E.D.Tex.: No right to ex ante notice of email SW to challenge it before execution; remedy is after

An email account holder does not have a right to notice before execution of an email warrant. Moreover, he or she has no standing to challenge a search warrant for email before the warrant is executed. In re Search of Info. Associated with One Email Acct. that is Stored at Premises Controlled by Google, Inc., 2023 U.S. Dist. LEXIS 105225 (E.D. Tex. June 16, 2023):

Movant does not address the lack of a constitutional ex ante notice requirement, but rather asserts he has standing to exercise his “right to refuse entry” by filing a motion to quash. Dkt. 5 at 4. But Movant’s argument is misplaced. Even if the Fourth Amendment mandated that Movant be provided notice of the Search Warrant (Dkt. 2), the Constitution does not provide Movant an ex ante bulwark to stop the execution of the Search Warrant (Dkt. 2). See United States v. Wright, 777 F.3d 635, 641 (3d Cir. 2015) (“Even if the list of items to be seized had been present at the scene, the agents would have collected precisely the same evidence, and [the defendant] would have been unable to stop them.”) (emphasis added). Accordingly, Movant does not have either a statutory or constitutional license to engage the Government ex ante in a debate over the basis for the Search Warrant (Dkt. 2); rather, Movant’s protection at this juncture lies with the “‘deliberate, impartial judgment of [the judicial officer] ….'” Grubbs, 547 U.S. at 99 (quoting Wong Sun, 371 U.S. at 481-82).

Once a warrant under the SCA is issued, Movant is not left without recourse. See Doe v. Off. of Kan. Secs. Comm’r, No. 2:17-CV-2510-JAR-JPO, 2017 U.S. Dist. LEXIS 190438, 2017 WL 5517524, at *6 (D. Kan. Nov. 17, 2017) (“The fact that the SCA does not provide a means for a customer to move to quash a search warrant does not mean that an SCA search warrant is not subject to judicial review.”). Movant retains the option of ex post filing a motion to suppress evidence if he believes the Search Warrant (Dkt. 2) was issued without probable cause or the Government’s conduct was unconstitutional. See Info. Associated with Email Acct. (Warrant), 449 F. Supp. 3d at 475.