June 13, 2006 3:48PM

The Power to Seize

You already know about the Duke University lacrosse players that have been indicted for rape. The investigation is ongoing and the prosecutor is now ordering Duke University to turn over personal records for the other athletes on the team. If Duke balks, the government could levy fines until the information is surrendered.

The power to seize private property is supposed to be divided between the executive branch and the judicial branch. That is, the police file a search warrant application with a judge. If the judge approves, the search takes place. What does the judge look for in the application? Well, the Fourth Amendment speaks of “probable cause” and “particularity” — so the judge is basically looking for a good basis for the police to interfere with someone’s liberty. No judicial approval, no search. (There are exceptions, but that’s the general idea). The “basis” for the prosecutor’s subpoena to Duke University amounts to … “they’re on the lacrosse team.”

The executive branch (police) bypasses the judicial “check” whenever it can get away with it. If a search warrant application would be shaky, just use a subpoena. When most people think of subpoena, they imagine an official‐​looking envelope that arrives via certified mail. Think again. The government likes to claim that it is not using subpoenas as substitutes for search warrants, but you decide for yourself. This is not a police raid, it’s an “administrative inspection.”

If Cato could subpoena the government, we might get a clearer picture on how officials use these powers, but the state is fierce about its own records. For background on how prosecutors have been using grand jury subpoenas to bypass constitutional safeguards, read this.

Thanks to Crime and Federalism for the pointer.