4th Amendment ruling
The 6th Circuit has ruled (pdf) in a case involving search of a bonded warehouse area used by an FFL who was involved in illegal sales.
As I read it, the core facts are: an ATFE agent got a search warrant for the area. The warrant, in the section where the goods to be seized should be listed, simply said "see affidavit." The affidavit did describe the guns, but it was under court seal. When agents showed up, the owner of the warehouse was shown the warrant and protested that the 4th Amendment requires particular description of the matters to be seized, the warrant says see the affidavit, and the affidavit is under seal.
Afterwards, he bought suit for a Bivens constiutional tort. The trial court dismissed on qualified immunity grounds (you can't win a Bivens case unless the constitutional requirement involved was "clearly established" in law at the time). A panel of the 6th Circuit reinstated the suit, noting that the 4th Amendment requirement of specificity has been around for 200 years. Gov't moved for rehearing en banc, and this decision is the result, with the entire circuit ruling that the dismissal was proper (and the panel wrong). A quick read indicates the basis is (1) the warrant plus affidavit does describe the items, and the judge issuing it thus knew what he was being asked to do (an earlier case involving a warrant that didn't mention the affidavit is distinguished); (2) while showing the warrant to the person being searched is required by rule, that doesn't necessarily mean that the affidavit needs to be (note a bit of a circular argument here); (3) the agents did perform the search in a reasonable manner and took only the described items; (4) even if there was a requirement that the warrant itself describe the items without reference to the affidavit, that particular requirement was not "clearly established" in law.
Two judges concur on basis that this was a Fourth Amendment violation, but the requirement was not clearly established, and four dissent.
Not exactly a great ruling IMHO. IANAL, but how does the warehouse owner know what the subject of the warrant is without the specific details? This seems to invite abuse.
Posted by: RKV at July 3, 2006 06:17 PM
Trust Me! I know what I am searching for.
WOW, look what I found. Phone Call "John, that affidavit for the search. You need to revise it. NO, I didn't find that stuff BUT I did find ****. Put that in the affidavit and reprint it. We've got this guy now".
This ruling doesn't "Invite abuse" it says "Please, Please abuse me".
Yet another display of Judges without a clue.
Sealed Warrents weren't enough. Now the warrent is OK to see it's just what is being searched for that is sealed. Can you say "Blanket Search Warrent" or BS Warrent.
Posted by: Dan Hamilton at July 5, 2006 10:18 AM