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

from the local-speedreading-champion-makes-good! dept

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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  • icon
    Berenerd (profile), 25 Jan 2018 @ 4:16am

    It's Crazy Eddie's blowout sale! All Warrants are half off!! No evidence? NO PROBLEM!
    No morals? NO PROBLEM!
    Breaks constitutional rights? We can approve you today!
    Coming soon, you will be able to approve them yourself!!
    So come on down to Crazy Eddie's Warrant sale happening now!

    *No restrictions apply

    reply to this | link to this | view in chronology ]

  • identicon
    Rich Kulawiec, 25 Jan 2018 @ 4:47am

    Wait. What?!

    "Utah's e-warrant system allows judges to review and respond to warrants via email and text messages,"

    What could possibly go wrong?

    reply to this | link to this | view in chronology ]

    • icon
      discordian_eris (profile), 25 Jan 2018 @ 6:09am

      Re: Wait. What?!

      "What it might do, however, is lead to calls by law enforcement to block the release of this info in the future."

      We all know it will be blocked in the future.

      As for what can go wrong Mr. Kulawiec? Everything. At least from the perspective of the citizenry. There is no doubt that the cops are overjoyed with the current state of affairs.

      It does make me wonder about the statutorily mandated retention of official court records and court orders though. Are the cops and the judges using state issued phones, computers and email accounts? Or are they doing this on their personally owned devices and email? Does the warrant request and the warrant go to copper69@aol.com and judgedredd@yahoo.com?

      There are very good reasons why ALL warrants should be issued on paper. If you are served a warrant by paper you can see exactly what places are to be searched and what is being searched for. A warrant in a text message or email? That is, on it's face, ridiculous. Without the seal of the court that issued it, and without the physical signature of the judge that issued it, how on earth is anyone supposed to know that there actually is a valid warrant?

      "Hey Joe", said Copper No. 1. "Text me a 'warrant' so I can fuck with this guy who pissed me off."

      There are so many ways that this can be gamed by those in law enforcement that I honestly fail to see how anything like this can actually exist. Are all of the emails PGP signed by all of the parties? Did the judge actually send that text? Was a clerk doing it or the judges kids if he's at home?

      Forcing face to face contact between cops and judges is already a rubber stamp. I see no way that E-Warrants can do anything else but make it even worse.

      reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 25 Jan 2018 @ 11:20am

        Re: Re: Wait. What?!

        > Without the seal of the court that issued it, and without
        > the physical signature of the judge that issued it, how
        > on earth is anyone supposed to know that there actually
        > is a valid warrant?

        Telephonic warrants have been a thing since the 70s. This is nothing new.

        reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 25 Jan 2018 @ 6:24am

    This is what happens...

    when courts are overloaded because of budget cuts to the judiciary. Basically, the Legislatures of states see the judiciary as an easy target for budget cuts to enforce "efficiency". But the prime directive of the judiciary should be accuracy, not efficiency.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jan 2018 @ 7:04am

    So? Judges MUST rely on warrant applications.

    A glance won't often find flaws because filled out by professionals.

    But it's more than rubber-stamp formality. The very presence of the filled-out form says that some person has investigated and affirms true facts to best of belief. -- Honesty is intrinsic to law and civilization. That's why "fake news" should at some point be punished.

    Warrants can always be questioned in court. That's the system, and it's necessary, despite flaws now and then.

    IF you will advocate that false affidavits should be more likely to be caught, charged, and punished, then fine! I'm for hanging anyone, including "journalists", who knowingly make false charges.

    reply to this | link to this | view in chronology ]

    • icon
      Sayonara Felicia-San (profile), 25 Jan 2018 @ 11:56am

      Re: So? Judges MUST rely on warrant applications.

      Luckily warrants are only granted when the police already have evidence given to them by the NSA, and are just going through the formality of establishing 'legal' evidence through the process of parallel construction.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jan 2018 @ 7:12pm

      Re: So? Judges MUST rely on warrant applications.

      Hahaha, no. We all know warrants are the bane of your existence, blue. Warrants are a thorn in the side of copyright trolling and cops looking to fill their quotas.

      That's why you and your friend with benefits MyNameHere bitch so much whenever warrants are challenged.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jan 2018 @ 8:13am

    well we already 100% do not obey the 4th anyways

    What difference does it make now?

    A judge will only stop a warrant for a high profile rich and powerful elite, but they will approve a no-knock warrant based on shady as fuck information from an anonymous source.

    Helly, they might even raid your fucking ass without a warrant at all becuase just because.

    Even in the cases where they do manage to get a warrant is does not follow the 4th because they are always over broad and anything seized during the warranted raid is considered legit even if the warrant does not address it.

