Fourth Amendment

Rejected Search Warrant Applications Raise Further Questions About the Federal Case Against Don Lemon

After a magistrate judge said a DHS investigator had failed to establish probable cause, the government decided it did not need the YouTube and iPhone records after all.

Jacob Sullum | 5.28.2026 3:35 PM

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Don Lemon (Jackson Tammariello/Zuma Press/Newscom)

About a month after federal prosecutors accused former CNN anchor Don Lemon and eight other people of violating civil rights laws by disrupting a Minnesota church service, Timothy Gerber, a special agent at the Department of Homeland Security (DHS), sought to support that case by requesting five search warrants. Gerber wanted to obtain information about the YouTube and iPhone accounts used by several of the defendants. But as court records unsealed this week show, his affidavits were so deficient that a federal magistrate judge rejected them twice, after which the government withdrew the applications.

That embarrassing episode adds a ridiculous wrinkle to a case that seemed dubious to begin with. The indictment stems from an obnoxious protest that opponents of the Trump administration's immigration crackdown staged at Cities Church in St. Paul on January 18. They targeted that church because one of its pastors, David Easterwood, was a supervisor at the Immigration and Customs Enforcement field office in St. Paul.

That rationale was morally nonsensical, and some of the protesters clearly committed misdemeanors under Minnesota law (trespassing and disorderly conduct) by remaining in the church after they were asked to leave and self-righteously haranguing the worshipers. But the decision to charge them with federal crimes, including a conspiracy count punishable by up to 10 years in prison, looked like politically motivated overkill, and the charges against Lemon—who was indisputably covering the protest for his YouTube show, albeit in a highly biased way—seemed like an assault on freedom of the press.

Gerber's unsuccessful warrant applications, which cast doubt on the competence and legal knowledge of DHS investigators, raise further questions about this case. "None of the five applications establish probable cause to believe that evidence of a crime will be found in the places to be searched," U.S. Magistrate Judge John F. Docherty wrote in a February 24 order. He added that "all of the warrant applications improperly refer the Court to material outside the search warrant application itself." And although Gerber had asked that the applications be kept under seal, Docherty noted, the government had not filed "a motion to seal" or "a proposed order."

In each application, Gerber aimed to establish probable cause by referring Docherty to the allegations in the January 29 indictment against Lemon et al., which he said were "incorporated by reference." But "search warrants are required to be self-contained wholes, capable of being evaluated on 'the four corners' of the application," Docherty noted. "A direction that the reader go look up some other document and review it for
probable cause is improper, and the Court would be justified in stopping its probable cause analysis at this point."

If Docherty ignored that principle and "found probable cause........

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