Raid at VictoryLand
Attorney General Luther Strange makes the extraordinary assertion in documents related to this week's VictoryLand raid that an Alabama circuit judge has no discretion in the issuance of a search warrant, as long as the application is presented in the proper form.If the application adheres to certain technical requirements, Strange claims, a circuit judge must approve the search warrant. That was the attorney general's primary argument in seeking a writ of mandamus that would force a Macon County judge to approve the warrant. The Alabama Supreme Court apparently agreed because it issued the writ, ordering Judge Thomas Young to sign off on the search.
The high court unsealed documents in the case yesterday, and the Montgomery Advertiser posted them to its Web site last night. A review of the documents shows that, as we suggested in a post yesterday, Strange and the Alabama Supreme Court trampled legal procedure and precedent in their haste to shut down VictoryLand's electronic-bingo operation.
Most stunning was Strange's claim that a circuit judge essentially must play the role of rubber stamp when law-enforcement officials present him with a search-warrant application that meets minimum technical requirements. In such a situation, Strange suggests, a judge has no authority to determine if the contents of the application show "probable cause" to believe a crime has been committed.
In Luther Strange's world, a judge is supposed to sign any form that law enforcement places before him--as long as all the boxes are properly filled in. Strange must not be familiar with the Fourth Amendment to the U.S. Constitution, which guards against searches and seizures that are not judicially sanctioned and supported by probable cause.
With the apparent intention of proving that the U.S. Constitution does not apply in Alabama, Strange turns in his petition to Rule 3.9 of the Alabama Rules of Criminal Procedure and to Code of Alabama 15-5-5. He claims that both prove Judge Young had a mandatory duty to approve the search warrant at VictoryLand. On page 13 of his petition for a writ of mandamus, Strange titles the key section "The trial court has an imperative duty to issue the warrant, and the State has a clear right to the issuance of the warrant."
Unfortunately for the attorney general, his citations to law do not say what he wants them to say. In fact, upon close reading, Strange's own petition undercuts his argument. The two sections of Alabama law that Strange cites essentially say the same thing--and the heart of it is this, taken from the rules of criminal procedure:
If the judge or magistrate is satisfied that probable cause to believe that grounds for the application exists, the judge or magistrate, in the case of a warrant issued on affidavit, shall issue a warrant naming or describing the person and particularly describing the property and the place to be searched.
Strange claims that use of the word "shall" means that issuance of the warrant is mandatory. But the clear language of the full rule shows a warrant "shall" issue only when a judge or magistrate is "satisfied that probable cause . . . exists."
Reaching into the way-back machine, Strange pulls out a case from 1899--Benners v. State, 26 So. 942 (Ala., 1899)--for the proposition that a judge has a duty to approve a warrant application that is "regular in form, and full in substance."
Benners is so old that we can't find it on the Web, but Strange makes no showing in his petition that the ancient state case precludes a judge from fulfilling his Fourth Amendment duty to make a determination on probable cause. Even Strange seems to acknowledge this when he writes:
As the Benners decision shows, it has long been the law of this State that when a circuit court is confronted with an affidavit from the State establishing probable cause to issue a warrant, the court has no discretion to decline to issue the warrant.
This is a poor attempt at legal hocus pocus. Strange claims, on the one hand, that a judge "has no discretion to decline to issue the warrant." But he admits that comes only after the judge is "confronted with an affidavit from the State establishing probable cause."
Despite much huffing and puffing, Strange concedes Judge Young had the discretion to determine whether the attorney general's office had met the requirements for probable cause--and the judge decided in the negative.
In a letter responding to Strange's petition, Judge Young says he denied the search warrant application for two primary reasons:
* Another law-enforcement officer, the sheriff of Macon County, had found the machines to be legal;
* The attorney general, if convinced that the bingo machines were illegal, could exercise his "plain view" authority to take action against VictoryLand.
The Petitioner, in essence, is asking this Court to sign an Order declaring these machines to be illegal, when there has been no such decision on this issue by any Court. If these machines were of such an illegal nature, as cited in the extensive briefs of the Attorney General, then why does the Attorney General need a warrant? This business is for public invitees and a search warrant would not be required if these machines were in plain sight and illegal.
Judge Young concludes with this big-picture statement:
The Fourth Amendment is sacred and should not be the subject of political agendas of Governors, Task Force(s), Attorney Generals or multi-million dollar industries. No Judge would issue a search warrant in any case under the aforementioned circumstances because of lack of probable cause establishing illegal activity nor should said Judges be ordered to do so.
Finally, Young made his feelings clear in a handwritten note at the bottom of the search warrant he was forced to approve. The warrant can be viewed at the end of this post, but here is how Young's note reads:
Based on the conflict in information known to this court at this time, I do not believe that this application for a search warrant provides sufficient probable cause. One month ago, based on this information, I declined to issue the warrant and the Criminal Court of Appeals supported the decision when they denied the Attorney General's first writ of mandamus, by unanimous decision. No new information has been provided to this date. The Supreme Court has now issued to this Court a Writ of Mandamus requiring the Court to sign the same warrant, despite this Court's opinion that it is improper according to the law. This Court will, as always, follow the mandates of the Supreme Court, although, it does so with the greatest judicial reluctance.
Documents in the VictoryLand matter make it clear that Strange disagreed with Judge Young's ruling--and the Alabama Court of Criminal Appeals' ruling that unanimously upheld it. Strange is entitled to disagree and seek redress. But his contention that Young did not have discretion to make the ruling is preposterous.
That the Alabama Supreme Court apparently agreed with such a flagrantly unconstitutional notion should frighten everyone living within the borders of this state.
VictoryLand Search Warrant by
