8

Applications for search warrants are typically ex parte. In such a proceeding the person who owns the property to be searched and/or seized cannot challenge the unconstitutional laws that form the basis of an affidavit justifying that probable cause exists for a search.

Does there exist a basis to challenge the admissibility of evidence obtained following this search? Particularly if such a search is used as pretext to find items that violate laws that are not unconstitutional. Would agents that engage in such a search be able to assert qualified immunity in a 1983 proceeding even though the statute was blatantly unconstitutional?

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  • 1
    Frankly, the general argument fails (despite being exactly that of the U.S. Supreme Court) on this proceeding necessarily being ex parte. Just as much as the DA can act without a definitive suspect, a PDP could be mandated under the Due Process Clause as the affidavits “enjoy a presumption of being correct”, by which the magistrate doesn’t have a duty to actually look at available evidence to verify any allegations of the person deemed the affiant. An oath is not an oath of knowingly (especially purposefully) asserting to material false statements.
    – kisspuska
    Aug 19 at 19:53
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    And a piece of paper with statements with nothing, but a knowingly false assertion of an oath to the veracity of the “affidavit” is not an affidavit. But the presumption is still there. And no one is there to put it to adversarial testing either. The system “effectively takes us back to the days of general warrants which authorized the King's minions to invade a citizen's home and search without limit for evidence of suspected crime.” (People v. Frank (1985) 38 Cal.3d 711, 747)
    – kisspuska
    Aug 19 at 19:54
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    (And the above is not a political statement regarding whom the Russian media openly refers to as their own agent; in that case, strict compliance, and probably a preponderance of the evidence was necessary not merely probable cause because of the aforeseable political shockwaves. The above statement refers to the little man completely unprotected from general warrants on mere hunch and reasonable suspicion. Trumps and the like will enjoy a preponderance of the evidence if not a clear and convincing evidence bar before their homes are raided.)
    – kisspuska
    Aug 19 at 19:54
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    @kisspuska - Not sure I deciphered the comments above completely but search warrants are not granted by judges based on "clear and convincing evidence" or any "preponderance of evidence". Warrants are issued based on probable cause. In the case of a high-profile person everyone in the process may take extra care to get it right. Aug 20 at 2:10
  • 3
    @kisspuska furthermore, this question isn't about whether the warrant is factually justified. Considerations related to evidence aren't relevant to this question. The question is about challenging a warrant on the basis of a legal consideration, not a factual one. Consider, for example, a law that (clearly unconstitutionally) forbids the possession of The Cat in the Hat. A police officer has probable cause to believe that Alice has a copy of The Cat in the Hat at home and obtains a warrant. During the search, they discover evidence of another crime. Is the evidence admissible?
    – phoog
    Aug 20 at 6:14

2 Answers 2

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If it is "sufficiently obvious" that a law is unconstitutional, evidence obtained relying on that law can probably be suppressed.

Two important principles help discern the answer to this question:

  1. The Constitution prohibits searches that are "unreasonable." The existence of a warrant authorizing a search is strong evidence that a search is reasonable, but the warrant is neither necessary nor sufficient to make a search reasonable.
  2. The Exclusionary Rule is designed to do one and only one thing: discourage law enforcement misconduct. Therefore, evidence obtained in reliance on a defective warrant will only be suppressed if it was "objectively unreasonable" for the officer to rely on that warrant.

Courts typically find reliance on a warrant to be objectively unreasonable when the warrant was obtained through deception, when it authorizes a search of a person or place with no connection to a crime, or when it fails reasonably describe the person or place to be searched.

It is likely also possible to have evidence suppressed because the warrant authorized a search for evidence of the violation of a plainly unconstitutional law. That was the question in Illinois v. Krull, 480 U.S. 340, (1987), where a defendant was prosecuted based on evidence obtained in reliance on a law that was later ruled unconsitutional. The Illinois Supreme Court held that because the law was unconstitutional, the search relying on it was also unconstitutional, and the evidence obtained thereby must be suppressed. But the Supreme Court reversed, holding that the evidence need not be suppressed because "this defect in the statute was not sufficiently obvious so as to render a police officer's reliance upon the statute objectively unreasonable."

