Thanks, Julie. And I'm in great agreement with Judy's answers of, "We don't know."
Yesterday, I wrote the response below to one of the genetic genealogy mailing lists following several posts that seemed to use the terms "court order," "subpoena," and "search warrant" interchangeably. And that got me to wondering if the media reporting the matter might not have confused some terminology, as well. Suffice to say that's my word of the day: confused. Because we...well, we don't know!
[Some] posts here and elsewhere, make me now wonder if I understand what transpired in Florida and if the media have been reporting it--and the legal terminology--correctly. What was reported, first by the New York Times, was that Judge Strowbridge in Florida's 9th District Court considered an affidavit submitted by a detective, and the judge then issued a search warrant based upon that affidavit.
A search warrant is a very specific instrument. A court order is not necessarily a search warrant, and a search warrant can never be confused with a subpoena. Mind you, I'm speaking only of U.S. law, and I have no experience specific to Florida law. But the term "court order" is far too broad, and a subpoena is a summons to compel testimony and/or produce evidence. A subpoena does not authorize search and seizure by law enforcement under the 4th amendment; it does not carry the here-and-now mandate that a search warrant does.
A subpoena to produce evidence can be argued prior to the presentation of the evidence. We see that all the time in the odd machinations that go on in Washington D.C. But a search warrant is specific and immediately actionable.
By issuing a search warrant the judge is authorizing law enforcement to search a defined location for specific materials or objects, and to seize those items if they are found. To obtain a search warrant, law enforcement must show probable cause that a crime was committed and that items connected to the crime are likely to be found in the location specified by the warrant. There are exceptions to the requirement for a warrant (emergency searches, imminent evidence destruction, etc.), but otherwise, without express consent granting the search, a warrant is required for immediate search.
The "probable cause" terminology comes straight from the 4th amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
"Probable cause" has no iron-clad definition and, as evidence goes, has a relatively low bar and is dynamic in its evaluation. Ballentine's Law Dictionary defines it as "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true."
We've seen 23andMe, for example, respond to this story saying that they would have contested the court's action. But there is no contestation of a search warrant prior to compliance. There will be multiple law enforcement officers presenting you with your copy of the warrant, and there's no "let me call my lawyer and get back to you tomorrow."
So what actually took place in Florida, and has the media been wrong? Was this an issued subpoena that the media incorrectly escalated to "search warrant" to make the story better click-bait?
(The next reply to the list, BTW, was, "Can we get away from law and politics and get back to genetic genealogy? The fact was reported, noted and is now being chewed at for the nth time." I refrained from pointing out that the matter seemed pretty germane to genetic genealogy, and that, at the time, the whole deal was less than 72 hours old and that we really hadn't been beating it to death; there had in fact been only eight posts about it before mine. But c'est la vie.)