Search warrant court hearings raise concerns
By Neal P. Goswami
VERMONT PRESS BUREAU | April 05,2014
MONTPELIER — Two of Vermont’s leading law enforcement officials are asking lawmakers to prevent judges from holding hearings when they apply for search warrants.
TJ Donovan, the lead prosecutor in Chittenden County, and Burlington Police Chief Michael Schirling detailed for the Senate Judiciary Committee on Friday an issue that has developed in recent months with some judges in the state’s largest county.
“The issue is whether or not it’s appropriate for judges to allow the defense to be present when signing a search warrant,” Donovan told the committee. “I would say the general practice up until recently in Chittenden County was the defense was never present and it was an ex parte meeting and communication. That was the normal course of business.”
But one recent ruling by a judge has led to a change in the way some judges are interpreting judicial proceedings, according to Donovan. In that ruling, the state was seeking access to medical records for a defendant who had already been charged with a crime.
The judge ordered a hearing on the matter because the evidence in question was held by a third party and there were issues with confidentiality.
Since that ruling, however, some judges are requiring a hearing with the defense counsel present before they issue search warrants for evidence that police already have custody of.
Typically, Schirling told the committee, police will seize phones, computers, backpacks or other evidence during an arrest and then apply for a search warrant to investigate the contents.
The practice is inconsistent among judges in the Chittenden County criminal court, and continuing to allow some judges to hold hearings could result in botched cases, Donovan said.
“I think there probably is a legitimate concern that you’re going to have cases where the investigation is jeopardized and perhaps, evidence destroyed, if we’re tipping off the defense there’s going to be a warrant,” he said.
Schirling said hearings are often set days away, and some have taken three weeks. That “absolutely” gives the defendant time to destroy evidence, he said.
“It creates a major investigative hurdle and telegraphs information to a defendant or codefendant in a way that was never prescribed or contemplated, I believe,” he said.
That’s because a search warrant application requires police to reveal all of the information they have about the case, according to Schirling.
“By disclosing everything we know to a defendant during an investigation, you’re telegraphing your entire case and they can contact witnesses, they can destroy evidence, they can have people go and destroy evidence, they can erase phones,” Schirling said.
Committee members seemed to believe the initial ruling in the medical records case was correct. They indicated subsequent rules were troubling, however.
Sen. Joe Benning, R-Caledonia/Orange, a defense attorney, said the original decision was limited to “very narrow circumstances.” He called the following decisions, in which the evidence in question is already in police custody, “dangerous”
“How do you rein in a rogue judge?” he asked. “You’ve got somebody that’s obviously … stepped too far.”
“It seems to me some judicial education is necessary,” Benning said. “I don’t know how you do that.”
The committee chairman, Sen. Richard Sears, D-Bennington, asked Donovan and John Treadwell, chief of the criminal division in the attorney general’s office, to work on language that can be added to pending legislation.