Saturday, November 3, 2012
A law approved 40 years ago to fight organized crime has been widely used in Washington state as a way for police to obtain bank, phone and other records without a search warrant.
That use of this legislated loophole is now being reviewed by prosecutors around the state after an Associated Press story raised questions about the practice.
Good for the prosecutors and good for The Associated Press.
The rights of people — even those suspected of a crime — should not be trampled for the sake of expediency. It is essential law enforcement seek approval from a judge before conducting a search of records or property.
The Fourth Amendment — “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” — makes that clear.
Tom McBride, executive secretary of the Washington Association of Prosecuting Attorneys, said this week police investigators have drifted toward becoming too reliant on the “special inquiry judge proceedings.”
The special inquiries, approved in 1971, function as grand juries without the grand jury, AP reported. At the request of a prosecutor, a judge can secretly hear from witnesses, review evidence or issue subpoenas based on a reasonable belief that someone “may be able” to provide testimony or evidence.
This might have a place in an organized crime case where witnesses get whacked before testifying, but that isn’t a concern in routine criminal cases. Some defense lawyers call the use of the law “sneak-and-peek stuff.” They argue that the law violates open-government principles as well as the rights of the suspects under the state and federal constitutions, according to AP.
“It’s a way to avoid complying with the warrant requirement. There’s no other way to describe it,” said Bob Thompson, a Pasco attorney who recently challenged the use of the law in defending a client charged with drug and weapons violations.
The defense attorneys requested the Benton County Prosecutor’s Office turn over records. The result was two thick binders’ worth of other cases in which detectives routinely asked prosecutors to get them secretly issued subpoenas for cellphone, email, mortgage and banking records in drug, fraud, identity theft, rape and other investigations, AP reported.
“This is not intended to be for mainstream, daily use,” McBride said. “We were deferring a little too much to law enforcement requests.”
McBride said he is drafting a list of best practices to help standardize the way prosecutors around the state handle special inquiries.
We would hope it would be used very rarely. Any law where the emphasis is on secret should be used sparingly — or, perhaps, not at all. It would seem prosecutors should always try to obtain warrants through the usual, open method.