The state judge who issued the search warrant was a neutral and detached magistrate under the Fourth Amendment. Whether the magistrate had state law jurisdiction is a kind of circular argument under state law, but the Fourth Amendment only requires “neutral and detached.” “The magistrate in this case thus may well have lacked authority to issue the warrant. But we need not resolve this point because [this] error was [not] ‘obvious’” for plain error review. The magistrate recognized the affidavit was deficient and took testimony to supplement it. [That’s what the magistrate is supposed to do.] There was probable cause on the totality. There is no Fourth Amendment right to recording of testimony in support of a search warrant, but there is a limited remand to make a record on what it was. United States v. Davis, 2020 U.S. App. LEXIS 25889 (6th Cir. Aug. 14, 2020):
The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation[.]” U.S. Const. amend. IV. This “text does not require oral testimony to be transcribed or otherwise recorded. Nor did the American legal tradition at the time of the Fourth Amendment’s adoption.” United States v. Patton, 962 F.3d 972, 974 (7th Cir. 2020) (citing William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602-1791, at 754-58 (2009)). We thus have long held that an affiant may supplement an inadequate affidavit with factual allegations “presented to the magistrate through sworn oral testimony.” Hang Le-Thy Tran, 433 F.3d at 482 (citing United States v. Shields, 978 F.2d 943, 946 (6th Cir. 1992)).
The government asserts that this process occurred here: The magistrate “recognized that [the warrant] was deficient and took additional oral information” before issuing it. Arg. 23:10-28. Detective Sivert’s trial testimony, moreover, showed that he undertook significant efforts to connect Davis to the residence at 1832 Garden Avenue before seeking the warrant. He had learned that Davis lived at this location through interviews with Karaplis and Stock and had driven to the location and viewed a car registered to Davis parked there. As the district court noted, this evidence would establish the required nexus between Davis and the location. See Hang Le-Thy Tran, 433 F.3d at 482; cf. United States v. Feagan, 472 F. App’x 382, 394 (6th Cir. 2012); United States v. Williams, 544 F.3d 683, 688 (6th Cir. 2008). Yet the district court relied on statements in the government’s brief for these facts, not statements in evidence. No evidence tells us whether Sivert conveyed these facts under oath to the magistrate before the magistrate issued the warrant, as the government claims. Cf. Patton, 962 F.3d at 973-74. The government had planned to introduce evidence detailing this testimony, but the district court opted to resolve the motion without a hearing. So we lack factual findings from the district court on what Sivert told the magistrate.
As we have done in similar circumstances, we will order a remand “for the limited purpose” of conducting an evidentiary hearing on this probable-cause question. See United States v. Beals, 698 F.3d 248, 268 (6th Cir. 2012); 28 U.S.C. § 2106. Either party may then appeal, as appropriate, from the district court’s resolution. Beals, 698 F.3d at 268; 18 U.S.C. § 3731; 28 U.S.C. § 1291.
We reject most of Davis’s claims on the merits. But we issue a limited remand for further proceedings consistent with this opinion on his Fourth Amendment claim.
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)