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|RE:||Standard of review|
Standard of review
Standard of review for a 4th amendment case on probable cause for issuance of a search warrant
Robert wants a statement written for a standard of review for an appellate brief. He is representing the petitioner/defendant. Not sure if the standard of review is Mckinney or Gates but I need a statement drafted citing the appropriate case.
Relevant Statute and Cases
Before going into the standard of review, make sure that your brief complies with F.R.App.P 28(a)(4) that requires a statement of jurisdiction as well as the requirement of R. 28(a)(9)(B) that requires a discussion of the standard of review. Note well the language of (9)(B) that requires “for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues)”. In other words, the statement and argument of the appropriate standard of review may be incorporated into the body of the argument or you can state it separately. State and federal appellate courts prefer to have the standard of review stated separately and clearly articulated. See, e.g., 42 DePaul Law Review 1413. The U.S. Supreme Court, however, in cases of most interest in this brief, does not address the standard of review separately, but instead addresses standards of review within the holding itself. This suggests that a separate heading on this topic is not required, although reference to the standard certainly is required.
The two leading cases that we must consider in this appeal are Illinois v. Gates and U.S. v. Leon. In Gates, the Supreme Court established a new standard for reviewing applications for warrants. This case remains valid. The Court does not directly address the standard of review; however, the opinion and holding, address the standards within the context of the larger holding. The opinion states:
- [A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate s "determination of probable cause should be paid great deference by reviewing courts." Spinelli, supra, at 419. "A grudging or negative attitude by reviewing courts toward warrants," Ventresca, 380 U.S., at 108, is inconsistent with the Fourth Amendment s strong preference for searches conducted pursuant to a warrant; "courts should not invalidate [warrants] by interpreting [affidavits] in a hypertechnical, rather than a commonsense, manner." Id., at 109. . . . [T]he traditional standard for review of an issuing magistrate s probable-cause determination has been that so long as the magistrate had a "substantial basis for . . . [concluding]" that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. Jones v. United States, 362 U.S. 257, 271 (1960). See [*237] United States v. Harris, 403 U.S., at 577-583. n10 We think reaffirmation of this standard better serves the purpose of encouraging recourse to the warrant procedure and is more consistent with our traditional deference to the probable-cause determinations of magistrates than is the "two-pronged test." [Emphasis added]
Illinois v. Gates, 462 U.S. 213, 236-237 (U.S. 1983); accord, Massachusetts v. Upton, 466 U.S. 727 (U.S. 1984) (Gates “emphasized that the task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate s decision to issue the warrant).
It appears that the Court in Gates opts for a “substantial basis” or “substantial evidence” test as one that gives great deference to the findings of a judicial magistrate in issuing a warrant. This conclusion, however, is controversial, as commentators have failed to agree upon a clear standard coming out of the Gates opinion. 43 DePaul L.R. 1413, 1449. To obtain a better sense of the standard, the Court must look at its holding Leon.
In U.S. v. Leon, 468 U.S. 897 (1984), which establishes the “good faith” standard to allow admission of evidence from otherwise faulty warrants, the Court writes:
- Deference to the magistrate, however, is not boundless. It is clear, first, that the deference accorded to a magistrate s finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Franks v. Delaware, 438 U.S. 154 (1978). Second, the courts must also insist that the magistrate purport to "perform his neutral and detached function and not serve merely as a rubber stamp for the police." Aguilar v. Texas, supra, at 111. See Illinois v. Gates, supra, at 239. A magistrate failing to "manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application" and who acts instead as "an adjunct law enforcement officer" cannot provide valid authorization for an otherwise unconstitutional search. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-327 (1979). Third, reviewing courts will not defer to a warrant based on an affidavit that does not "provide the magistrate with a substantial basis for determining the existence of probable cause." Illinois v. Gates, 462 U.S., at 239. "Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Ibid. See Aguilar v. Texas, supra, at 114-115; Giordenello v. United States, 357 U.S. 480 (1958);Nathanson v. United States, 290 U.S. 41 (1933). Even if the warrant application was supported by more than a "bare bones" affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate s probable-cause determination reflected an improper analysis of the totality of the circumstances, Illinois v. Gates, supra, at 238-239, or because the form of the warrant was improper in some respect. [Emphasis added]
United States v. Leon, 468 U.S. 897, 913-915 (U.S. 1984)
Thus, while appellate courts and commentators have struggled to establish or classify the appropriate standard of review, the Supreme Court has not spent a great deal of effort attempting to clarify the matter separate from the substance of its holdings in these cases. In the present appeal before the Supreme Court, we do not believe that the Court will express great concern about the standard of review outside of the context of the greater issues before it for determination.
Because of this, all of the appellate cases that address this issue, such as those found in the DePaul law review article (42 DePaul L.R. 1413) seem largely irrelevant in this case before the Supreme Court. Unless the defendant believes that statement of a particular standard not already mentioned in the Gates and Leon cases would be outcome determinative, we believe the special attention given to the standard of review by defendant will not prove fruitful.
