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Disrupting The Fourth Amendment: Half Of Law Enforcement E-Warrants Approved In 10 Minutes Or Less

Published: January 25, 2018
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Source: Tech Dirt

Law enforcement officers will often testify that seeking warrants is a time-consuming process that subjects officers' sworn statements to strict judicial scrutiny. The testimony implies the process is a hallowed tradition that upholds the sanctity of the Fourth Amendment, hence its many steps and plodding pace. The problem is law enforcement officers make these statements most often when defending their decision to bypass the warrant process.

Criminals move too fast for the warrant process, they argue. Officers would love to respect the Fourth Amendment, but seem to feel this respect is subject to time constraints. Sometimes they have a point. And when they have a legitimate point, they also have a legitimate exception: exigent circumstances. In truly life-threatening situations, the Fourth Amendment can be shoved aside momentarily to provide access to law enforcement officers. (The exception tends to swallow the rule, though. Courts have pushed back, but deference to officers' assertions about exigency remains the status quo in most courtrooms.)

The exigent circumstances exception remains intact, something law enforcement can lean on when the warrant process takes too long. When lives or evidence are at stake, sometimes corners have to be cut to ensure officers can get their man/woman and any evidence on hand. But the oft-stated claim that warrant acquisition is a long and difficult process is undercut completely when underlying facts about warrant approval are examined. Jessica Miller and Aubrey Weaver of the Salt Lake City Tribune took a close look at electronic warrants approved by Utah judges and found even the most exigent of exigent circumstances rarely evolve faster than warrants can be obtained.

Twenty-seven seconds.

That’s all the time it took for a Utah judge to sign off on an officer’s request to search phone records in a homicide investigation.

In another case, it took 38 seconds to get a warrant to search a hard drive.

And 48 seconds after asking, a judge gave permission for officers to break into a safe.

These instances, in which a judge approves a search warrant in less than a minute, are rare. There were two dozen in the more than 8,400 electronic warrants served in a 12-month period beginning April 2016.

But more than half were approved in 10 minutes or less.

That's not scrutiny. That's a rubber stamp. Add to this the fact that less than 2% of these requests were rejected and you have a warrant pipeline with minimal "checks and balances" interference. Utah's e-warrant system allows judges to review and respond to warrants via email and text messages, which trims a bit of time out of the process. But there's not much in the stats that indicates warrants are subjected to the sort of scrutiny the Fourth Amendment demands. The problem for citizens is that once a warrant is granted, it can be almost impossible to suppress the evidence in court. Even if the warrant is deemed deficient, the judge's signature often pushes courts towards granting officers "good faith," reasoning that officers don't have the legal expertise to second-guess a judge's thumbs up.

Despite the results of this investigation, representatives for law enforcement are still claiming the warrant system in place in Utah is safeguarding residents' rights.

Getting a search warrant is not as simple as people might think, said Brent Jex, president of the Utah Fraternal Order of Police. After an officer writes the warrant, it goes through a supervisor and oftentimes is reviewed by a prosecutor before it is submitted to a judge. Along the way, Jex said, the officer is questioned about the facts of the case and whether there is evidence of a crime.

“It’s a pretty heavy weight that we take pretty seriously,” he said. “That’s why we have such a vetting process to get them. It’s not easy. Even what you’d think would be the simplest warrant to get, you have to jump through hoops.”

But the vetting process asserted here isn't backed by legal statutes. The state doesn't require officers to bring warrants to prosecutors first, nor does it require review by higher-level police personnel before it's handed to a judge for approval. In some jurisdictions, the multi-level review claimed by the FOP president is commonplace. In others, officers pick and choose when they will seek additional review of warrant requests.

The problem with this system is these judges are the first safeguard of Fourth Amendment rights. Law enforcement may craft warrants with these rights in mind, but the ultimate goal is to get judicial approval to enter areas protected by Constitutional rights. Challenging warrants after they've been served is a difficult task and it requires a lot of time (and money) to do it successfully. It also may require the accused to spend a lot of time incarcerated while waiting for the trial process to play out. Dangling a steep sentence reduction in exchange for a guilty plea often results in innocent-until-proven-guilty defendants relinquishing their rights and giving officers a free pass on questionable warrants.

While the move to electronic warrants is a given, the fact they're delivered by email or text message doesn't mean they should be subjected to less scrutiny. And there's nothing in the investigation suggesting that this is the case. But that's not good news. All that means is the old system -- with its printed paper and face-to-face meeting with judges -- moved just as quickly. The level of scrutiny is likely the same as it was prior to the move to e-warrants. The only difference is the public can now see just how fast warrants get approved, thanks to electronic time stamps. This investigation likely won't result in more judicial scrutiny of warrants. What it might do, however, is lead to calls by law enforcement to block the release of this info in the future.

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