An arrest warrant is the state`s best-known form of judicial procedure in criminal investigations. But it is not the only one. The government can also obtain evidence through a subpoena to appear before a grand jury. A subpoena before a grand jury orders the recipient to present the evidence described to the grand jury at a later location and at a later date. Unlike an arrest warrant, the police do not intervene and do not take objects with them. Rather, the recipient of the subpoena has the task of collecting evidence from the documents in his possession and then presenting it to the grand jury (or the police/prosecutor`s office working with the grand jury). Paragraph (c)(3) expressly authorizes the waiver of a subpoena as a means of protecting a witness from abuse of subpoena. It replaces and extends former subsection (b) of this Article and follows the provisions of Rule 26(c). Although this rule is widely repeated, it is addressed to the witness, who can read it on the summons, where it must be printed by the revised paragraph (a)(1) of this rule. The rule is also amended to clarify that contempt sanctions may be imposed on a person who does not obey a summons, as well as on a person who does not fully comply with a subpoena. In civil litigation, it would be rare for a court to impose contempt sanctions without first ordering compliance with a subpoena, and the order may not require full compliance with the subpoena. Often, non-compliance proceedings are initiated by an order to show a reason, and an order to comply with the summons or to be dismissed may modify the order of the summons. Disobedience to such an order may be treated as contempt.
(b) Objections. A person who is ordered to produce documents or material or to grant access may object in writing to the subpoena or to the attorney named in the subpoena to inspect, copy, test or sample all or part of the materials or to inspect premises – or to submit electronically stored information in the form or form requested. The opposition must be served before the deadline for the execution of the summons or 14 days after service of the summons. If an objection is raised, the following rules apply: A person served with an overly broad subpoena may have the onerous task of providing complete information on all claims of privilege or protection of the work product. That person shall be entitled to protection, which may be obtained by an opposition under point (c)(2). Rule 45(b)(2) is amended to permit the service of a subpoena anywhere in the United States, thereby eliminating the complexities prescribed in previous versions. ALITO J. submits that the requirement for an arrest warrant simply does not apply when the government acquires documents through coercive proceedings. Unlike an actual search, he says, subpoenas for documents do not involve direct evidence; It is, at most, a “constructive search” by the target of the summons. Post, um 12.
Given this lesser invasion of privacy, ALITO J. argued that the mandatory submission of documents is not linked to the same probable standard of cases. In his view, this Court`s precedents constitute a categorical rule – distinct from the doctrine of third parties – that subjects subpoenas to scrutiny, regardless of the suspect`s expectation of privacy in the files. Post, um 8-19. The flip side is that the recipient of a subpoena can challenge it against self-incrimination under the Fifth Amendment Act. The receiver may claim that compliance with the summons involves certain statements — that the documents exist, that the addressee has them, and that the recipient believes they are genuine — and that he cannot be compelled to testify against himself. (2) Service in the United States. A subpoena can be served at any location in the United States. The Supreme Court`s decision in Carpenter v. the United States has many new directions.
One direction some commentators have focused on is its impact on subpoena law. For example, Marty Lederman writes today that the analysis of subpoenas in the Carpenter case is “extraordinary” and “groundbreaking” and could trigger “a fundamental transformation of national subpoena practices.” In their dissenting opinions, Justices Alito and Kennedy also point out that the analysis of the subpoena in the case represents a major break with the past. The recognition of these two paths is important because they are governed by two very different legal systems. If the government receives a search warrant, the Fourth Amendment is the big limit for the police. The police must prove probable reason to believe that the evidence will be at the place where it will be searched. They need to accurately describe where to look, and they need to describe exactly what evidence they`re looking for. Appreciate the importance of the issue. If traditional subpoena rules continue to apply, the fact that the target has Fourth Amendment rights over the information doesn`t matter too much. The government can always subpoena all protected documents, and it can do so without probable reason or even reasonable suspicion. The only apparent effect of concluding that the target has rights under the Fourth Amendment would be that the target has the right to challenge the subpoena.
But because the Fourth Amendment`s only limitation to subpoena is the burden on the recipient of the subpoena, it`s not clear that this would matter. Subparagraph (b)(2) retains the wording previously set out in subparagraph (e) and extends its application to subpoenas for statements or observations. This rule applies to summonses ad testificandum and duces tecum issued by district courts to participate in a trial or to testify. It does not apply to the execution of summonses to appear issued by officials and administrative commissions on the basis of legal authorization. The execution of this summons by the district courts is governed by the appropriate laws. Many of these laws do not set territorial limits on the validity of subpoenas, but provide that they can be served anywhere in the United States. These laws include: (A) Requirements – Generally. Contrary to centuries of precedent and practice, the Court can only conclude that “this court has never ruled that the government may subpoena third parties for documents in which the suspect has a reasonable expectation of privacy.” Ante, at 19. Frankly, I can`t think of a more damning concession to the Court`s reasoning than that. As the Court is well aware, the reason we have never seen such a case is that, to date, the defendants categorically had no “reasonable expectation of privacy” and no ownership rights in third party files. See Part II below. By suggesting otherwise, the Court is attempting the trick of seeking protection under the guise of precedents that it executes at the same time.
In other cases, the courts have simply said, without any analysis, that Fourth Amendment rights mean that a warrant is required. See, for example, United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (indicating that a user has rights under the Fourth Amendment to the content of his or her e-mail stored remotely and therefore a warrant is required); United States v. Bach, 310 F.3d 1063, 1066 n.1 (8th Cir. 2002) (noting that in a case involving access to remotely stored e-mail, the court “analyzes this case according to the standard of the search warrant, not according to the standard of the summons”) Note on subdivisions (a) and (b). These simplify the form of the subpoena under Title 28 of the United States Code, [formerly] § 655 (Witnesses; Calling; Shape; participation under); and U.S.C., Title 28, [formerly] § 636 (Production of Books and Scriptures) to include all actions and extend to any person. With the provision on exemption from oppressive or inappropriate assignment of tecum cf. N.Y.C.P.A. (1937) §411.
Now we come to the big question: How does the subpoena power apply if we assume that the target retains Fourth Amendment rights in records stored with the Third Amendment? Imagine if Alice had Fourth Amendment rights to the contents of the box she left with Bob. Imagine if Carl had Fourth Amendment rights in mail left with the P.O. Box service. And imagine that David had Fourth Amendment rights to files stored with Dropbox. Can the government subpoena these documents to appear with the owner (Bob/mailbox/Dropbox), just as it would be possible if the target did not have Fourth Amendment protections in the recordings? After the transfer, the court before which the action is pending shall rule on the application. If the court decides that discovery is not warranted, the case must be closed. If the court orders additional disclosure, the reassignment may be important to the enforcement of the order.