Judges is­sue search or­ders elec­tron­i­cally

2016 Supreme Court rul­ing sparked use of tech­nol­ogy

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - ASH­TON ELEY

Of­fi­cer Daniel Plume ar­rived at a Fayet­teville car ac­ci­dent about 9 p.m. on a re­cent Mon­day. One of the driv­ers was taken to a hos­pi­tal. The other driver, whose car was lit­tered with empty beer cans, fled the scene.

Two hours later, Plume found the man walk­ing home. Plume could smell the booze on his breath. The man re­fused to have his blood drawn. That meant po­lice had to get a search war­rant signed by a judge to force the man to take the test so they could de­ter­mine his blood al­co­hol level.

Con­duct­ing a test soon af­ter an ac­ci­dent is cru­cial, be­cause al­co­hol is only in the blood for a cer­tain amount of time, said Cpl. Dal­las Bras­hears with the Fayet­teville Po­lice Depart­ment.

If it’s late at night, po­lice would usu­ally have to go back to the of­fice, write up an af­fi­davit, drive to a judge’s home, wake him up to sign a search war­rant and re­turn to the crime scene.

In this case, Dis­trict Judge Casey Jones took tes­ti­mony over the phone and signed the war­rant elec­tron­i­cally, short­en­ing an hours­long process to less than 30 min­utes.

“Laws and leg­is­la­tion are years be­hind where tech­nol­ogy re­ally is,” Bras­hears said. “So it’s al­ways been an op­tion for us to get a search war­rant, but we just added the dig­i­tal el­e­ment to make it more ef­fi­cient for ev­ery­one.”

Jones has signed just a hand­ful of elec­tronic search war­rants since mid-May, and those in­volved in th­ese cases agree they don’t see the op­tion be­ing used of­ten.

Fayet­teville po­lice have only ob­tained search war­rants by elec­tronic means for ac­ci­dents in­volv­ing drunken driv­ing as far as Bras­hears and Sgt. An­thony Mur­phy knew, they said. Other uses could be a search war­rant for a house where po­lice be­lieve some­one is in im­me­di­ate dan­ger.

“I can’t see it be­ing com­mon­place,” Bras­hears said. “If it is nor­mal busi­ness hours, the of­fi­cer can go up to the court­house and get the war­rant that way.”

WHY START NOW?

Jones is likely the first judge to have used the elec­tronic method in North­west Arkansas, but it’s not a new con­cept, he said.

The state amended Ar­ti­cle IV Search and Seizure of the Rules of Crim­i­nal Pro­ce­dure on May 29, 2014, to ex­plic­itly in­clude that a war­rant and the af­fi­davit “may be trans­mit­ted to the is­su­ing ju­di­cial of­fi­cer by fac­sim­ile or by other elec­tronic means.” It also said the oath and recorded tes­ti­mony “in sup­port of a search war­rant may be re­ceived by tele­phone or other elec­tronic means.”

The change took ef­fect June 1, 2014, but the pre­vi­ous rule didn’t specif­i­cally ex­clude the use of elec­tronic means.

“It just ob­vi­ously needed to be clar­i­fied,” said Larry Brady, le­gal ser­vices di­rec­tor at the Arkansas Ad­min­is­tra­tive Of­fice of the Courts.

Many other states have sim­i­lar rules spec­i­fy­ing search war­rants can be is­sued through elec­tronic means.

No in­for­ma­tion on how many search war­rants have been is­sued elec­tron­i­cally and by whom was avail­able from state records. Jones said he was in­spired by other judges, specif­i­cally Lit­tle Rock Dis­trict Judge Alice Ligh­tle, who be­gan us­ing the process.

Staff mem­bers in cir­cuit court and pros­e­cu­tor’s of­fices in cen­tral Arkansas said they didn’t know how of­ten the process has been used.

“Ev­ery­thing we have set up here is based on what she did,” Jones said. “It’s not an

orig­i­nal idea with me.”

What re­ally sparked ac­tion, Jones said, was the U.S. Supreme Court rul­ing in June 2016 on the Birch­field v. North Dakota case. The rul­ing said po­lice must ob­tain war­rants to test the blood of driv­ers ar­rested on sus­pi­cion of drunken driv­ing.

The at­tor­ney who rep­re­sented North Dakota told the jus­tices that re­quir­ing war­rants in those sit­u­a­tions would put states “in a ter­ri­ble bind,” but the jus­tices said more than 40 states have sys­tems that al­low po­lice to get an elec­tronic search war­rant in a mat­ter of min­utes, ac­cord­ing to news cover­age of the case.

How­ever, North­west Arkansas agen­cies were not us­ing such sys­tems. Jones knew the court rul­ing would in­crease the late-night work­load for judges and knew it was time to try to up­date.

“I live way out in the boonies. I cer­tainly wanted to do my fair share of the work,” Jones said. “I thought there was go­ing to be a ne­ces­sity for more search war­rants, and with tech­nol­ogy be­ing the way it is, it wasn’t a great leap of imag­i­na­tion.”

IN­CON­VE­NIENT, BUT NOT THAT COM­MON

Hav­ing to get a war­rant af­ter hours can be an in­con­ve­nience for both po­lice of­fi­cers and judges, they said.

