The Fourth Amendment right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures has been celebrated as one of the most important bulwarks of freedom in American law.1 One of the main reasons for such a belief is that when warrants are required, they must be issued by a neutral and detached magistrate.2 Aside from anecdotal knowledge by legal practitioners and a very small set of empirical studies, we know very little about the actual process of search and seizure warrants. Unwarranted Warrants? An Empirical Analysis of Judicial Review in Search and Seizure by Miguel F.P. de Figueiredo, Brett Hashimoto and Dane Thorley is important because it fills a vacuum in this regard by presenting the largest empirical study on the judicial review of search and seizure warrants in the United States to date. It is also important because its empirical findings reveal substantial shortcomings in the warrant process in Utah that are likely present in other jurisdictions in the United States.
The authors base their analysis on a comprehensive dataset from Utah’s statewide electronic warrant platform. The dataset includes digital timestamps, full warrant affidavit texts of approved warrants, and identifying information about judges and officers. (P. 1983.) The digital timestamps allow the authors to analyze the time judicial officers take in reviewing warrant applications, and scraping the pdfs of the warrants and the warrant applications allowed them to collect data on the length, complexity, facts, and legal content of the warrants. (P. 1984.) In addition, the use of both quantitative and qualitative data allows the authors to get a more nuanced picture and analysis of the judicial review of warrant applications.
The most interesting part of the article is its empirical findings.
In terms of review time of approved warrant applications, the median review times by judicial officers was only three minutes, with 10% reviewed and signed in under sixty seconds. (Pp. 1996 et seq., 2040.) In this regard, the authors found substantial disparities in their review times among judges, with a set of judges having a median review time of less than two minutes and a few having a median review time of less than one minute. (P. 2016.) Using a series of regressions, the authors then examined whether judges’ characteristics were correlated with review time, finding that the length of judge’s tenure in years and the background as a defense attorney were correlated with shorter review time. (P. 2017 et seq.) The authors understandably found this last result surprising and hypothesize that one potential mechanism at play is that judges with “… such a professional background provided them with more opportunities to critically evaluate warrants and see the most common reasons for approved warrants to be later overturned.” (P. 2023.) Alternatively, given the way judges are appointed in Utah, it is possible that “judicial candidates with criminal defense backgrounds may have to overcome a presumption of being soft on crime.” (P. 2023.)
In terms of the rate of approval of warrant applications, the authors found that 93.56% of warrant affidavits were approved in their initial submission, and that once resubmissions were included the approval was 98.14%. (Pp. 2025-26.) (The authors report these numbers as part of their main findings. But they also explain that if they included the submissions that were withdrawn before a judge could review them, the approval rate of initial submissions was 89.90%, and of submissions and resubmissions was 96.96%. (P. 2026.)) In this context, their study finds wide disparities between judges; some approved almost 100% of affidavits they received, while others approved less than 80%.
The authors run a series of regressions on approval-not approval of warrant applications as the dependent variable and judicial characteristics, finding statistically significant correlations that judges with law degrees and, somewhat surprisingly, judges who previously served as prosecutors, were less likely to approve warrant applications. (P. 2031-32.) The authors hypothesize that judges with a prosecutor background were less likely to approve because their prior work experience may have changed the way those judges approach and understand warrant review. (P. 2032.) Alternatively, they hypothesize that the interplay between prior legal practice and ideology may not go in the traditionally understood direction. (P. 2032.) They also found that male and white judges are more likely to approve warrant applications, which could be the result of them tending to be more conservative than nonwhite and female judges. (P. 2032.)
Regarding the interpretation of their main findings, the authors acknowledge that for many, their results will be another proof that the penal system is broken. (P. 2041.) But the authors conclude that their data do not show that all warrants are simply “rubber stamped”, since the initial approval rate of warrants reveals some level of judicial scrutiny. (Pp. 1967, 2015, 2028, 2029.)
