N.D.Miss.: Officers with a warrant searched truck parked next door and violated Fourth Amendment; claim of telephone warrant fails

Officers had a state search warrant for 320 CR 401. While there, they saw a truck 200 yards away on the lot of 320A CR 401, owned by defendant, not the target of the search. Officers claimed during the hearing to have called the state judge for clarification, but the judge wasn’t called as a witness, so that gets no credibility. A telephone call would have worked, if they followed Rule 41(d)(3). United States v. Rogers, 2013 U.S. Dist. LEXIS 14770 (N.D. Miss. January 4, 2013):

Though Fourth Amendment issues can sometimes be thorny, there is nothing difficult about the decision in this case because, by any rational measure, the law enforcement officers’ search of Rogers’ truck was unreasonable. Neither the truck nor the building by which it was parked were within the scope of the search warrant, and the officers’ purported telephone call neither expanded the scope of the warrant, nor constituted a new warrant.

Though obtaining a warrant by requesting it from a judge over the telephone is permissible under Fed. R. Crim. P. 41, the officers followed not one of the strictures of the rule that protect a defendant’s rights under the Fourth Amendment. Rule 4.1 requires that: (1) the request be given “under oath or affirmation”; (2) the testimony be recorded verbatim by an electronic recording device or in writing; (3) the testimony be transcribed, certified as accurate, and placed in the record; (4) the judge issuing the telephonic warrant sign it; and (5) the person seeking the warrant prepare a proposed duplicate original of it – and read or transmit its contents to the judge.

These requirements make the electronic procurement of a warrant reasonable. Without such protections in place, “telephonic warrants” are rife with the possibility of abuse by the government, as there would be no sworn record reduced to writing for a defendant (or a court) to review. In addition, without careful sworn documentation of law enforcement’s representations to the court, such “telephonic warrants” would permit nearly any search to expand without practical limit. Officers could repeatedly call the issuing judge with unsworn descriptions of the scene to obtain authority to search an ever-expanding area. This is the circumstance in which Rogers found himself in the present case – a circumstance against which he could not raise a substantive challenge, as the critical facts were nowhere to be found in the record. Further, as the court conducted no evidentiary hearing, he had no chance to expose the warrant’s deficiencies. The actions of the law enforcement officers violated the Fourth Amendment.