Warrants approved in just minutes: Are Utah judges really reading them before signing off?
(Jeremy Harmon | The Salt Lake Tribune) Police officers in Utah submit thousands of search warrants a year to judges, who are tasked with reviewing the paperwork and determining whether there is a probable cause to believe a crime has been committed. If so, the judge will authorize the police officer to make the requested search.
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.
And it was rare for a judge to turn down officers. About 2 percent of proposed warrants were denied, according to state data acquired through a public-records request by the Libertas Institute, a libertarian-leaning Utah think tank.
When the e-warrant program began in 2008, law enforcement officials touted the new technology as a timesaver that allowed them to approve warrants in just minutes — as compared to hours officers used to spend traveling to see a judge in person to get a signature.
Efficient, yes, but, 10 years later, critics warn that judges may have become a bit too hasty to sign off on a warrant.
A critical decision
This is how e-warrants work: Police officers write a description of their credentials and why they need access to whatever they want to search. Then they submit it digitally to the Utah Criminal Justice Information System. An on-call judge receives a text or email alert, and that can come at any hour of the day. The judge then reviews the warrant and makes a critical decision: Is there probable cause to believe a crime has been committed?
If so, the judge hits a button, granting permission for the officer to seek the evidence. Sometimes that means drawing blood from someone suspected of driving drunk, though it can also allow police to rush into a house without warning to search for drugs or weapons.
To better understand the system, The Salt Lake Tribune picked one month — March 2017 — and analyzed all 844 warrant affidavits that were approved, looking at how quickly judges signed off, who asked for them, who granted them, what the officers were looking for and what they found.
Nearly a quarter of those warrants involved late-night or early-morning DUI cases in which officers wanted to draw a suspect’s blood. Others cover the gamut from homicides to sex crimes and burglaries.
It took barely two minutes one March evening for a 2nd District judge to access, review and approve a warrant seeking to search a storage unit for stolen goods.
A few days later, that same judge approved a four-page warrant two minutes and 16 seconds after a Weber-Morgan Strike Force officer requested permission to use GPS tracking on a smartphone of an “unknown male” who investigators believed was a drug dealer.
Also in March, a 3rd District judge approved a warrant one minute and 37 seconds after a Murray police officer submitted it, giving him permission to search an apartment where he suspected people were using drugs.
The longest approval time in that month was 54 hours and 25 minutes — for a warrant to seize stolen items in a backpack. When a judge did eventually give approval, the officer searched the backpack that same day. The quickest was approved in 40 seconds, for bank account records sought in a suspected online theft. Officers served that warrant two months later.
The large number of swift approvals has caused some, including defense attorneys, to question whether judges are really reading, digesting and making thoughtful decisions on each warrant.
“It would be completely inappropriate under any circumstances for a warrant to be rubber-stamped,” said Salt Lake Legal Defender Association Executive Director Rich Mauro. “If a warrant is approved in under a second or under a minute, then the magistrate is not doing their due diligence.”
‘A pretty heavy weight’
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.”
Cops in Utah are not required to have their warrants reviewed by a prosecutor. While prosecutors in Salt Lake and Utah counties report it is common practice, many others do so with less regularity.
“We are always willing to assist when asked,” Weber County Attorney Chris Allred explained.
Even with these reviews, officers still make mistakes — which are then approved by a judge.
Defense attorney Randy Richards said he’s seen cases in which a warrant had an incorrect address and recalled a case he won several years ago when the judge had approved a warrant that simply listed “Ogden” as the area to be searched, instead of a specific address.
In those instances, it is easier to win a motion to suppress evidence, Richards said. The harder cases, he said, are when the warrant looks correct but he believes the officer lied to get the warrant or acted on stale information.
“I’m OK with search warrants when they’re done appropriately,” he said. “I do believe there are a lot where [the police] are really stretching it, so that bothers me. The more the police get away with it, the more we lose our rights.”
The Tribune’s analysis found several warrants that contained errors. A DUI blood draw, for example, was never served because the officer wrote the driver’s birth year as 2017.
In another case, a Unified Police Department officer submitted a warrant three separate times to a judge in one day, each including a provision to allow entry into a home without knocking or announcing as police. Though the judge approved each version, the officer never served the warrant. On each, he explained he needed to rewrite the warrant to better describe the investigation before it should be served.
Officers didn’t serve other warrants because they listed the wrong address. In total, 59 warrants approved in March 2017 were never executed — though most don’t explain why.
Judges approving e-warrants within minutes should give the public pause, said Libertas Institute President Connor Boyack.
“Judges are, in theory, supposed to studiously review requests by police to exercise invasive power — whether taking our blood, forcibly entering our home, or taking our property,” he said. “The speed with which these warrants are approved seems to suggest that judicial review of warrants leans more toward rubber stamping.”
Boyack said he wants more judicial oversight and transparency. That could potentially be achieved through a change in the law, he said.
But court officials say they believe judges are thoroughly reviewing warrants. Brent Johnson, general counsel for the Administrative Office of the Courts, said some warrants simply can be reviewed quickly, especially if the judge is familiar with the officer and his or her background.
At the beginning of all search warrants, officers write what is referred to as a “hero statement,” where they list their background, training and special skills that qualify them to ask for a warrant. Johnson said judges might skip over that part — which sometimes can be two or three pages long — if they know the officer.
“They’ll just go to the brief blurb of facts,” Johnson said. “[Such as], I saw the person swerving, smelled alcohol, the person had blurred eyes. That’s less than a 30-second review to know you’re going to approve that blood draw.”
It would be a concern, Johnson said, if there are Utah judges who “aren’t paying attention” to warrants before approving them. The courts have seen no evidence of that.
“But if someone were to immediately present it and say, ‘Judge So-and-So pulled this at this time and it’s a 15-page document and it was approved 15 seconds later,’ then that’s a concern,” he said. “I really don’t think that’s happening.”
In The Tribune review, search warrants approved in under a minute had an average length of just under four pages.
This is an actual search warrant affidavit submitted by a Unified Police officer in March 2017. It took 3rd District Judge Kara Pettit 53 seconds to access, review and approve the eight-page application. Use the timer to see how long it takes you to review the affidavit.
Source: The Tribune has redacted portions of the warrant that contains personal information
Righting a wrong
Salt Lake County District Attorney Sim Gill and his chief deputy, Blake Nakamura, said they have seen no evidence of rubber stamping, and even if an illegal search was to take place, remedies are in place to right the wrong. Options include holding a preliminary hearing or filing a motion to suppress the evidence seized in the search. A jury trial is another safeguard, they said. Further, the government could compensate someone for an illegal search.
But Mauro said that’s far-fetched.
“During the course of a criminal case,” he said, “I have never had compensation made to someone who had a violation of their Fourth Amendment right.”
Mauro said it is also a tough task to ask a judge to rule that a colleague improperly approved a warrant. And challenging a potentially illegal search takes time and money.
Further, if defendants want to suppress evidence obtained in a search they feel is illegal, the burden of proof falls on the accused. Some defense attorneys might not have the resources to conduct an investigation to prove a police officer acted illegally, Mauro said.
And even if a defense attorney shows a search was illegal, Mauro said, prosecutors can argue the officer didn’t knowingly falsify the affidavit and the evidence should be presented to a jury.
Mauro said it’s much easier to stop illegal searches before they occur, rather than try to mitigate the damage after. That burden, he said, falls on the judge.