When warrants become poison
The simplest definition of a warrant is that it’s a piece of paper signed by a judge that provides official permission to do something that is otherwise illegal and unconstitutional. Warrants should be rare, but they are not. They should be highly scrutinized, but they aren’t. They should be tracked, identified and studied, but instead they are obfuscated, protected and exploited. If there could be a focus on one aspect of reform of our modern day “criminal justice” system with the criteria being the one that had the most immediate and far-reaching impact on the abuses of law enforcement — it would be any aspect of the warrant system in America.
It would begin with the proposition that if law enforcement (read: the government) could have an unfettered peek into the lives, secrets and/or hiding places of any citizen, there’s an odds-on-chance they would find something to nail you on. With tens of thousands of laws on the books (and more added every time a legislature meets), what happens in your house, on your phone, in your bank account, in your car trunk, in your diary, in your browser history and in your computer files marked “PICNIC PHOTOS” all can be subject to warrant. But 200 years before the first iPhone hit the marketplace, the founding fathers established that unless there was an articulable and “reasonable” justification (including a legitimate emergency) to let the outside look in, it was unreasonable to put a citizen in the crosshairs of well, someone looking for hairs (or any other CSI evidence of wrongdoing).
That’s the crux of the Fourth Amendment, which reads in its entirety: “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.”
Over the course of two centuries of searches (and their troubled cousin, seizures), the determination of what is or is not “reasonable,” what constitutes valid probable cause, what is “particular description” and what the penalties are for failing to establish either has been debated in virtually every single case where evidence was at issue. Skipping past what would have been even more of my words explaining every aspect of related constitutional law (technically recognized as sufficient credits for admission into any number of law schools in Trinidad AND Tobago), let’s agree to conclude that the never-ending battles in courts low and high have been the police versus people caught with bad stuff — and that in looking at the score sheet in 2020, the police are looking more like the Golden Knights and citizens are saying “we’re pucked!”
Few could argue that the Fourth Amendment hasn’t been diluted to the point of diminishing protection and that the tool of “searching” more and more people has never been easier because of it. Police love this. The Constitution and all those darn protect the people provisions in the Bill of Rights has long been viewed by many police officers as a hindrance (or at least an inconvenience) to doing their jobs. They’re right about that. By design. And yet because it works when it comes to getting “the bad guys” (which, again, is all of us, potentially), if there’s a way around the Fourth Amendment, that’s the path most often taken. And though the focus in this area of law has usually been the outrageousness of police actions towards citizens (oftentimes as part of targeted campaigns in communities of color), the police are typically covered by a simple refrain: “I had a warrant. I’m just doing my job. Blame the judge who signed it.” It’s the ultimate, “not-me; what’s the problem?”
More times than not, that’s the end of the “analysis” — unless of course, someone gets killed in unfathomable circumstances such as the Breonna Taylor case. But even then, the conversation is more about police executing the warrant, not the process of seeking and obtaining the warrant, itself. What is lost in the shuffle is any attention to the methods and circumstances in which the warrant was sought, the nature of the contents in the application for a warrant or, most importantly, who signed the warrant and their history of warrant-signing.
The proper intersection of those calling for justice in the streets and those bolstering the need for more law and order and originalism is to re-strengthen the Fourth Amendment and rally around it.
The three kinds of warrants and how they work
Arrest warrants. Typically, when the police have gathered enough information during an investigation to be sure that a person has committed an offense (typically a felony), a request for an arrest warrant is made to a judge with a summary of why the person is believed to have committed the crime they are about to be charged with. Arrests warrants in Nevada usually are submitted when prosecutors have reviewed all the information and believe there is “probable cause” to believe a crime was committed and that the target of the warrant did it. Depending on the seriousness of the offense, law enforcement will take the warrant and likely go looking for the individual — and in some circumstances, will proceed with caution and/or with a great deal of manpower/force to make sure the person actually is taken into custody. The general idea being that before law enforcement can just deprive a person of liberty and seize the person for an alleged crime, there needs to be a screening of sorts. And while there are all sorts of problems with arrest warrants being issued on thin evidence, or how they are typically inextricably linked with prohibitively high bail amounts, or used to grandstand when a summons can work just as well, these types of warrants aren’t abused nearly as often as the other types.
