In the last two weeks, Magistrate Judge John Facciola of the District of Columbia has issued five remarkable decisions involving computer search and seizure law. In each case, Magistrate Judge Facciola denied applications for search warrants on Fourth Amendment grounds and issued published opinions explaining his denial. An appeal of at least some of Facciola’s decisions seems likely, so I thought I would blog on the various decisions and explain why I find them unpersuasive. I’ll start with the simplest of the decisions: In Matter of United States of America for a Search Warrant for a Black Kyocera Corp Model C5170 Cellular Telephone with FCC ID: V65V5170, dated March 7th. In the decision, Judge Facciola does something I have never seen before: He denies a warrant application with prejudice on the ground that he thinks the government could execute the search without a warrant. Does he have the power to do that? Let’s take a look.

Here are the facts, as found in the government’s affidavit. The police were following a suspect named Rivers who they thought was armed with a gun. Rivers took off running, and officers chased him. During the chase, Rivers threw away the gun he was carrying. The officers recovered the gun and arrested Rivers. They then retraced the steps of the chase and also found a cell phone. An officer looked through the cell phone and found lots of pictures of guns, including pictures that appeared to match the gun that the suspect had tried to throw away but that had been recovered. The officers then applied for a search warrant to conduct a more comprehensive search of the cell phone.

Magistrate Judge Facciola denied the application with prejudice on the ground that he did not think the government needed a warrant to search the phone:

Based on [the affidavit’s] recitation of the facts, this Court can only conclude that Rivers abandoned the phone. As the D.C. Circuit has recognized, “the test of abandonment is an objective one under which intent may be inferred from words spoken, acts done, and other objective facts.” United States v. Wider, 951 F.2d 1283, 1285 (D.C.Cir. 1991) (internal quotations and citations omitted). By leaving the cell phone outside, Rivers as surely abandoned it as he did the handgun that was ultimately recovered. See id. at 1285–86 (holding that abandonment occurred when a suspect “place[d] a brown paper bag on some steps and walk[ed] away from the bag up the steps toward the street.”). This Court recognizes that it only has one version of events, which have been presented ex parte. Nevertheless, the Court can only rule on a warrant application based upon what is presented to it. In light of that, the only conclusion that the Court can reach is that Rivers abandoned the phone.
Because Rivers abandoned the cell phone, Officer Wright had a right to search it. . . . [N]o warrant is needed to search it and the Application is therefore moot.

Judge Facciola is mistaken, I think. Judge Facciola seems to be assuming that warrants only should be obtained when the Fourth Amendment would be violated without them, and that he, as a magistrate judge, has the power to say ex ante when that will be. But I think that’s pretty clearly wrong. Magistrate judges do not have the discretion to deny applications if they don’t think one would be necessary. The language in Fed. R. Crim. Pro. 41(d)(1) is mandatory: “After receiving an affidavit or other information, a magistrate judge. . . must issue the warrant if there is probable cause to search for and seize a person or property” (emphasis added).

That’s true for two important reasons. First, a contrary rule would interfere with the preference for search warrants. Searches pursuant to warrants tend to be more regulated and therefore often have less severe intrusions on privacy than warrantless searches. As a result, the Supreme Court has interpreted the Fourth Amendment to encourage the police to get search warrants rather than risk a warrantless search. See, e.g., Illinois v. Gates, 462 U.S. 213, 237 n.10 (1983). If the police cannot get a warrant if no warrant may be required, then the law can no longer encourage warrants that will have the effect of lessening the severity of searches.

Second, magistrate judges do not have the facts or the benefit of the necessary legal briefing to know if the Fourth Amendment will be violated ex ante if the proposed search occurs without a warrant. All the magistrate has to go on is an affidavit from one side. But that affidavit is not supposed to be a narrative of the entire investigation, or of all the facts that bear upon an unbriefed Fourth Amendment question of whether a warrant is required. The affidavit only makes the case for probable cause and particularity. Other facts aren’t included. Whether the Fourth Amendment would be violated if the government tried to conduct the search without a warrant is not a ripe dispute. The magistrate therefore lacks Article III authority to weigh in on it.

This particular case is a good example of the problem. Without the benefit of a full explanation of the facts, and without any legal briefing from Rivers, Magistrate Judge Facciola concludes that Rivers abandoned the phone and therefore that he had no Fourth Amendment rights in its contents. But I’m not sure how we can know that. First, there is the factual problem: We don’t know how Rivers came to lose his phone. If he intentionally threw the phone away, then he may have abandoned it; but if he accidentally dropped it, then he probably didn’t. As the D.C. Circuit has stated, “the abandonment inquiry focuses on the intent of the person alleged to have abandoned the property” based on the objective evidence of that intent. Widers, 951 F.2d at 1295. Intent matters, and there is no information about intent in the affidavit. Second, there is a legal question: We don’t know if courts will interpret the abandonment test differently for personal electronic devices like cell phones than for other kinds of property. Given these difficulties, we can’t know if Judge Facciola’s belief that the Fourth Amendment allows a warrantless search of the phone is correct.

Further, Judge Facciola’s decision puts the government in a bind. Under his ruling, the police cannot get a warrant. But if they search the phone without a warrant, they run a serious risk that a future court will rule that Magistrate Judge Facciola’s prediction was wrong and that they should have obtained one. If so, it’s damned if you do and damned if you don’t. (Unless there is some kind or reverse-Leon principle where the good faith exception applies if the magistrate denied the warrant application on grounds that one was unnecessary?) The way out is for magistrates to issue warrants based on whether the government has satisfied the facial requirements of probable cause and particularity, as Rule 41 requires, not to hinge the issuance of the warrant on whether the magistrate expects such a warrant to be a legal necessity.