Federal Judge Denies Search Warrant

March 24, 2014

All Posts, News

There was a small but possibly important victory for the Fourth Amendment earlier this month. A Federal Magistrate judge named John M. Facciola (photo above) denied an application for a federal warrant to rummage through a suspects email account. The issue of electronic searches, particularly email searches, has grown in importance during the Obama Administration.

The case involved the search of an apple email account held by a defense contractor. Search warrant applications are usually sealed. Facciola made public his memorandum denying the warrant. Attorneys and other interested parties may be interested to know that the memo is recorded as Magistrate Case. No. 14-228. You should be able to find the ruling here. The government’s response to the ruling will probably be sealed.

The Issue

The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

To slightly oversimplify a complex issue for clarity, the Obama Justice Department has asserted that with electronic records like emails, companies like AT&T, Apple and Microsoft must disclose everything before the DOJ and other government departments can know what they will actually search. That is the logic the NSA has used to effectively seize email, telephone and other information from virtually all Americans. The government justifies its demands for these massive disclosures by arguing, to paraphrase Professor Orin Kerr, that a search does not occur until the data is exposed to possible human observation.

Judge Facciola ruled March 9 that whether the information is formally searched or merely stored, “the seizure of a potentially massive amount of data without probable cause has still occurred – and the end result is that the government has in its possession information to which it has no right.”

What’s Wrong With That

Responding to Facciola’s ruling, Nate Cardozo, a lawyer with the Electronic Frontier Foundation, told Matt Apuzzomarch of the New York Times last week, “The fact that our data is being held by third-party service providers is allowing the government to engage in fishing expeditions that they’ve never been able to conduct before.” You can read the Times story here.

Citing a ruling in a similar case last year, Facciola ruled that the government must follow five rules when conducting email searches.

Federal policemen must ask “the electronic communications service provider to provide specific limited information such as emails or faxes containing certain key words or emails sent to/from certain recipients.”

Federal police must appoint “a special master with authority to hire an independent vendor to use computerized search techniques to review the information for relevance and privilege.”

“If the segregation is to be done by government computer personnel, the government must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant;”

“Magistrate judges should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.”

And, “The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.”

This is a dry story. It isn’t sexy which is why it has received so little news coverage. But it is still one of the most important news items in the last month.




21 Responses to “Federal Judge Denies Search Warrant”

  1. L-Frame S&W Says:

    Rebel, I agree, this is dry stuff, but it is so fucking important for us to pay attention to what the fed alphabet soup agencies are doing. By gathering and saving every bit of electronic communication we Americans are sending, at any time the powers that be can decide something is illegal, and go back and mine any communication they have stored for evidence of wrongdoing. For example: one of us might post a picture of the new exhaust system on our bike, which was completely legal AT THE TIME. two years later, some faceless bureaucrat may decide that altering a stock exhaust is illegal, and direct some agency to search the electronic data for evidence of citizens who put aftermarket exhaust systems on our bikes, and then issue warrants based upon the photos, texts, etc… we posted years ago.
    Obviously, from my name, I own firearms. I am seriously concerned about the current administration, with it’s well known anti gun penchant, deciding to disarm the population, and coming after me because I use an obvious firearm reference in my screen name. Of course, I won’t go down easily, but my cold, dead hands can’t defend my family after I’m dead.

  2. RVN69 Says:

    This has to be an old acid flashback, it can’t be real that a federal judge actually upheld the constitution! Of course the Feds (FTF) will appeal to a more flexible judge and get the warrant anyway.


    Potius Mori Quam Foedari.

  3. Phuquehed Says:

    Fucking pgp/gpg people. Use it or lose it. It’s not hard to use and if your friends you e-mail with any amount of times regularly don’t want to put up with figuring out how to use it also, then they’re not the most trustworthy of friends and you can bet your last dime that their computers hold every damn thing that’s ever come through it from outside their home (100% if they use Microsoft!).

    If you have *anything* to say to someone you want to be private but don’t trust the mail or phones, then encrypted e-mails is the way to go…unless you have one of those enigma machines the Germans used on the Uboats, and if you do have one, you better keep it hid well or our present gov’t will more than likely disappear you to have the thing.

  4. X-Frame CN Says:

    Actually the new X-Frame used in the S&W 500 Magnum (good luck finding ammo) is a real advancement but the 44 Magnum L-Frame featured on the cover of SHOOTING TIMES (www.shootingtimes.com) is a more than worthy screen name for attracting Federal Misfits of various flavors.

