A few weeks ago this previous post discussed the fourth amendment and District of Columbia Magistrate Judge John Facciola’s decisions rejecting the Government’s request for a search warrant of electronic communication. As noted, the decisions are interesting because Judge Facciola refused to grant the requested warrants not because the Government did not demonstrate probable cause, but because he did not believe the Government needed a warrant to begin with.
Since then, Judge Facciola issued this opinion, which includes an in-depth discussion of why he believes the seize first, search second” principle applies different in this context. His opinions will continue to generate debate concerning the fourth amendment and the procedural protection of electronic communication, particularly since, as the Volokh Conspiracy notes here, his opinion stands in contrast to Eighth Circuit precedent.