    It's all shit, no one fucking cares they just run their mouths like they do.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 25 Jan 2018 @ 8:51am

    Define "bad"

    I am not so sure that 2% is bad.

    Suppose that, instead, the number was 25%. I would think that that would be an indication of a problem. Perhaps that the judges were being unreasonable, or more likely that the police were bringing warrant applications that were deficient.

    I expect the police to apply for warrant applications based upon probable cause. They should know what that is, and shouldn't be asking for warrants if they don't have it.

    But if the police do have probable cause, it's going to be pretty inevitable that they're going to get a warrant. After all, the judge is not supposed to just deny warrants willy-nilly, either. So should police applications be rejected 5% of the time? 2%? I'm not sure.

    Yes, it would bother me if it were 1-in-1000. But 2%? To me that sounds like a well-designed system being used by serious, responsible people.

    reply to this | link to this | view in chronology ]

    • icon
      Sharur (profile), 25 Jan 2018 @ 9:14am

      Re: Define "bad"

      I agree with Coyne Tibbets. In support of this, I would say that in my experience reality falls between the optimistic and the pessimistic.

      The optimist in me states that the warrants are approved because they meet the legal criteria.
      The pessimist in me states that the warrants are rubber-stamped.

      The reality is probably in-between. Honestly, I think I would be more worried if after decades of communal experience, police officers didn't know what to put on their affidavits to secure a warrant; Either they would have to be utterly incompetent (and as I think officers who don't shoot unarmed suspects are more competent than those who do, and I think those who do are at least competent enough to stand trial, I think officers are competent) or the judges are applying a random and arbitrary test.

      So for anyone who disagrees I ask a simple question, and a more complex one: What percentage and time, in your ideal world, would be desired/acceptable? Why?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Jan 2018 @ 9:21am

        Re: Re: Define "bad"

        "What percentage and time, in your ideal world, would be desired/acceptable? Why?"

        The problem is NOT the percentage or time here. It's the either following the 4th or not. Even in most of the optimistic warrants the 4th if often not followed either.

        I don't care if it only takes 10 seconds to declare John Doe is to be arrested for theft and all phones found in possession seized. So long as the 4th is observed in all cases where a warrant is issued and they don't seize his laptop & cash along with the phones.

        reply to this | link to this | view in chronology ]

  • icon
    Sharur (profile), 25 Jan 2018 @ 9:29am

    Why is less than a minute necessarily a rubber stamp?

    I found this with about 5 seconds of googling, being the first result for "example search warrant", presumably from an actual police department.Basically the questions before a judge is a) does probable cause exist for the search and b) is the scope of the warrant too broad, given the evidence at hand.

    It appears that for simple cases, probable cause can be established in a single paragraph, which should take more than 30 seconds to read (it took me 20, but I've been told I read fast)

    http://www.ohiopd.com/searchWarrant/informantSearchWarrant.html
    http://www.ohiopd.com/searchWarr ant.php

    reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 25 Jan 2018 @ 11:26am

      Re: Why is less than a minute necessarily a rubber stamp?

      > Why is less than a minute necessarily a rubber stamp?

      Because TechDirt's anti-cop bias results in their belief that cops, in their zeal to violate the Constitution as frequently and flagrantly as possible, are constantly presenting judges with deficient warrants, so the rejection rate should be much higher, and since it's not that can only mean that the judges are complicit in the wholesale disregard of the 4th Amendment.

      reply to this | link to this | view in chronology ]

      • icon
        Sayonara Felicia-San (profile), 25 Jan 2018 @ 12:00pm

        Re: Re: Why is less than a minute necessarily a rubber stamp?

        The cops already know whether or not the person is guilty, why do they even have to go through this hassle, just let them search whatever and whenever they want.

        If you have nothing to hide, then you will literally squeal with glee at the honor of being searched by our proud men and women in uniform.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Jan 2018 @ 12:23am

      Re: Why is less than a minute necessarily a rubber stamp?

      The main reason why is lack of validation of the warrants taking time would catch inconsistencies which would lead to denial. It also save lives and catch malfeasance.

      Say the police warrant to search 123 Fake Street and they say it is a two story house by a stream. Except 123 Fake Street is actually a one story house in a swamp. A proper warrant vetting would result in a rejection on the grounds that the police are either at the wrong house or flat out lying.

      Taking a little extra time isn't a bad thing since situations which involve actual urgency wouldn't need a warrant. If a suspect is shooting at them or someone is about to jump off the roof they don't need a warrant to bust down the door.

      reply to this | link to this | view in chronology ]

  • icon
    bhull242 (profile), 25 Jan 2018 @ 11:51am

    The U.S. Judiciary: We’ll get your warrant to you in 10 minutes or less or your money back!

    reply to this | link to this | view in chronology ]


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