Rule 41. Search and Seizure
(a) Scope and Definitions.
- (1) Scope. This rule does not modify any statute regulating search or seizure, or the issuance and execution of a search warrant in special circumstances.
(2) Definitions. The following definitions apply under this rule:
(A) "Property" includes documents, books, papers, any other tangible objects, and information.
(B) "Daytime" means the hours between 6:00 a.m. and 10:00 p.m. according to local time.
(C) "Federal law enforcement officer" means a government agent (other than an attorney for the government) who is engaged in enforcing the criminal laws and is within any category of officers authorized by the Attorney General to request a search warrant.
(D) "Domestic terrorism" and "international terrorism" have the meanings set out in 18 U.S.C. § 2331.
(E) "Tracking device" has the meaning set out in 18 U.S.C. § 3117(b).
(b) Authority to Issue a Warrant. At the request of a federal law enforcement officer or an attorney for the government:
(1) a magistrate judge with authority in the district--or if none is reasonably available, a judge of a state court of record in the district--has authority to issue a warrant to search for and seize a person or property located within the district;
(2) a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed;
(3) a magistrate judge -- in an investigation of domestic terrorism or international terrorism -- with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district;
(4) a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both; and
(5) a magistrate judge having authority in any district where activities related to the crime may have occurred, or in the District of Columbia, may issue a warrant for property that is located outside the jurisdiction of any state or district, but within any of the following:
(A) a United States territory, possession, or commonwealth;
(B) the premises -- no matter who owns them -- of a United States diplomatic or consular mission in a foreign state, including any appurtenant building, part of a building, or land used for the mission s purposes; or
(C) a residence and any appurtenant land owned or leased by the United States and used by United States personnel assigned to a United States diplomatic or consular mission in a foreign state.
(c) Persons or Property Subject to Search or Seizure. A warrant may be issued for any of the following:
(1) evidence of a crime;
(2) contraband, fruits of crime, or other items illegally possessed;
(3) property designed for use, intended for use, or used in committing a crime; or
(4) a person to be arrested or a person who is unlawfully restrained.
(d) Obtaining a Warrant.
(1) In General. After receiving an affidavit or other information, a magistrate judge--or if authorized by Rule 41(b), a judge of a state court of record--must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device.
(2) Requesting a Warrant in the Presence of a Judge.
(A) Warrant on an Affidavit. When a federal law enforcement officer or an attorney for the government presents an affidavit in support of a warrant, the judge may require the affiant to appear personally and may examine under oath the affiant and any witness the affiant produces.
(B) Warrant on Sworn Testimony. The judge may wholly or partially dispense with a written affidavit and base a warrant on sworn testimony if doing so is reasonable under the circumstances.
(C) Recording Testimony. Testimony taken in support of a warrant must be recorded by a court reporter or by a suitable recording device, and the judge must file the transcript or recording with the clerk, along with any affidavit.
(3) Requesting a Warrant by Telephonic or Other Means. In accordance with Rule 4.1, a magistrate judge may issue a warrant based on information communicated by telephone or other reliable electronic means.
(e) Issuing the Warrant.
(1) In General. The magistrate judge or a judge of a state court of record must issue the warrant to an officer authorized to execute it.
(2) Contents of the Warrant.
(A) Warrant to Search for and Seize a Person or Property. Except for a tracking-device warrant, the warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate judge to whom it must be returned. The warrant must command the officer to:
(i) execute the warrant within a specified time no longer than 14 days;
(ii) execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time; and
(iii) return the warrant to the magistrate judge designated in the warrant.
(B) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.
(C) Warrant for a Tracking Device. A tracking-device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to:
(i) complete any installation authorized by the warrant within a specified time no longer than 10 days;
(ii) perform any installation authorized by the warrant during the daytime, unless the judge for good cause expressly authorizes installation at another time; and
(iii) return the warrant to the judge designated in the warrant.
(3) Warrant by Telephonic or Other Means. If a magistrate judge decides to proceed under Rule 41(d)(3)(A), the following additional procedures apply:
(A) Preparing a Proposed Duplicate Original Warrant. The applicant must prepare a "proposed duplicate original warrant" and must read or otherwise transmit the contents of that document verbatim to the magistrate judge.
(B) Preparing an Original Warrant. If the applicant reads the contents of the proposed duplicate original warrant, the magistrate judge must enter those contents into an original warrant. If the applicant transmits the contents by reliable electronic means, that transmission may serve as the original warrant.
(C) Modification. The magistrate judge may modify the original warrant. The judge must transmit any modified warrant to the applicant by reliable electronic means under Rule 41(e)(3)(D) or direct the applicant to modify the proposed duplicate original warrant accordingly.
