"Fulfilling" the Warrant Clause

Earlier today, Scott Greenfield ^[1]Get over it, people! wrote in “Fungible Judge and The General Warrant,” about what amounts to a general warrant.

The warrant in question was requested by David Lindman, of the Edina Police Department, in Edina, Minnesota, a town of less than 50,000 people, based on speculation that the warrant might help locate a single individual who committed a crime. The hope was that, of all the people covered by the warrant, one of them might be the guy the cops were after.

It was signed by a judge. Meaning, as Scott points out, that

a lawyer who, for reasons unknown, was given the authority to sign a piece of paper that allows cops to intrude wildly into people’s private lives without recourse.

All that would be bad enough, but that’s not really the end of it. Edina might be limited to a population of less than 50,000 people. But the warrant was not.

The warrant was sought because someone managed to steal $28,500 from a bank. The actual person whose account was targeted—and I hope (and expect) that the bank is eating the cost of their error—was someone with the first name of “Douglas.” His full name is not known to me at this writing, nor is it important. But the warrant contains four iterations of his complete name, further expanding the scope of the search.

The warrant, as I mentioned at the outset, is based upon rank speculation. The idea behind it is that whoever convinced the bank to cough up the money from Douglas’s account did so by providing, among other things, a faked passport. The passport was not presented to the bank in person, but was faxed. So, of course, it provided complete proof that Douglas was the one requesting the bank turn over the money, because no one but Douglas could possibly have used a fax machine to send a fax of what appeared to be identification purportedly belonging to Douglas.

Though that is a digression, the point I’m making is that even if the passport had been legit, the bank fucked up.

In any event, the passport was fake.

The picture used on the passport? Well, it appears that—at least the story appears to rely on the idea that—it really is a picture of Douglas.

So how did the miscreant mis-appropriator of money come by the image? Was it possibly someone who knew Douglas well enough to have access to his pictures? After all, whoever it was knew enough to know which bank to phish from. Could that same person have taken the picture from Douglas’s home? Was the picture perhaps taken from one of Douglas’s relatives? Or maybe the relative of Douglas—Lieutenant Provenza would say it’s always the wife—had the picture? ^[2]Except when he says it’s always the husband. Was the picture stolen from someone’s desk at work?

I’m just spit-balling here. Spinning out theories. Speculatin’.

The Edina cops did some speculatin’, too. But they speculated that the picture must have come from the Internet. Frankly, that makes a lot more sense to me than that the picture came from someone who already knew Douglas, and had access to information about Douglas’s having a bank account with $28,500 available for transfer, and who might have had access to a picture of Douglas. It just makes a lot more sense that it was someone who googled Douglas.

Google? Well, the cops decided it had to be Google because neither Yahoo, nor Bing, had a copy of the image when Douglas’s name was searched.

I don’t have a copy of Douglas’s image, either. David Lindman has a picture of Douglas, but the belief is that he didn’t get it until after the investigation started, and, thus—almost by definition—after the crime was committed. So it has to be Google.

And so it was that David Lindman submitted a request for a warrant to a judge in Minnesota who is apparently missing a few marbles, and who authorized Lindman to demand that Google cough up:

name(s), address(es), telephone number(s), dates of birth, social security numbers, email addresses, payment information, account information, IP addresses, and MAC addresses of the person(s) who requested/completed the search [on Google, for Douglas’s picture].

Does it matter if the person who requested the search lives in Brazil? Nope. California? Double-nope. Edina? Not even. No. A judge in the United States of America, a nation with a Constitution that created a limited government, which Constitution also contains a Bill of Rights where live the words of the Fourth Amendment, has spoken: the warrant is virtually unlimited geographically. It does contain a demarcation as to time: further speculation informs the police that the Google search that must have happened must have happened between December 1, 2016, and January 7, 2017.

One may wonder how they came to speculate that the search they speculate took place took place between those dates. When everything else about the warrant is speculative, that matters not. Perhaps in the binary universe of David Lindman (and Judge Gary Larson of the Fourth Judicial District Court who signed it), this “limitation” is what saves it from being a general warrant.

And so David Lindman trotted off to Google with his Get-All-Your-Data-Free card, issued by a real, impartial judge. As Scott Greenfield put it,

even if this judge signing off on this warrant turns out to be the village idiot, the cop executing it is covered. After, he fulfilled the warrant clause. It’s not his fault the judge was a blithering idiot.

What Scott means by “he fulfilled the warrant clause” is problematic. Technically speaking, the cop requested a warrant. To the extent that the warrant clause requires a police officer to request a warrant, he “fulfilled” the warrant clause. At least, that’s what everyone says, including Scott.

I know that Scott knows better. I believe he’s talking about the real universe of rulings in which this warrant exists, rather than what the law actually says. This is because, just as Judge Larson did when he signed this execrable excuse for a warrant, judges routinely ignore the law. And their ignoring the law—not to be confused with ignorance of the law, because they are able to state it: they just don’t follow it—is why general warrants have become more common.

Everyone says the warrant clause was “fulfilled” because the cop requested a warrant, and a judge signed the warrant.

To actually fulfill the warrant clause, however, requires more.

