UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) IN THE MATTER OF THE SEARCH OF ) ONE DIGITAL DEVICE CURRENTLY ) LOCATED AT 601 4TH STREET NW, ) No. 24-sw-91 (GMH) WASHINGTON, DC UNDER RULE 41 ) __________________________________________)
MEMORANDUM OPINION AND ORDER
Generally, when a federal judicial officer rules on an application that disposes of a case,
the applicant has two options: it can seek reconsideration of the decision or it can seek review of
the decision through the normal, hierarchical appellate process. 1 Going to another court to seek a
more favorable outcome from a judge of coordinate jurisdiction is not one of the options. Yet that
is what the United States Attorney for the District of Columbia has done here.
The facts are laid out in prior filings. See, e.g., ECF Nos. 3-1, 5. In short, acting on
information that Isabella Maria DeLuca—a Washington, D.C. resident and January 6 defendant
who had not yet been arrested—would be in the Central District of California in mid-March 2024,
the government applied to the U.S. District Court there for a warrant to search her cell phone,
which it expected to recover upon her arrest. See ECF No. 3-1 at 3. Magistrate Judge Autumn
Spaeth denied the application and, later, issued a 21-page opinion explaining that the government
had not established probable cause to believe that the target device—which was the third phone
the defendant had owned since the events of January 6, 2021—would have “evidence of the
charged misdemeanors that occurred in 2021.” Memorandum Decision at 16, In re Search
1 The Federal Rules of Civil Procedure expressly provide for motions for reconsideration. See Fed. R. Civ. P. 59(e) (governing motions to alter or amend a judgment); Fed. R. Civ. P. 60 (governing motions for relief from a judgment or order). The Federal Rules of Criminal Procedure do not, but courts have determined that reconsideration is available in criminal cases, importing standards from the civil context. See, e.g., United States v. Gamble, No. 19-cr-348, 2020 WL 5062938, at *3 (D.D.C. Aug. 27, 2020); United States v. Dorsey, No. 14-cr-328, 2016 WL 3607155, at *1 (C.D. Cal. June 30, 2016). Warrant for the Property Located at [Redacted], No. 8:24-mj-125, (C.D. Cal. Mar. 27, 2024); see
also ECF No. 3-1 at 4. Thereafter, DeLuca was arrested in California on a warrant issued in this
District and the target cell phone was seized incident to that arrest. See ECF No. 5 at 1. “Rather
than seeking reconsideration or appealing Magistrate Judge Spaeth’s denial of the warrant to
search the cellphone in the Central District of California, the government . . . physically
transported the cellphone to this District” and submitted to the undersigned a substantially similar
warrant application to search the phone. 2 Id. at 2.
Although judge-shopping can take different forms, it is at its most basic a litigant’s attempt
to manipulate the judicial system to find a judge likely to rule in its favor. See, e.g., In re Mann,
229 F.3d 657, 658 (7th Cir. 2000) (describing as judge-shopping the situation in which a litigant
seeks recusal of a judge who has issued adverse rulings in the hope of drawing a judge “who might
be more sympathetic to [its] cause”); Nat’l Treasury Emps. Union v. IRS, 765 F.2d 1174, 1177 n.5
(D.C. Cir. 1985) (“The semblance of judge shopping in the court of first instance is also a concern
when a litigant discontinues a fray, only to start over again on another day.”). As such, it “clearly
constitutes ‘conduct which abuses the judicial process,’” Hernandez v. City of El Monte, 138 F.3d
393, 399 (9th Cir. 1998) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991)), and is
“universally condemned.” Lane v. City of Emeryville, 56 F.3d 71, 1995 WL 298614, at *2 (9th
Cir. 1995) (quoting United States v. Conforte, 457 F. Supp. 641, 652 (D. Nev. 1978), aff’d, 624
F.2d 869 (9th Cir. 1980)); see also, e.g., Standing Comm. on Discipline v. Yagman, 55 F.3d 1430,
1443 (9th Cir. 1995) (“Judge-shopping doubtless disrupts the proper functioning of the judicial
2 The government insists that the warrant application before this Court is “similar,” but “not identical” to the one before Judge Spaeth, highlighting some additional facts that it has learned since its submission in California. ECF No. 7 at 1–2. The government does not address why the charge of judge-shopping should apply only when an identical application is presented to multiple judges and, oddly, it suggests that none of the new facts are actually material to the probable cause finding. See ECF No. 2 at 1-4; ECF No. 7 at 2 n.1. In any case, the application here is still substantially similar to the prior application and, as discussed below, the government could and should have presented any new facts purportedly strengthening its showing of probable cause to Judge Spaeth.
