Activist magistrate overruled on search warrant

AP News
Posted: Aug 08, 2014 1:22 PM

WASHINGTON (AP) — A federal judge has set aside a ruling by an activist magistrate who has been rejecting some government requests for search warrants to conduct electronic surveillance.

The decision by Chief Judge Richard Roberts of the U.S. District Court in Washington followed the government's challenge to an order by Magistrate Judge John M. Facciola, who twice denied search warrant applications in a criminal kickbacks investigation.

Facciola said the application for a search warrant failed to clearly indicate that Apple Inc. would be required to disclose emails. The chief judge overruled Facciola, saying the government application for a search warrant complies with Fourth Amendment requirements. The Fourth Amendment safeguards against unreasonable searches and seizures by the government.

Facciola is among a number of federal magistrates around the country who have been aggressively scrutinizing law enforcement requests for electronic data.

Facciola took a particularly strong position in the unidentified criminal kickbacks probe. The magistrate judge objected to the government procedure requiring Apple to disclose all e-mails linked to the e-mail account that the government wanted to search. The magistrate judge recommended a more limited approach: that Apple perform the necessary search and turn over any relevant information to the government.

Roberts said the government's search warrant properly restricts law enforcement discretion to determine the location to be searched and the items to be seized. He said there is a fair probability that the electronic communications and records that the government seeks will be found in the place to be searched. The government disclosed the crimes involved and the names of those targeted, Roberts added.

Under the Stored Communications Act, the government may apply for a warrant requiring an electronic service provider to disclose the contents of electronic communications.

Magistrate judges have the authority to decide some pretrial matters, including whether to grant search warrant applications.