First, let’s look at the so-called “warrant clause,” which is part of that antiquated, decaying document, which sits in desuetude in some museum, and for which I was able to google—showing it’s not just Douglas’s picture you can find there, but a lot of other shit—to locate its actual words:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In case you’re interested, that collection of words comprises what we refer to as the “Fourth Amendment.”

Now the so-called “warrant clause” of this Amendment is constituted—to the extent there is any thing in the Constitution that can any longer constitute anything other than a matter of historical interest—by these words:

[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So one might think that to “fulfill the warrant clause,” we need:

• Probable cause
• Oath or affirmation
• A particular place to be searched
• Particular persons or things to be seized

Well, we have an oath. To the extent that “Custodian of Records Google Inc.” is a place where the things sought might be found, which I find questionable despite the Custodian of Records being alleged to have an address, a “particular place” has arguably been designated. To the extent that the person(s) or thing(s) to be seized are somewhere among the millions in Google’s databanks one might say, incorrectly, that this portion of the clause has been satisfied. To the extent those people might live anywhere in the world, it has not. But, so far, the cop doesn’t want to search the people: he just wants their effects.

And the cop, of course, swears that there’s probable cause to believe that what he seeks is to be found at the Custodian of Records Google Inc. So we have an oath of sorts, however blatantly speculative the basis for the oath.

But here’s the thing: even putting aside the lack of probable cause here, which I’ll get to in a minute, the idea that the above “fulfills” the terms of the Fourth Amendment is a complete joke. Only if you read the so-called “warrant clause” in complete isolation from the rest of the Amendment, and I realize that this is exactly what courts do when it becomes necessary to save a warrant, is the clause fulfilled. But if you recall that the Fourth Amendment of which the clause is a part starts by saying that the purpose of the limitations spelled out in it are because the people have a right to be secure in their persons, houses, papers, and effects, there is no way that Lindman’s request, and Judge Larson’s authorization, “fulfills” the warrant clause.

The warrant requires Google to sift through millions, if not billions, of people’s searches to find a smaller, currently unnumbered, group of people who performed a one of several searches for particular names, ^[3]There is more than one search phrase listed in the warrant. and then to turn over all their personal data, along with all the data relating to their networks (IP addresses, MAC addresses), which might unveil other people, as well. Thankfully, Google is not (yet, anyway, to my knowledge) in the business of cataloguing DNA profiles.

You might as well give the cop a warrant that says they can stop and search everyone they encounter anywhere in the world to search them for evidence of this crime. As long as they’re required to release those who don’t have any such evidence as soon as they determine they have no such evidence, it’s all good.

Some right to be secure, eh? This is exactly what makes this a general warrant.

And then there’s the probable cause issue. Probable cause, as I’ve shown in another post, is thought not to be really required, so long as you can get a judge to sign off on the warrant, as Lindman did here. If it were required, though, it has not been met. In another of my posts, in an Endnote, I noted that the Fifth Circuit Court of Appeals had said,

[T]he requisite ‘fair probability’ is something more than a bare suspicion….

Something more than a bare suspicion. Lindman may suspect all he wants that someone possibly used Google to find Douglas’s picture. Lindman found Douglas’s picture using Google. And he didn’t find it using Bing, or Yahoo. He didn’t find it at my house. He didn’t find it at your house, probably. I’m not sure if Judge Larson had a copy. There might be copies of it at Douglas’s house, but presumably Douglas was willing to cough up his copies. Some of Douglas’s friends, or family, might have copies. Co-workers of Douglas, or of someone related to Douglas, might have copies. But that doesn’t mean that someone couldn’t possibly have used Google to locate the image.

And how does that move this from a bare suspicion to probable cause?

So the warrant clearly has some major defects. But the warrant clause has been “fulfilled,” because Lindman kindly asked Judge Larson to sign the warrant, and Judge Larson did sign it. As anyone who has ever read United States v. Leon knows, that settles it. Lindman’s reliance on Judge Larson’s signature seals the deal.

In the ordinary case, an officer cannot be expected to question the magistrate’s probable cause determination or his judgment that the form of the warrant is technically sufficient. “[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.” ^[4]Leon at 468 U.S. 921, citation omitted.

But Leon also clearly states:

[R]eviewing courts will not defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause.

Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. ^[5]Leon at 468 U.S. 915, internal quotes and citations omitted.

Leon further states:

Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. […] [A] warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid. ^[6]Leon at 468 U.S. 922, internal quotes and citations omitted.

Having written several briefs on this in several courts, including the California Supreme Court, I can tell you that there is an unbroken string from Leon‘s 1984 holding through to today that reinforces the legal requirements of the Fourth Amendment, and which also reinforce the idea that Leon is not an automatic As-Long-As-A-Judge-Signed-It-You’re-Good card that trumps all other constitutional requirements. ^[7]Sadly, I can also tell you that when it suits them, the courts will ignore that string of cases, without even commenting.

Leon is used far, far too often, in ways antithetical to its true holding. David Lindman’s acquisition of Judge Larson’s signature on this warrant in no way “fulfills” the warrant clause.

What it does it fulfill, once again, is the government’s need to be able to ignore the warrant clause so they can search whoever, whenever, and wherever they want in today’s lawless United States.