This op-ed was published this weekend in the Standard-Examiner. Merry Christmas!
“He sees you when you’re sleeping, he knows when you’re awake. He knows when you’ve been bad or good, so be good for goodness sake!”
Normally the above lyrics would be attributed as a description of that jolly old elf, Santa Claus. Sadly, the attribution also applies to overzealous law enforcement and the judges who authorize their warrant requests.
Like Santa’s storied omniscience, new technologies allow law enforcement to see what once was private. We’re all familiar with the NSA’s surveillance program, but other tools and technologies such as stingrays facilitate spying on local cell phone users in a targeted area. Handheld radar detectors allow police to peer through walls. Privacy advocates would correctly argue that tools such as these require a warrant.
And they’re right—warrants are an important part of due process within the justice system. Without them law enforcement would be able to search for and seize evidence without any safeguards. Warrants not only bring the judge into the equation as a check in the system, but they also allow for defendants to challenge the validity of said warrant—and the law enforcement that follows—in court.
But generally how high is the bar set for obtaining a warrant?
“He’s making a list, checking it twice, gonna find out who’s naughty or nice.”
Estimates show that a majority of the time these electronic warrants are approved within a mere 10 minutes.
This means that too often, e-warrants are not being looked at with much scrutiny by the judge. And since a large percentage of these warrants are submitted after business hours or on the weekend, the distractions and demands of dinner, family, or other activities can take precedence over an adequate review of each of these warrants.
This can result in judges becoming not much more than a rubber stamp for law enforcement, since very few warrants are ever denied. The safeguard that was meant to protect citizens becomes meaningless. Before their life, liberty, or property is put in jeopardy by law enforcement, Utahns deserve the due process of an adequate warrant review.
Consider the recent incident involving the arrest of a nurse at a University of Utah hospital. Though everyone, including the Utah Legislature, is in agreement that the Salt Lake City police detective needed to get a warrant in order to get a blood sample of the victim, what ultimate purpose would the warrant have truly served?
If within ten minutes the detective could have obtained a warrant from a judge who failed to review the request with much scrutiny, then the victim’s rights would have been violated anyway—and even worse, with legal justification.
“Up on the housetop, click, click, click, down through the chimney….”
While it’s important that laws be enforced, the violent and confrontational methods used to execute some of these “no-knock” or even “knock and announce” warrants begs the question, are they absolutely necessary in each instance? The minimization of the loss of life and property on both sides of the gun needs to be the goal.
Checks and balances are an important feature and function of our government system, but Utahns need confidence that judges are checking the requests of the police beyond a casual, quick, or superficial review. Judges must take the time to review and verify that each warrant request is indeed necessary and proper—especially when a home invasion is being authorized.
This upcoming session, the Utah Legislature will be considering a proposal to require judges to ensure that when a warrant is requested for forcible entry they verify a few important points of information.
First, officers must inform the judge as to why the arrest or search can’t be carried out during the daytime if they want to do it in the dark of night. Second, they must explain why a less invasive method cannot be used. And finally, officers must detail what investigative tactics have been used to make sure that they have identified the correct building.
These basic yet important preliminary steps will lead to better outcomes and fewer tragedies. And at the same time, warrants will be reviewed and approved with some amount of scrutiny as was originally intended. Because you know as they say….
“You better watch out, you better not cry, you better not pout, I’m telling you why…”
The heavily armed SWAT team might be coming to town, rubber stamped warrant in hand.
Executive Vice President
Michael is the Executive Vice President, overseeing all of Libertas’ public policy efforts.