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E-Mail Search Warrants Start Dec. 1

By Last Night in Little Rock, Section Crime Policy
Posted on Tue Apr 18, 2006 at 04:00:31 AM EST
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by Last Night in Little Rock

Last night I posted on FourthAmendment.com the Supreme Court's new proposed Federal Rule of Criminal Procedure 41 dealing with search warrants. Unless countermanded by Congress, which is highly unlikely, the rule change becomes effective December 1st.

And, it appears to me that e-mail search warrants will become possible. We already get e-mail through our cellphones, Pocket PC phones, and Blackberrys, so why not allow the police to receive search warrants that way? As a matter of common knowledge, we know that e-mail tends to be lax and lackadasical, fired off with less thought or usually without circumspection. One feels a shudder when a search warrant might be involved--breaking down the doors of homes and less than adequate information, sometimes without warning and creating danger for police and homeowner alike.

So, this just begs the questions: Will that lead to more attacks on search warrants as lacking probable cause because the officer found it too easy to get a warrant and not think it out as he or she typed the warrant application into a computer and presented it to a judge? Will it have a salutary purpose in causing more warrants to be issued, which would actually preserve Fourth Amendment values? Or will the typical shoddy e-mail syndrome lead to worse warrant requests?

These all remain to be seen. The risk of abuse, intentional and negligent, seems great, but that kind of police abuse is tolerated in the big Court, far too much.

And they wrote this rule. What can we expect?

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    E-Mail Search Warrants Start Dec. 1 | 9 comments (9 topical)
    Re: E-Mail Search Warrants Start Dec. 1 (none / 0) (#1)
    by Che's Lounge on Mon Apr 17, 2006 at 09:46:05 PM EST
    Privacy. Hah! Or should I say "Baahaahaaa"

    Re: E-Mail Search Warrants Start Dec. 1 (none / 0) (#2)
    by Steven Sanderson on Tue Apr 18, 2006 at 01:11:43 AM EST
    I wonder what the turn-around time will be using e-mail search warrants. If the time between the on-scene authority requesting a warrant via e-mail and receiving an affirmative response to that request is only a few minutes, then that raises the possibility that "after-the-fact" warrants could be obtained to cover shoddy policework and to protect improperly collected evidence.

    Re: E-Mail Search Warrants Start Dec. 1 (none / 0) (#3)
    by kdog on Tue Apr 18, 2006 at 05:59:13 AM EST
    Nobody gets in my crib without a good old-fashioned written copy signed by a judge with an official seal. For all I know, the email came from Officer Joe at the station, there is no way for the suspect being searched to verify authenticity.

    Re: E-Mail Search Warrants Start Dec. 1 (none / 0) (#4)
    by Talkleft Visitor on Tue Apr 18, 2006 at 06:21:26 AM EST
    IANACL (I am not a criminal lawyer), but what makes you think that the "e-mail" warrant applications authorized by Rule 41 are not going to be done the same way most "electronic" filings are commonly made in the Federal courts (PACER system) or agencies? IOW, an e-mail attaching or web site uploading good old paper-based forms that have been scanned into Adobe Acrobat (*.pdf) files? Sworn affidavits and applications and such, just like today? You make it sound like a cop can drive around with a Blackberry and be, like, "DEAR HON. JUDGE SMITH, PLS GIVE ME A WARNT PER CPL SEC. 201.220 ASAP ON JOE GRABASANDWICH, 123 MAPLE ST, ANWHERE USA"..GOT PROBABLE CAUSE, TO WIT, CI #4 KNOWN TO BE RELIABLE ETC ETC...REMEMBER THE BRINKS CASE LST WEEK????!!!, LOL ;-) ROFTL! (*WINK*)...I'M OUTSIDE HOUSE NOW SO PLS HURRY. THX"

    Re: E-Mail Search Warrants Start Dec. 1 (none / 0) (#5)
    by Bob on Tue Apr 18, 2006 at 07:49:28 AM EST
    I am personally against e-mail SW's. I am of the opinion that it should be required that ALL SW's be written out in qwill pen and delivered to judges on horseback for their review and signature. (That way there would be fewer of them and it would be more likely that there would be fewer "are you kidding me" requests).

    Re: E-Mail Search Warrants Start Dec. 1 (none / 0) (#6)
    by legion on Tue Apr 18, 2006 at 08:19:39 AM EST
    Um, not being a lawyer, I couldn't parse the whole text. But I am a professional tech weenie, and this raises a boatload of big questions in my head. First, how exactly do you "present" an e-mailed warrant? Flashing the display of your Palm Pilot? Showing me the screen of your laptop? The only viable option is to print it out, so this is really just a way of speeding up the communications process, so cops don't have to run all over town to track down a judge, right? Well, here's another question - how are these e-mails authenticated? If a defendant can show a security hole in the e-mail chain from cop to judge and back, the whole warrant (and anything siezed with it) gets thrown into question, no? And how easy would it be for either cops or bad guys to forge something to their advantage? I worry that municipalities are going to try to implement this with a whole bunch of half-assed insecure protocols that wind up making the entire concept of warrants questionable. Finally, if I'm a Bad Guy, I'm going to invest heavily in cell phone and wi-fi jammers to surround my Hidden Lair with. Then, because one guy misused them, they'll be legislated into "tools of terrorism".

    Re: E-Mail Search Warrants Start Dec. 1 (none / 0) (#7)
    by Gabriel Malor on Tue Apr 18, 2006 at 10:51:41 AM EST
    I disagree that this will increase search abuses. The requirements for PC are still in place and must be enumerated on any warrants. Facilitating faster communication between magistrate judges and police officers does nothing to limit the usual protections. Moreover, the decisions of magistrate judges will still be subject to challenge and examination in court. This situation is analogous to the use of telephone warrants; the magistrate judge (or his/her secretary/clerk) has to sit down and write out the warrent just like always.

    Re: E-Mail Search Warrants Start Dec. 1 (none / 0) (#8)
    by Patrick on Tue Apr 18, 2006 at 10:52:30 AM EST
    we know that e-mail tends to be lax and lackadasical, fired off with less thought or usually without circumspection.
    Perhaps your emails are that way, and perhaps these won't be. Hardly a solid argument to base a position on.
    Will that lead to more attacks on search warrants as lacking probable cause because the officer found it too easy to get a warrant and not think it out as he or she typed the warrant application into a computer and presented it to a judge?
    The defense can make a motion to traverse any warrant they want to now. How the warrant was obtained is not grounds for granting the motion as far as I know. We already have telephonic warrants, where the officer is not in the presence of the judge at all. In all cases in my experience, every search warrant is at some time reduced to a written record, be it by court reporter or by the officer making the application. E-mail is just the means of sending an already written warrant and seems more restrictive than telephonic warrants which are already a common occurrence in my experience.

    Re: E-Mail Search Warrants Start Dec. 1 (none / 0) (#10)
    by Talkleft Visitor on Tue Apr 18, 2006 at 02:26:43 PM EST
    John: Slightly off topic, are you ever going to put RSS on FourthAmendment.com and Lawofcriminaldefense.com? I find both of those sites incredibly powerful resources, but sometimes hard to "access" due to its current format and lack of RSS. [I should note only slightly off-topic as you reference 4thAmend.com in your post.]

    E-Mail Search Warrants Start Dec. 1 | 9 comments (9 topical)