Cattle Rustling, Bank Fraud, and the Fourth Amendment

It's hard to be sure what really happened in Bowling v. Rector, No. 07-6284 (10th Cir. Oct. 26, 2009) (here). Reading between the lines, it seems that a bank found a friendly police officer to harass the bank's customer.  The bank's customer had borrowed money from the bank using cattle as collateral.  When the cows went missing, the bank moved to foreclose.  Through influence or connections, the bank was able to convert its civil foreclosure action into a criminal investigation.  In order to do this, they enlisted an Oklahoma Special Ranger - Joe Rector.

Joe Rector applied for a search warrant of Danny Bowling's ranch.  In his search warrant application, Ranger Rector omitted a material fact: He lacked authority under state law to investigate bank fraud.  Unaware of Rector's omissions, the magistrate approved the warrant application.

After conducting an overbroad search, Rector was sued.  "In relevant part, Bowling’s complaint alleged that Rector had exceeded his limited statutory authority as an OSBI Special Ranger when he applied for a warrant to investigate bank fraud and sale of mortgaged property, when Oklahoma law dictates that Special Rangers may only enforce laws pertaining to the larceny of livestock."  Slip op. at 8.  A three-judge panel of the Tenth Circuit Court of Appeals dismissed exceeding-authority claim.  The discussion of the issue beings on page 14 of the slip opinion.

The opinion is disappointing.  This isn't an issue I've thought about myself, so I don't have an opinion about the legal issue.  The panel, instead of analyzing the issue, simply posits arguments in support of its favored outcome.  The panel acts as though there are no counter-arguments.  The opinion reads much more like a lawyer's brief than a judicial opinion.

While I don't have a strong sense about the issue, it is troubling when a police officer omits material facts in his search warrant application.  Would the examining magistrate had issued the search warrant if Rector had been truthful?  If the answer was, No, then the search might have unconstitutional.  Unfortunately, the panel doesn't even discuss the issue.

A lawyer's brief should be a piece of advocacy.  A judicial opinion should be a piece of scholarship.  Scholarship, unlike advocacy, is concerned with truth, process, and outcome.  The panel's opinion in Bowling didn't seem concerned with much more than simply supporting the judge's desired outcome.  Even if the panels' opinion reached the right conclusion, the judicial process was flawed.

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