Eric Rasmusen, Indiana University, Dept. of Business Economics and Public Policy, Kelley School of Business, Room 456, 1309 East Tenth Street, Bloomington, Indiana 47405-1701, (812)855-9219. [email protected] , Php.indiana.edu/~erasmuse.
The legality of the warrant is a difficult question. A search warrant requires a crime of some sort to be involved. It is certainly legal for the INS to obtain a search warrant to seize an illegal alien in order to deport him; he is in the country illegally. But that was not the purpose of this search. Rather, the purpose was to transfer custody of an alien minor who was legally in the United States (in fact, under court injunction not to leave). For custody transfer, what is obtained is always a court order, never an arrest warrant or a search warrant. The INS does have the right to issue an administrative arrest warrant and hold aliens against their will.
In the Gonzalez case the questions are (1) whether a regulatory agency use criminal search warrants to back up an administrative arrest warrant, (2) whether a search warrant obtained under false legal and factual pretences is valid, and (3) what happens when a search warrant is executed illegally.
I don't know the answer. One reason to be skeptical is that if a government regulatory agency can use its own administrative arrest warrant to automatically get a criminal search warrant from a judge or magistrate, then the executive can always get a search without the slightest proof to anyone outside the agency that an offense has been committed. This violates separation of powers. Ordinarily, someone from the judicial branch must ultimately find some grounds for the search.
Here is the Federal Rule of Criminal Procedure on Criminal Arrest Warrants:
FRCP Rule 4(c)(1) "Warrant. The warrant shall be signed by the magistrate judge and shall contain the name of the defendant or, if the defendant's name is unknown, any name or description by which the defendant can be identified with reasonable certainty. It shall describe the offense charged in the complaint. It shall command that the defendant be arrested and brought before the nearest available magistrate judge." (http://www.law.ukans.edu/research/frcrimI.htm#II)
Here is the Federal Rule of Criminal Procedure on Search Warrants:
FRCP Rule 41(b) "Property or Persons Which May Be Seized With a Warrant. A warrant may be issued under this rule to search for and seize any(1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained." (http://www.law.ukans.edu/research/frcrimIX.htm)
"Issuance by Neutral Magistrate .--In numerous cases, the Court has referred to the necessity that warrants be issued by a ''judicial officer'' or a ''magistrate.'' 89 ''The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." (Findlaw annotations: http://caselaw.findlaw.com/data/constitution/amendment04/02.html#2)
(2a) In applying for the warrant, the INS submitted an affidavit asserting facts and a memo asserting legal points. Suppose these facts and legal points were false. Is the warrant still valid? Of course not, if no facts exist that would make a search warrant legal. But suppose that other facts and law, not mentioned in the application, would justify a search. Is the warrant legal if it *could* have been properly obtained, even though it was not?
In Elian's case, the government's affidavit and legal memo argue that Elian was like a kidnap victim, unlawfully restrained, though they did not charge Lazaro Gonzalez with criminal kidnapping. This is a patently ridiculous argument, which must have been made purely for public relations spin.
The more reasonable justification is that the INS had an administrative arrest warrant out for Elian. If Elian was an ordinary illegal alien about to be deported, a search warrant would be appropriate. But that was not quite the case here, and the government documents do not try to make the case for a search warrant based on arrest; rather, they just briefly mention the arrest warrant.
(2B) The Mary Rodriguez application for a search warrant affidavit makes false statements of fact. It says,
"...Lazaro Gonzalez has refused to return physical custody of Elian to the INS, as ordered by the INS." What Lazaro refused to do was take the boy to an airport. He said that he would surrender the boy if the INS came to pick him up, and said it in writing.
"In the absence of legal authority from the INS to retain custody of Elian, or the consent of Elian's father, Juan Miguel Gonzalez to retain custody, Lazaro Gonzalez is unlawfully restraining Elian Gonzalez." Since neither the INS nor Juan Miguel Gonzalez showed up, and Elian was not prevented from leaving on his own, it is false that Lazaro unlawfully restrained him. Forcibly taking Elian to the airport against his will would have been restraint--though lawful restraint-- but Lazaro did not do that.
Since Mary Rodriguez was sworn, is she liable for perjury?
(2c) Assistant US Attorney Dexter Lee wrote a memo in support of a search warrant for Lazaro's house. He wrote "On April 12, 2000, Michael Pearson, Executive Associate Commissioner, Immigration and Naturalization Service, and Robert Wallis, Miami INS District Director, revoked Elian's parole."
This contradicts Pearson's letter, which only revokes Elian's parole if one of two conditions is met, and only then on April 13, not April 12.
Moreover, if Elian's parole was revoked on April 12,ending Lazaro's custody, then Lazaro had no further duties. He, in fact, was not authorized to take Elian anywhere on April 13, including the airport. It was up to the INS at that point, if they formally ended Lazaro's duty by revoking parole. As the Lee letter goes on to say, "The revocation of parole also terminated any legal basis for Lazaro Gonzalez to retain custody of Elian." If Lazaro had forced Elian to go to the airport, Lazaro might even have been liable to kidnapping charges, if he no longer had custody over him.
Thus, even taking every fact in it as true, the legal memo supposedly claiming that Elian was unlawfully detained shows the opposite-- that Lazaro had no right to take Elian anywhere.
The INS's problem was that it didn't, for public relations reasons, want to do what its true legal position would arguably justify: send someone to the house with an arrest warrant, and if that person was turned down, go back with a search warrant obtained on the grounds that an illegal alien was evading arrest. It is noteworthy, however, that the application says that Elian "is the subject of an INS administrative warrant of arrest", that the entire application package did include the arrest warrant, that the affidavit mentions it and that the legal memo devotes one paragraph to it. Thus, although over 90 percent of the supporting documents are irrelevant and misleading, the application is perhaps valid nonetheless, if existence (as opposed to justification) of an administrative arrest warrant is sufficient grounds for a search.
A good discussion of the illegality of the "illegally held" claim can be found in Legal Times, May 8, 2000, Monday, Pg. 68, When They Came For Elian INS Was Armed With a Shaky Warrant, Matthew M. Hoffman. A couple of cases he cites are:
Blackie's House of Beef Inc. v. Castillo ( 1981),212 U.S. App. D.C. 327.
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388,(1971),http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=403&invol=388.
It is completely clear that a search warrant must be presented to the person being searched and they must be given a receipt for anything or anyone taken away. That even is printed on the warrant itself. This requirement was violated. Does that mean Elian should be returned?
The exclusionary rule says that evidence obtained illegally cannot be used at trial. That is not directly relevant here. Its spirit is that things must be returned to as they were before the illegal search, which would argue for returning Elian. On the other hand, many people, including me, would argue that the exclusionary rule is a bad rule, and the government should instead be deterred from illegal searches by punishing the government employees who do the illegal acts. In this case, that would mean prosecuting the INS agents for burglary, assault, and kidnapping, but leaving Elian in INS hands.
FRCP Rule 41(d) "Execution and Return With Inventory. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The federal magistrate judge shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant." (http://www.law.ukans.edu/research/frcrimIX.htm)
US Constitution, 4th Amendment: "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." (http://caselaw.findlaw.com/data/constitution/amendment04/)