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Key Excerpt: Klobuchar and Sotomayor on Search Warrants

Courtey of CQ Transcriptions

SEN. KLOBUCHAR: This United States v. Falso case... was a case where child pornography was found in a guy's home and on his computer. And you ruled that, although the police officers didn't have probable cause for the search warrant, that the evidence obtained in the search, the child pornography on the computer, should still be considered under the good faith exception to the exclusionary rule, because the judge had not been knowingly misled. And in other words, it was a mistake.

And I -- could you talk about that case and how perhaps having that kind of experience on the front line helped you to reach that decision? Because there was someone, I believe, that dissented in that case.

JUDGE SOTOMAYOR: That case presented a very complicated question in Second Circuit law. There had been two cases addressing how much information a warrant had to contain and what kind in order for the police to search a defendant's home or -- I shouldn't say a home -- a computer to see if the computer contained images of child pornography.

The two cases -- I should say the two panels -- I wasn't a member of either of those panels -- had very extensive discussions about the implications of the cases because they involved the use of the Internet and how much information the police should or should not have before they look to get a warrant to search someone's computer, because the computer does provide people with freedom of speech, at least with respect to accessing information and reading it and thinking about it.

In the case before me, I was looking at it in the backdrop of the conflict that it appeared to contain in our case law, and what our case law said was important for a police officer to share with a judge and examine the facts before my case, looking at -- that's the information that the police have before them and considering whether, in light of existing Second Circuit law as it addressed this issue, had the police actually violated the Constitution, but -- I hope I can continue.

LEAHY: You can continue. That was not a comment from above, (inaudible). I have certain powers as chairman, but not that much.

SOTOMAYOR: (Inaudible) whether they should get a warrant or not. And I -- and one member of the court said "yes," and -- they had violated the Constitution. And I joined that part of the opinion because I determined, examining all of the facts of that case, that -- and the law, that that was the way the law -- the result the law required.

But then, I looked at what the principles underlying the unreasonable search and seizures are without a warrant and looked at the question of what was the doctrine that underlay there. And it -- what doctrine it underlays is that you don't want the police violating your constitutional rights without a good-faith basis, without probable cause.

And that's why you have a judge make that determination. That's why you require them to go to a judge. And so what I had to look at was whether we should make the police responsible for what would have been otherwise a judge's error, not their error.

They gave everything they had to the judge. And they said to the judge, "I don't know." Even if they thought they knew, that isn't what commands the warrant. It's the judge's review.

So I was the judge in the middle. One judge joined one part of my opinion; the other judge joined the other part of the opinion. And so I held that the acts violated the Constitution, but that the evidence could still be used, because the officers had -- there was in law a good-faith exception to the error in the warrant.

Continue reading the exchange between Sen. Klobuchar and Judge Sotomayor here.

By Washington Post editors  |  July 15, 2009; 12:32 PM ET
Categories:  Hearings , Supreme Court , Topics: Search and Seizure Warrants  
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