Bench warrants. A bench warrant is issued when a person doesn’t show up for court and there’s either no good reason for it or the judge rejects the offered excuse. It’s not about whether a person is guilty or not guilty; it’s about a person physically not being where they needed to be on time. When someone has a bench warrant in their name, they are typically arrested upon any future interaction with law enforcement, no matter how trivial or what the circumstances. In Nevada, failing to pay or forgetting about a traffic ticket can result in a bench warrant. Getting the dates mixed up on a court case results in the same.
Bench warrants are problematic because when law enforcement sees you have one during a computer check (even if it turns out to be wrong), it triggers something called “search incident to an arrest.” In other words, if you have a bench warrant and police encounter you, your Fourth Amendment right is (mostly) suspended when it comes to personal searches. You will likely have your person searched; you will have the immediate area in your control searched; and if you are in a car when it happens, your car will be “inventoried” (a sort of search-lite) with restrictions that are typically ignored by law enforcement (and arguably especially with people of color, but we don’t really keep statistics on that). Big. Surprise.
There are a LOT of bench warrants floating around in Nevada, and specifically in Southern Nevada. Law enforcement is quite reliant on all these warrants, as it provides a sort of cover to do what it is they do. It’s hard to get the exact number but, for example, on the day this column is being written, in Henderson Municipal Court there are more than 10,000 outstanding bench warrants. The City of Las Vegas Municipal Court has more than 87,000 misdemeanor warrants (including 70,000 traffic warrants) dating back to 2010 for almost 48,000 different individuals. And the unincorporated Clark County-Las Vegas Justice Court has about 64,000 active criminal bench warrants. (There were 213,000 additional traffic-related warrants in effect pre-COVID in the Clark County-Las Vegas Justice Court, but because of the administrative and technological challenges of maintaining that many cases while the traffic courts were closed, the warrants (but not the underlying cases) were recalled.) All of this means that when things normalize and when it is found that those traffic cases are not resolved, standing bench warrants still stand, and any that were recalled could result in warrants being reissued anew.
Among the jurisdictions in Southern Nevada, it looks like only the City of Las Vegas has ever attempted to publish the demographics of their misdemeanor bench warrants — but recently the link was deactivated when court officials determined the data may be unreliable. They have promised to look into it. But the data that was available for a quite awhile painted a disturbing picture: at least five times as many Black people with outstanding warrants than other demographic groups.
Search warrant. This kind of warrant is sought to initiate a more intensive search of a vehicle, home, device or person (inside and out). To obtain it, the police must articulate why they think the search will produce evidence of a specific crime. And this is where it all goes sideways. The degree of proof needed to literally allow the police to violate the Constitution is low, but even then, it is mostly a matter of discretion by the shot-caller – i.e., the judge. Some judges scrutinize the police to a greater extent than others. The police know this. As such, and while some judicial systems have a specific jurist on duty (especially for odd hours under conditions requiring a quick response), there is little to stop judge-shopping under Nevada law. Indeed, the police know who the favorable (read: pushover) judges are and routinely seek the golden signature that lets the search begin. Unfortunately, there are no readily available statistics.
The reforms that real justice demands
Broad calls for justice are appropriate, necessary and need to be amplified — though I’ve often lamented the ambiguity of that call. I also have offered practical measures that would require little adjustment (and even less will of politicians) to accomplish. People who really want to see the Constitution (and sanity) restored to the systems we rely upon to “keep us safe” should be calling for general warrant reform (including an end to no-knock warrants). It is the one area barely talked about amidst ideas big and small. As such, the following reforms are offered as the ones for which we’d find the least amount of public resistance and see the quickest results, providing a powerful counterbalance to the failure of so many institutions and systems that too often mock justice.
1. Track and publicly report warrant statistics
There is no easily accessible database — and in some cases no database at all — where we can readily determine which judges are signing search warrants more than others and which judges are bold enough to turn down police when they bring forth a half-baked case. Without it, we don’t know whether law enforcement goes to one judge over and again because that judge has a loyalty (or debt) to law enforcement vs. going before a more scrutinizing judge. We also don’t know whether law enforcement is routinely judge-shopping. We also don’t know whether search warrants are being disproportionately issued for people of color, or whether there are correlations between judges and potentially disturbing statistics with racial overtones. Indeed, we don’t know anything about these warrants in the collective because they are literally done in back rooms (chambers) and over telephones. Publicly reported statistics would keep judges accountable and allow places with elected judges (like Nevada) to conduct inquiries. If this does not or cannot occur, we need a law (that goes into effect immediately) which retroactively reveals the warrant-issuing stats on every sitting member of the bench.
