Bill would allow judge to issue search warrant by telephone

Hank Hayes • Mar 1, 2014 at 12:20 AM

KINGSPORT — Tennessee prosecutors want to move the way search warrants are issued out of the 20th century.

But, in the 21st century, some state senators who sit on the Tennessee Senate Judiciary Committee are standing in the way.

At issue is a bill that would allow a magistrate or judge to issue a search warrant by telephone or “other reliable electronic means.”

Sullivan County District Attorney General Barry Staubus said the bill originated from his office, is backed by state district attorneys general and is in response to a 2013 U.S. Supreme Court ruling that does not give law enforcement the right to draw blood without a search warrant in drunken-driving investigations.

“(The Supreme Court said) ‘you’re going to have to do more search warrants,’” Staubus said of the ruling during a meeting between leaders with the Tennessee Public Safety Coalition and members of the Times-News Editorial Board.

Current law calls for a law enforcement officer to appear before a magistrate or judge who will examine documents and issue a search warrant based on probable cause and supported by an affidavit.

Staubus said this system moves too slowly when quick decisions need to be made, especially in DUI cases.

“If there was a DUI near the Hawkins County line and the only judge was in Bristol, the officer would have to write the search warrant and then they would have to drive to the judge’s home (if the incident happened after business hours),” Staubus explained. “You have to find the judge, he has to review it and sign it ... then you have to serve (the warrant) on the guy. That could take an hour and a half to two hours ... when trying to determine if a wreck was caused by intoxication or drugs, time is of the essence.”

If an electronic search warrant bill passed, Staubus said an officer could email documents to a judge, do a meeting via Skype, and the judge could electronically sign the warrant.

“(Getting a search warrant) could be done in a third of the time,” Staubus pointed out. “It does not change the burden of proof. We still have to prove probable cause. We still have to have a judge sign it. We still have to appear before a judge. ... The only thing that changes is the mechanism.”

The legislation’s fiscal impact was deemed insignificant, and the bill could even clear defendants, Staubus added.

“It could clear someone who might be diabetic and officers thought was intoxicated, and then found out they weren’t,” Staubus noted. “The judge can always refuse and say ‘I have to see you’ (in person).”

Electronic criminal warrants, Knoxville Police Chief David Rausch said, are currently being issued for officers in the field.

The electronic search warrant bill passed the Tennessee House overwhelmingly, but remains stuck in the Senate Judiciary Committee, which is scheduled to reconsider the measure next Tuesday.

During a February meeting on the bill, lawyers who serve on the committee expressed concerns about potential abuse and eroding individuals’ 4th Amendment rights against unreasonable searches.

“Switching now to electronic means, ... what are we doing to this system that has been here for a long time and has worked?” asked state Sen. Mike Bell, R-Riceville, a small business owner. “I’m sure it’s been trouble at times to get to a magistrate face to face but the justice system should be difficult at times. ... We’re making a major change in how warrants will be issued.”

The bill’s Senate sponsor, state Sen. Mark Green, R-Clarksville, responded: “What we’re doing is to take us into the 21st century.”

For more, go to www.capitol.tn.gov. The bill’s number is SB 1685.

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