The Alabama Supreme Court faces an issue that is a first timer for me: Whether a writ of mandamus may compel a local judge to issue a search warrant if probable cause exists. Here, there was a dispute among law enforcement whether probable cause existed that the subject of the search warrant were illegal gambling machines. The Sheriff said no, the AG’s investigators said yes. The local judge sided with the sheriff, and the Circuit Judge wouldn’t intervene. The state sought mandamus in the Supreme Court arguing that the existence of probable cause created a duty for the local judge to issue the search warrant. Starting with Ex Parte United States, 287 U.S. 241 (1932), holding that a U.S. District Judge had a duty to issue an arrest warrant on an indictment, the court concludes that mandamus is a proper remedy given that probable cause is a low threshold and judges should not frustrate law enforcement efforts. Here, the local court’s refusal to issue the warrant were all arguments extrinsic to the probable cause and were legal error. Ex parte State, 2013 Ala. LEXIS 16 (March 1, 2013) (no free link to case; state's website goes to Lexis.com):
Sisson's affidavit submitted with the State's petition and Judge Young's submissions indicate that the decision not to issue the warrant in this case was premised on numerous grounds that were in error and that were extrinsic to a proper determination of probable cause.
First, reliance upon another public official's opinion as to what is and what is not a crime under applicable law is an erroneous ground for denying a search warrant. The decision as to what activity is and is not prohibited by a criminal law is a legal one for the judiciary.
The totality of Judge Young's submissions clearly indicate that he simply adopted the legal conclusion of Sheriff Warren, i.e., Judge Young took the position that whatever Sheriff Warren had declared to be legal under criminal statutes and the constitutional amendment applicable to bingo in Macon County is legal. ...
It follows from the position articulated by Judge Young that Sheriff Warren would be the sole decision-maker as to whether the electronic gambling machines in the casino constitute the game of bingo. Sheriff Warren's opinion is, according to Judge Young, binding not only on that trial judge, but also on all other law-enforcement officers, even those who are above Sheriff Warren within the hierarchy of the executive branch of government. Such a position is contrary to a proper understanding of the separation of powers between the executive branch and the judicial branch, see Ala. Const. 1901, § 43, and to the provisions governing the power of the office of Attorney General. See Ala. Code 1975, § 35-15-1 et seq. ...
Third, Judge Young states that his refusal to issue a warrant is justified on the ground that two different people are telling him two different things, insisting that under such circumstances "there is certainly a dispute as to the facts." This approach misapprehends the difference in a "fact" and a "legal" conclusion. ...
Fourth ... In addition, to the extent the trial judge was deterred by the perceived lack of clear precedent to guide him, this too was error. Lack of preexisting appellate court precedent does not relieve a judge of the task of reading and determining the legal meaning of constitutional provisions and statutes. ...
Sixth, Judge Young states that a search warrant is an "extraordinary writ" and that it should not be issued unless the judge issuing it is "soundly convinced of an illegal activity." Judge Young erred in denying the search warrant on this ground. As discussed below, being "soundly convinced of an illegal activity" simply is not the standard for the issuance of a warrant. ...
The Alabama Constitution and the Alabama Legislature decide the criminal law applicable in each of the 67 counties in this State. A circuit judge is not free to frustrate the enforcement of the criminal law by refusing to issue warrants necessary or appropriate to its enforcement in his or her circuit. To allow a judge to do so without the exercise and fulfillment by this Court of its supervisory jurisdiction and responsibility relative to lower courts (see Ala. Const. 1901, § 140; § 12-2-7, Ala. Code 1975) would be to allow that judge essentially to rewrite the law in the county he or she serves. This we cannot do.
Based on the foregoing, we agree with the State that Judge Young exceeded his discretion in denying the requested search warrant. The State was entitled to an order directing Judge Young to grant the warrant application and to issue the requested warrant, and this Court issued such an order on February 15, 2013.
Given the inherently ex parte nature of a search warrant, and by necessary extension, of appellate review of the denial of a search warrant, in order that the purpose of the warrant not be frustrated, our order of February 15, 2013, mandated that this mandamus proceeding and the February 15 order itself remain under seal until further order of this Court following the execution of the warrant. We have been formally notified by the State that the warrant has been issued and executed, and this Court on February 19, 2013, issued an order unsealing this proceeding and our February 15 order and stating that an opinion on the matter would follow.
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"If it was easy, everybody would be doing it. It isn't, and they don't."
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—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
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application to individual cases, and will from time to time produce imperfect
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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
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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
—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
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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
—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)
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and I didn't speak up because I wasn't a communist. Then they came for the Jews,
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"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)