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.
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)