A curious search warrant was granted in Sarasota, Florida, that provided for the search of all persons who entered a parking lot, which the police contend had become a “vibrant open air drug market.”  These things happen.  This is how  Orin Kerr described it:

In Sarasota, Florida, a vacant lot next to an apartment building has become a vibrant open-air drug market. The police are having trouble cleaning it up. So the police tried something they had never tried before: The applied for, and obtained, a warrant to search “all persons” who parked or set foot in the apartment building parking lot.

During the two-hour raid, a dozen people were searched and, even though officers justified the wide search by telling a judge no “innocent persons” congregated in the abandoned lot, only four people were charged with drug crimes. An 80-year-old man was among those detained, then released, during the operation

As Orin properly notes, this would appear to fly in the face of Ybarra v. Illinois, 444 U.S. 85 (1979), which holds that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”  He posits:

I suppose the government would argue that this case is unlike Ybarra because the warrant was for “all persons,” not “Greg.” But that theory runs into obvious problems with the facial validity of the warrant. From a particularity standpoint, a warrant “all persons” is as much of a general warrant as you can get for a warrant authorizing a search of persons; and from a probable cause standpoint, I don’t know how the affidavit possibly could have established that there will be probable cause to believe that there is evidence on every particular person who enters a parking lot.

Both Orin and the many commenters at Volokh Conspiracy then pursue a variety of ideas, comparisons, arguments, in an effort to explain or unexplain how this warrant, which gives every appearance of being the despised and prohibits “general warrant”, could be granted.

The discussion goes in many circles, but despite the investment of some very thoughtful people, ends up nowhere.  There’s a very simple reason, I suspect, but it’s one that defies the most brilliant legal minds in the blawgosphere.  The reason this warrant issues is that some judge in Sarasota signed it.

Rarely, and even rarely is likely a gross overstatement, do trial level judges put a great deal of legal thought into what they do.  Some shoot from the hip.  Some shoot with their eyes closed.  Some bear a striking resemblance to  Governor William J. Le Petomane in Blazing Saddles. 

One of the aspects of life in the trenches that one must endure is the ability to smile as a judge issues a decision which is patently wrong.  Things fly fast and furious at times, and decisions are made off the cuff.  While ex parte applications are troubling enough, there being no one to oppose or question the premise, and judges approaching matters with whatever bias they bring to the bench, there is a more basic reality that we face on a constant basis.  Wearing a robe doesn’t make anybody a genius or legal scholar.  They’re just guys like us who wear robes.

Judges often forget this, though that isn’t the reason why they make snap, and grievously wrong, decisions at times.  The nature of the job is to make decisions, and no experienced lawyer or judge presumes that anyone is going to nail it with every decision.  Similarly, some don’t nail it with any decision.  For some judges, their greatest skill is licking envelopes at the political party office and not annoying the party leader.  Getting along is one of the foremost qualifications for being offered a judicial post.

This isn’t offered as a cynical view of the judiciary, but a practical one.  Not all judges are well-suited to the task, and bad decisions happen with unfortunate frequency.  Indeed, that’s why we have appellate courts, to correct mistakes made below.  The problem with appeals, of course, is that appellate panels too often defer or protect their trial level brethren, reversal besmirching their fine reputation.

This hard reality is reflected in the maxim that every defendant is entitled to a fair trial, not a perfect one.  Fair is relative concept, leaving many a defendant shocked at what suffices.  When a lawyer can sleep through portions (not important portions, perhaps, but portions nonetheless) of a capital trial and not be found ineffective, the lack of perfection is driven home.

Back to this warrant, there are many judges who are disinclined to scrutinize the requests of the police too closely, both because they tend to side with the police as a general matter and recognize that most search warrants fall under the no harm/no foul rule.  If a person is searched and no drugs are found, then he’s released to go his merry way.  If a person is searched and possesses drugs, then he’s a criminal and bad warrant or not, deserved to be prosecuted.

Clearly, there is harm to the person who is searched without cause, and there is no shortage of Supreme Court verbiage explaining it.  But that’s mostly ivory tower stuff in the trenches, where judges are well aware that tens of thousands of innocent people are routinely stopped and searched for no particular reason.  Consider the New York City stop and frisk program.  It doesn’t escape the judge’s notice that the cops are searching hundreds of thousands of innocent people who, because there is no charge, will never have the opportunity to complain about it.  It’s just life on the streets, as far as their concerned.

One of the people arrested under this “all persons” warrant challenged the search and seizure.  As one might expect, suppression granted wasn’t the gut reaction.

In court this week, Judge Rochelle Curley upheld the legality of the search warrant. But an attorney for one of the men arrested outside the Mediterranean Apartments has vowed to push the case to the district court of appeal.

Those involved say a decision by the higher court could lead to a new precedent for police searches in Florida, essentially banning such broad searches or signaling approval for more widespread use.

It’s unknown whether Judge Curley was the one who signed the warrant in the first place, which presents the somewhat awkward situation of asking a judge to concede that she totally blew it when she approved a general warrant.  But regardless, Judge Curley had the chance to consider (or reconsider, as the case may be) the decision and stuck to her guns.

The problem, for Judge Curley, is that controverting a warrant, or granting suppression, means that you let a bad guy go, piss off the cops and offer up your smile as posterchild for soft-on-crime.  Better to be wrong on the side of the angels than right on the side of the devil. 

And so an appellate court may review the warrant, and may reverse.  Or may not.  Or may play some rhetorical games to cover up the wrong that appears to flagrant to so many.  Or may just switch around some salient facts to create a scenario that bears no familiarity with what we think we know now.  Or whatever.

Life in the trenches rarely meets the academic or theoretical purity that we pretend informs the law.  It’s ugly and nasty, and it’s often unfair.  That’s why we fight about it, and try to out-unfair the other side as well as the judge.  Because we know that there’s a judge somewhere who will sign a warrant for “all persons,” and do some pretty awful other stuff as well.