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• Thursday, January 8, 2009 11:06 AM

  @ thelastnamechosen

  I think we are watching two different movies because, at this point, I am just confused.

  [Arne]: Businesses are under different rules. Period. For instance, business records are open to subpoena, while your personal papers are not.

  Are you saying that the police can't seize your personal papers even with a warrant?

  No. But they can't seize them through subpoena, generally.

  [Arne]: Even traditional searches are a bit weird (at least according to customary 4thAm law). In the warrant is for a stolen refrigerator, they may still search your drawers. I don't agree but that's the law.

  [*** on review, I retract this claim; this specific example is wrong ***] Sorry, mea culpa</>.

  Do you not see a difference between a warrant to search a specific house for a stolen refrigerator and a warrant to search any house for a stolen refrigerator?

  Yes, I do. I didn't say it was 100% analogous. I offered it as another example of the fluidity at the edges of the Fourth Amendment.

  But, FWIW, while it's not permissible to search "any house" for the refrigerator, I'd note that it is permissible to search "any drawer". So there are some similarities.

  It's been a while and I had a big brain fart. Agreed that the places searched should be "reasonable" (no elephants in drawers), but such exceptions as the Chimel "reaching area" and "objects in plain sight (while not in the search warrant)" [not to mention, "plain sight" is in many cases elastic] tend to bend the edges of the "place" and "particularity" requirements.

  I've long been of the opinion that objects not specified in the search warrant should not be subject to seizure, but that's not the law.

  I also think you have the elephant in a drawer backwards. I am still trying to find a direct Supreme Court cite but this is from the 7th Circuit--

  You are correct. I was wrong.

  QUESTION: The basic reason, I think, is to -- is to describe the scope of the search. If -- you know, if -- if -- if you're looking for an elephant, you can't look in drawers. So where's there an elephant on the search warrant, searching through drawers is beyond the proper scope of the search. Isn't that a good enough reason?

  I think so (and so, it seems, do the courts).

  But a "roving wiretap" is not permission to tap my friend's house in case I use their phone. Rather, it's a procedural convenience that keeps criminals from defeating surveillance by changing their own phones:

  http://en.wikipedia.org/wiki/Roving_wiretap

  Under old laws, separate warrants were required for each phone tapped (remnant of the "particular" requirement), and new warrants would be needed for each new phone if the person buys phone cards on a daily basis or uses prepaid cellular, etc. The "roving warrant" is more target-centric, not modality-centric. Keep in mind that the "things to be seized" remains the evidence of criminal planning, etc., and not the phones themselves. The phones are more like drawers in the person's house or pockets in his drawers.

  The "roving wiretaps" are not intrinsically more intrusive that old Title 3 warrants; rather, they restore the status quo that existed when people only had a single land line.

  Cheers,

  —Arne Langsetmo Read Arne Langsetmo's other letters
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