DC Court Smacks Feds For Going Judge Shopping After Their Warrant Request Was Denied
Well... this is a fun one. The FBI requested a warrant, got it shot down, and thought it would just try to bypass the proper judicial process by pitching the same warrant to another judge all the way across the country. (h/t FourthAmendment.com)
This saga/debacle begins in Washington D.C. The FBI is building a case against yet another person who participated in the January 6th insurrection attempt. The FBI's suspect is a Washington D.C. resident who, as of March of this year, was staying with her sister in Irvine, California.
Despite this being three years after the fact, the FBI swore (in its California-based warrant) that it had reason to believe any electronics possessed by the suspect would likely contain evidence of her participation in the Capitol building raid. It swore this while admitting it had discovered the suspect had deleted most of her social media accounts and had acquired a new phone.
Using these inferences, the FBI hoped to talk a California judge into approving a search warrant to search the suspect's sister's residence and seize all personal belongings and digital devices within the Defendant's immediate vicinity." So, it was basically asking for approval to seize nearly anything in the apartment that belonged to suspect's sister in hopes of finding stuff belonging to the actual suspect.
The court didn't think much of this warrant. It rejected it for several reasons back in March. This is the upshot of the 21-page rejection [PDF]:
The Court finds the Government fails to establish probable cause justifying any of the three search warrants it requests because there is no reason to believe evidence will be found in Irvine, California. The relevant information in the Affidavit is almost all from 2021 and 2022, which is either seriously stale or is irrelevant to the search and seizure of the locations and items requested in the Search Applications. The Government provides no factual basis for the Court to find that there is a fair probability that evidence of the crimes that occurred over three years ago in Washington, D.C. will be found at another person's residence that Defendant is currently visiting in Irvine, California. The Government simply provides no information that justifies the invasion of privacy of the person that currently resides at the Irvine Apartment, and who appears to be wholly uninvolved in the misdemeanor charges. Similarly, the Government provides no reason for the Court to find that Defendant would have brought evidence of the crimes occurring three years ago on her person or in her bags on a trip to Irvine.
Yeah. That's a court pitching a shutout. Not only was the warrant lacking in probable cause, the information was stale, and the government apparently believed adding zero probable cause to information more than three years old would someone result in a permission slip to raid the home of a completely innocent party. Not only that, but nothing in the application suggested the government would minimize its intrusion. Instead, it pretty much suggested anything in the apartment could be seized or searched, subject to zero self-imposed restrictions.
The entire affidavit is heavily criticized over the course of this order. Here's a bit more of the court's dismemberment of the FBI's requests and assertions:
More than three years have passed since the alleged crimes occurred and Defendant is no longer using the same phone. In fact, she is now on her second new phone. The Government's factual showing specific to Defendant relates only to Phone 1. Yet there is no evidence to suggest that Phone 1 still exists or is in Defendant's possession in California. The same is true for Phone 2.
[...]
Moreover, the Government's general assertion that virtually everyone in the United States has a smartphone does not establish the required nexus between the item to be seized here and the alleged criminal behavior.
On top of that, the FBI asked for the search warrant and affidavit to be sealed - something it almost always does. The court rejects this request as well, saying there's no point in sealing it until it's served because the warrant is never going to get served.
Not only that but the court even rejects any attempt to limit this to just the seizure of the cell phone currently carried by the suspect, citing the staleness of the evidence and the facts listed directly above: that the current phone carried by the suspect would contain any evidence of misdemeanor crimes committed three years ago.
That happened in March. This order [PDF] was handed down by the DC District Court earlier this month. Here's how this one opens:
Generally, when a federal judicial officer rules on an application that disposes of a case, the applicant has two options: it can seek reconsideration of the decision or it can seek review of the decision through the normal, hierarchical appellate process. Going to another court to seek a more favorable outcome from a judge of coordinate jurisdiction is not one of the options. Yet that is what the United States Attorney for the District of Columbia has done here.
