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A search warrant sent via e-mail to a computer in a police vehicle or maybe to a handheld device such as a BlackBerry? Both may become possible under a federal rule scheduled to take effect on Dec. 1. This brave new world of electronic search warrants and affidavits comes courtesy of Federal Rule of Criminal Procedure 41(d)(3)(A), which simply states: “A magistrate judge may issue a warrant based on information communicated by telephone or other reliable electronic means.” The key words are “other reliable electronic means.” “E-mail could be a reliable electronic means,” said professor Sara Sun Beale of Duke Law School, reporter to the Advisory Committee on Rules of Criminal Procedure for the Judicial Conference of the United States. “The committee decided not to try to list all reliable electronic means but leave it to evolving standards as judges hear enough about a particular system,” she explained. The rule change, which becomes effective on Dec. 1 if Congress does nothing, was actually proposed to facilitate the use of telephonic search warrants, not to expand search warrants generally, said U.S. Magistrate Judge Anthony J. Battaglia of San Diego, the proposal’s author and an advisory committee member. Under the current rule, when an agent calls a judge and wants to use a telephonic warrant and the judge approves that method, the agent is required to dictate the proposed warrant, and the judge is filling in a warrant form on the other end of the phone, he explained. Real estate descriptions, he noted, can be extremely lengthy. There is also a very involved process in describing searches of electronic storage devices, when and where they may be taken off-site, how long they can be off-site, and when and if they can be returned to the owners, he said. “This material can go on for pages and pages and pages,” said Battaglia. Since society appears to have embraced the reliability of facsimile documents, he added, the committee felt that the rule should provide for faxing a warrant form with all of the required details to the judge, still mandating that the agent be on the phone with the judge and that there be a recording of their conversation. “In the interests of sanity, justice and fairness, the procedure would take far less time,” he said. The committee used “other reliable electronic means” to be consistent with other rules’ amendments that recognize advancements in technology, Battaglia added. “If a court determines a PDF file has that same efficacy and reliability as a facsimile, that court could utilize it, recognizing that all these other safeguards in the system remain,” he said. “We’re not saying all warrants are going this way. But [the rule] recognizes we need to be flexible because technology may give us other means.” Warrants via e-mail would be a “natural progression” in electronic filing now under way in federal courts, said veteran criminal defense attorney and Fourth Amendment expert John Wesley Hall of Little Rock, Ark. “When [the rule] says ‘by other electronic means,’ what else can it mean but e-mail?” he said. “We heard years ago about businessmen having portable computers and printers in their cars. I’m sure you could get a cheap laptop and printer and have it right there at scene of the search.” PROBABLE CAUSE CONCERNS Warrants via e-mail are probably “better all around” than warrants secured over the telephone, Hall said. The latter, he explained, rely on the agent’s memory. But he said, “I worry. I would think the risk on the cop side would be that the affidavit for the search warrant is just dashed off in e-mail instead of thought out and composed on the computer.” And that, he added, could lead to cursory affidavits and more attacks on probable cause. Others suggest that if e-mail makes it more efficient and speedier to get search warrants, perhaps warrants should be required in more situations. There could be fewer exigent circumstances excusing the warrant requirement if a warrant can be obtained in a matter of minutes. Whatever technology is used, the “hallmark” is “reliability,” Beale said. “To me, there is no reason to think something you would e-mail in would be less reliable than a fax.” This article originally appeared in The National Law Journal , a publication of ALM.

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