2 system . . . .”); Hughes v. Berryhill, No. 16-cv-352, 2017 WL 3000035, at *1 (E.D. Ky. Feb. 21,
2017) (“Courts have . . . always been worried about . . . judge-shopping.”).
It is difficult to see how the government’s conduct here can be interpreted as anything other
than judge-shopping. Magistrate Judge Spaeth denied the government’s warrant application to
search DeLuca’s phone on March 14, 2024. See ECF No. 3-1 at 4. The phone was recovered
incident to her arrest on March 15, 2024. See id. Thereafter, the government “transported” the
phone to this District and less than one week later submitted a substantially similar warrant
application to the undersigned. Id.; see also Email sent on behalf of Jake Struebing, Assistant U.S.
Att’y, to D.D.C. Criminal Warrants Inbox (Mar. 20, 2024 12:42 PM ET) (on file with the chambers
of the undersigned). That is, the government had a decision from a judicial officer denying its
application to search DeLuca’s phone. As in this District, it could seek reconsideration from the
judge who made that decision—Judge Spaeth—or ask for review of the decision by a district judge
in the Central District of California. 3 It nevertheless eschewed established procedures for
reconsideration or appeal of Magistrate Judge Spaeth’s ruling and sought to circumvent her denial
of its search warrant application by submitting an application to search the same phone to the
undersigned magistrate judge in Washington, D.C. That the government viewed the new
application as effectively an appeal of Magistrate Judge Spaeth’s denial is clear from the
supplemental briefs it filed, which argue that she ignored facts supporting probable cause, that her
3 Section 636(b)(1)(A) of Title 28 of the United States Code provides for review of a magistrate judge’s decision on a pretrial matter. And other courts have recognized that orders issued by magistrate judges in connection with search warrant applications are subject to review. See In re Search of a White Google Pixel 3 Xl Cellphone in a Black Incipio Case, 398 F. Supp. 3d 785, 788 (D. Idaho 2019). In this District, the right to appeal a denial of a search warrant is embodied in Local Civil Rule 40.7(e) and Local Criminal Rule 57.14(e), which provide that the Chief Judge shall “hear and determine requests for review of rulings by magistrate judges in criminal matters not already assigned to a district judge.” This Court has been informed that, although the Central District of California does not have a corresponding rule, a request for review of a magistrate judge’s denial of a search warrant application would go to the district judge on criminal duty. See Email to the chambers of the undersigned (May 9, 2024 3:37 PM ET) (on file with the chambers of the undersigned).
3 concerns about the staleness of the government’s evidence were “[m]isguided,” and that her legal
analysis was wrong. ECF No. 2 at 1–7; see also ECF No. 7 at 4. “Th[is] court cannot be made a
party to what is in effect an appeal from Judge [Spaeth’s] ruling” on the warrant application before
her. 4 Oxbow Energy, Inc. v. Koch Indus., Inc., 686 F. Supp. 278, 282 (D. Kan. 1988); see also
Hands v. U.S. Dist. Ct. for S. Dist. of Ala., No. 05-cv-0311, 2005 WL 8158728, at *3 (S.D. Ala.
June 3, 2005) (“[A]n oft-cited principle of law dictates that judges of coordinate jurisdiction ought
not overrule each other’s decisions.”); In re Persico, 362 F. Supp. 713, 714 (E.D.N.Y.
1973) (“Judges of coordinate jurisdiction do not, except in the most extraordinary situations, have
the function of reviewing each other’s orders.”).
The government maintains that the only thing that matters here is whether the search
warrant application presented to the undersigned meets the probable cause and particularity
requirements of the Fourth Amendment. See ECF No. 3-1 at 4–5. If it does, the government insists
that the Court “must issue the warrant.” Id. at 5 (emphasis in original) (quoting Fed. R. Crim. P.
