If information wants to be free, why are textbooks so expensive?

Stars and Stripes, Justice Dept. Washington, D.C.  Photo © 2007 Scott Hanley

We live in an age of diminished privacy and increased law enforcement power. That's why many people were enthused last month when the Supreme Court held that police generally need a warrant to search the data on your cell phone.

But just how happy should we be, really?

We want to believe that the warrant requirement is a significant limit on police and prosecutors. We want to believe that because it's one of the very few limits we have.

But facts don't seem to bear it out.

Wiretap applications are voluminous and complex and a huge pain in the ass. But Federal judges obligingly grant wiretaps requested by the government — usually in drug cases — 99.969% of the time. The Foreign Intelligence Surveillance Court, eager to please, grants 99% of warrants — though it protests that it asks for changes to 24%. And when the United States asks for a sneak-and-peak warrant — that is, license to do a black bag job where they go into your house, search it, and leave without letting you know they've searched it — the courts grant the request around 95.95% of the time.

It's very difficult to find reliable statistics about how often federal or state judges grant plain-vanilla search warrants, but there is very little basis to be optimistic that judges are much more exacting in those circumstances. In my six years as a prosecutor I only saw two warrants rejected by judges. One was rejected because the out-of-district AUSA [Assistant United States Attorney] who sought it refused to follow our local format. The magistrate judge, a man so relentlessly pleasant that he made Ned Flanders look like a Breaking Bad character, was rather irritable about it. On another occasion a magistrate judge refused a warrant based on the "exculpatory no" doctrine, even though the Supreme Court had recently rejected that doctrine.1 As a prosecutor I declined to seek several warrants requested by federal agents. On one memorable occasion the exasperated DEA agents simply took the patently insufficient warrant application (which relied entirely on an anonymous informant with no meaningful corroboration) to a state judge and got him to approve it, then asked the feds to prosecute based on the results2

We're faced all the time with the ridiculous warrants judges will sign if they're asked. Judges will sign a warrant to give a teenager an injection to induce an erection so that the police can photograph it to fight sexting. Judges will, based on flimsy evidence, sign a warrant allowing doctors to medicate and anally penetrate a man because he might have a small amount of drugs concealed in his rectum. Judges will sign a warrant to dig up a yard based on a tip from a psychic. Judges will kowtow to an oversensitive politician by signing a warrant to search the home of the author of a patently satirical Twitter account. Judges will give police a warrant to search your home based on a criminal libel statute if your satirical newspaper offended a delicate professor. And you'd better believe judges will oblige cops by giving them a search warrant when someone makes satirical cartoons about them.

I'm not saying that warrants are completely useless. Warrants create a written record of the government's asserted basis for an action, limiting cops' ability to make up post-hoc justifications. Occasionally some prosecutors turn down weak warrant applications. The mere process of seeking a warrant may regulate law enforcement behavior somewhat.

Rather, I'm saying that requiring the government to get a warrant isn't the victory you might hope. The numbers — and the experience of criminal justice practitioners — suggests that judges in the United States provide only marginal oversight over what is requested of them. Calling it a rubber stamp is unfair; sometimes actual rubber stamps run out of ink. The problem is deeper than court decisions that excuse the government from seeking warrants because of the War on Drugs or OMG 9/11 or the like. The problem is one of the culture of the criminal justice system and the judiciary, a culture steeped in the notion that "law and order" and "tough on crime" are principled legal positions rather than political ones. The problem is that even if we'd like to see the warrant requirement as interposing neutral judges between our rights and law enforcement, there's no indication that the judges see it that way.

The fault is in our judges, and in ourselves.


1. Q: How do you tell a United States Magistrate Judge "you're wrong on the law?"

    A: Cautiously.  

2. How about no.  

Warrants: Bulwark of Liberty, or Paper Shield?

Ken White

Copyright 2014 by Ken White, used with permission. Mr. White is a former federal prosecutor and current criminal defense attorney and First Amendment litigator in Los Angeles. He writes on those topics at Popehat.com, where this essay first appeared.