Legal basis for the alleged warrant

Subject: Legal basis for the alleged warrant                                   
Date: Mon, 24 Apr 2000 10:51:55 -0800
From: Jon Roland  jon.roland@constitution.org
To: piml@egroups.com



Now, a day later, the DOJ claims it got a "search warrant" from a "federal
judge", for the April 22 seizure of Elian Gonzalez, after DOJ spokesmen had
previously denied having obtained a warrant. Leaving aside the highly
suspicious timing of such announcements and denials, raising the question of
whether the alleged warrant might have been backdated, there is also the
question of what was the legal basis for the warrant (or order, if it was
mislabeled).

A judge may not lawfully issue a warrant without a legal premise. Someone
cannot just get a warrant or order to do anything at all. There are only
certain premises which can justify a warrant or order.

Let us, for the moment, assume that it was a "search" warrant. Now what are
the allowable premises for a legal search and seizure? The usual answer is
evidence in a criminal case. There must be probable cause that a crime has
been committed, and probably cause that the evidence of that crime is on the
premises to be searched, and that it might not be produced in court if not
seized.

So is Elian evidence in a criminal case? No. People are not evidence. They
might be witnesses that need to be seized, either for their own protection, or
to insure their appearance in court to give testimony. But that clearly does
not apply here.

Now had a court ruled, after due notice and a fair hearing, on the issue of
custody, and issued an order granting custody to Juan Miguel Gonzalez, then
the proper process would have been an order directed to the Miami relatives,
which if they had defied it, would have justified the seizure to enforce that
order. However, that was not done. The custody issue remains open, having
never been heard on its merits by a court of competent jurisdiction.

So what legal basis for a search warrant to seize the boy exists? I find none
in law, either statutory or common. An illegal warrant moves the discussion
from a violation of the Fourth Amendment to a violation of the Fifth Amendment
requirement for due process.

--Jon

===================================================================
Constitution Society, 1731 Howe Av #370, Sacramento, CA 95825
916/568-1022, 916/450-7941VM         Date: 04/24/00  Time: 10:51:56
http://www.constitution.org/     mailto:jon.roland@constitution.org
===================================================================

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