D.Utah: Ex ante motion to suppress before SW executed denied without prejudice; must follow search

Movant has notice of a search warrant not yet executed. Her ex ante motion to quash the search warrant is denied without prejudice. Under Rule 41(h), the motion should be filed after the search occurs. United States v. Richards, 2020 U.S. Dist. LEXIS 184609 (D. Utah Oct. 5, 2020):

Ms. Richards’ attempt to quash the subpoena is premature. Courts generally review challenges to search warrants either in a motion to suppress during a criminal case or in an after-the-fact civil rights lawsuit, not in a pre-execution motion to quash. As the Sixth Circuit has noted:

Concerns about the premature resolution of legal disputes have particular resonance in the context of Fourth Amendment disputes. In determining the “reasonableness” of searches under the Fourth Amendment and the legitimacy of citizens’ expectations of privacy, courts typically look at the “totality of the circumstances” … reaching case-by-case determinations that turn on the concrete, not the general, and offering incremental, not sweeping, pronouncements of law. On review, the court looks at the claim in the context of an actual, not a hypothetical, search and in the context of a developed factual record of the reasons for and the nature of the search. A pre-enforcement challenge to future e-mail searches, by contrast, provides no such factual context. The Fourth Amendment is designed to account for an unpredictable and limitless range of factual circumstances, and accordingly it generally should be applied after those circumstances unfold, not before.

Finally, Ms. Richards has not cited any authority supporting the pre-execution quashing of the search warrant against her. The two binding cases that Ms. Richards cites in her Motion are not relevant. The Riley case addressed warrantless searches. This case involves a warrant. The Rahn case addressed staleness, upholding a warrant to seize evidence even though the observations supporting the warrant were more than 18 months old. Neither of the cases supports Ms. Richards’ pre-execution motion to quash. The Motion is therefore denied without prejudice.

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