N.D.Miss.: Issuing USMJ can’t be subpoenaed to testify to mental impressions in issuing SW

Defendant doesn’t get to subpoena the issuing magistrates for the search warrant because their mental impressions are irrelevant and whether a telephonic warrant was avoidable by essentially shopping for a different judge. Nevertheless, the issue is held in abeyance since both judges work in this courthouse, too. United States v. Crawford, 2020 U.S. Dist. LEXIS 28042 (N.D. Miss. Feb. 19, 2020):

B. Motion to Quash

The Government has moved to quash the subpoenas Crawford served on Judges Percy and Sanders. Both parties agree that the scope of any testimony they could offer would be limited. Crawford could not, for example, ask the judges for their mental impressions or anything related to their decisions. See, e.g., United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 85 L. Ed. 1429 (1941). Recognizing those limitations, Crawford succinctly summarizes why he wants to examine Judges Percy and Sanders, stating that “[t]he facts are\was that Judge Percy was available and whether … Judge Sanders obeyed the rules concerning telephonic search warrants.” Def.’s Resp. to Mot. to Quash [168] at 9; see also id. at 11 (“We seek only facts, i.e.[,] was Judge Percy available and did Judge Sanders follow the rules.”).

It is not apparent that testimony from Judges Percy and Sanders would be necessary. For example, the only question Crawford wants to ask Judge Percy is whether he was available the night the modification occurred. Def.’s Resp. to Mot. to Quash [168] at 9. Yet the Government’s position as to the suppression issue does not turn on Judge Percy’s actual availability. See Gov’t’s Reply [169] at 6. And both parties acknowledge that Judge Percy voluntarily answered this question in a transcribed interview. See id. at 6 n.3 (“[T]he United States concedes that [Judge Percy] stated that he had his cell phone with him and would have answered a call from the Government.”); Def.’s Resp. to Mot. to Quash [168] at 6 (“As Judge Percy stated in the interview, he had telephone availability and was in Oxford.”).

As for Judge Sanders, Crawford lists eight questions he would like to ask. See Def.’s Resp. to Mot. to Quash [168] at 3. The first, “[w]hether there was any evidence presented to him showing what ‘good cause’ existed to change the search warrant and explicitly what such evidence was,” id., is clearly out of bounds. See Morgan, 313 U.S. at 422. But the answers to the rest should be apparent from the record. For example, the Government concedes that no recording was made during the disputed telephone call, and none was docketed. It seems that this record speaks for itself as to whether Rule 4.1 was strictly followed.

Having said all that, neither magistrate judge has objected to the subpoenas, and both work in the building where the hearing will be held. Accordingly, the “Government has no objection to the Court holding the Motion to Quash in abeyance until the Court hears the testimony of Agent Blount and is presented with the search warrant documents.” Gov’t’s Reply [169] at 4. That is perhaps the more prudent course, so the Court will hold this motion in abeyance.

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