Category Archives: Search and Seizure

The Clock and the Search Warrant

“Most were corrupted by the lure of the underworld. They thought they could check their morality at the door – go out and lie, cheat, and steal – then come back and retrieve it. But you can’t.”  (Agent Martin Pera, Federal Bureau of Narcotics, 1948 to 1963), from “The Strength of the Wolf” by Douglas Valentine.

We need to revise a part of our search warrant rules in Texas. I consider this an issue in criminal justice reform that the legislature needs to address.

A set of rules of inference must be internally consistent.  If they are not, then they can lead to contradictory results or arguments that are not valid arguments.

All search warrants must have a time limit.  Particularly in the case of warrants for drugs or controlled substances.  People do drugs and/or they sell them.  They might be all gone by the time you get there. The target of a warrant might get a tip of an impending raid and move the evidence the warrant seeks to find to another location.  As well, someone might pick up and move for an entirely different reason.  Officers could come crashing in the door of the wrong person, someone entirely innocent of any misconduct and not in possession of any contraband.  Or they might find themselves walking into an empty, vacated residence.  In either scenario, the neighbors would certainly be alarmed and frightened. It is commonly thought that the lifespan of a search warrant in Texas is three (3) days.  Lets take that  assumption and see if we can derive a contradiction to show that the proposition is false.

Article 18.06, of the Texas Code of Criminal Procedure states very clearly that:
…a search warrant must be executed within three days from the time of its issuance.

Article 18.07 clarifies that the period allowed for the execution of a typical search warrant is “exclusive of the day of its issuance and of the day of its execution” and is “three whole days.”

Excluding the day or date of issue makes some sense in light of the fact that the warrant is good for “three whole days.”
Although the magistrate is ordered to endorse the date and hour the warrant is issued, when does the clock actually start running if the day the warrant is issued does not count?
The code offers little insight on this question.

It is the “exclusive of the day of execution” part that makes the rules fall apart. If you include the day of execution then the three day rule might make more sense… but the day of execution is said to be excluded.  Stating a warrant has to be executed withing three days and then not counting the day the door actually gets kicked in is absurd.
Because in reality when a magistrate issues a warrant that rule means that the police actually have four (4) days to execute it.  And that obviously contradicts the rule that a warrant must be executed in three days.


“Where are the Snowdens of yesteryear?”
Capt. John Yossarian

When I read the opening paragraphs of the first news story from the New York Times that surfaced on Google news about Judge Richard J. Leon’s opinon in Klayman et al. v. Obama, et al., “Federal Judge Rules Against NSA Phone Data Program” I felt vindicated and relieved.

When the Edward Snowden/NSA leak story first appeared in the Guardian I wrote a short piece about the classified FISA Court opinion that was published there and then re-posted that document. I did so in the event that might disappear from the Guardian site without notice for a number of reasons. I believed that this was a document that people needed to see and it should receive the widest possible circulation. Although no longer secret, the opinion was technically still classified. What was happening here was clearly illegal in my estimation.  I took the view that to classify and hide what is unlawful is also an unlawful act. I saw the FISC Order that allowed the bulk collection of phone records as being closely analagous to a general warrant.

As a result of publicly advocating this position early in the game, I was sure I was going to be labeled a “person of interest” who could now look forwad to being “selected for special screening” at the airport and having some part of my electronic life hacked as well.

Now finally there was not just another lawyer or concerned citizen who agreed with me, there was a Federal District judge on the D.C. Circuit who had issued a written opinion.  And so I went in search of a copy of the opinion to download and read.  What did it actually say?

Klayman I, as I will refer to it, is a thorough, scholarly, and well referenced opinion.  After reading it one feels that there is not much left to be said as to the Fourth Amendment questions raised by the topic of controversy.  That topic is, the NSA’s “Bulk Telephony Metadata Program.”
(Klayman et al. v. Obama et al., Civil Action No. 13-0851,filed 12/16/2013,
The Court finds that the Plaintifff’s have demonstrated a strong likelihood of success on the mertits of their Fourth Amendment claim.  The Plaintiffs are, in the Amended Complaint, Larry Klayman and Charles and Mary Ann Strange, both on behalf of themselves and “others similarly situated,” which would seem to include every Verizon subscriber for at least the last 5 years.  (In fact, by extrapolation, it could include everyone who was a cellphone subscriber during that time and up to the present.)

The Plaintiff’s constitutional claims are, generally speaking, that the Government, through the NSA’s Bulk Telephony Metadata Program, has violated their rights under the First, Fourth and Fifth Amendments to the Constitution.  The primary focus of the opinion is on the Fourth Amendment issues raised by the Program, because as noted above, the court finds that the Fourth Amendment claims are those most likely to succeed on the merits.  (Klayman I at 35). In addition, the plaintiff’s moved for a preliminary injuction to stop the Government from collecting and analyzing their particular phone records while the case is pending before the Court.