    Former POTUS Jimmy Carter was on TV receintly saying he is sure he is being spied on by his friend Barack & friends so he sends good old fashioned letters when he wants to communicate with world leaders about confidential information. They can of course open mail but it takes a court order for them to open 1st Class Mail that’s a lot harder to get than calling up Google, Yahoo or Verizon who are scared shitless lest they get the Tea Party / IRS treatment.

    The old adage holds true: “Never say/text anything on the phone or email you wouldn’t want edited & twisted then read in open court”. I’d add, leave your cell phone in your saddle bags and never let anyone bring one into your house. Buying the cheap throw away versions at Wal-Mart once a week helps but is no guarantee. If you gotta’ be able to hear your cell hone ring, leave it in your oven on loud (just don’t pre-heat before opening the oven door). The old fashioned walk & talk while not perfect beats carrying a wire in your vest pocket. There’s no 100% way to be secure in your conversations but common sense goes a long way.

  5. Ronbo Says:

    Like someone said on here a couple of years ago “Don’t ever say anything on the phone or e-mail or text that you wouldn’t want to say in court”.
    Nuff said.

    Head on a swivel


  6. Jim666 Says:


    Agreed !

    As fucked up as it is .
    It is.

  7. L-Frame S&W Says:

    X-Frame, the L-Frame S&W is .357 magnum, it’s not large enough to support a .44 magnum, although S&W did make a 7 shot cylinder for it, as it is beefier than the J & K frames.

  8. CN Says:

    @L-Frame S&W: Our views on gun tech are taking the subject of 4th Amendment abuse way off course. I was wrong to post what I did where I did. There is a forum on this site where it’s a free for all discussion on any & all topics. Rebel, I apologize for taking the train off the track. Won’t happen again.

  9. jj solari Says:

    haha the fourth amendment. soon as i stop laughing at all the things i am going to say about that joke and can type i will. HAHAHAHAHAHA THE FOURTH AMENDMENT!! HAHAHAHAHAHAHAHAHAHA!!

  10. L-Frame S&W Says:

    Rebel, my apologies also, I will try to behave better in the future…

  11. Sieg Says:

    The fourth amendment…

    Well, it’s about as sound as the rest of them.

    In other words, it’s worth as much as the toilet paper it’s printed on.

    Unfortunately, the Constitution was scrapped a good bit ago, now the country is founded on the Rule of Gun, not the Rule of Law.


  12. Paladin Says:


    In ever increasing numbers, the people (notice I didn’t use the word citizens) living in this Country aren’t from this country, and have the comprehension skills of a donut hole, as do way too many of the people actually born here.

    The only way to get anyone (citizen or non) to even acknowledge the existence of this Country’s Constitution or Bill of Rights, would be to make it mandatory reading, when signing up for the latest and greatest, friends and family, unlimited texting, highest speed obtainable, mobile device plan.

    As always, long may you ride.


  13. jj solari Says:

    Ironically but not surprisingly the “constitution for dummies” video series presented above is being conducted by a dummy. i dont know what he “interprets” when he reads the 4th amendment but its not what i actually SEE. Shall we read it together?
    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
    Unless you (“you” being the generalized universal “you,” of course, and not you in particular, of course) were educated by Obama personally, what this actually says is you can be searched and and you can be seized. and so can all of your stuff. That’s what the 4th amendment actually states. Now if you are simple-minded, which is very possible, you will enjoy obfuscating this simple notice – which is what it is, it is a notice that you can be searched and seized – if you are simple-minded like the fellow in the video you will enjoy obfuscating this simple notice and somehow come to the astounding conclusion that the 4th amendment is protecting you. it isnt. it is saying you and your stuff can be searched and seized. Because you are probably what is called STUPID you are saying that because a hoop or two of legalistic OCD rituals HAVE TO BE PERFORMED FIRST that you are safe from search and seizure. No. it says you can and will be searched and seized after – but not always after – some papers are signed by someone on the same payroll as the people who will actually be searching and seizing you and your stuff. which will be the cops. a cop called a “judge” has to sign a sheet of paper first. Fools – perhaps people like yourself – believe this is a great fantastic gift never offered to a citizen in human history. this is incorrect. government searches and seizures have a long active tradition in human governmental experiments. so let us review: the 4th amendment does not protect you nor your stuff from search and seizure. in fact it warns you – if you understand government at all – that you will be searched and seized. if the 4th amendment is anything “revolutionary” at all it is in its actually announcing to you in plain english that you will be fucked in the ass and fucked very hard. so you cant get them for lying. this is assuming you have what is called “reading comprehension” as opposed to thinking what something actually says is something the exact opposite of what it actually says. that is not called reading comprehension. i dont know if that even has a name other than ” you are stupid and cannot read.” hey i dont blame you. i blame your parents. you just did what they told you. and they very likely told you to become stupid. unfortunately, you cant fix it. as john wayne was to often say.

