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A federal magistrate in San Jose has rejected a bid by prosecutors to search an unidentified target's Google e-mail account, criticizing the "seize first, search second" request as overbroad and unreasonable under the Fourth Amendment.

U.S. Magistrate Paul Grewal could have simply denied the request in a stark order without preamble or explanation.

Instead, Grewal waxed poetic, beginning his seven-page ruling Friday by painting a portrait of how each day he "joins the teeming masses of the Bay Area on Highway 101 or 280," marked by "lengthy queues" at exits in Mountain View, Sunnyvale and Cupertino. "The Technorati are, in short, everywhere" in Silicon Valley, from the "humble downtown San Jose taqueria" to the "overpriced Palo Alto cafe," he said.

Grewal said he was hammering home a point, that "too few understand, or even suspect, the essential role played by many of these workers and their employers in facilitating most government access to private citizens' data."

The magistrate said he had reviewed an application by the government to search the Gmail account of a person suspected of stealing government funds.

The judge noted that "no defendant yet exists, as no case has yet been filed. There are no hearings, no witnesses, no briefs and no debate. Instead, a magistrate judge is left to predict what would or would not be reasonable in executing the warrant without any hard, ripe facts. This is hardly a recipe for success."

Although Grewal said he did find probable cause to believe that the Gmail account in question in fact contained evidence of theft, "what of all the data associated with the account which supplies no such evidence whatsoever?"

Grewal blasted the request as overreaching under the Fourth Amendment, which bans unreasonable searches. He said federal officials failed to provide any date restriction, other than to say the alleged crimes began in 2010.

"Nor has the government made any kind of commitment to return or destroy evidence that is not relevant to its investigation," Grewal wrote.

"This unrestricted right to retain and use every bit Google coughs up undermines the entire effort the application otherwise makes to limit the obvious impact under the plain view doctrine of providing such unfettered government access," he wrote.

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Magistrate waxes poetic while rejecting Gmail search request

The Fourth Amendment
Gov 2.

By: Michael Sovers

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The Fourth Amendment - Video

By Guest Contributor on May 09th, 2014

Editor,

Criminalizing homelessness raises constitutional concerns. For example, some courts uphold that begging is protected under the First Amendment as freedom of speech. When police search the belongings of a homeless person without a search warrant, they could be violating the Fourth Amendment right to be free from unreasonable searches and seizures.

Jailing and imposing penalties on homeless people for sleeping in public or loitering when they have nowhere else to go, could be a violation of the Eighth Amendment right to be free from cruel and unusual punishment.

For sure criminalizing homelessness does nothing to deter homelessness. It only makes it infinitely more difficult for the homeless person to get on their feet and for those trying to help them.

If someone has broken the law they deserve to be punished, but criminalizing homelessness exacerbates the problem. I believe we in Laguna are capable of something better than this.

Utah has reduced its number of chronically homeless by 74 percent. They are out to end homelessness in their state by 2015.

They found that it cost less to give away apartments with wrap around services to the homeless than it did to criminalize them. They calculated the cost of ER visits, police calls, ticketing and jailing cost more than an apartment with a caseworker. This is all documented on line for anyone wanting verification.

With all the creative minds in Laguna surely we can at least match what was done in Utah.

Jessica deStefano, Laguna Beach

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It Costs Less to Care

Is Big Brother Listening? Applying the Fourth Amendment in an Electronic Age
Maryland State National History Day 2014 Noah Pritt, Spencer Paire, Emily McGovern and Priya Stepp.

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Is Big Brother Listening? Applying the Fourth Amendment in an Electronic Age - Video

LAS VEGAS -- Could police be playing favorites when it comes to getting search warrants signed by local magistrates? An I-Team investigation shows one judge has signed nearly twice as many warrants this year, as any other judge.

The Fourth Amendment prevents police from entering your home or seizing your property without obtaining a warrant signed by an impartial magistrate.

But one expert the I-Team spoke with questions whether judges with strong ties to law enforcement can truly be impartial. Why do certain judges sign lots of warrants for police, while other sign hardly any.

Law enforcement officers went to Las Vegas Justice Court for search warrants more than 2,000 times last year. Each warrant has to be signed by a judge whose job it is to impartially review the facts before approving it. But can a judge who's married to a police officer be impartial when signing warrants for that officer's department?

A judge has to be neutral and detached and somebody who is married to a police office is not neutral and detached. Period, said John Wesley Hall, a Fourth Amendment expert.

Hall is a lawyer who runs a Fourth Amendment blog and wrote reference books on search and seizure law. He is referring to Judge Melanie Andress-Tobiasson who is married to a career Metro officer who retired last summer. When the I-Team asked Las Vegas Justice Court for numbers on how many warrants were signed by each magistrate Andress-Tobiassons name was at the top of the list.

She signed the greatest number of warrants by a margin of nearly 2 to 1 over the judge with the next highest figure.

I-Team reporter Glen Meek: Do you think the fact that your husband was a career Metro officer tends to prompt police to call you more often for a search warrant?

Tobiasson: Absolutely not. Absolutely not. And I can tell you, though he's retired now probably most of the officers on the department don't even know my husband.

If police seek certain judges for warrants and not others it can create the appearance of judge shopping. It's not illegal, but it can make the process seem unfair and begs the question of why police should favor some judges over others.

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I-Team: Do police seek search warrant friendly judges?