Just Because A Judge Signs A Warrant, Doesn't Make It Legal…

from the just-saying dept

One of the regular “defenses” we’ve seen in the comments for why Homeland Security’s seizures of various domains — including ones that have substantial protected speech — are “legal” is because a magistrate judge signed off on the affidavit filed by Homeland Security and the Justice Department. Of course, that’s not necessarily true, as it appears that the magistrate judges in these cases failed to abide by the prevailing case law that requires a higher standard of proof than was provided by Homeland Security, but we’ll leave that discussion for another day. A separate point is that just because a judge signs off on it, doesn’t make such things legal.

As an example of this in a somewhat different context, Julian Sanchez points us to the story of a San Francisco pot bust gone wrong. In this case, the San Francisco police filed for a warrant to search 243 Diamond St. for drugs and associated proceeds for drugs. The warrant described the address as a “two-story, one-unit” building, and the officer claimed he had staked it out for two days and two nights.

It turns out that 243 Diamond is neither two stories, nor is it a one-unit building. It’s three stories and two units, and the upper unit (the one raided by the SFPD) happens to be rented to a guy named Clark Freshman… who also just so happens to be a law professor. He told the SFPD and DEA agents who raided his place that they were breaking the law, and they “laughed at” him. Except Freshman may get the last laugh, as he’s planning to sue the government. The article quotes another lawyer saying that in similar cases “people have sued and collected substantial settlements” and noting that “whomever is representing the government better get out his checkbook.”

While not quite the same, there do seem to be a fair number of similarities with some of the domain seizures. In both cases, the affidavit filed had some very serious errors — the types of errors that shouldn’t have been made. In both cases — especially with the mooo.com seizure — perfectly innocent people were severely impacted by these mistakes in the process. Just because a judge rubber stamps a warrant, it doesn’t automatically make that warrant legal.

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Comments on “Just Because A Judge Signs A Warrant, Doesn't Make It Legal…”

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73 Comments
The Groove Tigersays:

Re: Re: Re: Re: Re: Re: They should have known he was a lawyer...

Clarification: if they’re pursuing a suspect or approaching a crime scene “stealthily” they may decide not to turn their sirens and lights on (I think they have a special kind of lights for that on the rear?), but that doesn’t mean they get a free pass at every intersection or red light for the lulz.

Not an electronic Rodentsays:

Re: Re: Re: Re: They should have known he was a lawyer...

Having just aced criminal justice this semester, that’s legal.

To my knowledge (IANAL) in the UK it’s not – the police must have “reasonable cause” to fire up the “blues and twos” and “I’m late for dinner” isn’t it. Not that I’d expect they’d get in trouble unless they actually hit someone while doing it.

Chronno S. Triggersays:

Re: Re: Re: Re: Re: Re: They should have known he was a lawyer...

I read a story a while ago about a cop in the US that did that. A citizen managed to get the cop to pull over and demanded he call another cop. The second cop ended up ticketing the first for running a red light.

I have no idea if the ticket was payed or if it was just to make the citizen go away, but the fact that the first cop was ticketed suggests that it’s illegal in the US as well.

Ccomp5950says:

Re: Re: Re: Re: They should have known he was a lawyer...

The police here will turn on their lights just to make it to Sonic before happy hour is over and drinks go back to half price.

I’ve thought about parking with a camara at 4pm and video taping it. Quite literally I’ve seen them burn through 3 redlights and just turn off their lights and turn on their left blinker and pull into sonic.

Michaelsays:

I hate these cases

These cases make me sick. The guy is totally in the right suing the government for an illegal search. My problem is that the result is one of two things:

1) He loses after tax payers pay for a successful defense that actually could be used to take away some of our rights
2) He wins – and tax payers pay for this to go away

Nothing ever happens to the people that actually did something wrong and our taxes are misdirected at something totally useless.

ltlw0lfsays:

Re: Re: Re: Re: I hate these cases

Well he seems to be targeting the individuals

If this was a case of illegal search and seizure, which it appears to be, and the officers should have known it was an illegal search and seizure, the officers involved should be sued. California law (and the 4th Amendment) only protects officers who are acting in accordance with the law. If they in fact broke the law, I hope they (the officers involved) are taken to the cleaners (since they make every police officer out there look bad.)

