Warrants: Bulwark Of Liberty, Or Paper Shield?

We live in an age of diminished privacy and increased law enforcement power. That's why many people were enthused last month when the Supreme Court held that police generally need a warrant to search the data on your cell phone.

But just how happy should we be, really?

We want to believe that the warrant requirement is a significant limit on police and prosecutors. We want to believe that because it's one of the very few limits we have.

But facts don't seem to bear it out.

Wiretap applications are voluminous and complex and a huge pain in the ass. But Federal judges obligingly grant wiretaps requested by the governmentusually in drug cases — 99.969% of the time. The Foreign Intelligence Surveillance Court, eager to please, grants 99% of warrants — though it protests that it asks for changes to 24%. And when the United States asks for a sneak-and-peak warrant — that is, license to do a black bag job where they go into your house, search it, and leave without letting you know they've searched it — the courts grant the request around 95.95% of the time.

It's very difficult to find reliable statistics about how often federal or state judges grant plain-vanilla search warrants, but there is very little basis to be optimistic that judges are much more exacting in those circumstances. In my six years as a prosecutor I only saw two warrants rejected by judges. One was rejected because the out-of-district AUSA who sought it refused to follow our local format. The magistrate judge, a man so relentlessly pleasant that he made Ned Flanders look like a Breaking Bad character, was rather irritable about it. On another occasion a magistrate judge refused a warrant based on the "exculpatory no" doctrine, even though the Supreme Court had recently rejected that doctrine.1 As a prosecutor I declined to seek several warrants requested by federal agents. On one memorable occasion the exasperated DEA agents simply took the patently insufficient warrant application (which relied entirely on an anonymous informant with no meaningful corroboration) to a state judge and got him to approve it, then asked the feds to prosecute based on the results2

We're faced all the time with the ridiculous warrants judges will sign if they're asked. Judges will sign a warrant to give a teenager an injection to induce an erection so that the police can photograph it to fight sexting. Judges will, based on flimsy evidence, sign a warrant allowing doctors to medicate and anally penetrate a man because he might have a small amount of drugs concealed in his rectum. Judges will sign a warrant to dig up a yard based on a tip from a psychic. Judges will kowtow to an oversensitive politician by signing a warrant to search the home of the author of a patently satirical Twitter account. Judges will give police a warrant to search your home based on a criminal libel statute if your satirical newspaper offended a delicate professor. And you'd better believe judges will oblige cops by giving them a search warrant when someone makes satirical cartoons about them.

I'm not saying that warrants are completely useless. Warrants create a written record of the government's asserted basis for an action, limiting cops' ability to make up post-hoc justifications. Occasionally some prosecutors turn down weak warrant applications. The mere process of seeking a warrant may regulate law enforcement behavior soomewhat.

Rather, I'm saying that requiring the government to get a warrant isn't the victory you might hope. The numbers — and the experience of criminal justice practitioners — suggests that judges in the United States provide only marginal oversight over what is requested of them. Calling it a rubber stamp is unfair; sometimes actual rubber stamps run out of ink. The problem is deeper than court decisions that excuse the government from seeking warrants because of the War on Drugs or OMG 9/11 or the like. The problem is one of the culture of the criminal justice system and the judiciary, a culture steeped in the notion that "law and order" and "tough on crime" are principled legal positions rather than political ones. The problem is that even if we'd like to see the warrant requirement as interposing neutral judges between our rights and law enforcement, there's no indication that the judges see it that way.

The fault is in our judges, and in ourselves.

  1. Q: How do you tell a United States Magistrate Judge "you're wrong on the law?" A: Cautiously.  
  2. How about no.  

Last 5 posts by Ken White

Comments

  1. jdgalt says

    The real, underlying problem is that police who violate the Constitution are effectively not answerable except to their own agency, which will always cover-up for them. Both their immunity and their monopoly on the right to prosecute must be taken away before ANY kind of abuse by police can begin to be quelled.

    This will happen when and if we elect a Libertarian administration, and not sooner.

  2. jackn says

    You lost me at Libertarian. Wouldn't that be just as political as the current situation?

  3. fsandow says

    "[A] man so relentless pleasant that he made Ned Flanders look like a Breaking Bad character". I'm so glad you're back, Ken.

  4. scott says

    Great post! I'm so glad you're back. I was having Popehat withdrawal anxiety attacks for far too long.

  5. Jim Tyre says

    Ken,

    A small nit from an otherwise good post:

    The Foreign Intelligence Surveillance Court, eager to please, grants 99% of warrants — though it protests that it asks for changes to 24%.