This suggests that if a statute's unconstitutionality is sufficiently obvious, that an officer seeking evidence in reliance on it would be objectively unreasonable, and that that evidence would therefore be subject to suppression. I don't know of it ever happening, but it's easy enough to make up ridiculous laws that might satisfy this standard. For instance, if Congress passed a law permitting police to write their own warrants to search any mosque at any time, evidence from that search would likely be suppressed. Or if Congress passed a law prohibiting all black women from criticizing the president, evidence that a defendant had violated that law would likely also be suppressed, even if it had been obtained with an otherwise validly issued warrant.

Of course, most laws are not as obviously unconstitutional as those, so a challenge on these grounds will likely revolve around what exactly should have alerted a reasonable officer to the statute's consitutional infirmities.

Likewise, an officer executing such a search is exposed to Section 1983 liability for an unreasonable search or seizure if his reliance on the warrant is not objectively reasonable. As always, there will be a question of whether the officer is entitled to qualified immunity, but that question will turn as always on whether his violation of the law was clearly established. If he is searching for evidence of black people voting, qualified immunity is going to be a hard sell. If he's searching for evidence that a defendant violated a law in a gray area, qualified immunity may save him.

8
  • I don't think a law permitting the police to sign their own warrants would necessarily be found unconstitutional. The appellate court would find the perfect explanation as to why an exception to this well-established principle could be set aside. An affidavit that includes a single reckless material false statement axiomatically includes at least one knowing false statement: The affirmation. If the affirmation is a lie, the affidavit is not an oath, and the magistrate's probable-cause analysis is preempted rendering the magistrate, but the signing hand of the police.
    – kisspuska
    Aug 20 at 1:38
  • A self-singed warrant would be only stopped for the reason of making public outrage, and even then, it is at least questionable if SCOTUS would stop it unless for the situation now with orange head. Otherwise, it probably would be upheld, and deemed a technicality: The magistrate doesn't have to subject it to a legal technicians analysis, must afford a rebuttable presumption of accuracy, so will not look at axons or other audio or video evidence, and would sign. Basically, even if the police would have brought the "affidavit" for a signature, it would have been granted anyways, a technicality
    – kisspuska
    Aug 20 at 1:43
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    Good clear answer Aug 20 at 2:13
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    @kisspuska a law allowing the executive branch to issue search warrants without the involvement of the judicial branch most probably would be found unconstitutional.
    – phoog
    Aug 20 at 9:46
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    I wonder in general about the concept of "obviously unconstitutional" laws. How do these get passed in the first place? Do the legislators just push them through in the hope that no one will challenge them?
    – Barmar
    Aug 20 at 14:51
5

Applying for a search warrant based upon a law that well established constitutional law establishes is invalid (e.g. the law has been declared unconstitutional by a court decision that is controlling in the jurisdiction) would probably constitute an actionable 42 USC 1983 violation that would overcome qualified immunity.

Executing the warrant once a judge issues it is a closer case, because the judge's ruling arguably is controlling legal authority which muddies the waters and gives rise to qualified immunity.

The judge issuing the warrant has absolute immunity from liability.

5
  • Your first "is" seems supposed to have been "as" instead?
    – justhalf
    Aug 20 at 3:53
  • @justhalf either "is" or "as" works there, and although the resulting sentence is somewhat different grammatically in each case, they both mean the same thing.
    – phoog
    Aug 20 at 6:17
  • Oo, I couldn't parse it with "is", though. How do you parse it? Currently the form is "Applying X is invalid would probably constitute Y".
    – justhalf
    Aug 20 at 12:21
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    See also this recent Fifth Circuit decision about a very similar fact pattern, except for an arrest warrant instead of a search warrant.
    – Kevin
    Aug 21 at 17:35
  • 1
    (also, see particularly the concurrence which goes into detail about how and why having a warrant is not enough to shield officials from liability.)
    – Kevin
    Aug 21 at 17:45

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