Motion to Quash Search Warrant

I ran across something I wasn’t familiar with in a recent decision from a federal district court in Florida: U.S. v. Shaygan, 2009 WL 86678 (U.S. District Court for the Southern District of Florida).

In Shaygan, the defendant filed a motion to quash a warrant to search a laptop. Here is how the issue came up:

On February 11, 2008. . . the Defendant gave the DEA agents written consent to search that office. In the course of that search the agents found a laptop computer, inside an unzipped carrying case on the floor next to the reception desk. . . .

After the laptop was seized, Agent Wells applied for a search warrant to search its contents, and in his application reported the Defendant's post-arrest statement that he used the laptop for work, including to store patient files. The Honorable Barry L. Garber issued the warrant on March 26, 2008; the parties later agreed to stay the execution of that warrant so the Defendant could bring this motion. The warrant authorizes agents to search the computer for eight different categories of electronic records, and Defendant argues that probable cause does not support the search for . . . four categories of records.

U.S. v. Shaygan, supra.

In his motion to quash the search warrant, Shaygan argued that it should be quashed – or nullified – because it was not supported by probable cause. It seems to me that argument really goes only to the four categories he identified as not being supported by probable cause, but I’m not really concerned about Shaygan’s motion, as such.

What interests me is the notion of moving to quash a search warrant. As I explained in an earlier post, the process of challenging a search warrant is usually retrospective; that is, it usually involves a challenge brought after the warrant has been executed. As I also noted in that post, the retrospective challenge can be brought by either of two motions: a motion to suppress evidence found by executing the search warrant; and a motion for the return of property seized pursuant to a search warrant.

I’m sure we’re all familiar with motions to suppress, so I won’t spend much time on them. When you move to suppress, you’re saying the government shouldn’t be allowed to use evidence it’s already found and has in its possession. So someone who files a motion to suppress is trying to prevent the government from using evidence it has seized, either pursuant to a search warrant or to an exception to the warrant. A motion to suppress is, therefore, filed after someone has been charged with a crime.

When you move for the return of property, you’re saying, in effect, that the government seized your property in order to do something with it (search it for evidence, which is the usual dynamic when a computer is at issue, or use the item(s) seized as evidence at trial, which is the usual dynamic when the item seized is tangible evidence) but the government has already done what it needed, so you should get your property back. So someone whose computer was seized pursuant to a warrant might file a motion for return of property, arguing that the government has searched the computer (maybe made a mirror image of its hard drive) and therefore has no further need for it. In one case, a defendant who had pled guilty, been sentenced and waived any right to appeal his guilty plea or sentence moved to have the computer that was a source of evidence against him returned to him so his girlfriend could use it while he served his time. A motion for return of property does not challenge the government’s ability to search the property or use what it finds at trial or sentencing. Motions for return of property are about the property, as such. They therefore can be filed before someone has been charged or after they’ve been charged (or convicted).

Motions to quash a search warrant are prospective, rather than retrospective, and they have a very different function from motions to suppress or to have property returned. A motion to quash search warrant, as you can see from the facts in the Shaygan case, is an attempt to prevent the government from executing a warrant it has obtained but has not yet executed. As far as I can tell, a motion to quash a search warrant is usually, if not always, filed before someone has been charged with a crime. That’s only logical, I suppose, since the motion seeks to prevent the government from conducting a search and finding evidence which, presumably, will be used to charge the person with a crime.

Your ability to move to quash a search warrant apparently depends on what jurisdiction you’re in. The Shaygan court, like other federal courts, entertained that motion, so it presumably works under federal law. And motions to quash a search warrant seem to be common in California. I found a recent Missouri case, though, which indicates they’re not available in every state.

In In re Search Warrant for 415 Locust Street, 2008 WL 4861953 (Missouri Court of Appeals 2008), two business owners filed a motion to quash the search warrants that had been executed at their businesses. The officers who executed the warrants seized paper and electronically-stored documents; the motion asked the court to quash the warrants and, I gather, prevent the state from actually searching the hard and soft copy documents. (They also wanted them returned, but that’s a different issue.)

