In his on-going deconstruction of D. C. Magistrate Judge John Facciola’s order denying the government’s warrant to search all the emails of its target, Orin Kerr at WaPo Conspiracy takes the court’s Second Memorandum Opinion to task. The government lost again, for having done nothing more than switching some language from Exhibit A to B, cosmetic changes as the judge called it.

Judge Facciola’s new opinion reminds me of why I think it is necessary for such reasonableness issues to be litigated ex post in the context of adversarial litigation rather than announced ex ante in response to ex parte warrant applications. The reasonableness of executing the warrant is something that ordinarily would be analyzed ex post in the context of adversarial litigation.

In his first order, the judge strongly hinted that the better solution was to allow the keeper of the emails, in this case Apple, to search for the government, then turn over only those emails that were responsive to the government’s need for evidence. Or, the government could just knock down Apple’s door and raid the place, if the warrant is approved.

The question Orin raises now is whether the reasonableness of seizing everything is properly decided ex ante or ex post.  The denial of the warrant is based on the judge’s understanding of what the government seeks to do, to seize every email available, sort through them and then identify the ones that it wants.

Judge Facciola finds this unreasonable. Jeff Gamso does as well.

But while it may be unreasonable for agents to do that search on site so they get to seize first, e-mail is different.  Google can run a quick search and give you the stuff you want.  You don’t need first to seize all the e-mail and then paw through it at your leisure hoping to stumble across something incriminating.

The Fourth Amendment, see, protects against unreasonable searches and seizures.  And seizing more than you need is inherently unreasonable.  And in this case, you don’t get to seize, then search.

The problem here is that we’re talking about a warrant to seize emails. With physical property, one can tell whether it’s evidence or contraband on sight.  When a warrant allows a search of a house, the agents don’t take all the contents of the house back to the government warehouse to rifle though later. They take only those items that the warrant authorizes them to take (supposedly), and they are then listed on an inventory of what is seized.

Here, would the inventory say 17,239 emails?  But only 7 emails matter?  There is a question of what happens to the rest, but that’s a separate problem, to be discussed another day.

Orin’s beef with the opinion is that the judge is making an actual determination on the reasonableness of the warrant:

By predicting ex ante that the means of executing the warrant will be unreasonable, and then denying the warrant application on that basis, Judge Facciola’s opinion is essentially making a factual finding without facts and a legal conclusion without any briefing on the law. In my view, that’s not the way Fourth Amendment litigation should work.

While an adversarial briefing would be great, nobody is suggesting that the government should notify its target in advance so that the target’s lawyers can oppose the warrant.  Yes, it would be wonderful if due process was involved, but it’s not. However, the idea that because there is no adversarial opposition means that the judge should close his eyes and sign on the dotted line strikes me as the antithesis of what logic dictates.

Because a search warrant application is ex parte, the duty to scrutinize increases rather than decreases, or ceases to exist entirely.  So there is no adversary arguing against the warrant application before Judge Facciola? That’s not a reason for the court to become a rubber stamp in the absence of opposition, but a reason for the court to focus more closely, since no one else will.

But the key to Orin’s problem with the process is that, he argues, Judge Facciola is “essentially making a factual finding without facts.”  While there appears to be facial problems both ex ante — as Gamso notes, the judge authorizing the government to engage in conduct that is unconstitutional — and ex post, that whatever constitutional malady might be found on the back end will be voided by the good faith doctrine, the assertion that Judge Facciola is “making factual findings without facts” seems, well, unfounded.

While it’s true that the court is predicting how the government will seize and search (note the reversed description from the usual “search and seize”) in its determination that it will be overbroad, seize more than it has any arguable justification to seize, and sort it all out later, the application makes such a conclusion unavoidable.  The laws of man can’t trump the laws of physics, and the seizure of everything in the absence of a showing of probable cause to seize everything is, by definition, overbroad and unconstitutional.

In other words, this isn’t a prediction, but an inevitable conclusion.  No matter how it’s spun, the outcome is a foregone conclusion, that the government will take more than it either needs, wants or can justify, and in doing so, gain access to information that it has no authority to see.

It may not be inculpatory information. It may be some guy’s medical info, or an intimate picture of someone’s wife that was meant only for his eyes.  It may be nothing more than his thoughts about his son’s performance at a soccer game. But it’s his. And it’s not the government’s to see. And Judge Facciola cannot help but acknowledge that it would fall within the authority of his order, were he to approve the warrant.

Anticipating Orin’s response, how do we know there will be emails about medical information, a spouse’s expression of interest or some kid’s soccer game? Isn’t that a blind prediction of the future, a finding of facts when there is no such fact to be found?  Yes, and no. No one can say, in advance, what exactly the unrelated emails will contain, and that’s pretty much the point. But we do know, with absolute certainty, that the government will seize unrelated emails, and whatever they say, they are none of the government’s business.

Ironically, the argument in favor of authorizing the warrant relies entirely in future speculation as well, as the government can’t know that the evidence it seeks will be found. But the government is held only to the burden of probable cause, thus allowing it to seek a warrant based upon the hint evidence exists. Yet Judge Facciola would be held to a standard of ex post proof that his concerns are realized.

So does the judge do nothing as he watches the gun aimed at a person with their hands in the air, the safety released, the finger on the trigger and the muscle begin to pull, because the bullet has yet to strike anyone?  Is he forced to sign his name to a paper that says use deadly force, if necessary, knowing full well that deadly force is about to be used against someone who poses no threat?  Is he helpless to refuse to prevent the harm done under his signature, but rather constrained to preside over the funeral afterward?

The Constitution doesn’t exist to empower the government, but to limit the government from violating rights. And that’s why a magistrate judge cannot approve a warrant when it is beyond question that something, anything, will be seized in violation of the target’s constitutional rights.