Policy Analysis

Strengthening Judicial Oversight of Forcible Entry Warrants

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Libertas Institute supports this bill.

Below is the executive summary for our newly released policy analysis, “Police Warrant Reform.” To read the entire report, click here. The resulting legislation is House Bill 70.

According to one estimate, roughly 40,000 SWAT or tactical raids are conducted around the country each year—over 100 per day. In most cases, officers detain the suspects and seize the desired evidence without harm to themselves or those present in the home they entered. But in too many cases, something goes wrong and somebody—in many cases an innocent person—gets hurt, or worse, killed. Utah is not an exception to this trend.

This violent enforcement of the law, primarily relating to drug enforcement, suggests a weakening—if not abandonment—of the restraint that the American legal system was designed to ensure when dealing with warrants.

Prior to the Revolutionary War, agents of the British government used “writs of assistance” to authorize general searches and seizures. This broad targeting of innocent people, and the taking and destruction of their property, played a large role in the brewing opposition to the Crown. As James Otis argued, these writs were “a power that places the liberty of every man in the hands of every petty officer.”

Due to their experience with this abuse of authority, the framers of the Constitution passed the 4th amendment which required a warrant signed by an impartial judge, based upon probable cause, that was specific to a person or property. Accordingly, today we expect judges to serve as a check on the authority of law enforcement officials to ensure that the rights of each citizen are considered and protected.

But what happens if judges don’t “check” this authority when necessary? Are a citizen’s rights fully regarded when the judge and law enforcement officer have a “history” together and therefore are somewhat predisposed to collaborate? How can we be sure that judges around the state are upholding our rights and granting the authority to forcibly enter a person’s home based on a consistent state-wide standard?

To ensure that punishments meted out by judges around the state are equitable, the Utah legislature establishes sentencing guidelines; it would clearly be problematic for a judge to punish a convict with 40 years in prison while another judge imposes a sentence of only one year on another person for the same crime. As with sentencing, we believe it is necessary for the legislature to establish reasonable guidelines for judges when being asked to sign off on a request to forcibly enter a person’s home.

We wish to minimize the risk both to citizens and law enforcement officials, and believe that better judicial oversight—to ensure that forcible entry is occurring only when absolutely necessary, and when the circumstances truly justify its use—will facilitate this important objective.

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