After the trial court denied the motion to quash the warrants, the business owners appealed the ruling. The Missouri Court of Appeals held that they could not file a motion to quash the warrants because of a change in Missouri law, i.e., the repeal of a former rule of Missouri criminal procedure. As the court explained,

When the supreme court repealed Rule 33.03 and declared . . . Chapter 542 governed procedure in searches and seizures, no provision comparable to Rule 33.03(b) was enacted. While section 542.296.7 provides for the return of seized property to the movant, it is only upon the court's sustaining the motion to suppress. Section 542.296 contains no mechanism for challenging the lawfulness of a search and seizure and requesting the return of seized property outside of filing a motion to suppress in the pending criminal proceeding. Unlike former Rule 33.03(b), the present statutory scheme for challenging an unlawful search and seizure does not provide for a separate motion to quash the search warrant.

In re Search Warrant for 415 Locust Street, supra. So the motion to quash a search warrant seems to work in the federal system, is definitely available in California and may be available in other states (except for Missouri), as well.

I’m trying to figure out what a motion to quash a search warrant accomplishes. So let’s consider some scenarios.

First, assume police execute a search warrant for 3 stolen handguns. They find guns matching the description and serial numbers of the stolen guns and seize them. The person whose property was searched can’t file a motion to quash the search warrant because it’s already been executed; the government has done the searching it needs to do and has found all the evidence it needs. There therefore is no point in moving to quash the warrant. If the government used the guns to charge the person who had them with theft, that person can move to suppress the guns on the grounds that the warrant was flawed or improperly executed; if the government has not charged the person and they’re so inclined (and can show that these guns weren’t stolen), they can file a motion to have the guns returned to them (however unlikely that may be).

Now assume the government does what it did in the Shaygan case: Officers obtain a warrant to search someone’s home for, say, evidence of drug dealing; as they execute the warrant, they find a laptop computer and seize it. Here, they’re not interested in the laptop, as such (it’s not suspected of being stolen for example); what they’re interested in is the evidence they think the laptop contains. We’ll assume that the original search warrant does not authorize a search of the data on the laptop; the officers therefore apply for and obtain a warrant to search the laptop for evidence of drug dealing.

If they execute the search warrant and find evidence of drug dealing AND possession of child pornography on the laptop, the owner’s only option is to file a motion to suppress the evidence falling into both categories. With regard to the evidence of drug dealing, the owner might argue that the warrant, say, wasn’t supported by probable cause or signed by a neutral and detached magistrate; the goal is to nullify the government’s authority to search the laptop for evidence of drug dealing. With regard to the child pornography, the defendant will say the government can’t use it because the warrant did not authorize a search for child pornography, which is true. The government, though, may be able to argue that in the course of conducting an authorized search for evidence of drug dealing, officers found child pornography in “plain view.” As I explained in an earlier post, the plain view doctrine lets the government use evidence it finds while conducting an authorized search for another type of evidence.

If the laptop owner could successfully move to quash the warrant to search the laptop for evidence of drug dealing, he MIGHT be able to prevent the government from finding the child pornography on the laptop. That is, if the laptop owner got the search warrant quashed, the police couldn't search the laptop for evidence of drug dealing and therefore would not find the child pornography that would be in plain view.

What I don’t understand is what this accomplishes in the long term. Doesn’t it simply delay the process? It could clearly be a useful tactic if the person whose property the government wants to search can use a motion to quash from preventing the government from ever searching that property. I don’t see how that could work, though . . . since even if a court grants a motion to quash a search warrant, it presumably doesn’t bar the government from trying again, once it's figured out how to remedy the defect (e.g., lack of probable cause) in the original warrant.

Sometimes, the motion to quash a search warrant simply seems to be part of moving to suppress evidence. So in U.S. v. Barnett, 2008 WL 183560 (U.S. District Court for the Eastern District of Michigan 2008), the court granted the defendant’s “motion to quash search warrant and suppress evidence”. In instances like that, it seems to me the motion to quash a search warrant is really just a motion to suppress.

When someone is served with a grand jury subpoena, they can move to quash it based on, say, privilege. So an attorney might get a subpoena from a grand jury directing her to produce certain records; she could file a motion to quash (kill) the subpoena on the grounds that it seeks records protected by the attorney-client privilege. If the court agrees, she’s quashed (killed) the subpoena.

I just don’t see the potential for that kind of result with motions to quash a search warrant,, but I could be missing something.