Friday, April 25, 2014

D.C. Federal Judge Standing Up for the Constitution

Federal magistrate judges nationwide, including right here in the District of Columbia, are thwarting law enforcement attempts to gain access to cell phone and personal data.  The judges are denying requests for search warrants for such information as overly broad and in direct conflict with the basic rights afforded all United States citizens under the Constitution.

As reported in the Washington Post, in recent months, Magistrate Judge John M. Facciola of the United States District Court for the District of Columbia has  denied access to the Facebook page of alleged Navy Yard shooter Aaron Alexis and the iPhone of the Georgetown University Student accused of making the deadly poison ricin in his dorm room.  Magistrate Judge Facciola labeled law enforcement requests for search warrants “repugnant” to the U.S. Constitution. 

Magistrate Judge Facciola has required law enforcement to significantly narrow the scope of search warrants prior to signing off on the requests.  And he has taken the uncommon step of issuing formal written opinions detailing his reasoning for denying certain search warrant requests.

Although the actions of Magistrate Judge Facciola are in line with the civil liberties afforded to all of us by our Constitution, he is in a small minority of federal judges who are willing to step forward and say “no” to the federal government’s constitutionally-inappropriate requests.  Unfortunately, the majority of federal judges nationwide continue to acquiesce to overly broad and overly invasive search warrant requests by federal law enforcement.  However, there is a slow but steady movement among federal judges nationwide toward upholding the guarantees afforded to us under the Fourth Amendment’s prohibition against unreasonable searches and seizures.  Federal magistrate judges in Texas, Kansas, New York, and Pennsylvania have come to conclusions similar to those of Magistrate Judge Facciola and denied overly broad search warrant requests. 

The movement of the federal judiciary towards a more reasonable scope when conducting digital law enforcement investigations traces back a few years, but the trend has recently gained significant momentum; most notably due to Edward Snowden’s whistleblowing of the NSA’s massive government surveillance of U.S. citizens.

One judge in particular, Magistrate Judge Stephen W. Smith of Houston Texas, is credited with kicking off this so-called “Magistrates’ Revolt” in 2005 when he denied a government request for real-time access to the detailed location information emitted by cell phones.  He specifically ruled that forcing telecommunications companies to provide individuals’ ongoing data amounted to placing a tracking device directly on them, something that must be explicitly requested by law enforcement and approved by a judge.

A judge’s job of balancing the need for law enforcement to gain access to data that may help to solve federal crimes with the civil rights afforded by the Fourth Amendment is a very difficult one.  However, the Fourth Amendment’s protections are absolute.  There is no language in the Fourth Amendment that allows judges to overlook its protections if there is a “really good reason” to do so.  Under the Fourth Amendment, the government shall be prohibited from engaging in unreasonable searches and seizures, period. 

As a Washington, DC criminal defense lawyer, I routinely encounter circumstances in which judges allow law enforcement to overlook the rights afforded under the Fourth Amendment.  Every day, in courts across this country, thousands of criminal defense lawyers fight to protect Fourth Amendment rights.  Unfortunately, that fight is often lost.  But it’s promising to know that sometimes members of the federal judiciary (such as Magistrate Judge Facciola) step up and fight beside us to protect the promises guaranteed under the Constitution.

If you or someone you know has been the victim of an unlawful search or seizure resulting in criminal charges please contact Sean J. Farrelly for a full and free consultation.

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