(D) Signing the Warrant. Upon determining to issue the warrant, the magistrate judge must immediately sign the original warrant, enter on its face the exact date and time it is issued, and transmit it by reliable electronic means to the applicant or direct the applicant to sign the judge s name on the duplicate original warrant.
(1) Warrant to Search for and Seize a Person or Property.
(A) Noting the Time. The officer executing the warrant must enter on it the exact date and time it was executed.
(B) Inventory. An officer present during the execution of the warrant must prepare and verify an inventory of any property seized. The officer must do so in the presence of another officer and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person. In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied.
(C) Receipt. The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.
(D) Return. The officer executing the warrant must promptly return it--together with a copy of the inventory--to the magistrate judge designated on the warrant. The officer may do so by reliable electronic means. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant.
(2) Warrant for a Tracking Device.
(A) Noting the Time. The officer executing a tracking-device warrant must enter on it the exact date and time the device was installed and the period during which it was used.
(B) Return. Within 10 days after the use of the tracking device has ended, the officer executing the warrant must return it to the judge designated in the warrant. The officer may do so by reliable electronic means.
(C) Service. Within 10 days after the use of the tracking device has ended, the officer executing a tracking-device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; or by leaving a copy at the person s residence or usual place of abode with an individual of suitable
- age and discretion who resides at that location and by mailing a copy to the person s last known address. Upon request of the government, the judge may delay notice as provided in Rule 41(f)(3).
(3) Delayed Notice. Upon the government s request, a magistrate judge--or if authorized by Rule 41(b), a judge of a state court of record--may delay any notice required by this rule if the delay is authorized by statute.
(4) Return. The officer executing the warrant must promptly return it--together with a copy of the inventory--to the magistrate judge designated on the warrant. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant.
(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
(h) Motion to Suppress. A defendant may move to suppress evidence in the court where the trial will occur, as Rule 12 provides.
(i) Forwarding Papers to the Clerk. The magistrate judge to whom the warrant is returned must attach to the warrant a copy of the return, of the inventory, and of all other related papers and must deliver them to the clerk in the district where the property was seized.
§ 1 Generally
- Both state and federal constitutional provisions protect individuals from unreasonable searches and seizures1 in order to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.2 Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual s Fourth Amendment interests against its promotion of legitimate governmental interests.3 These protections extend to brief investigative stops of vehicles.4 The Fourth Amendment of the United States Constitution provides: "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."
- 5 Since the Fourth Amendment standard for unreasonable searches is more specific, a seizure that passes muster under the Fourth Amendment also satisfies the requirements of the Due Process Clause.6 The Fourth Amendment is not a guarantee against all searches and seizures, only those that are unreasonable.
§ 3103a. Additional grounds for issuing warrant
(a) In general. In addition to the grounds for issuing a warrant in section 3103 of this title [18 USCS § 3103], a warrant may be issued to search for and seize any property that constitutes evidence of a criminal offense in violation of the laws of the United States.
(b) Delay. With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if--
(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705 [18 USCS § 2705]), except if the adverse results consist only of unduly delaying a trial;
(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510 [18 USCS § 2510]), or, except as expressly provided in chapter 121 [18 USCS §§ 2701 et seq.], any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and
(3) the warrant provides for the giving of such notice within a reasonable period not to exceed 30 days after the date of its execution, or on a later date certain if the facts of the case justify a longer period of delay.
(c) Extensions of delay. Any period of delay authorized by this section may be extended by the court for good cause shown, subject to the condition that extensions should only be granted upon an updated showing of the need for further delay and that each additional delay should be limited to periods of 90 days or less, unless the facts of the case justify a longer period of delay.
(1) Report by judge. Not later than 30 days after the expiration of a warrant authorizing delayed notice (including any extension thereof) entered under this section, or the denial of such warrant (or request for extension), the issuing or denying judge shall report to the Administrative Office of the United States Courts--
(A) the fact that a warrant was applied for;
- (B) the fact that the warrant or any extension thereof was granted as applied for, was modified, or was denied;
(C) the period of delay in the giving of notice authorized by the warrant, and the number and duration of any extensions; and
(D) the offense specified in the warrant or application.
(2) Report by Administrative Office of the United States Courts. Beginning with the fiscal year ending September 30, 2007, the Director of the Administrative Office of the United States Courts shall transmit to Congress annually a full and complete report summarizing the data required to be filed with the Administrative Office by paragraph (1), including the number of applications for warrants and extensions of warrants authorizing delayed notice, and the number of such warrants and extensions granted or denied during the preceding fiscal year.
(3) Regulations. The Director of the Administrative Office of the United States Courts, in consultation with the Attorney General, is authorized to issue binding regulations dealing with the content and form of the reports required to be filed under paragraph (1).
USCS Const. Amend. 4
Unreasonable searches and seizures.
- 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.
- Summaries of Relevant cases
- Highlighted copy of referred cases
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