Mark Godsey is blogging over at CrimProf today about the statistics released yesterday showing the courts approved each and every application for a wiretap submitted by the government last year, a remarkable 100% success rate for the government. I believe the figures would be quite comparable for approval of search and arrest warrant applications generally. One study (although a bit dated now) of the warrant application process found an 8% declination rate. In my seven years as a prosecutor, I never had a judge deny an application for a search or arrest warrant. Can it really be that prosecutors are so skilled at shaping affidavits that there can be no dispute on the probable cause determination? Or as Mark Godsey suggests, have judges just become rubber stamps after 9/11? There could be some simpler explanations — rather than just denying the application, the judges or magistrates return deficient affidavits to to prosecutors with suggestions about how to fix them and then approve the reworked application. Or that wiretap applications are so time-intensive for the government that prosecutors ensure the applications are in acceptable condition before submitting them. Or perhaps there is a more pernicious pro-law enforcement bias at work? A fertile ground for future research.
Posted by Jennifer Collins on April 29, 2005 at 09:11 AM
» Wiretap Warrants: Batting 1.000 1710 from A Stitch in Haste Every single federal and state wiretap warrant applied for in 2004 was approved. That’s 1,710 warrants for 1,710 wiretaps. Every single one. Dark… [Read More]
Tracked on Apr 29, 2005 1:30:36 PM
Comments
This is misleading, and Mark Godsey, a former AUSA in the SDNY, should really know better. At least on the federal level, all applications for TIIIs have to be approved by the Office of Enforcement Operations (OEO) at main justice and an authorization letter must be signed by a Deputy Asst Atty Gen of the Crim Div. OEO requires a far, far higher standard than the courts do, in order to insure that the orders are never successfully challenged following the interception. Therefore, unless the agent’s affidavit is knowingly false (something that was found in the NDCA in the mid-90’s, in a case called Aileman, or something similar, if memory serves), there is no chance that the order will be overturned; OEO has already scrutinized the order with a far more critical eye than any court will apply, and required a far higher standard than does the law. That’s the reason that all apps are approved by the courts, not some hokey theory of post 9/11 rubber stamps. If anything, my experience has been that (in my opinion, unwarranted) resentment of Ashcroft caused a fair number of judges to be highly skeptical of many DOJ applications.
Also, with respect to state wires, those are far rarer, because state courts can’t authorize the interception of communications outside the state; therefore, when someone leaves the state with a cellphone, interception has to stop. Given that — this is my estimate — well over 90% of phone interceptions are on cell phones, this puts a real limitation on the utility of state wiretaps, which have become less common (though they are certainly still used).
As for search warrants, it is not unheard of for them to be kicked back by judges, but I doubt that stats are ever kept of this because typically the clerks’ offices (at least in districts where I have practiced) don’t record them (and assign them docket #s) until after the judges have accepted them. But I have witnessed judges say that they need more that what is contained in the app, and the AUSA either got the evidence requested, or never re-submitted the SW app. Either way, there would not be a stat showing that the application was rejected.
Posted by: SW | May 3, 2005 4:30:59 PM
I do not think this is a new phenomenom. My review of earlier year Title III records reeal many years when all if not almost all application were approved – at least at the federal level.
How many motions to suppress T.III evidence have you seen succeed? In the First Circuit, for example, I know of none, at least none that survived the First Circuit’s scrutiny.
Posted by: Tom Lincoln | Apr 29, 2005 10:09:45 PM
This survey doesn’t appear to include FISA warrant applications at all, where one might expect a higher level of investigation, or at least urgency, to be demonstrated. According to the article, the survey showed that every non-FISA wiretap warrant application at both the state and federal level had been granted. While I agree that any prosecutor’s office should review wiretap applications enough before submitting them that issuance rates should run very high, a 100% rate neverthelss strikes me as quite troubling. I have never seen a law office, which includes prosecutors’ offices, present legal applications in sufficient form 100% of the time, even when sufficient information exists to support the application. And, I have a hard time believing that not one prosecutor in this entire country last year pushed the envelope a little with a wiretap application that, while submitted in good faith, fell short on supporting information. This concern seems particularly realistic with wiretap applications, since they generally are held to an even higher standard of review, where not only probably cause must be shown, but also that traditional investigative practices either had not worked or likely would prove fruitless or too dangerous. See e.g., 18 USC § 2518(1)(c); NY CPL § 700.20(2)(d). Perhaps Jennifer is correct when she suggests that judges simply may return those few insufficient warrant applications for further investigation, or better drafting, before actually ruling on them.
Posted by: Brooks | Apr 29, 2005 11:38:02 AM
Anyone who has spent any time in law enforcement and/or the prosecution side of things can attest to the fact that “probable cause” is simply not a difficult standard to meet. The latest Supreme Court quasi-attempt at defining PC came in Maryland v. Pringle in 2004: “the substance of all the definitions of probable cause is a reasonable ground for belief of guilt, and that the belief of guilt must be particularized with respect to the person to be searched or seized.”
“Reasonable grounds/particularized” is just not a difficult standard to meet. I review applications for arrest and search warrants all of the time before they go to a judge for approval and 99/100 have no problems meeting this very low threshold. In most offices, there is then review of that review by a section chief or senior attorney. The small percentage of applications that are weak are either killed at one of these stages, or their potential weaknesses are subsequently curred by further investigation before submission.
Its similar to grand juries. I’m sure that the percentages of indictments submitted to indictments returned is in the very high 90%’s. But that number would necessarily not include the number of arrests that are not indicted in the first place because they are arguably insufficient. Just like you generally don’t let a questionable indictment go forward, you certainly wouldn’t let a weak FISA warrant go forward in the first place.
Probable cause is just not a high hurdle when you have competent criminal investigations and meaningful legal review prior to the submission of a FISA warrant.
Posted by: MJ | Apr 29, 2005 10:04:05 AM