    FISC Orders never should be confused with warrants. Exactly what they are depends on whether they come from applications under Section 215, Section 702 or EO 123333, but in no case do they meet even the minimal standards for a warrant.

  6. says

    Something about the phrase "A man so relentlessly pleasant that he made Ned Flanders look like a Breaking Bad character" just made me grin uncontrollably. Congratulations :)

  7. ... says

    "The fault is in our judges, and in ourselves."

    No, the fault is not mine. I do however support warrants, at least 'soomewhat'.

  8. nm says

    " Judges will sign a warrant to give a teenager an injection to induce an erection so that the police can photograph it to fight sexting."
    Actually, I don't think that was signed. Apparently that is the line.
    The casualness of the search warrant process in my California courthouse is always shocking to watch — a few pleasantries, a read of two seconds, a request to add something if needed, and then it gets signed. 2 minutes tops.

  9. Mike says

    I think in the case of cell phones specifically, you're underestimating this aspect:

    "The mere process of seeking a warrant may regulate law enforcement behavior soomewhat."

    Under the previous standard, the cops could just grab your phone and email themselves anything they want from your phone. Requiring a warrant is a fairly serious practical limitation to the widespread abuse that would result from ruling in the opposite direction. Still easy to abuse, it just takes enough effort that they won't be looking at every single person's phone.

  10. says

    Good to remind us of the unpleasant fact that requiring a warrant doesn't mean much in real life.

    One of my biggest concerns in the coverage of the Peoria, Illinois mayor story is that so few people have called attention to the judges who signed off on the search warrants. (Your coverage did, though; thanks for that.)

    That said, I DO see the SCOTUS ruling as a victory, even if it's mostly moot until and unless we can enact some sort of meaningful warrant reform.

  11. cdru says

    Statistics can lie. Saying 99.969% of wiretaps are signed isn't a sign that they just get rubber stamped. The reason that such a huge percentage of warrants get signed is because they are so needed and flawlessly applied for. It should be obvious to anyone that the system is working just the way that it should!

    Right?

  12. jimmythefly says

    Is the process for getting a warrant supposed to be adversarial in any way? Maybe we need some "citizen advocate" present when a warrant is applied for? It seems some of the issues arise because you only have the neutral(ha) judge and "Team A" present. There is no one from "Team B" to argue that the warrant is not needed or is incorrect. Or is the judge supposed to be Team B too?

  13. Katie says

    ^^ What Mike said. It at least makes them have to go write up some papers and do something, not just randomly harass anyone right there on the spot. Should it be way stronger? Of course. But I cannot imagine how quickly it would get so much worse if there were no warrants.

  14. Dan Weber says

    Like with prosecution win-ratios, is lower really better? If the police are regularly asking for things that get rejected, isn't that also a problem?

    Imagine a world where judges were extremely limited as to what they signed off on. What would the percentage of valid subpoena requests be? Wouldn't the cops learn what it takes to get a valid warrant and make sure they usually aren't wasting their time?

  15. says

    Quick (and off-topic) question: is it just me, or are you guys experimenting with the blog's layout/design? In the past few days I've backed out a couple of times, afraid I'm in the wrong place.

  16. CJK Fossman says

    @Ken,

    I think I saw the same thing as azteclady.

    It looked to me like one or more of the stylesheet or javascript files were delayed a little bit.

    Firefox 30 for Ubuntu 1.0.

  17. JR says

    Good read. I agree that that process is almost a rubber stamp, but I think forcing the warrant is a good thing. Like Ken said, it forces the person asking for the search to put his cards on the table. It makes it much harder to post arrest come up with some bogus story.

    "We need to search Mr. White's cell phone because he has pictures of a garden weasel being slammed into someone's taint." So what if the judge signs it. They now can't quickly change the theory of the crime, or the type of crime.

    "Well you honor we searched the phones numbers on his phone to look for calls to known drug dealers. ". Going to hard get that in when you have it on paper that the worst thing you expected was taint assault in the first degree.

    I'm not a legal dude, but I expect that they would agree that locking the other side into their story as early as you can is useful.

  18. says

    I use Firefox on two different computers and about half the time the text stretches from side to side of the screen, with a little "menu" button at the top left. No images or icons. Sometimes (like right now) when I click on the post itself, or the comments, it brings up the regular layout. At other times, it stays stretched out.

  19. says

    Hey Ken, welcome back.

    cdru says:

    Saying 99.969% of wiretaps are signed isn't a sign that they just get rubber stamped. The reason that such a huge percentage of warrants get signed is because they are so needed and flawlessly applied for.