This is taught in Search and Seizure classes in every POST certified law enforcement academy across California. It is the responsibility of the officers to assure that the Search Warrant is valid, accurate, and correct before acting on it. If you have a search warrant which has anything that is incorrect, the search warrant is invalid and must be fixed. If the warrant says the building is a two story building, it better be a two story building! Come on…it only takes a couple minutes for the duty judge to sign a new warrant. The laziness…it burns.

Richardsays:

Common Sense and Professionalism

Whatever the legal situation might be, what strikes me is the obvious stupidity and unprofessionalism of the police officers involved. Was it not obvious to them the moment they entered the flat that they were not in the right place.

Any sensible professional would have apologised and left immediately. Instead they wasted a large chunk of their own time putting an entirely innocent member of the public through a pointless ideal – whilst real criminals carried on unimpeded.

Police officers and others with similar authority are meant to acquire some skill in judging innocence and guilt so they don’t waste their own time like this. Seems this lot should be sent straight back to the training academy.

Anonymoussays:

At the time of a warrant, “legal” is only in the sense that the judge signed off on the warrant. Basically, asking the officer who requests the warrant to swear that “to the best of their knowledge” that the statements made are true. The judge make sure that the “facts” presented add up to enough to merit the warrant, and off you go.

When the officers saw that the building did not match the warrant, they likely should have stopped at that point. Going forward was a very bad choice. I wish the professor luck in his legal actions, but I think that punishing the officers children seems more than slightly vindictive (and likely to get him in legal trouble as well).

However, in all of this, it is very hard to draw a parallel to the domain issues. I am sure the moooo.com warrant will be revealed at some point in the future, and will be shown to valid on it’s face (which is pretty much the standard).

RDsays:

Re: Re:

“I am sure the moooo.com warrant will be revealed at some point in the future, and will be shown to valid on it’s face (which is pretty much the standard).”

You think its going to turn out to be legal to seize 84,000 website domains that had NOTHING to do with whatever laws were broken by a FEW of the domains? Really?

Anonymoussays:

Re: Re: Re: Re:

How often do we have to repeat this. They seized 1 domain. If that domain owner decides to create 84,000 subdomains (which are not registered, but are only local DNS records), that isn’t law enforcement’s problem.

It wasn’t 84,000 domains. It was one.

Until you can understand that basic concept, the rest of this is probably beyond your grasp.

Anonymoussays:

Re: Re: Re: Re: Re: Re:

How often do we have to repeat this. They seized 1 domain. If that domain owner decides to create 84,000 subdomains (which are not registered, but are only local DNS records), that isn’t law enforcement’s problem.

Hey AJ, I see you’re back to tell some more lies. I knew you would be.

The domains were all registered under their parent domain, as domains are.

Until you can understand that basic concept, the rest of this is probably beyond your grasp.

We can understand that you seem to have a real problem telling the truth nowadays. But, that’s typical for your type.

Anonymoussays:

Re: Re: Re:2 Re: Re: Re: Re:

Yeesh, you guys need to learn the difference between a registered domain and a third level DNS entry.

When you register a domain (moooo.com) you do so with a registrar, who has an agreement with the owner of the TLD (top level domain, in this case .com, held by Verisign).

third level (and fourth level and so on) are not actually registered. They are only created by making a DNS entry. horse.moooo.com is only a DNS record, which points to an IP. It isn’t registered anywhere, there are no direct fees to pay, it is a private contact between mooo.com and their users. There is no public registry, there is no oversight by a TLD or ICANN. You can create an unlimited number of third level domains (limited only by technical limitations of DNS software and browsers, which I think limits to 255 characters).

So before you claim anyone is not telling the truth, perhaps you might want to learn a thing or two.

Gwizsays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

But still, the whole mooo.com thing illustrates how laws written for the physical world do not always translate well onto the internet.

To most laymen, the domain/subdomain is akin to a zip code and DHS/ICE took down the whole zip code instead of the single business accused of illegal activity. The actual legality or ownership means nothing to the average person.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re:

third level (and fourth level and so on) are not actually registered.

Sure they are. If mooo wants to let other people sell names under their domain and set up an accreditation process for third party registrars, they’re perfectly free to do so, just as with Verisign and com. Or they can just register them directly themselves, which is what they’ve chosen.

What you’re basically saying is that there is no such as a registrar for names under .co.uk, for example. I say you’re full of it.

So before you claim anyone is not telling the truth, perhaps you might want to learn a thing or two.

I’ve been involved with this stuff as a network engineer for many years and know pretty well how it works. I think maybe you should take your own advice. You seem to be just making stuff up to suit your position, and that is indeed what people call “not telling the truth”.

