Is the Warrant System Working Well?

If the government wants to snoop in your private belongings or data, law enforcement officers must get a warrant. We often feel like this protection keeps the government in check and helps avoid unnecessary intrusion. Is this true?

Consider first what is necessary to obtain a warrant from a judge: probable cause. In Illinois v. Gates in 1983, the U.S. Supreme Court held that “probable cause does not demand the certainty we associate with formal trials.” Instead, judges should us “this flexible, easily applied standard” to determine whether “there is a fair probability that contraband or evidence of a crime will be found…”

Uncertainty; flexible; easily applied. These terms do not inspire confidence in protecting our rights.

Indeed, probable cause is a low standard; judges in the past few decades have routinely interpreted “fair probability” to mean “within the realm of possibility.” Under this standard, it’s not difficult for officers to get a judge’s consent to invade someone’s privacy.

We might be able to tolerate this low standard if it were being used appropriately by studious and skeptical judges reviewing these requests for invasions of privacy in detail. Are they?

Here in Utah, law enforcement officers utilize an electronic warrant system to submit their requests. In some cases, the requests are first screened by a prosecutor or supervising law enforcement officer, but this is not required nor is it always done. The online requests are submitted to a judge on assignment in rotation to respond to these requests.

A notification appears on the judge’s phone — a request for a warrant to review and respond to. And as the data we’ve obtain indicates, the warrants are often being approved very quickly.

Reviewing a recent year’s worth of data, we found that 13% of warrants were approved in under one minute; over half of requests were approved in under three minutes.

As one defense attorney told the Salt Lake Tribune in their write-up, “If a warrant is approved in… under a minute, then the magistrate is not doing their due diligence.”

It is comforting to believe that neutral judges are dispassionately reviewing requests by the state to use authority and potential violence against those suspected of wrongdoing. The data suggest that this may not always be the case, especially when reviewing select cases in which warrants are issued in mere seconds despite multi-page requests that would typically take several minutes to read.

It is worth pausing to consider whether the status quo is sufficient to balance law enforcement’s interest against the rights of presumptively innocent people to not have their privacy unreasonably violated. If the standard is low, and the judicial review superficial, then injustice can too easily occur. Reform is needed to consider a better method of achieving this balance.