Utah judges should prove they are really reading search warrants, critics say

New data that shows how little time Utah judges spend reading search warrants before approving them has some groups pushing for a change in state law. What’s their idea? Require judges to explain, in writing, why they signed off.

Judges approved more than 10,000 electronic warrants in a one-year period beginning in April 2018, everything from requests to draw the blood of suspected drunken drivers to authorizing police to force their way into someone’s home without warning.

Half of those warrants were approved in less than three minutes — and hundreds were signed off in less than 30 seconds, according to data acquired through a public-records request from Libertas Institute, a libertarian-leaning Utah think tank, which has been interested in this topic for the past few years.

(Christopher Cherrington | The Salt Lake Tribune)

In one warrant, for example, an officer outlined how he had pulled over three cars in a three-day period that were all leaving the same suspected drug house. All of the drivers had methamphetamine or heroin on them. The officer detailed his investigation over six pages, seeking a judge’s permission to enter the home. It took a Salt Lake County judge just 27 seconds to sign off. That same judge reviewed another warrant for 10 seconds before giving police permission to search a massage parlor where officers had conducted an undercover prostitution sting.

And another judge in Beaver County looked at a warrant for 18 seconds before giving permission for an officer to take the blood of someone who was found slumped over a gas pump in Cedar City.

It’s quick sign-offs like these that are prompting Libertas and the Utah Association of Criminal Defense Lawyers to push a legislative proposal that would add another step to the process, making judges articulate the exact reasons why they believe a warrant should be granted.

“There’s this expectation that judges are studiously considering each request for government intervention,” said Libertas President Connor Boyack. “But it appears, at least in some cases, that may not be happening.”

The courts are pushing back on the proposal, saying there’s no evidence showing that judges are violating anyone’s constitutional rights.

For more than a decade, judges in Utah have reviewed warrants through an electronic system, which was initially touted as a timesaver that allowed approvals in just minutes. Before this, officers previously had to spend time traveling to see a judge in person to get a signature.

To get an e-warrant, police officers fill out a template that includes a description of their law enforcement credentials and why they need access to whatever they want to search. After they submit the document, an on-call judge receives a text or email alert, which can come at any hour.

The judge then reviews the document, looking for “probable cause,” a legal standard where officers show just enough evidence where a reasonable person would think a crime was likely committed and the officer would be able to get evidence of that illegal activity. It’s considered a relatively low standard to meet.

Cops are rarely turned down — judges denied only about 2% of warrants, according to last year’s data.

But while Libertas and defense lawyers are focused on just how much time judges spend reviewing the warrants, court officials say that’s the wrong metric to look at.

Michael Drechsel, assistant state court administrator, said the focus should be on whether judges are approving warrants when they shouldn’t be — giving the OK to searches when there isn’t probable cause. He said if it became clear that there were judges who were approving warrants improperly, the courts would be quick to take action. But so far, they just haven’t seen it.

“That is something that we would take very seriously and it would not go unaddressed,” he said. “If that is the case, that’s going to be dealt with because the public deserves better than that.”

The possible legislation — to be sponsored by Rep. Brian King, D-Salt Lake City — hasn’t been drafted yet. But those involved say it will propose that judges basically show their work, either by highlighting, copying and pasting or writing down exactly which part of the warrant showed there was probable cause.

King, who works as a civil attorney, said he believes judges are doing their job but says he’s also concerned about timestamp data that shows how quickly some warrants are being approved. He says he wants to work with the courts and others to see if they can craft legislation that can give the public reassurance that the warrants are being carefully considered.

“I don’t want our judiciary to be a rubber stamp,” he said.

But those timestamps don’t often show the whole story, 3rd District Judge Todd Shaughnessy said. The data doesn’t indicate whether a police officer had called the judge beforehand to discuss the case, which would speed up the time it would take a judge to read the document if he or she is already familiar with the details. It’s also quite common, he said, for police officers to serve multiple warrants for the same crime scene, sometimes as many as 70 different affidavits with just one or two sentences added or changed.

Shaughnessy said he won’t re-read every line of the warrant again, instead he’ll skip down to the new information.

So take out those warrants. And disregard the simple blood draw DUI warrants — Shaughnessy thinks judges really can read through those that quickly — which account for about a third of the nearly 300 warrants that were approved in under 30 seconds. What’s left?

“You can’t fix something until you first identify what’s wrong with it,” Shaughnessy said. “And it seems to me like this is a solution in search of a problem.”

But Steven Burton, with the Utah Association of Criminal Defense Lawyers, said he believes the data shows judges aren’t reading some warrants all the way through. Even if there was enough evidence to approve, the judges are getting it right by chance if they aren’t reading them carefully.

“If it happens to be the right decision by coincidence, that seems like the complete opposite of what we expect from judges,” he said, “and that is not at all what the public expects when the government is asking permission to take our blood or search our homes.”

Burton said when Libertas first began gathering this data in early 2017, there was cause for concern — but the numbers were not as specific and could have been interpreted in different ways. But the data has become more detailed in recent years.

“It has more clearly illustrated that there are problems with a certain percentage of these cases,” he said. “We’ve never believed it was a pervasive problem that affected all judges. But this just confirmed that there are problems that need to be addressed.”