{"id":4370,"date":"2010-06-30T08:04:38","date_gmt":"2010-06-30T08:04:38","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-06-30T08:04:38","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4370","title":{"rendered":"M.D.Fla.: Grand jury subpoena used as a search warrant; records returned"},"content":{"rendered":"

The target of a subpoena gets all its records back because the government used a grand jury subpoena as a search warrant. The court also cited 1906’s Hale v. Henkel<\/a>. In re Grand Jury No. 09-1, 2010 U.S. Dist. LEXIS 63667 (M.D. Fla. June 10, 2010):<\/p>\n

More importantly, the grand jury’s subpoena is improper on procedural grounds. Throughout its papers, the U.S. Attorneys’ Office ignores a rather fundamental (but perhaps increasingly ignored) proposition of law: a subpoena is not a search warrant. With the exception of exemplars and other limited classes of physical evidence, see 1 Sara Sun Beale et al., GRAND JURY LAW AND PRACTICE \u00a7 6:5 (2d. ed. 2008), a grand jury subpoena duces tecum — without more — cannot be used to simply seize a witness’s property. Documents, records and tangible evidence remain the exclusive property of the person required to produce them before the grand jury and, absent a court order or stipulation between the witness and the government, the witness has the right to remove his evidence at the end of each day of the grand jury’s proceedings and at the end of the grand jury’s session. See, e.g., Application of Mesta Machine Company<\/a>, 184 F.2d 375, 375-76 (3d Cir. 1950); Application of Bendix Aviation Corp.<\/a>, 58 F.Supp. 953, 954 (S.D.N.Y. 1945). For this reason, U.S. Attorneys are specifically cautioned:<\/p>\n

[I]t is strongly recommended that an impounding order be obtained at the initiation of the grand jury investigation (or at least before the return of any documents to the grand jury) and that it impound the documents at least for the life of that grand jury. This will obviate any claim by a subpoena recipient that it has complied with the subpoena by delivering the documents to the grand jury and has a right to remove the documents at the end of that session.<\/p><\/blockquote>\n

U.S. Department of Justice, Antitrust Division, Grand Jury Manual, Ch. IV, \u00a7 E., 1. c., http:\/\/www.justice.gov\/atr\/public\/guidelines\/206826.htm#IVE1. In contrast, a search warrant, which is supported by probable cause and interposes a neutral magistrate between a citizen and law enforcement, permits an officer to literally seize and take immediate possession of one’s property. …<\/p>\n

. . .<\/p>\n

Neither the grand jury nor the U.S. Attorneys’ Office acting on its behalf may simply take possession of Signature’s property through a subpoena. When Signature’s property was seized (unlawfully) by the State of Florida pursuant to invalid search warrants, the property came into the possession of the State Court. The State Court did not lose possession of the property simply because the U.S. Attorneys’ Office took physical custody of it and issued a subpoena on behalf of the federal grand jury. The State Court lost possession, of its own accord, when it decided to dispose of the property in a final order requiring the property to immediately be returned to Signature.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-4370","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4370","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4370"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4370\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4370"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4370"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4370"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}