The headings of the opinion provide a clear roadmap of the questions considered by the Court. As a threshold issue, the plaintiff’s must have standing to challenge aspects of the Bulk Telephony Metadata Program.  Without standing, the inquiry would end there. (Clapper v. Amnesty Int’l USA 133 S. Ct. 1138 (2013))  “Accordingly, the plaintiff’s meet the standing requirements set forth in Clapper as they can demonstrate that the NSA has collected and analyzed their telephony metadata and will continue to do operate the program consistent with FISC opinions and orders.” (Klayman I at 42)

Having found the plaintiff’s have standing, the next question is whether the NSA’s collection and analysis violates the plaintiff’s Fourth Amendment rights.  The first question to be considered in that inquiry is whether or not a search has occurred.  If not, then once again the inquiry would end there.  If a Fourth Amendment search has occurred then the last question is whether the search was reasonable or unreasonable.  A reasonable search will be found lawful whereas an unreasonable search will not.  The Court frames the question in the following way at page 43 of the opinion.
“…whether plaintiff’s have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries analyzes and investigates that data without prior judicial approval of the investigative targets. (Klayman I, 43)

The Court ultimately finds that’s the NSA’s collection and analysis of metadata does constitute a search.  After very thorough consideration, the Court finds that “plaintiff’s have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years and the NSA’s Bulk Telephony Metadata Program significantly intrudes on that expectation.” (Klayman I, 58 – 59.); and furthermore “…plaintiff’s have a substantial liklihood of showing that their privacy interests outweigh the Governments interests in collecting and analyzing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment.” (Klayman I, 62).

The end result for now was that the Court granted the plaintiff’s Motion for a Preliminary Injunction but stayed that Order pending appeal “in light of the significant national security interests at stake and the novelty of the constitutional issues.” (Klayman, 6)

That’s basically an outline of the Fourth Amendment aspects of Judge Leon’s opinion. The full text of the opinion in Klayman et al., 0851 is a fascinating read that I highly recommend.

The FISC Rules

.And surprisingly in favor of the Electronic Frontier Foundation.  Also, as I expected, the FISA Court has its own procedural rules.  This is in accord with the axiom that any court must have rules of procedure to function. They are not at all hard to find either.

Returning to the recent opinion of June 13, the Foreign Intelligence Surveillance Court decided that they could allow the release an opinion of the Court that was found to be responsive to the EFF’s Freedom of Information Act request.  A copy of that opinion happened to be in the possession of the Justice Department. The lawyers for the Justice Department naturally opposed this.
The EFF’s FOIA request had asked for among other things, FISC opinions where the court had held that a proposed data collection activity of the government was unreasonable under the Fourth Amendment.  We can now say that there appears to exist at least one opinion where that was so held.  Whether or not we will ever read the text of it remains to be seen.  The matter was remanded back to the District Court.
The EFF story can be read here: FISA Court Rejects Catch-22 Secrecy Argument in FOIA Case

More specifically what the EFF requested concerned “collection carried out pursuant to the Section 702 minimization procedures.” This is a reference to Section 702 of the FISA Amendments Act of 2008 also known as Public Law 110-261.  Section 702(b)actually refers to “Limitations” and states at item (5) that the government’s acquisition of foreign intelligence information “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

Section 702 amended 50 USC 1881a.  There we find the language concerning the fourth amendment at 1881a(b)(5).  The term “minimization procedures” is also found in Section 1881 and elsewhere in Chapter 36. Minimization procedures seems to be a more specific reference to the governments efforts to comply with the limitations from Section 702 that were codified at 1881a(b).

The FISC or FISA court as its often called has frequently been portrayed as a mysterious black box that signs off on all government surveillance requests.  How its supposed to operate proves relatively easy to learn about.  How it operates in practice is less transparent.
Where the oversight or review of the Court’s actions occurs is less clear.  How do you address allegations of an unlawful activity that also happens to be classified as top secret?

National Scrutiny Agency

FISC BR 13-80

I always prefer going to primary sources in the midst of a controversy.  When the story broke this past week about a certain former NSA contractor releasing documents to selected journalists that included a sweeping court order for Verizon phone records, I went looking for the order.  I was concerned that the actual document might be taken down rather quickly and become a thing of legend.  Having had some difficulty locating it amidst all the other chatter, I decided to re-post it here.  You can find it at the link above: FISC BR 13-80.  It should also be embedded at the end of this post.

By all appearances it is a genuine certified copy of an Order from the Foreign Intelligence Surveillance Court that was signed on April 25th of 2013.  The scope of it is truly immense. Flow charts and power point presentations are cute, but a general warrant is a terrifying thing.

Note that this is titled “Secondary Order.”  I would be very interested in seeing the first or primary order and even more interested in seeing this:

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are  relevant to an authorized investigation…USC 1861 (a)2(A)

“By that, do mean a statement of probable cause?”  Well, yes actually.   Apparently there is an investigation that requires production of:

“all call detail records or telephony metadata created by Verizon for communications between the United States and abroad or wholly within the Unites States, including local telephone calls.”  (WHAT?..Yes, it really says that)

One might argue that the Order is limited in scope to the extent that it expires on July 19, 2013.  What a relief.  Until you consider the possibility that there was a prior order that expired on or about the date this Order was signed that asked for substantially the same records.  From April 25th to July 19th, 2013 is 85 days.  So an order of this type can be issued for not more than 90 days unless the FBI files a motion to extend that order with the Court within the 90 day duration of the order sought to be extended.  The extended order may be renewed for an additional 90 period, subject to the review and approval of the Court. The last passage is a deduction of the author.  The actual procedural rules of the FISA Court, assuming they must exist somewhere, are not found in 50 USC Chapter 36, Foreign Intelligence Surveillance.

These proceedings are not adversarial but are wholly Ex Parte.

Interested readers who would like to learn more about the FISA Court and the Foreign Intelligence Surveillance Act are directed to the following links:

FISC BR 13-80