41(d)(1)); ECF No. 7 at 8 n.4. But the government sought a warrant to search the target phone
from Magistrate Judge Spaeth on substantially similar facts and she found the showing of probable
cause was lacking. See generally Memorandum Decision, In re Search Warrant for the Property
Located at [Redacted], No. 8:24-mj-125, (C.D. Cal. Mar. 27, 2024). Issuing the warrant under
those circumstances would be a violation of Rule 41(d)(1). Again, the government at that point
could have sought reconsideration or review of Magistrate Judge Spaeth’s ruling in California.
The undersigned does not find anything in Rule 41 to suggest that the proper procedure is to ask a
4 To the extent the government contends that it is not judge-shopping because two similar search warrants were previously approved by a different magistrate judge on this court, see ECF No. 3-1 at 11; ECF No. 7 at 4 n.2, the argument is not well-taken. Putting aside the oddity of an argument that presenting a substantially similar search warrant application to three judges is somehow less improper than presenting it to only two, the contention misses the point. The government chose to apply for a search warrant for DeLuca’s phone from Magistrate Judge Spaeth. She denied it. The proper procedure was then to seek reconsideration from her or seek review of her decision.
4 different magistrate judge in a different jurisdiction for a better result. It would surprise the
undersigned if the intent of Rule 41(b)’s fluid venue provisions for search warrants of movable
property was to provide the government with license to do what it did here, that is, brush aside the
denial of a warrant application to try again with a different magistrate judge located in what the
government perceives as a more favorable district. Indeed, the Supreme Court has “expressed a
concern for ‘magistrate [judge] shopping’ in the context of search warrant applications.” United
States v. Watkins, No. 14-20034, 2015 WL 753344, at *13 (E.D. Mich. Feb. 22, 2015) (quoting
United States v. Leon, 468 U.S. 897, 918 (1984)); see also In re @gmail.com, 62 F. Supp. 3d 1100,
1105 (N.D. Cal. 2014) (noting, in connection with a search warrant application that had been
successively presented to two different magistrate judges in two different districts, that “there is a
long-recognized presumption against duplicating court efforts—what some charitably call judge-
shopping.”).
In arguing that “[t]he denial of a search warrant does not preclude the government from
presenting a similar application to a second magistrate [judge],” the government relies primarily
on the Seventh Circuit’s opinion in United States v. Pace, 898 F.2d 1218 (7th Cir. 1990), which
addressed the denial of a motion to suppress evidence pursuant to a warrant that the government
presented to a second judicial officer after it had already been denied by a different judicial officer. 5
See ECF No. 3-1 at 7–10; ECF No. 7 at 1, 7, 9. Pace asserted that “the important questions, from
a Fourth Amendment standpoint, are whether the magistrate [judge] . . . was ‘neutral and
detached,’ and whether probable cause . . . existed, not how many magistrate[] [judges] the
government applied to before finally obtaining a warrant,” further noting that such a rule “in no
5 The government also argues that doctrines of preclusion and estoppel are not applicable in these circumstances. See ECF No. 3-1 at 11; ECF No. 7 at 2–4, 6–7. This decision does not rely on such doctrines but rather on the “universally condemned” practice of judge-shopping, which abuses the judicial process and undermines judicial integrity. Lane, 56 F.3d 71, 1995 WL 298614, at *2; see also, e.g., Hernandez, 138 F.3d at 399.
5 way lessens the Fourth Amendment’s protections” because “if the second [magistrate judge’s]
decision to issue the warrant was incorrect, a reviewing court can eventually suppress the
evidence.” 898 F.2d at 1230–31.
Pace’s only comment on judge-shopping is that “[a]s a practical matter,” it “probably does
not create a great problem” and, in any case, “[a] blanket rule barring the government from
resubmitting a warrant application to a second magistrate [judge] would do little . . . to protect
Fourth Amendment values.” Id. at 1231. The case does not, however, consider the deleterious
effects of judge-shopping on important values outside of those protected by the Fourth
Amendment, such as “public confidence in the integrity of the judicial process.” 6 Tripp v. Exec.
