Or Why Ex Post Fails (and fails miserably)

At the WaPo Conspiracy, insomniac lawprof Orin Kerr posts about an important Second Circuit opinion:

The Second Circuit has handed down a very important new Fourth Amendment case, United States v. Ganias. In an opinion by Judge Chin, the court held that the government violates the Fourth Amendment when it indefinitely retains computer files that were seized pursuant to a search warrant but are not responsive to the warrant.

Orin runs through the government’s “practical” arguments, ranging from the claim that once the government has it, it’s the government’s property, through its need to maintain the integrity of the evidence, whether for future availability or authentification.  And of course, the “no harm, no foul” argument since it later obtained a warrant to search what it had no right to possess.

As Orin does an excellent job addressing the opinion, there’s no need for me to recap as I have nothing worthwhile to add.  So why am I writing about it?  Well, in his sleep-deprived state, Orin goes one toke over the line when he writes:

As an aside, this decision is a good example of why ex ante search restrictions written into computer warrants by individual magistrate judges are not necessary. Under the Second Circuit’s decision, every computer warrant now has an ex ante search restriction written into it, by virtue of caselaw, prohibiting the indefinite retention of non-responsive files. Perhaps the introduction of more caselaw on the scope of computer warrants will make clear that reasonableness should be a matter for appellate decisionmaking ex post, not individual magistrate practices ex ante.

Yes, he had to go there.  And so must I.

Ganias was under the scrutiny of the government when it seized his hard drive pursuant to a 2003 warrant.  The second warrant issued in 2006.  He was tried in 2010, and sentenced to 24 months.  On the bright side, Ganias was out pending appeal, which is a rarity.

Orin’s view is that the outcome of the Circuit’s ruling vindicates the argument that appellate courts are best suited to making determinations of Fourth Amendment violations.  Perhaps he meant any judge, just ex post rather than magistrates ex ante, and his “appellate decisionmaking” isn’t meant to be taken literally.

But this is where the view of the trenches differs from a guy who holds a defendant’s hand to a guy who sits in an ivory tower.  From up on high, the outcome of Judge Denny Chin’s decision makes everything good. After all, Ganias prevailed, equilibrium is restored to the universe and the stars have aligned. What’s not to like?

Ganias (though this really isn’t about Ganias, but about every target of a government investigation and prosecution), spent more than a decade unable to sleep at night.  Unable to plan for his future, to commit himself to his work, his family, his future, because he had no idea when there would be a knock on the door in the early morning hours by guys with government shields who want to put him in cuffs.

Ganias spent a good deal of money, perhaps all he had, paying a lawyer to prevent that knock on the door in the early morning.  That was money he could have spent on his children’s birthday presents, or college education, or on a romantic meal with his wife who stuck by him despite the omnipresent threat hanging over his head.  Maybe he would have used it for a vacation.  He certainly could have used a vacation.

Ganias spent day after day thinking about whether his future would be spent sharing a room with his wife, or some guy named Bubba.  This sort of thing weighs heavy on a person, and tends to make their daily functioning difficult and unpleasant.

It’s unclear whether Ganias was able to work, or whether there were press releases making sure that everyone knew that the government tainted Ganias as a criminal for a decade, even though he wasn’t convicted for seven years after the initial seizure.  A guy who can’t work has a lot of time on his hands.

While Ganias was allowed to remain at liberty pending appeal, most are not.  They get to make that fun drive to Fort Dix, where they kiss the wife and kids good-bye for years.  No appellate decision gives them those years back.  No appellate decision changes the time spent wearing jumpsuits and sneakers.

No appellate decision compensates for the income they lost.  No appellate decision lets them watch their darling daughter’s first dance recital, or their son’s graduation from high school.  No appellate decision lets them be at their mother’s bedside when she takes her last breath.

In the trenches, we hold the hand of people who have real lives, and who suffer myriad deprivations by the mere fact of prosecution.  Granted, they’re subtle for those who don’t have to get their hands dirty, and perhaps not really very important when compared to the grievous wrongs reflected in our 4500+ criminal prohibitions.

But if the punishment, the infliction of misery, matters at all, it matters when it starts, and it starts at the beginning.  By the time the Second Circuit gets around to holding the government’s conduct unconstitutional, he’s endured one hell of a ride, even if he beats the rap.

And that’s why ex ante matters, and why ex post isn’t good enough.  Maybe it will look different to Orin when he wakes up, in the full light of day, after a good night’s sleep.

2 thoughts on “Or Why Ex Post Fails (and fails miserably)

  1. John Barleycorn

    You should give them 3a.m. posts a try one of these days esteemed one. It might be just the ticket to bring a little more depth to your cliche roster. Cell mate “Bubba” has to go.

    To his credit I think Orin feels the pain even if he isn’t holding hands

    ~~~Right now lawyers in the federal government are no doubt hard at work trying to figure out how long files can be retained and what degree of specificity counts as a “document” to know if it is responsive or non-responsive.~~~

    I think I will take a nap this afternoon to better accommodate some midnight trolling. Who knows I might have a daydream where the phrase “Fourth Amendment reasonableness” is used in presidential acceptance speech or something.

    Eventually reasonable will unreasonable I guess? From the opinion:

    ~~~….eventually the retention goes on for so long that the retention is unreasonable.~~~

    Lifetime tenured robes can be so uber polite and vague while scolding the other branches as to seriously give me pause to consider if isn’t part of the job description to go out of their way to attempt to pick up the turds of the government by the clean end.

    All is not lost. I learned about a new Fed Rule today.

    41(g) A person aggrieved … may move for the property’s return.

    “Aggrieved”…I wonder if that will show up in that daydream this afternoon somewhere as well.

  2. Pingback: The Government Cannot Keep Seized Evidence Forever: Second Circuit Holds that Seized Electronic Data Cannot Be Held Indefinitelys Decision on Search Warrants | Grand Jury Target

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