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Heres a remarkable case from the Ohio Supreme Court, State v. Hoffman, involving an unconstitutional arrest warrant. The defendant was arrested for a misdemeanor based on a defective arrest warrant, leading to the discovery of evidence of murder. The remarkable part is why the arrest warrant was defective. For at least 17 years, magistrates in Toledo, Ohio were instructed to issue arrest warrants without ever actually making a probable cause determination. Officers would just say that the suspect had committed an offense, and the magistrates would issue the warrant without ever hearing the factual basis for that conclusion. Heres the testimony of the magistrate who issued the arrest warrant in this case:

Q. And during your 17 years of swearing in criminal complaints with requests for arrest warrants, did you know what probable cause was? A. No. Q. Had you ever made a probable cause determination? A. No. * * * Q. Did any of [your] training include making a probable cause determination? A. No, it did not.

Pretty astonishing, given that the text of the Fourth Amendment says, no warrants shall issue, but upon probable cause.

In the new decision, the Supreme Court of Ohio recognizes the flagrant constitutional violation but concludes that the evidence in this case should not be suppressed because of the good-faith exception. An intermediate state case, State v. Overton, had involved a similar warrant, and the Overton court had held in a one-paragraph summary that the warrant had established probable cause. The Ohio Supreme Court concludes in Hoffman that Overton was binding appellate precedent under Davis at the time the warrant was issued in Hoffman, essentially trumping the text of the Fourth Amendment for purposes of the exclusionary rule.

I find Hoffman puzzling in two ways. First, I think the scope of the exclusionary rule for a defective warrant is set by United States v. Leon, 468 U.S. 897 (1984), not Davis. Leon lays out the standards for when the good faith exception applies to defective warrants, and it clearly does not apply here: Leon says that the good faith exception only applies if [s]ufficient information [was] presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. This case involves exactly that mere ratification that Leon says wont suffice. Given the clarity of Leon on this point, coming straight from the U.S. Supreme Court, it seems strange to me to apply Davis instead based on the conclusory decision in Overton.

Second, even if Leon applies instead of Davis, its not obvious to me that suppression is an available remedy. The problem, it seems to me, is that arrests generally dont require warrants. Unlike searches, they generally require only probable cause. Given that, its not clear to me that a defective arrest warrant makes a difference. If the police have probable cause, they could make the arrest without a warrant. In such circumstances, I dont see how the arrest violates the Fourth Amendment (as compared to the warrant) if the police also obtain a warrant that is defective. Probable cause authorizes the arrest, not the warrant, so a search incident to arrest should be okay. Granted, in Hoffman, its not clear that the police actually had probable cause. It looks like the officers relied mostly on the warrant in the suppression hearing rather than making the case for probable cause directly. Either way, probable cause is the real issue.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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Volokh Conspiracy: Magistrate issues arrest warrants for 17 years but is new to probable cause

Call Yourself a Hacker and Lose Fourth Amendment Rights
By: Tech Feed Net Published on Nov 2, 2013 Call yourself a hacker and lose your 4th amendment rights, Congress responds to NSA diplomat spying, the USA FREED...

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Call Yourself a Hacker and Lose Fourth Amendment Rights - Video

Fourth Amendment
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Fourth Amendment - Video

Fourth Amendment,amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that forbids unreasonable searches and seizures of individuals and property. For the text of the Fourth Amendment, see below.

Introduced in 1789, what became the Fourth Amendment struck at the heart of a matter central to the early American experience: the principle that, within reason, Every mans house is his castle, and that any citizen may fall into the category of the criminally accused and ought to be provided protections accordingly. In U.S. constitutional law, the Fourth Amendment is the foundation of criminal law jurisprudence, articulating both the rights of persons and the responsibilities of law-enforcement officials. The balance between these two forces has undergone considerable public, political, and judicial debate. Are the amendments two clauses meant to be applied independently or taken as a whole? Is the expectation of privacy diminished depending on where and what is suspected, sought, and seized? What constitutes an unreasonable search and seizure?

The protections contained in the amendment have been determined less on the basis of what the Constitution says than according to what it has been interpreted to mean, and, as such, its constitutional meaning has inherently been fluid. The protections granted by the U.S. Supreme Court have expanded during periods when the court was dominated by liberals (e.g., during the tenure of Chief Justice Earl Warren [195369]), beginning particularly with Mapp v. Ohio (1961), in which the court extended the exclusionary rule to all criminal proceedings; by contrast, during the tenure of the conservative William Rehnquist (19862005) as chief justice, the court contracted the rights afforded to the criminally accused, allowing law-enforcement officials latitude to search in instances when they reasonably believed that the property in question harboured presumably dangerous persons.

The full text of the amendment is:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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Fourth Amendment (United States Constitution ...

A protest against government surveillance in Washington DC. Civil liberties groups denounced the FBIs move as brazen and potentially dangerous. Photograph: Xinhua /Landov/Barcroft Media

The FBI is attempting to persuade an obscure regulatory body in Washington to change its rules of engagement that would grant it significant new powers to hack into and carry out surveillance of computers throughout the US and around the world.

Civil liberties groups warn that the proposed rule change amounts to a power grab by the agency that would ride roughshod over strict limits to searches and seizures laid out under the fourth amendment of the US constitution, as well as violating first amendment privacy rights. They have protested that the FBI is seeking to transform its cyber capabilities with minimal public debate and with no congressional oversight.

The regulatory body to which the Department of Justice has applied to make the rule change, the advisory committee on criminal rules, will meet for the first time on November 5 to discuss the issue. The panel will be addressed by a slew of technology experts and privacy advocates concerned about the possible ramifications were the proposals allowed to go into effect next year.

This is a giant step forward for the FBIs operational capabilities, without any consideration of the policy implications. To be seeking these powers at a time of heightened international concern about US surveillance is an especially brazen and potentially dangerous move, said Ahmed Ghappour, an expert in computer law at UC Hastings college of the law who will be addressing next weeks hearing.

The proposed operating changes related to rule 41 of the federal rules of criminal procedure, the terms under which the FBI is allowed to conduct searches under court-approved warrants. Under existing wording, warrants have to be highly focused on specific locations where suspected criminal activity is occurring and approved by judges located in that same district.

But under the proposed amendment, a judge can issue a warrant that would allow the FBI to hack into any computer, no matter where it is located. The change is designed specifically to help federal investigators carry out surveillance on computers that have been anonymized that is, their location has been hidden using tools such as Tor.

The amendment inserts a clause that would allow a judge to issue warrants to gain remote access to computers located within or outside that district (emphasis added) in cases in which the district where the media or information is located has been concealed through technological means. The expanded powers to stray across district boundaries would apply to any criminal investigation, not just to terrorist cases as at present.

Were the amendment to be granted by the regulatory committee the FBI would have the green light to unleash its capabilities known as network investigative techniques on computers across America and beyond. The techniques involve clandestinely installing malicious software, or malware, onto a computer that in turn allows federal agents effectively to control the machine, downloading all its digital contents, switching its camera or microphone on or off, and even taking over other computers in its network.

This is an extremely invasive technique, said Chris Soghoian, principal technologist of the American Civil Liberties Union, who will also be addressing the hearing. We are talking here about giving the FBI the green light to hack into any computer in the country or around the world.

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FBI demands new powers to hack into computers and carry out surveillance