The government, of course, tried to claim this was an attempt - however misguided - to appeal" the California court's rejection of its wants. The DC judge disagrees. What happened here is exactly what it looks like, rather than what the government would prefer the court to believe.
It is difficult to see how the government's conduct here can be interpreted as anything other than judge-shopping. Magistrate Judge Spaeth denied the government's warrant application to search DeLuca's phone on March 14, 2024. The phone was recovered incident to her arrest on March 15, 2024. Thereafter, the government transported" the phone to this District and less than one week later submitted a substantially similar warrant application to the undersigned.
That is, the government had a decision from a judicial officer denying its application to search DeLuca's phone. As in this District, it could seek reconsideration from the judge who made that decision-Judge Spaeth-or ask for review of the decision by a district judge in the Central District of California. It nevertheless eschewed established procedures for reconsideration or appeal of Magistrate Judge Spaeth's ruling and sought to circumvent her denial of its search warrant application by submitting an application to search the same phone to the undersigned magistrate judge in Washington, D.C.
To which the government replied (I'm paraphrasing here): It doesn't matter if we shopped the warrant around. Federal rules of procedure say judges must issue warrants supported by probable cause, even if they don't like how the US Attorney handled it."
Wrong, says the judge, who actually appears to not only know the rules, but how to follow them:
The government maintains that the only thing that matters here is whether the search warrant application presented to the undersigned meets the probable cause and particularity requirements of the Fourth Amendment. If it does, the government insists that the Court must issue the warrant." Id. at 5 (emphasis in original) (quoting Fed. R. Crim. P. 41(d)(1)). But the government sought a warrant to search the target phone from Magistrate Judge Spaeth on substantially similar facts and she found the showing of probable cause was lacking. Issuing the warrant under those circumstances would be a violation of Rule 41(d)(1).
Letter of the law. Spirit of the law. The FBI appears to care for neither option. The judge, however, cares about both.
It would surprise the undersigned if the intent of Rule 41(b)'s fluid venue provisions for search warrants of movable property was to provide the government with license to do what it did here, that is, brush aside the denial of a warrant application to try again with a different magistrate judge located in what the government perceives as a more favorable district.
The court also won't let the government get away with trying to blame its own malfeasance on the judge who rejected its warrant by claiming the judge delayed" the FBI by not issuing its order explaining the rejection immediately. Nonsense, says the DC court:
The government appears to fault Judge Spaeth for issuing her opinion two weeks after she denied the warrants before her and asserts that, by then, the target device was in the custody of the FBI in Washington, D.C. But the government transported the phone to D.C. and applied for a warrant before the undersigned to search the phone only five days after her denial, and seven days before her written decision. That timeline suggests that judge-shopping-and not anything that Judge Spaeth did or did not do-was the root cause for the government's actions.
Indeed, the motivation for its application before this Court is right there in its papers: the government repeatedly states that judges on this Court have granted hundreds, if not thousands" of similar warrants and seeks reversal of Judge Spaeth's anomal[ous]" decision on that basis. Seeking reversal of a judge's decision before a coordinate judge that the government thinks will be more favorably disposed to its arguments is the very essence of judge-shopping.
The last gasp from the feds was trying to pretend it was too difficult to transport a phone back and forth across the country so the warrant it couldn't get in California should be approved here in DC, where the phone was now located. The DC court finds this just as ridiculous as the rest of the excuses made by the government.
Finally, if the government is taking the view that it cannot now seek review of Judge Spaeth's decision in the Central District of California because the phone is no longer there, it cites no support for that position. In any case, the government has shown that it is fully capable of transferring the device between jurisdictions when it serves its interests; the delay that decision now causes any effort to seek reconsideration or appeal in California is its own doing.
Ahhhhh... that was fantastic. Now, the warrant has been rejected on both coasts. If the FBI really wants to search this phone, it will have to head back to Judge Spaeth's court. I can't imagine it wants to do this. After all, it's already racked up a loss there. And now it will be dealing with a judge who's now well aware of this judge-shopping fiasco.