Judge Rejects DOJ’s Request for Warrant to Search Jan. 6 Defendant’s Phone

Isabella DeLuca in Washington on Oct. 26, 2020. Jacquelyn Martin/AP Photo

A federal judge has rejected a request from prosecutors for a warrant to search the phone of a woman charged in the Jan. 6, 2021, breach of the U.S. Capitol, on the grounds that prosecutors went to him with the request instead of to the same judge that had earlier denied an application for the warrant.

That choice amounted to the government “judge shopping,” or an attempt to “manipulate the judicial system to find a judge likely to rule in its favor,” U.S. Magistrate Judge Michael Harvey, who is based in Washington, said in his May 14 denial of the request.

Prosecutors asked U.S. Magistrate Judge Autumn Spaeth, who is based in California, earlier this year for permission to search a phone belonging to social media influencer Isabella DeLuca. Judge Spaeth rejected the request on March 14 because, she said, the government had “fail[ed] to establish probable cause.”

A day later, FBI agents arrested Ms. DeLuca in California. Government employees then transported the phone to Washington and submitted a new request for a warrant to Judge Harvey.

In general, there are two options when dealing with a federal ruling, Judge Harvey said. One can ask the judge who ruled for reconsideration or lodge an appeal.

“Going to another court to seek a more favorable outcome from a judge of coordinate jurisdiction is not one of the options. Yet that is what the United States Attorney for the District of Columbia has done here,” he said.

In a memorandum in support of a warrant, prosecutors said that they wanted to search the phone because evidence indicates Ms. DeLuca recorded video while inside the Capitol on Jan. 6.

They argued that the denial in California “does not preclude this court from issuing the requested search warrant under the Fourth Amendment and Federal Rule of Criminal Procedure 41.” In fact, they said, the judge in Washington “must issue the search warrant” if he found the application complies with the amendment and the rule.

“The denial of the search warrant—despite all the requirements being met—deprives the government of crucial evidence in an ongoing investigation,” they said.

Anthony Sabatini, a lawyer representing Ms. DeLuca, on the other hand, told the judge that granting the warrant would “lead to an enormous increase of ’magistrate shopping' in this district” and should not happen because “generally, a cause of action may not be relitigated once it has been judged on the merits.”

Judge Harvey, who like other magistrate judges was appointed by other judges, said the government clearly sought to circumvent Judge Spaeth’s denial instead of submitting an updated application to her. He pointed to briefs government lawyers filed in which they argued Judge Spaeth ignored key facts and said parts of her ruling were “misguided.”

Issuing a warrant under the circumstances is not required, he said. It would actually be a violation of Rule 41, he said.

“The undersigned does not find anything in Rule 41 to suggest that the proper procedure is to ask a different magistrate judge in a different jurisdiction for a better result. It would surprise the undersigned if the intent of Rule 41(b)’s fluid venue provisions for search warrants of movable property was to provide the government with license to do what it did here, that is, brush aside the denial of a warrant application to try again with a different magistrate judge located in what the government perceives as a more favorable district,” the judge wrote. “Indeed, the Supreme Court has ‘expressed a concern for ‘magistrate [judge] shopping’ in the context of search warrant applications.’”

The judge said that if the government believes it cannot ask Judge Spaeth for reconsideration because the phone is now in Washington, it can transport the phone back to California.

He described the ruling as only denying the warrant due to the “judge shopping” tactic and disclosed he had spoken with Judge Spaeth, who he said is ready to hear from the government.

A spokeswoman for the U.S. Attorney’s Office for the District of Columbia declined to comment.

“The denial was the right decision and we welcome it,” Mr. Sabatini told The Epoch Times in an email.

Ms. DeLuca said on the social media platform X that she believes the government is trying to search her phone “in an attempt to find new offenses to charge me with, or trump up my existing charges.”

“Neither will happen,” she added. “So when do I get my phone back?”

Ms. DeLuca, who worked for multiple members of Congress, has been charged with theft of government property, parading in a Capitol building, and disorderly conduct in a restricted building and in the Capitol, according to unsealed court records.

Surveillance footage showed a woman matching Ms. DeLuca’s appearance in the Capitol on Jan. 6, according to prosecutors. They said she helped people steal furniture from the building, including a lamp.

Ms. DeLuca posted on social media that she was at the Capitol on Jan. 6.

She has pleaded not guilty to all counts.