The authors acknowledge that there is not a baseline on the rate of approval of warrant applications and on how long it should take to review them. (Pp. 1992-93, 1996, 2026, 2034, 2042.) They also acknowledge the likelihood that law enforcement officers learn (the judicial interpretation of) the legal standard and adjust their request accordingly. (P. 2026.)
However, the authors persuasively argue that these results are concerning for multiple reasons.
First, even if there is no baseline to assess how long a judicial assessment of warrant applications should take and even accounting for economies of scale, the authors argue that the review time of warrant affidavits of three minutes for the majority of affidavits and of under sixty seconds for ten percent of the warrants are “… often much more brief than the generally accepted understanding of the constitutional warrant requirement would anticipate.” (P. 1996.) In this regard, they find objectively problematic that there were judges who reviewed half of all their warrants in less than a minute. (P. 2016.)
In addition, the authors argue that given the speed at which warrants were reviewed, judges were missing some submissions that did not meet the legal standards, which would play a role in explaining the high judicial approval rate of warrant applications. (P. 2016.)
The authors also reason that the fact that most judges find that at least 4 to 5% of warrant applications do not meet the legal requirements suggest that those judges that approve all of the warrant applications they receive are not taking the warrant process the way they should. (Pp. 2029-30.)
The authors also engaged in a qualitative in-depth review of two subsets of randomly selected warrant approvals from their dataset that provided additional elements to have concerns about the practice of warrant review in Utah. (P. 2035.)
In explaining the shortcomings of judges’ warrant review in Utah, the authors do not attribute it to poor judging, but rather as the “inevitable result” of the jurisprudential nature of warrant review and extralegal factors that they list, such as the motivations of law enforcement of “ferreting out crime” that may bleed into the judge’s decision, the ex-parte and repeat-play nature of the warrant review process, judicial resource constraints and expediency, and the cognitive difficulty of reviewing warrants. (Pp. 1990, 2041.)
Their interpretation of their results thus concludes:
Taken together, we argue that our empirical and qualitative evidence raise serious concerns about the ability of the current warrant-review process to meet its call as the bulwark against police error or abuse…. If the system has these flaws, then we must call into question the efficacy of Supreme Court decisions that rely on the warrant process as a higher standard to preserve the privacy rights of the citizenry….” (P. 2042.)
Finally, the authors explore avenues for reform. First, they call for continued empirical study that states and local governments could facilitate by implementing data transparency and reporting requirements with respect to warrants. (P. 2043.) They also show skepticism about doctrinal reforms such as changing the legal standards for issuing warrants and for warrant review given how deeply embedded Fourth Amendment probable cause jurisprudence is and that doctrinal reform is primarily a back-end recourse. (P. 2044.) Instead, they find more promising policy reforms such as bans or restrictions on the use of no-knock warrants, requiring mandatory review by police-chiefs or prosecutors of certain types of warrants, and creating magistrate panels to review certain types of warrants. (Pp. 2044-45.) They also advocate for institutional and behavioral policies, such as external reviews—e.g., occasional, random audits of a judge’s warrants or police officer’s affidavits and warrant requests—ways for judges to become more self-informed about their own practices, and encouraging criminal defense attorneys to avail themselves of data on warrants to challenge warrants. (Pp. 2045-47.)
- See, e.g., Boyd v. United States, 116 U.S. 616, 630 (1886) (stating in a case affecting the Fourth and the Fifth Amendment that the principles laid down in this opinion affect the very essence of constitutional liberty and security); Weeks v. United States, 232 U.S. 383, 392 (1914) (the effect of the Fourth Amendment is to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law); Mapp v. Ohio, 367 U.S. 643, 655 (1961) (referring to the Fourth Amendment right to privacy from unreasonable state intrusion as a basic right); Carpenter v. United States, 585 U.S. 296, 305 (2018) (the Fourth Amendment seeks to secure “the privacies of life” against “arbitrary power”).
- See, e.g., Johnson v. United States, 333 U.S. 10, 13-4 (1948) (the protection of the Fourth Amendment consists in requiring that the usual inferences which reasonable men draw from evidence be drawn by a neutral and detached magistrate).
