How hard is it to get a search warrant, anyway?

This wikilog article is a draft, it was not published yet.

by: Rjohnson • May 8, 2014 • no comments

I had a case recently where one issue was whether it would have been practical to get a warrant. In explaining why it wouldn’t be, Officer Friendly testified that, to get a warrant, he had to write up an application, which had to be reviewed by his supervisor, and then by a DDA, and then it would go to the judge to sign, for a total of 4-8 hours. The 4-8 hour figure is utter nonsense. It would take twenty minutes. I say that not because I have ever sought a warrant (I actually started to draft an application once, but for various reasons never filed it) but because I can read the statutes about how to get a warrant. They provide for a simple, straightforward procedure. ORS 133.545 provides in part:

“(4) Application for a search warrant may be made only by a district attorney, a police officer or a special agent employed under ORS 131.805.

“(5) The application shall consist of a proposed warrant in conformance with ORS 133.565, and shall be supported by one or more affidavits particularly setting forth the facts and circumstances tending to show that the objects of the search are in the places, or in the possession of the individuals, to be searched. If an affidavit is based in whole or in part on hearsay, the affiant shall set forth facts bearing on any unnamed informant’s reliability and shall disclose, as far as possible, the means by which the information was obtained.

“(6) Instead of the written affidavit described in subsection (5) of this section, the judge may take an oral statement under oath. The oral statement shall be recorded and a copy of the recording submitted to the judge who took the oral statement. In such cases, the judge shall certify that the recording of the sworn oral statement is a true recording of the oral statement under oath and shall retain the recording as part of the record of proceedings for the issuance of the warrant. The recording shall constitute an affidavit for the purposes of this section. The applicant shall retain a copy of the recording and shall provide a copy of the recording to the district attorney if the district attorney is not the applicant.

“(7)(a) In addition to the procedure set out in subsection (6) of this section, the proposed warrant and the affidavit may be sent to the court by facsimile transmission or any similar electronic transmission that delivers a complete printable image of the signed affidavit and proposed warrant. The affidavit may have a notarized acknowledgment, or the affiant may swear to the affidavit by telephone. A judge administering an oath telephonically under this subsection must execute a declaration that recites the manner and time of the oath’s administration. The declaration must be filed with the return.”

So, the officer has to prepare an affidavit, or provide a statement under oath, saying:

“Joe Smith, whom I arrested yesterday for PCS, told me that he bought his marijuana yesterday, Tuesday May 6, from John Doe at 123 Main Street in Portland. Mr. Smith further told me that he has bought marijuana from Mr. Doe once or twice a month during the last year. I want a warrant to search for marijuana, proceeds of drug transactions, drug records, and paraphernalia associated with drug transactions such as scales, baggies, and rolling papers.”

Of course, search warrant applications don’t look like that. They are filled with boilerplate about the officer’s training and experience and with background and other minutiae which isn’t necessary to establish probable cause. That junk takes a long time, but it isn’t necessary, and so it’s not my problem that it will take hours to prepare an affidavit explaining why they were suspicious of the defendant.

My short set of facts establishes probable cause to search, and even a hunt-and-peck typist should be able to get it into a template in five or ten minutes. I have read a whole lot of search warrant applications, and most of them clearly state probable cause, as much as I would like to convince the court that they do not. Usually, when probable cause is iffy (because the defendant’s behavior was suspicious but could be innocent, or when the CRI is not as R as the police officer thinks) adding more facts won’t help.

It’s important to establish how hard it is to get a warrant, because the exigent-circumstances exception to the warrant requirement lets the police skip the warrant process if they don’t have time to get one. See, e.g., State v. Matsen, 287 Or 581, 584 (1979). A crucial part of the analysis is how long it will actually take; the theory underlying the exigent circumstances exception is one of “practical necessity.” State v. Peller, 287 Or 255, 262 (1979).

So, it’s worth creating a record of how long it takes to get a warrant, or, maybe, that the police officer doesn’t know how long it would take to get a warrant if all the unnecessary steps were removed. If the officer testifies, as Officer Friendly did in my case, that it has to be written up and reviewed by a supervisor and a DDA, then cross-examination might go like this:

“Q: Officer Friendly, what would you do if you had to get a warrant in the shortest possible time?

“A: I’d write up the warrant application, and give it to my supervisor, and when my supervisor gave it back I’d go find the duty attorney at the district attorney’s office, and if the duty attorney gave it back I’d take it to a judge.

“Q: And how long would all that take?

“A: Four hours if I was lucky. A day, or even a day and a half, if my supervisor was out or I couldn’t find a deputy DA to look at it.

“Q: [optional] How about if you wanted to get a telephonic warrant?

“A: We have a policy that we don’t do those. (Or, I don’t know how to do those, or I don’t like to do them.)

“Q: [optional] What are the legal requirements to get a valid warrant?

“A: Well, we were trained to do it this way in the academy. Obviously, I’m not a lawyer.

“Q: Thank you. No further questions.”

Then, after the close of evidence, you argue that the state has failed to prove that it wasn’t possible to get a warrant, because they didn’t prove how long that process would take. They showed that it would take at least four hours to use the unnecessarily-lengthy process that they made up for no good reason. They did not show how long it would take to go through the actual legal minimum to get a warrant. They also didn’t prove that a telephone warrant wouldn’t be faster, because they offered no evidence on how long that would take and no justification for the policy against telephone warrants. And, of course, it’s the state’s burden. E.g., State v. Baker, 350 Or 641, 647 (2011).

A crucial part of this argument is that the state can’t benefit from the extra time required for a cumbersome, unnecessary process. That seems obvious to me, but I don’t know of any authority on point. Suppose, for example, that the legislature repealed all of the search-warrant statutes. In that case, getting a warrant would take forever, and so, once there was probable cause, the exigent-circumstances exception would permit a search. That can’t possibly be right; rather, the constitutional preference for warrants must mean that the state has an obligation to create a reasonable process for getting one (and the statutes are fairly reasonable, if dated) and the state has an obligation to use the reasonable process (which police and prosecutors universally do not.) This argument depends on facts, so be sure that you offer evidence on those facts. You could have your investigator prepare a warrant application in the courtroom to show how long it would take. And, obviously, your investigator would know the actual statutory requirements.

Of course, in a particular case, it might be slower than usual to get a warrant because the facts leading to probable cause are more complex. Don’t use this tactic in such a case. But in most cases, getting a warrant is easy, and we can’t let the prosecutors get away with making it hard so they don’t have to bother at all.