Still, be­fore the 2016 rul­ing, po­lice were not tak­ing blood tests of­ten — usu­ally only in cases of a se­ri­ous or fa­tal ac­ci­dent — and even then they usu­ally got a war­rant un­less the per­son was un­con­scious, Bras­hears said. Po­lice need a war­rant for every cir­cum­stance to draw blood un­der the rul­ing.

“We have de­fended over 10,000 DWI cases, and only a small amount use the blood test. I don’t re­ally see that chang­ing,” said Doug Nor­wood of the Nor­wood & Nor­wood law firm in Rogers.

The driver is con­victed of DWI with­out a chem­i­cal test in many cases.

“They just have to prove that you were im­paired to the point that you were dan­ger­ous,” Nor­wood said. “If some­one is re­ally in­tox­i­cated, it’s go­ing to be ob­vi­ous. They’re driv­ing bad, can’t take a field so­bri­ety test, they have slurred speech — all the typ­i­cal signs of in­tox­i­ca­tion. So they don’t ac­tu­ally need the breath, urine or blood test.”

The pros­e­cu­tion needs the blood test to prove in­tox­i­ca­tion if the per­son was driv­ing well or in the case of ac­ci­dents, where peo­ple are tem­po­rar­ily in­ca­pable of per­form­ing phys­i­cal tests.

In the past, tak­ing blood and us­ing breath­a­lyz­ers fell un­der im­plied con­sent, which driv­ers give by hav­ing a driver’s li­cence. If the driver re­fused in Arkansas, he or she would of­ten be slapped with both a DWI and a charge of fail­ure to com­ply with im­plied con­sent.

A war­rant is still not nec­es­sary to con­duct a breath test be­cause “the phys­i­cal in­tru­sion is al­most neg­li­gi­ble,” Supreme Court Jus­tice Sa­muel Al­ito Jr. wrote in a part of the de­ci­sion, but it was de­cided laws ef­fec­tively re­quir­ing blood tests, with­out po­lice first ob­tain­ing a search war­rant, vi­o­lated the Fourth Amend­ment’s ban on un­rea­son­able searches.

“Birch­field was a big, big case for crim­i­nal de­fense lawyers who do DWI cases,” Nor­wood said.

Nor­wood said many po­lice of­fi­cers don’t re­al­ize the law has changed and some cases have been thrown out.

“If they mess that up, then they can’t get it into ev­i­dence,” Nor­wood said. “A lot of th­ese lit­tle po­lice de­part­ments around here haven’t got­ten the word yet, but they’re quickly learn­ing be­cause the lawyers know.”

IPADS FOR ALL

Law en­force­ment credit Jones for bring­ing up the idea of dig­i­tal search war­rants in Wash­ing­ton County.

“He ap­proached us and told us we were go­ing to run into is­sues get­ting blood if the per­son won’t con­sent,” Maj. Rick Hoyt with the Wash­ing­ton County Sher­iff’s Of­fice said. “The more time that goes by, you’re pos­si­bly los­ing ev­i­dence. You need to get things done as quickly as they can, and it speeds it up if the judge is elec­tron­i­cally avail­able.”

Now, each of the four dis­trict judges in Wash­ing­ton County have iPads to help with the process, which were pur­chased in­di­vid­u­ally by the Fayet­teville and Spring­dale po­lice de­part­ments and the Sher­iff’s Of­fice.

Other coun­ties across the na­tion have taken sim­i­lar steps to en­ter the dig­i­tal age. Bra­zo­ria County in Texas be­gan to use iPads in 2013 to speed of the process of ob­tain­ing search war­rants.

“Ev­ery­one’s rav­ing about it,” David Smith, as­sis­tant crim­i­nal dis­trict at­tor­ney in Bra­zo­ria County, Texas, wrote in an is­sue of the The Texas Pros­e­cu­tor. “The judges are firm be­liev­ers in the iPad pro­gram. For the of­fi­cers, time is saved in con­nect­ing with a judge to re­view the war­rant, and judges ap­pre­ci­ate the mo­bil­ity the iPad of­fers them when they are on call.”

“Fayet­teville po­lice with­out a doubt was in on the cut­ting edge of this, but Wash­ing­ton County is in charge of cov­er­ing a large ru­ral area and it’s go­ing to be a real boon to ru­ral law en­force­ment,” Jones said.

Ben­ton County has yet to start im­ple­ment­ing the process, ac­cord­ing to judges’ of­fices and the Sher­iff’s of­fice.

The Wash­ing­ton County Sher­iff’s Of­fice has not got­ten a war­rant elec­tron­i­cally yet, Hoyt said, be­cause the “forms are in a state of flux right now and they’re try­ing to de­cide which ones to use.”

When Fayet­teville of­fi­cers fill out the af­fi­davit for a search war­rant, it’s pretty cookie cut­ter, Bras­hears said. Most of the time in DWI cases, it’s ob­vi­ous by the way the per­son was driv­ing, how they per­form on a field so­bri­ety test or sim­ple that they smell strongly of al­co­hol, which are all prob­a­ble cause.

“It’s there, you just fill in the blanks,” he said.

NWA Demo­crat-Gazette/DAVID GOTTSCHALK

Lt. Tad Scott, with the Fayet­teville Po­lice Depart­ment, pulls up an elec­tronic war­rant form July 20 as he dis­cusses the process with Cpl. Dal­las Bras­hears at the depart­ment. Judges in Wash­ing­ton County are now sign­ing search war­rants elec­tron­i­cally and swear­ing in and tak­ing po­lice state­ments over the phone.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.