2. Require legibility
This one may sound silly, but in fact, sometimes it’s impossible to tell which judge signed a warrant — because in Nevada, there is no requirement that the judge’s name appear under what is often a signature scrawled on one with less thought than a swoosh across the screen at Walgreens in the haste to get home and apply needed Preparation-H. How can you hold someone accountable if you don’t even know who it is? Like other jurisdictions, Nevada needs to acknowledge that this is an issue, and further, pass a law, now, that requires legibility to determine from the start who the warrant-signing judge even is.
3. Reviews and reports
We need a mandatory, periodic review of all search warrants issued by all judges either by higher courts or administrative committees. If judges are issuing search warrants on weak evidence or with too broad a scope of a search, the public needs to know. Data on overbreadth, quality of supporting documentation, number of identifiable errors in an application by law enforcement (and when obvious, withheld information) need to be included. There also needs to be reporting showing warrants that were found to be sought or executed in a manner inconsistent with the Constitution (note: judges rarely hear the same cases in which they issued a search warrant). Finally, we need guidelines within every jurisdiction that scrupulously limit the breadth of searches — and that go above and beyond what even the U.S. Supreme Court has held is acceptable. (Every state has the authority to do better than minimally acceptable). If a judge or law enforcement officer is found to have repeatedly done wrong, there needs to be a penalty.
Right now, there is one primary penalty for an unconstitutional search — the exclusion of that evidence at trial. And while that is an OK remedy (one not without over-used exceptions), the damage has usually already been done. Remember, the point of these reforms is not just to have a fairer warrant system, but also to eliminate the secondary impact on lives in the moment (and after) that is driven by a glut of unscrutinized warrants in the system.
People sometimes get killed because of bad intel warrants. And people's personal lives get splayed out all over prosecutors’ desks in the form of private messages, pictures and videos often wholly unrelated to whatever investigation may have sparked the desire for a warrant in the first place. The fewer the warrants, the better — and so the penalties for seeking bad warrants or misusing them needs to be more severe than merely tossing something out of court when that even happens.
Repeat law enforcement offenders need to be kept in a database and a rule of law needs to be instituted that prior offenses are admissible evidence in every case without exception, but especially in cases where the propriety of a new search is at issue. This information also should go to the judge when/where that same officer is seeking a new warrant. As such, bad action wouldn’t just jeopardize a piece of evidence, but every case after that. And for the judges who facilitate such abuses, there needs to be a series of penalties including judicial classes, reprimands and, ultimately, taking the power away from a judge (for a period of time) to sign new warrants.
5. End all bench warrants for traffic offenses
Clark County did it out of administrative necessity, and now it’s time for every jurisdiction in Nevada to do the same. Prior to the pandemic, almost half a million Nevadans ran the risk of arrest, subsequent searches and possible negative interaction with law enforcement over unaddressed or forgotten traffic tickets that went to warrant. The consequences are real. People can lose housing, jobs, kids, professional licenses.
Bench warrants are a gateway to intrusive interactions including providing a basis for search warrants when related arrests and searches provide the fodder. Whether it’s through decriminalizing traffic tickets or an outright ban on the traffic bench warrant process, people need to call on their local government to stop the traffic warrants. Not only will fewer people be at risk of arrest but law enforcement, while losing a powerful tool, will encounter more comfort as people feel free to interact with them in more positive ways. If just one victim of a crime (with a traffic warrant) reaches out to report a crime without fear of the tables being turned, if just one guy on a bike without a safety light stops for the police who then simply give the guy a ticket for a missing light (instead of running him for warrant), the world will be that much more fair and the balance our founding figures envisioned can be accomplished.
In closing, the erosion of the Fourth Amendment has reached a critical moment. Instead of watching the news of another warrant gone wrong and being subject to the excuses that inevitably follow, let us take a step toward breaking the shackles of injustice by dismantling the most abused tool in forging those very shackles. Let us take sight of the warrant and the poison tree that grows as it becomes more and more rooted in our system.
Dayvid Figler is a criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.