WaPo: Violation of 4th Amendment? (Good Analysis)

[pat_k]

Washington Post
Was it legal for the FBI to expand the Weiner email search to target Hillary Clinton’s emails?
By Orin Kerr October 30 at 10:08 AM

. . .
The first issue is whether the FBI was permitted to search through Abedin’s email account for records of Weiner’s illegal messages with underage girls. In People v. Herrera, 357 P.3d 1227 (Colo. 2015), the Colorado Supreme Court provided some reason to think that the answer may be “no.” In Herrera, the government had a warrant authorizing the search of a cellphone for messages between the defendant and an undercover officer who had posed as a underage girl. When the police executed the warrant, the officers also searched a folder that contained messages between the defendant and a different (real) underage girl. The court held that searching the folder violated the Fourth Amendment because the only evidence authorized to be seized in the warrant — the messages between the defendant and the undercover officer — weren’t likely to be in the folder containing messages between the defendant and the other girl....

There might be similar problems because the alleged Weiner texting crimes apparently occurred in 2016. I gather that the Clinton emails were from her time as secretary of state, which was several years earlier from 2009 to 2013. If I’m right that there was a several-year gap between the warrant crime and the second investigation, it’s not clear the government could search through older emails for evidence of such a recent crime. See Wheeler v. State, 135 A.3d 282 (Del. 2016) (holding that the Fourth Amendment was violated when a warrant to search computers for witness tampering that occurred in 2013 did not include a date restriction on how far back the search could extend; evidence of crime from a computer not used since 2012 suppressed as a result).

A second issue is whether the FBI was permitted to seize the Abedin emails, which were outside the scope of the warrant, and to use them to reopen the investigation into Clinton’s email server. I think this is the bigger legal issue for the FBI. Most courts have treated this as a matter of the “plain view” exception.

The Fourth Amendment plain view standard doesn’t allow a seizure of emails based on a mere we-hope-to-later-determine standard. The government can’t seize the emails just because the Clinton investigation is extra important and any possible evidence is worth considering. Rather, the Fourth Amendment requires the initial look at the emails to generate “immediate” probable cause that they are evidence of a crime first, before their seizure is permitted and used to get a second warrant...

The Fourth Amendment plain view standard doesn’t allow a seizure of emails based on a mere we-hope-to-later-determine standard. The government can’t seize the emails just because the Clinton investigation is extra important and any possible evidence is worth considering. Rather, the Fourth Amendment requires the initial look at the emails to generate “immediate” probable cause that they are evidence of a crime first, before their seizure is permitted and used to get a second warrant.

Seems to be a good analysis.

One problem:
It's my understanding that they haven't even obtained a search warrant yet. If that is true, and if they are ultimately denied a search warrant -- whether on the grounds that there is insufficient probable cause, or that too far out of scope (different person, different time) of the original warrant, and so was off limits for any sort of examination -- the genie is already out of the bottle. If a warrant is denied, then Republicans can make all kinds of wild claims about the "off limits" email contents.

This is so effing effed up.

[PoliticAverse]

1. According to one reporter today Weiner has given the FBI permission to look at the emails...

which would make a warrant unnecessary...

https://twitter.com/joshrogin/status/792752933892874240

[pat_k]

4. Very surprising.

I'm not sure what to make of this. The legal quagmire appears to me to be enormous. Does email belong to device (his computer) or to person who "owns" the email account (presumably Abedin)?

I find it extremely surprising -- and difficult to believe -- Wiener would actually grant them permission to search all email --- email from Clinton's time as secty of state (2009 - 2013), which is much earlier than crime under investigation.

I await reporting of this from a source other than a Bret Baier tweet. What was the scope of permission? What are the implications? Has any other source been able to confirm with Weiner attorney?

So far, the reports from other, questionable sources like Inquisitr, only reference Bret Baier tweet (Fox anchor) as source. No other confirmation.

[lapucelle]

5. You seem to know a lot about the law involved, so I'll pose this hypothetical.

If the police have a warrant to search a house that I own, would the police also be allowed to search my adult son's room? What if it were the room of a tenant living there?

Did the original search warrant cover everything on the device or just the data relating to Weiner?

[pat_k]

8. Warrant requires probable cause to believe specific crime has been...

... committed, and needs to be for specific evidence related to that crime.

I'm not a lawyer, but that's my understanding.

As the article I linked to points out, the 4th amendment includes a "plain sight" exception.

For example, if they have probable cause to believe you knifed someone, and probable cause to believe the knife may be in your house, a judge would issue a warrant to search for the knife, and perhaps seize all the knives in your house.

Now, suppose the warrant didn't include searching for bloody clothes, but they see bloody clothes "in plain sight" -- and have probable cause to believe those clothes are also evidence of your alleged crime -- they could seize them and use them against you.

As far as parts of your property that "belong" to others. To go into your son's room, or your tenant's room, I think the warrant would need to specifically name those areas as being part of the search, and provide some probable cause for believing the knife they seek could be stashed in those locations.

