted or which could have been asserted in earlier litigation against the same defendants or their privies. Federated Dep’t Stores v. Moitie, 452 U.S. 394, 398 (1981); United States v. McMichael, 525 F. App’x 388, 392 (6th Cir.2013). The elements of res judicata are: “(1) there is a final decision on the merits of the first action by a court of competent jurisdiction; (2) the second action involves the same parties, or their privies, as the first; (3) the second action raises an issue actually litigated or which should have been litigated in the first action; and (4) there is identity of claims.” Walker v. General Tel. Co., 25 F. App’x 332, 336 (6th Cir. 2001) (per curiam). Prine cites no case law in support of his theory that res judicata could apply to a magistrate judge’s denial of a search warrant application, nor does he apply any of the elements involved in a claim of res judicata. Although it has not been addressed in the Sixth Circuit, the Middle District of Georgia stated on the matter:
The only Federal Court of Appeal to consider the question found that the Fourth Amendment “on its face does not prohibit the government from seeking a second magistrate’s approval to search when another magistrate denies a search warrant” and flatly rejected “[a] blanket rule barring the government from resubmitting a warrant application to a second magistrate.” United States v. Pace, 898 F.2d 1218, 1230-31 (7th Cir.1990).
United States v. McCoy, 678 F. Supp. 2d 1336, 1349 (M.D. Ga. 2009). Furthermore, the court stated that res judicata did not apply because “the search warrant ‘claim’ was not fully and fairly litigated” and there was no “final order of judgment.” Id. at 1348. Similarly, the “claim” here was not fully and fairly litigated, as the defendant was not involved in the decision regarding the search warrant, and the Magistrate Judge never produced a “final order of judgment” on the matter. Thus, the Court finds that the doctrine of res judicata does not apply to the matter at hand.