Adrian Lopezsays:

Re: Re: Re: Re: Re: Re:

It wasn’t 84,000 domains, but the one domain that was taken down had maybe one infringing subdomain out of approximately 84,000, which is slightly over 0.001 percent of the total number of subdomains registered under that one domain.

There’s nothing like shutting down a domain for 0.001% of its content to illustrate why shutting down websites with nothing more than a judge’s rubberstamp is a really bad idea. Shutting down domains containing protected or potentially protected speech should require a trial and establishment of guilt. The first amendment is important enough that nothing less than that should ever suffice.

Anonymoussays:

Re: Re: Re:2 Re: Re: Re: Re:

It wasn’t 84,000 domains, but the one domain that was taken down had maybe one infringing subdomain out of approximately 84,000, which is slightly over 0.001 percent of the total number of subdomains registered under that one domain.

By that reasoning, mooo.com isn’t a domain either, but a just subdomain under com and taking down all of com would be just “one domain”.

There’s nothing like shutting down a domain for 0.001% of its content to illustrate why shutting down websites with nothing more than a judge’s rubberstamp is a really bad idea.

Yet, they did so and the very same excuse would justify shutting down com as well. The difference is that there are some very wealthy and politically well-connected subdomains under com and ICE wouldn’t dare step on their toes. So by not shuttind down com, ICE is admitting that it doesn’t enforce the law equally or fairly.

Gwizsays:

Re: Re:

When the officers saw that the building did not match the warrant, they likely should have stopped at that point. Going forward was a very bad choice.

Unfortunately, with asset forfeiture laws the way they are in many states, where the police departments keep 100% of the property seized regardless of the outcome of the criminal trials (if any at all), the motivation to continue is huge, because all this increases the departments funds and therefore increases individual salaries of the officers.

Gwizsays:

Re: Re: Re: Re: Re: Re:

Actually, there is a recent story running on the local TV station about the Michigan State Police busting a guy for weed in his basement recording studio with live mics recording that went down just about like that.

http://www.wxyz.com/dpp/news/local_news/investigations/exclusive%3A-state-police-caught-on-tape-during-drug-raid

RunsWithScissorssays:

The secret is to sue the INDIVIDUALS (not the department) and the Judge. Put the liability on them for following unlawful or erroneous orders.

As the Nazis found out, just because it’s an “order” doesn’t mean they have to do it. They still have a responsibility to their fellow man to ensure that they are not harming the wrong guy, or for that matter harming the right guy. They have a job to do, it DOES have responsibility that goes along with it. If they are instructed to do something illegal or unlawful, they should refuse. If they are fired, they then have grounds for their OWN lawsuit.

Anonymoussays:

A search warrant DOES make it legal to conduct a search that is consistent with the terms of the search warrant.
So the author’s comment that “just because a judge signs off on it, doesn’t make such things legal” is not accurate.
The fact that the search is legal pursuant to the warrant does not mean that the property owner is prevented from making legal challenges to the warrant or the scope of the search, or to later ask a judge to exclude from evidence what was found during the search.
Those issues can be litigated later, and they often are litigated later.
Most of the responders in this thread seem to have no legal knowledge, but seem to have experience having been arrested or having been subject to a search warrant.

Anonymoussays:

“Of course, that’s not necessarily true, as it appears that the magistrate judges in these cases failed to abide by the prevailing case law that requires a higher standard of proof than was provided by Homeland Security, but we’ll leave that discussion for another day.”

I am eager to hear this discussion. My guess is that you might be disappointed to find, not that DHS failed to meet the legal standard required, but that the standard is so low that they did meet it.

Anonymoussays:

Re: Re: Re: Re: Where are the warrants?

Yea just all of the ones that happened in June there’s been little information put out. Maybe a forfeiture hearing notice, but not the affidavits. ICE didn’t even list the sites seized for child porn in their last press release.

They’re also starting to seize them differently that’s harder to track. Instead of pointing them all to NS1.SEIZEDSERVERS.COM (seizedservers.com is operated by ICE), some departments are setting up virtual nameservers on the seized domains. For example something like NS1.FAKELV.COM.

There’s a website that shows when domains are added to a specific nameserver, dailychanges.com, and that new method foils journalists attempts to see when and what they are seizing. There’s no benefit over the old method they were using besides hiding what they are doing.

Why so much secrecy?

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