After ASU you attend law school and upon receiving your juris doctorate degree are hired as an

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After ASU you attend law school and upon receiving your juris doctorate degree are hired as an attorney for the FBI. Due to an employee retention crisis at a sister agency, however, you are sent on a temporary duty assignment (TDY) to the Drug Enforcement Administration (DEA) because that entity had a shortage of good lawyers. As part of your detail you advise DEA Special Agents on investigations to ensure that their actions comport with the Constitution and federal laws and rules.

One day an acting DEA supervisory agent, James Clueleski, enters your office.

"Hey, there," he says with a sheepish smile on his face. "You got a minute?"

You pivot away from your computer and look Clueleski in the eyes. "Sure, Jim. What do you need?"

"Well, as you know I am only filling in as a supervisor temporarily so I don't have a good handle on some things that a permanent boss would...but I want to brief you on an investigation and get your take on whether we messed up and how we should have done it."

"Go for it, Jim," you say, not knowing what to expect.

"Ok. Well, Agent Fecklis is investigating a target, Calderone, for federal narcotics violations. He recently executed a federal search warrant in Tempe, Arizona, office because the DEA had gathered a bunch of evidence that Calderone was running his network through that office and also sometimes transporting the drugs themselves through that building. So Fecklis worked with the federal prosecutor (AUSA) and received a federal search warrant from a magistrate judge that authorized the DEA to search Calderone's office for "any evidence relating to federal narcotics offenses, including any material relating to the shipment, trafficking, movement of illegal drugs, as well as illegal narcotics themselves."[1]

"So far so good," you chime in.

"And when Fecklis was executing the warrant, he opened a desk drawer in Calderone's office to look for evidence about drug trafficking or drugs themselves. When he opened the drawer he saw two things: a baggie of white powder that had affixed to it the note "99% pure" and a photograph of what clearly depicted an adult engaging in sexual acts with a child (i.e., child pornography).[2] Fecklis seized the white powder as suspected drug evidence and sent it to the DEA lab for testing, but he left the child pornography behind since he wasn't authorized to seize it based on the warrant's limited authorizations."

You nod, processing the information.

"Well, fast forward a few months: the powder results come back positive as cocaine so Fecklis worked with the AUSA to charge Calderone. Fecklis despises dealing with grand juries - those folks can be so difficult to make see reason - so he decided to skip the whole grand jury indictment process and just swear out a complaint with the federal magistrate and get an arrest warrant that way. Three weeks ago Fecklis arrested Calderone without incident based on the complaint. Fecklis said since the complaint is a valid charging document and that Calderone is in custody, there's no need to go back to the Grand Jury for anything more.

You scribble down notes.

Clueleski continues. "And this whole thing has gotten me thinking about constitutional criminal procedure a lot. I guess maybe that's something we DEA guys need to think about more, anyway, but I am confused about the Fourth Amendment. When you look at the text, it requires a warrant, but there seems to be a bunch of exceptions. I'd love your personal opinion on whether it makes sense that the Supreme Court has established all these exceptions to the warrant requirement or if it has gone too far."

You nod at Clueleski. "Got it. Anything else?"

"Yes. Just sorry to hit you with all this but the AUSA is out sick and cannot communicate. Also, I know you're only detailed here temporarily and work full time for the FBI. Any chance you can help me apply to be a special agent there?"

You break eye contact from Clueleski and look to the floor. "Jim, let's focus on getting through your legal questions and then we can, uh, talk about FBI possibilities."

Using a memorandum to "Acting Supervisory Special Agent, James Clueleski" that is broken up into three parts:
Analyze the constitutionality of SA Fecklis' execution of the search warrant. Specifically,
(1) explain whether when searching the desk drawer SA Fecklis could rightfully seize the powdered substance;
(2) explain whether his conclusion that he could not seize the photograph was correct; and
(3) provide brief guidance on how SA Fecklis could best have dealt with the photograph from an investigative standpoint.
Advise on the propriety of SA Fecklis' plan to proceed with the charges on Calderone based on the criminal complaint.