  14. COS_Leaf Says:

    Here’s a more historical perspective on all this. The guy’s site is well worth a read, but here’s a link to ths specific post:


    “John Adams, Second President, listened to the 4 hour speech of the defense lawyer James Otis (1725-1783) who argued against the king’s Writs of Assistance in February 1761 that allowed the government to arbitrarily search whatever they suspected for any reason. History repeats for there are few people in Washington today that even understand what is at stake with the actions of the NSA and how they are so devastating to the economy and free markets as they scare the hell out of capital globally”

  15. 10GAUGE Says:


    The reason he knows is because the government has been doing this since the beginning of time….it’s not a matter of being able to collect the information, it is a matter of being able to first have the man power to view and sort all of it, then legally use it WAY AFTER the fact!…

    Partial to the .357 myself when it comes to pulling triggers and dropping figures…but am admittedly old school that way,

  16. Glenn S. Says:

    No, the constitution does not protect us. We have to do that for ourselves. The government has proven that the Bill of Rights is optional on their part, and only enforceable when they choose to enforce it. When they let us win or partially win, it is only to maintain the illusion. Every check and balance is a part of the very government that finds the Bill of Rights an inconvenience. Judges that rubber stamp search and arrest warrants are often ex-cops, ex-prosecutors, and ex-politicians. My guess is that group is over-represented in the judiciary. And when a judge declines to rubber stamp, it is news. The actual rubber stamping is just daily routine and has long been the norm. If one judge declines to rubber stamp, another will gladly do so at some point. This has and will be the case no matter which political party is in power. And when the media speaks on the issue, it defines the issue as one of “criminal rights” instead of the rights of the people.

    Paladin, I define “citizens” as those who buy or pretend to buy into the government bullshit, live their lives as good little obedient sheep, believe or pretend that the system lives on the moral high ground, conform in thought, word, action, and appearance of such, and obey the rules because they are the rules. I define “people” as the citizens and everybody else.

    IF I wasn’t a “prohibited person” and IF I wasn’t so law abiding these days, I’d prefer a .45 Colt Combat Commander. That bullet is a man stopper and the frame is just the right size, IMHO.

  17. ol'goat Says:

    JJ: If govt doesnt respect the fourth amendment it’s because you dont expect them to. Ol’Goat

  18. ol'goat Says:

    you are not too far off on your take of “rubber stamping”.

    I have actually been on the receiving end of a rubber stamped document that some believed was a judicial order. I loudly and beligerently declared it was not a judicial order because it did not bear a signature of a judge (a stamp of a signature is not a signature; an unsigned document is not an order). They left, and returned the next day with basically the same document but this time it was hand signed by a judge. I complied.

    Rubber stamping of warrants and judicial orders is status quo. If you acknowledge a deficient document as a sufficient document then there’s no reason for them to go through the trouble of making the document sufficient. Hell, sufficient constitutional documents make them liable to obey the law and constitution governing that document. If they can create a shit worthless document and convince you it’s legit, they win. The masses need to know what a warrant really is and be beligerent when someone tries to fool you into thinking that a dececient document is a warrant. The masses also need to know what constitutes a judicial order.

  19. ol'goat Says:

    Yeah beligerent. It’s been a few years but once upon a time I read a Supreme Court decision regarding a case of Constitutional rights. The Court said paraphrased: “The only right you have are the ones you stand up for beligerently”! Stands to reason that the only ones they’ll respect are the ones you reserve beligerently.

  20. Glenn S. Says:

    Olgoat, I don’t think the masses care.

  21. Ol'Goat Says:

    I KNOW that the masses don’t care. The sheeple/citizens apathy is why this country is so far gone now. I hope some of the regulars here do care. I hope that someone else here or elsewhere can benefit from my experiences in “legal-land”!

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