Off. of the President, 196 F.R.D. 201, 202 (D.D.C. 2000); see also United States v. Pearson, 203
F.3d 1243, 1264 (10th Cir. 2000) (stating that “a system that allows prosecutorial judge-shopping
arguably lacks ‘the appearance of impartiality that is required to obtain the confidence of the public
and the accused in the system’” and has the potential to “threaten[] the independence of the
judiciary” (quoting Tyson v. State, 619 N.E.2d 276, 300 (Ind. Ct. App. 1993))). Nor does it address
the way the practice insults other principles important to the orderly functioning of the courts, such
as the coordinate jurisdiction rule and the established appellate process.
Nor will this Court condone the practice of magistrate judge-shopping in the hope that
application of the exclusionary rule will curb it. See ECF No. 7 at 9 & n.5. The exclusionary rule
exists to “deter future Fourth Amendment violations” and applies only where “the deterrence
benefits of suppression . . . outweigh its heavy costs.” Davis v. United States, 564 U.S. 229, 236–
37 (2011). But, as just discussed, there are important values other than those derived from the
6 Pace’s focus is understandable, as it addressed a defendant’s contention that his Fourth Amendment rights were violated by an unconstitutional search. The question presented here is somewhat different—whether a federal court should countenance judge-shopping in the context of search warrant applications.
6 Fourth Amendment at stake and worth protecting. More, as courts have recognized, the
exclusionary rule is riddled with exceptions. See, e.g., United States v. Akridge, 346 F.3d 618, 623
(6th Cir. 2003) (“[T]he exclusionary rule is subject to numerous exceptions that diminish its
scope.”); Hector v. Watt, 235 F.3d 154, 158 (3d Cir. 2000) (“[T]he [Supreme] Court has recognized
many exceptions where the exclusionary rule does not apply.”); Roberts v. United States, 675 F.
Supp. 108, 109 (S.D.N.Y. 1987) (noting that the “vitality” of the exclusionary rule has been
diminished by the “many . . . exceptions the Supreme Court has created.”). Take, for example, the
“good faith” exception, by which law enforcement is generally entitled to rely on a magistrate
judge’s determination that probable cause exists, even if that finding is erroneous. See, e.g., Leon,
468 U.S. at 920, 922. The government itself describes a Sixth Circuit case in which
the prosecutor presented the search warrant application to two judges who both refused to sign the warrant. The prosecutor then told a police officer to seek a warrant from a particular judge. The officer first re-submitted the warrant to one of the district judges who previously declined to issue the warrant and he refused again. The officer then took the warrant to the judge whom he knew had a “past conflict” with the defendant and who issued the warrant.
ECF No. 7 at 9 n.5 (citations omitted) (citing United States v. Czupyrinski, 8 F.3d 1113 (6th Cir.
1993)). That is, the law enforcement tried four times and three judges before its warrant
application was approved. But “[e]ven then,” the government asserts, “the Sixth Circuit sitting en
banc held that the good-faith exception to the exclusionary rule applied.” Id. (citing United States
v. Czupyrinski, 46 F.3d 560 (6th Cir. 1995) (en banc)). Finally, in many cases, there will be no
opportunity to challenge the appropriateness of seizing evidence pursuant to a judge-shopped
warrant, because, for example, the evidence is used in the prosecution of a defendant who did not
own the phone searched. See, e.g., United States v. Savoy, 889 F. Supp. 2d 78, 86 (D.D.C. 2012)
(“[T]o challenge the validity of a search or the introduction of evidence seized therefrom, an
individual must have a ‘legitimate expectation of privacy’ in the place searched.” (quoting Rakas
7 v. Illinois, 439 U.S. 128, 143 (1978))). In short, motions to suppress seeking application of the
exclusionary rule are not suited to the task.
