Search Warrant

[Randy Barnett]

Ed,

I think you have put your finger on the issue that needs to be seriously
answered.

> Or is the suggestion that there was no "restraint" until the INS
> showed up at the door?

I am trying hard not to make any suggestions, but simply to find out more
about the law from those more knowledgeable than I.  I am only trying to
understand what constitutes "unlawful restraint" (or if there is some other
legal basis for issuing a valid search warrant).  As the INS itself
conceded, to enter the home and search for Elian, it must show a magistrate
they are entitled to a warrant, which they tried to do in their affidavit
and memorandum; the Gonzales family was not a party to that proceeding and
do not have to allege anything.

As I read the INS affidavit and memorandum--and I may well have
misinterpreted it--in arguing that there was an "unlawful restraint" here,
the INS did not rely on the Gonzales family's mere possession of Elian, but
upon their "refusal" to obey the INS "order" to bring Elian to Opa Locka.  I
would like to know the legal authority for this order, such that its
violation resulted in "unlawful restraint."  Or, under the law, why did the
family have to transport him to Oka Locka (or anywhere else the INS
specified), as opposed to the INS coming to get him.

In the absence of such authority, I am having trouble seeing how either
term--"unlawfully" or "restraining"--is satisfied here unless the INS goes
to the home and seeks custody from the family and is refused.  One way to
interpret the situation is that the family could not be "restraining" Elian
until the INS showed up to take custody of him and the family refused to
surrender Elian.  This does not strike me as an unreasonable interpretation
of the situation.  But it has also not yet been explained to me what law the
family was violating by continuing to shelter Elian after his parole was
revoked and therefore how their actions were in any way "unlawful."

Randy

__________________________________________
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
765 Commonwealth Ave.
Boston, MA  02215
mailto:rbarnett at bu.edu
(617) 353-3099 (phone)
(617) 353-3077 (fax)
www.bu.edu/rbarnett
www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
www.LysanderSpooner.org (Lysander Spooner Website)


> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Edward A Hartnett
> Sent: Friday, April 28, 2000 4:47 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Search Warrant
>
>
> Randy Barnett wrote:
>
> My questions all went to the issue of "unlawfully restrained"
> which was the
> exclusive legal basis stated in the INS affidavit and memorandum
> in support
> of its warrant application (which I have now had a chance to read) and for
> your original defense of the warrant under Federal Rules of Criminal
> Procedure 41(b) which was the ONLY section under which the government
> claimed authority for a warrant.  The INS also based its legal theory of
> "unlawful restraint" on Lorenzo Gonzales' "refus[al] to return physical
> custody of Elian to the INS, as ordered by the INS."
>
> -----------
> My question:
>
> What I am trying to figure out is on what possible basis the
> Gonzales family
> could claim that they were _"lawfully"_ restaining Elian?    It
> seems to me that
> the sole source of their legal authority was the INS decision to
> parole Elian to
> them.  Once the INS revoked that parole (and his father asked for
> his return),
> what is the basis of the legal claim to continued physical
> custody?  Indeed, how
> do they have a stronger legal claim than (say) Larry Tribe or
> Sandy Levinson to
> continued physical custody?
>
> Or is the suggestion that there was no "restraint" until the INS
> showed up at
> the door?
>
>
> Ed Hartnett
> Seton Hall
>