No Search Warrant for Lawful Gun Owner's DNA in Prosecution of Felon Who Was Fighting with Him

From a decision by Magistrate Judge Zia Faruqui (D.D.C.) in In re: Search of One Device and Two Individuals (decided last month but just released Tuesday):

The videos [of the arrest] showed the defendant and [redacted] on top of each other, falling down the stairs while being tackled by police officers. While they all were tumbling down, a gun fell from their area. Defendant's [redacted] exclaimed right away that the gun was [redacted]. The gun was in fact registered to [redacted] and [redacted] had a license to carry it.

The underlying criminal prosecution of the defendant was for that defendant's allegedly possessing a firearm as a felon, but the government applied for a search warrant seeking, among other things, [redacted]'s DNA, which in context appears to be the DNA of the person who was fighting with defendant. (As is often the case with opinions that contain multiple redactions, one needs to guess at what each redaction relates to.)

[Redacted] has lived, worked, and survived in challenging circumstances. [Redacted] testified at the detention hearing why [redacted] obtained the firearm in question: to protect [redacted] and [redacted] home. In so doing, [redacted] dutifully followed the Supreme Court's direction that the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

But despite [redacted] doing things the right way—legally purchasing and licensing [redacted] firearm—the government seeks court authorization to violate [redacted] bodily autonomy for DNA evidence. But evidence of what? A crime? There is no cause to believe [redacted] has committed or participated in a crime. The only purpose of the search is to disprove [redacted] possession of the firearm [redacted] is authorized to carry.

In an email to the Court, the government called this an "exclusionary search." But that is not a thing. "The government cannot, for example, search every unit in an apartment building because it has probable cause to believe that some unknown part of the building holds evidence of a crime."

"At bottom, the search warrant [would] authorize[] the search of [redacted] based on nothing more than [redacted] proximity to a place where criminal activity may or may not have occurred. And, as the Supreme Court has explained, 'a person's mere propinquity' to suspected criminal activity 'does not, without more, give rise to probable cause to search that person.'" Thus, the Court rejects the government's request.

Comments

[ReaderY]

The government’s theory appears to be that the felon and not the registered gun owner was the real possessor of the gun, or perhaps took enough control of it momentarily during the melee to become a possessor at that moment.

But there’s no evidence at all to support that theory. No witness saw the felon with or taking the gun. Without evidence, the theory is nothing but a speculation, and there is no probable cause.

[ikaritenshi]

except apparently the GJ came to a different conclusion. to me an outcome like this is untenable. either vacate the indictment because it's not supported by probable cause or grant the warrant.

to say that a Grand Jury finding of probable cause is inferior to a judicial ruling finding there isn't absurd.

[David Nieporent]

It's not "inferior"; it's just irrelevant. The judge has to make his own independent determination of whether there's p.c. for a warrant.

[Davy C]

In over four years of being a Magistrate Judge, I have made over 1,000 probable cause findings in search warrants. Not once have I rejected a warrant. Until now.

That puts the approval rate at over 99.9%. Is this because the government is great at presenting probable cause, or because magistrates aren't great at denying warrants when there isn't probable cause presented?

[ikaritenshi]

the DOJ has time and money, so unlike state prosecutors who they can really cherry pick their prosecutions so usually everything is tight by the time they are applying for the search warrants.

[Brett Bellmore]

Nada in a thousand isn't "tight", it's "rubber stamp".

[MaverickNH]

Two posts from one incident? That's academic publication inflation.

[ikaritenshi]

this is a very odd decision as to the defendant. The idea that a valid indictment would not be sufficient to probable cause for search warrant is absurd to me.

It seems to me what the magistrate was implying was that the GJ indictment was not supported by the facts, if that's the case, he should vacate the indictment.

I agree with the rest of the opinion.

[David Nieporent]

The idea that a valid indictment would not be sufficient to probable cause for search warrant is absurd to me.

As you phrase it, I don't know why. Whether there's p.c. that a crime was committed is an entirely different inquiry from whether there's p.c. that there's evidence of that crime in a particular place.

Moreover, as the judge explains, his job is to make an independent determination as to p.c., not to ask whether the grand jury found p.c.

[ikaritenshi]

Because his indictment is for the possession of the firearm, they are seeking the DNA swab for. It's absurd to say a grand jury found there was probable cause to believe that that you possessed a gun that TPO but there isn't probably cause to believe you possessed that gun to get a search for.

it's a repugnant decision, that belittles the Grand Jury, if you think the GJ was wrong to indict to the defendant for weapon possession then vacate the indictment.

[David Nieporent]

1. How does it "belittle" the grand jury to not find p.c. for a warrant but not "belittle" the grand jury to dismiss its indictment entirely?

2. Again, you confuse the question of whether there's evidence that a crime was committed with the question of whether there's evidence of that crime in a specific place.

3. A magistrate judge has no authority to dismiss an indictment.

[ikaritenshi]

because if you vacate it, then the decisions align, no one expects grand juries to be perfect that is why motions to dismiss indictments as not supported by the evidence exists.

I have to assume that after this decision defense will move for a dismissal of the indictment. It would be incongruous to keep the indictment and deny the warrant application.

[David Nieporent]

I have to assume that the defense will move for dismissal, too. And the assigned district judge (if the facts are as described here) should grant it. But that does not mean that the magistrate can (or should) sua sponte dismiss it.

[Longtobefree]

[redacted], [redacted], and [redacted] to show [redacted].
(and [redacted] is a [redacted] [redacted] [redacted])