The obvious initial focus is on the almost mind-blowing scope of the warrant.
A MINNESOTA BANK received a call in January from who they thought was Douglas, their customer, asking to wire transfer $28,500 from a line of credit to another bank. To verify the transaction, the bank relied on a faxed copy of his passport. But it wasn’t him, the passport was fake, and the transfer request was fraudulent.
The Edina Police Department figured out that while searching Google Images for the victim’s name, they found the photo used on the fake passport, and investigators couldn’t find it on Yahoo or Bing. So, they theorized the suspect must have searched Google for the victim’s name while making the fake passport.
Oh no. A googler in Edina, Minnesota. population 47, 941. What are the chances?
Edina Police Detective David Lindman detailed this theory in an application for a search warrant filed in early February, asking the Court to authorize a search warrant for names, email addresses, account information, and IP addresses of anyone who searched variations of the victim’s name over a five-week period of time.
Lest this be at all unclear, the warrant covers all sorts of info about anyone who searched Google for Douglas or any variation over five weeks. That’s a lot of info. A lot of people. A lot. It will no doubt be a huge burden on Google, which has become the government’s bitch when it comes to searches, but given that they pay for a Jolly Good Fellow, I refuse to cry a sad tear for their burden.
Perhaps the only piece of this absurdly overbroad, ridiculously burden, horribly intrusive search warrant that has gone unnoticed is that a judge signed it. A judge, as in 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.
And that a judge signed this warrant is just one instance of a far larger, more deeply embedded, problem. It’s not like was the first warrant that should never, under any circumstances, have been granted. And even if this judge signing off on this warrant turns out to be the village idiot, the cop executing it is covered. After all, he fulfilled the warrant clause.* It’s not his fault the judge was a blithering idiot.
Is it nice to call a judge a blithering idiot? No. It’s not nice and, in all likelihood, it’s wrong. It may well be that the judge didn’t actually read it, as some tend to trust the cops just a little too much. Or perhaps looked at the front and last page, ignoring the boilerplate in the middle containing all that boring factual stuff squeezed between the heretofores and hereinafters.
Or maybe the judge means well, is smart enough to be a judge for a great many purposes, but isn’t all that good on the law. This will come as huge shock to academics, but there are actually judges who are very nice, well-intended and not particularly knowledgeable about the law. You know that “trial guy, law guy” distinction? Sometimes that applies to judges as well. Great trial lawyer. Well liked, if not widely admired. But not really the sort of bloke who thinks long and hard about law.
And then there’s the blithering idiot. In many places, the foremost qualification for being a judge is the ability to salivate. After all, with enough saliva, you can like a ton of envelopes in the local political boss’ headquarters, and those envelopes aren’t going to lick themselves shut. Work hard for the party and be rewarded. It isn’t always done out of love.
Or perhaps it’s one of those places where they believe in the public, loves democracy, swears by the will of the people as reflected in the popular vote. Isn’t a great that the public gets to elect judges who represent . . . something? After all, ordinary voters are certainly well positioned to assess the legal acumen of a person running for judge, especially if they have the endorsement of the local police union. You went to law school and passed the bar? Qualified! Extremely qualified!!! Beyond that, it’s all just squishy, as in how you would never let some criminal go on some technicality to rape our wives and daughters.
And there are brilliant judges, knowledgeable judges, exceptionally competent judges as well.
A search warrant signed by any of these judges, from Learned Hand to Moe, the smarted of the Three Stooges, is still a search warrant. It’s good enough to demand the Google results and information for thousand, maybe tens of thousand, of citizens of Edina. It’s good enough for a cop to stick his finger up your anus while a couple others hold you down. It’s a warrant, and every bit as much of a warrant as signed by the most brilliant judge ever.
Does this mean the warrant clause was a mistake, an inadequate protection against the government? Well, yes, but that’s not really the issue here. Does it mean that there should be ex ante review of warrants, and not merely post hoc review after privacy has been lost and the ugliness spread across the prosecution table in the courtroom. Well, yes, but that too isn’t the point here.
The point here is that judges are not fungible. One isn’t necessarily as smart, as concerned, as neutral, as fair, as hard-working, as any other. And if you get the wrong judge, the biased judge, the lazy judge, the blithering idiot judge, that could be your anus on the line.
Judges matter. Judges matter enormously. Having good, smart, hard-working, fair judges matters. And not all judges are good enough. That matters too, because that’s the judge who will sign the ridiculous warrant, like this mutt in Edina.
* As Rick Horowitz notes, this isn’t “fulfilling,” meaning that it is legally sufficient in that it comports with the actual requirements of probable cause and particularity, as required by the Fourth Amendment, but fulfilling in the sense that, “hey, gots me a warrant and some judge actually signed it! Woo hoo!!!”