Jul 31, 2012 Overhaul the search warrant issuing system
At first blush, the Fourth Amendment to the United States Constitution looks like something slipped past legislators by skilled ACLU lobbyists slipping mickeys into legislators’ cocktails:
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.
However, a mulitude of judges and judicial officers are far from ACLU types, and even the ACLU types among them are constrained by governing appellate authority when reviewing search warrant applications.
As far back as 1925, not long after we got mass-produced automobiles, the Supreme Court enunciated the Carroll Doctrine, followed by courts to this day, generally excepting car searches from any requirement to obtain a warrant before searching, based on the mobility of the car while a warrant is being sought, even if the car is being detained the whole time by the police.
Appellate caselaw is also fond of allowing warrantless protective police sweeps of houses — even as preludes to applying for search warrants using the evidence observed during the sweeps — to assure no dangerous actions nor evidence destruction by those within the home. Washington v. Virginia, ___ Va. App. ___ (July 24, 2012).
Even when a search warrant is required before a search may be executed, how many judges and judicial officers carefully read and consider the usually lengthy and often dull search warrant applications? Search warrant applications typically are multiple pages, starting with two to three pages of boilerplate language about the affying officer’s background and qualifications to rely on his oath and affirmation therein. The applications then often go into dull minutiae about the reason the police became suspicious of the warrant applications’ subjects and what their investigation turned up. The applications then end with requesting authority to search for everything including the kitchen sink. The warrant applicant attaches a lengthy draft search warrant, none of which I have never seen amended by the reviewing judge nor judicial officer.
Not being in the room with the reviewing judge nor judicial officer, I do not know how often they do or do not give a due reading and consideration to each search warrant application, as well as consideration that, being human (and so many humans lie so often), at least some police officers will lie in search warrant applications. Pulling in the opposite direction for many judges and judicial officers likely is the feeling of urgency against delaying approval of search warrant applications (including where essential evidence might spoil or be cached the longer the search warrant is not issued and executed), not wanting police to be delayed unduly from returning to the street to fight more crime, and knowledge that a careful and searching review of the warrant applications is time consuming and delays them from reviewing other pending search warrant applications (especially during sleeping hours (and how many judges are all groggy at that time of night, especially in small jurisdictions where the judge has few other judicial officers to share warrant-reviewing obligations with?) when only one judicial officer in the jurisdiction may at that time be responsible for reviewing search warrant applications).
Unfortunately, in such places as Virginia, the law allows magistrates — who are not required to be lawyers nor to have sufficient legal training and experience for reviewing search warrant applications — to issue search warrants.
Judges and judicial officers review search warrant applications ex parte, without the subject of the warrant being able to weigh in. Yes, criminal defendants may weigh in against search warrants through suppression motions, but that gives no comfort to those who suffer searches and never get prosecuted, for lack of evidence, nor to those who innocently are in the house of the warrant’s target. A search warrant execution is not merely an invasion of privacy, but can be a deeply traumatic experience for its subjects. Search warrant execution is often accompanied by turning a house upside down and inside out, with the contents of closets, drawers and containers thrown all over the place; destroying doors to gain entrance; sometimes shooting dogs to eliminate their risk of harm; pointing guns at terrified home occupants (with sleeping time being a favorite time for police to execute search warrants, to catch occupants off guard); and often acting like hooded, black-garbed stormtroopers, including frequent rounding up of occupants, forcing them to lie or sit still, and often restraining them in plastic cuffs. Welcome to America (or is that Amerika?).
What can we do to reverse this sad state of affairs with police searches? We can reduce these severe invasions of our privacy by shrinking the criminal justice system, and thus the very reasons for police to seek and obtain search warrants, starting with legalizing marijuana and heavily decriminalizing all other drugs. By simply legalizing marijuana, we remove marijuana odor as a classic reason that police site to search. We can push for legislation requiring that the entire warrant application review process be videotaped and audiotaped, to assure that judges and judicial officers are paying full time and attention to the review process. We can push for legislation requiring judges and judicial officers to affirm that they have faithfully performed a full and attentive review of the application. None of this will change without concerned people acting, starting with calling, writing to, or emailing at least one of our state or federal legislators today (tomorrow at the latest) and spreading the gospel to others.