The government does suggest that in extreme cases judge-shopping might be so egregious
as to merit some sort of sanction. See ECF No. 7 at 9 n.5. The court in United States v. Savides,
the decision affirmed in Pace, made a similar suggestion, stating that “[h]ad the government visited
numerous magistrate[] [judges] before convincing one to issue the disputed warrant, allegations of
[judge] shopping would be appropriate.” 658 F. Supp. 1399, 1405 (N.D. Ill. 1987). But neither
the government nor the Savides court explains why magistrate judge-shopping is offensive only if
it occurs multiple times in succession and neither provides a benchmark for how many is too many.
And, as noted above, the government indicates that even four tries is not sufficient for application
of its suggested penalty, the exclusionary rule. See ECF No. 7 at 9 n.5 (discussing Czupyrinski).
Are five tries too many? Ten? Twenty? The undersigned thinks once is enough.
The Court understands that magistrate judges must be sensitive to delaying or interfering
with criminal investigations when reviewing search warrants. Here, however, it is the government
that complicated the process by failing to follow established procedures for reconsideration and
review of adverse judicial decisions. The government appears to fault Judge Spaeth for issuing
her opinion two weeks after she denied the warrants before her and asserts that, by then, the target
device was in the custody of the FBI in Washington, D.C. See ECF No. 7 at 8. But the government
transported the phone to D.C. and applied for a warrant before the undersigned to search the phone
only five days after her denial, and seven days before her written decision. That timeline suggests
that judge-shopping—and not anything that Judge Spaeth did or did not do—was the root cause
for the government’s actions. 7 Indeed, the motivation for its application before this Court is right
7 Nor is it clear why the government could not immediately have bolstered its warrant application by seeking reconsideration in California rather than the path it took: shipping the phone to D.C. and marshalling arguments before
8 there in its papers: the government repeatedly states that judges on this Court have granted
“hundreds, if not thousands” of similar warrants and seeks reversal of Judge Spaeth’s
“anomal[ous]” decision on that basis. ECF No. 2 at 5; ECF No. 7 at 4; see also ECF No. 7 at 8
(suggesting that the government presented the warrant application in this district after its denial in
the Central District of California because judges here are “entirely familiar with the January 6
prosecutions”). Seeking reversal of a judge’s decision before a coordinate judge that the
government thinks will be more favorably disposed to its arguments is the very essence of judge-
shopping. Finally, if the government is taking the view that it cannot now seek review of Judge
Spaeth’s decision in the Central District of California because the phone is no longer there, it cites
no support for that position. In any case, the government has shown that it is fully capable of
transferring the device between jurisdictions when it serves its interests; the delay that decision
now causes any effort to seek reconsideration or appeal in California is its own doing.
* * * * *
The decision here is a narrow one. The Court finds only that, as a general matter, when
the government has presented an application for a search warrant to one magistrate judge and it
has been denied, it cannot then present a substantially similar application for the same target
property to a different magistrate judge in the hope of a better outcome. Disallowing the
government from judge-shopping its warrant applications is unlikely to burden law enforcement.
As both the Pace court and the government point out, the practice of presenting a substantially
similar warrant application to a second magistrate judge after an initial denial appears to be highly
unusual, see Pace, 898 F.2d at 1231 (“The parties have been able to uncover only one reported
opinion (and we have found no other) besides the district court’s opinion in this case that has even
the undersigned as to why Judge Spaeth’s decision was wrong—other than, again, because it was judge-shopping.
9 addressed the issue of resubmitting a warrant application to a second magistrate [judge].”); ECF
No. 7 at 7 (noting that “the case law has not grown appreciably since the Seventh Circuit’s decision
in Pace”)—and for good reason. 8 In any case, such a rule mandates only that the most basic
respect be accorded to the decisions of a federal judicial officer and the established processes for
reconsideration or review. That should not be a heavy lift for the government. Certainly, it is little
bother in this case. The undersigned has spoken with Judge Spaeth. The Central District of
California stands ready to hear any reconsideration or appeal the government may seek of her
denial of the government’s application to search DeLuca’s phone. Accordingly, the government’s
application for a search warrant before this Court is DENIED.
SO ORDERED. Digitally signed by G. Michael Harvey Date: 2024.05.14 16:44:29 Date: May 14, 2024 ___________________________________ -04'00' G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE
8 The Court does not agree—as Pace would have it—that the fact that the government’s practice here is aberrant is sufficient reason not to prohibit it.