Now, assuming the warrant does include the other areas, if your tenant has drugs out in plain sight -- perhaps enough to suspect dealing -- then they could seize them and use them as evidence against your tenant.

Of course, if the things that weren't covered by warrant were, arguably, not in "plain sight," the person the evidence is to be used against could object to the admissibility of the evidence.

I've watched too many Law & Orders....

[lapucelle]

10. I think you missed your calling!

Thanks so much for taking the time to explain this.

[pat_k]

16. I always knew I'd won an argument...

... when my dad (an attorney) said "you should be an attorney."

[OnDoutside]

11. ABC news are reporting the FBI have now got a warrant.

[pat_k]

17. Some thoughts on that...

Yeah, I saw that a little while after I started this thread.

Here are some of my thoughts on that:

http://www.democraticunderground.com/?com=view_post&forum=1251&pid=2561368

[dsc]

18. they would definately have to get a separate warrant for the tenant

the adult child would be up in the air likely. As a renter myself the cops have to either get my permission to enter or a warrant to enter. In the case of the adult child, if she/he isn't paying rent and doesn't have a lease then I could see saying it was no different than a minor child.

[MyNameIsKhan]

2. Fbi must be negotiating Huma's lawyers for access

They donot need a warrant if she permits ...

I think the issue is how did director know Huma's emails were pertaining to Clinton investigation unless someone took a peek. That is basic issue here, I mean FBI has no reason to believe Huma was involved in Weiner underage crime.

[pat_k]

3. But it's Weiner's computer...

It was apparently shared with Abedin, but it was seized in his case, under a limited warrant.

It's not likely his atty would agree to allow investigators to expand his warrant to cover email that was earlier than the alleged crime (crime alleged to occur in 2016, Clinton time as secty of state 2009 to 2013) and email belonging to spouse (she's not a target of the "sexting" investigation).

Sure, they can try to negotiate with Abedin, but without agreement from Weiner's legal team, I don't see them getting anywhere.

And then there is this little tidbit in an Los Angeles times piece yesterday:

The emails were not to or from Clinton, and contained information that appeared to be more of what agents had already uncovered, the official said, but in an abundance of caution, they felt they needed to further scrutinize them.

If this is true, something truly bizarre is going on. If they weren't "to or from Clinton" how the hell would she have any control or responsibility for content?

[Warren DeMontague]

6. Unfortunately the 4th amendment doesnt exist anymore.

Its been negated by the drug war, so we could fill our prisons with pot smokers.

[pat_k]

9. Sigh... And the "war on terror."

[Warren DeMontague]

12. exactly.

those two, killed it.

[lapucelle]

7. Thank you for posting all the clarifying information, pat_k.

Would the "plain site" exception have been triggered if the agents had found the Huma emails via a "to/from" search of all Weiner's emails?

[pat_k]

14. Not sure.

It depends on how they need to conduct the search.

This is a complete hypothetical, but suppose, for example, they needed to start by generating some sort of report that includes the To/From (regardless of who that is), Date, and Subject fields for all the email on the computer. If so, email not to and from Weiner would probably be considered in "plain sight" because they would be on that type of report.

But then, the next requirement would need to be met. That is, does simply seeing To: Clinton, From: Abedin, Subject: Some subject constitute "immediate" probable cause of a crime committed by Clinton? I don't see how it could possibly be argued that it would. The only case in which the content of To/From Clinton/Abedin would be probable cause of a crime would be if the subject were "Classified document attached."

Suppose all they see is that an account belonging to Abedin exists on the computer. I don't see how they could justify searching the Abedin account for evidence of Weiner's alleged crime. If they searched in there anyway, and found an email with the subject "Classified document attached" it would only be admissible against Clinton if they could show that they had reason to search there for evidence against Weiner. (The email couldn't be considered "in plain sight" during the search because they had no business searching there.)

I suppose they could refrain from doing a search of the Abedin account for evidence against Weiner, and try to get a warrant to look for evidence against Clinton based on a claim that the existence of the Abedin account, all by itself, is probable cause to believe Clinton committed a crime, but I don't see that flying either. I don't see how the mere existence of an account could possibly be considered "immediate" evidence of a crime.

But, who knows? Perhaps there's some judge somewhere that believes that any email sent to or from Clinton found on any computer, with any subject, and any date is "immediate" evidence of a crime.

[Coyotl]

13. But this is a political witch hunt, so the law does not apply.

[pat_k]

15. Sad but true.

Just as Congress declared that "the law does not apply" when it refused tf fulfill it's obligation to judge the legality of the Florida electors on Jan 6, 2001. (And toss them out as unlawfully appointed pursuant to an incomplete election. No other judgment was possible. When SCOTUS stopped the count, they didn't "decide" Florida, they simply rendered it incomplete.)

Just as Congress declared that "the law does not apply" when they refused to impeach Bush/Cheney for torture.

We've taken so many punches, I should be used to it by now. It may be irrational to expect better, but hope springs eternal and all. Without a little faith in "us" I'd be completely immobilized.