    I suspect sarcasm here, but there is a lot of truth in this. A wiretap order is far, far more burdensome to obtain than a search warrant. I can't imagine any prosecutor going through all that effort unless he had a very good reason to believe the wiretap would bear fruit. Also (at least on the federal side), before the application is shown to a judge it has been widely vetted, including by a big wheel at main Justice.

  20. John Gordon says

    @azteclady and @cjk Fossman. Glad to see I wasn't losing it early this week. I was getting the same effect as @azteclady in her post immediately above. At least my comments on twitter earned me several responses from someone who called himself "@popehat."

  21. says

    My "favorite" bad warrant was based on the search of a house where drugs were found. The cops found an envelope at the drug house with a different address on it. The cops got a warrant for this new address (from a state court judge) with no further evidence than that the address was on an envelope found at a house where narcotics were located.

  22. Tribal says

    I think Dan Weber is right. Even modestly-trained police should be able to put forth probable cause most of the time, especially if they've had time to think about it (and perhaps already know what they want through unapproved means). When they can't even do that, they don't even try for the warrant; they just do what they want and hope the prosecutor can salvage it.

  23. mm says

    I am experiencing the same format variables that azteclady reports. I use Firefox but can't find what version…

  24. Some Random Guy says

    re: display issues

    While using Chrome on Windows over the past couple of days I am intermittently having the page rendered in the same style as I'm used to seeing on my mobile. My suspicion is that there is some kind of issue with User-Agent parsing/recognition and/or rendering style selection.

  25. Matt says

    @Ken, I too have seen these formatting issues a few times lately. Using Chrome (generally up-to-date), and it's sporadic.

  26. says

    Dan Weber asks, "wouldn't the cops learn what it takes to get a valid warrant and make sure they usually aren't wasting their time?"

    No. When they lose, they lose nothing (their time is paid for!) When they win, it's like now. They'd learn something… but probably just "how to make better applications".

    The only good fixes involve either adversarial warrants (expensive) or some kind of cost for bad warrant applications. And by "cost", I mean it must be costly to the police.

  27. cdru says

    I too have received the differently formatted page, and also believe it was a mobile friendly version. I'm using Firefox and have only experienced it with the home page. Clicking on an article link returned it to the desktop version, as did a hard refresh.

  28. GZur5dbGXDbsVg says

    I've seen the formatting issue described by @azteclady a couple of times this week.

    I was using Safari (probably) or Chrome (less likely) on OSX at the time.

  29. Kratoklastes says

    Not for nothin', but this is precisely what economic theory tells you to expect when you permit a monopoly in an industry (in this case, the 'justice' and 'law enforcement' industries… both paid out of the same pool of funds by the same 'buyer' – .gov – who is also often one of the litigants… can you spell "perverse incentives"?).

    Monopolies – always and everywhere – lead to lower-quality, more expensive output. The State monopoly of the legal system is no different, and so the results should shock nobody who has a lick of sense.

    And that's before we got to considering what sort of psychotype WANTS to be a judge… apologies in advance to the exception that proves the rule, i.e., my old mate Croucher J – now of the Supreme Court of Victoria. That said, it seems to me that he was elevated to the bench in order to make him stop his investigations into the improper swearing of warrant applications going back at least 30 years: imagine if every arrest and imprisonment based on a falsely-sworn warrant was contested? Can't have the peons getting retrials, so let's put Michael in a nice red robe with a big silly wig.

  30. Some Random Guy says

    re: display issue

    It also occurs to me that the issue might have to do with cookie handling since the problem seems to go away after posting, and sometimes simply after reloading or following the "newer posts" link in the "mobile" style.

  31. RB says

    This is a classic who watches the watchers problem. Since
    Vimes isn't available, the obvious answer is to set up an independent government agency where the agents get a bonus for every year of jail time served by a government agent they helped put behind bars. Extra bonuses for LEO's, Prosecutors, Judges, the president and so on. Then you give the same incentives to the existing agencies when they are able to put an agent from the new agency behind bars.

    Might not actually solve the problem, but at least it would get the government so focussed on itself that it would leave us alone.

  32. says

    Ken,
    I'd be quite interested in hearing from a few judges about how they decide which warrants to reject, etc. I know you tend not to do interviews on the blog, but I think in this case, if you can find a willing judge or two to interview, it would be really cool.

  33. Mike says

    It sounds like it's a much better check on individual officer misconduct than it is a check on the justice system in general. If a cop wants to screw you, he had to document that he's screwing you, not just email himself your nudie pics.

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