Examining Utah's Warrant Approval Process
by Ben Miller.
In the acclaimed television series The Wire, there was a scene where the detectives presented a search warrant affidavit to a judge. What may have stood out was that, in a bit of creative-license levity, two detectives can be seen hauling an air conditioner unit up the stairs for the judge's later use.
What likely did not register to most viewers was how long the scene took - just under one minute. Anyone would assume that was not meant to depict how long it takes to review and approve a warrant. Yet a recent law review article based on a quantitative study of over 33,000 warrant applications filed in Utah in a three-year span found that "one out of every ten warrants is opened, reviewed, and approved in sixty seconds or less." Miguel F.P. de Figueiredo, Brett Hashimoto & Dane Thorley, Unwarranted Warrants? An Empirical Analysis of Judicial Review in Search and Seizure, 138 Harv. L. Rev. 1959, I960 (2025).
Let that sink in. Nearly three warrants every day were being opened, reviewed, and approved in less time than it would take the average person to read the above two paragraphs twice. See id. at 1980 (discussing reading speeds).
The article's authors are a pair of professors from Brigham Young University, and one from University of Connecticut School of Law. Together, they reached several eye-opening determinations. The article's "key findings demonstrate that the warrant review process is fast and nearly always results in approval." Id. at I960. Over 93% of all warrant submissions were approved on first review, 98% eventually were approved. Id. The median time for review was just three minutes. Id.
Now, what may happen is interested parties will see the article's top-fine conclusions and retreat to their respective comers. Defense attorneys - including myself - may want to scream what an outrage; law enforcement may assume the results show they are doing their jobs properly; and judges may defend themselves by pointing to being overworked and that reviewing warrant applications does not always require reading every word, front to back.
Those initial reactions are valid. Nevertheless, the depth of the professors' findings are far too important for us to get stuck in our instant opinions. In tills article, I aim to explain why we should let go of some of our respective defensiveness and delve deeper into all the professors' research and conclusions. The other aim of this article, to be addressed first, is why we all should care about the thoroughness of the warrant process. From affidavit to approval. From execution to review.
We should all care about the warrant process because it protects the Fourth Amendment that guards all of us. Anyone reading a bar journal article likely already knows that the "primary protection afforded citizens against official, arbitrary intrusions into their homes and other private places is the requirement of a search warrant issued by a magistrate on proof that probable cause exists to invade a person's privacy." State v. Nielsen, 727 P.2d 188,194 (Utah 1986) (Stewart, J., dissenting) (citing Illinois v. Gates, 462 U.S. 213, 239-40 (1983)).
We should care because of the preference for warrants and the deference given to any actions taken pursuant to a warrant, whether constitutional or not. Once law enforcement has that warrant, anything recovered becomes largely shielded from later suppression. Tills is so for two reasons.
First, if there is a challenge to evidence seized pursuant to a warrant, that initial decision to grant the warrant is afforded "great deference." State v. Saddler, 2003 LIT App 82, ¶ 7, 67 P.3d 1025, rev'd, 2004 UT 105. Routine second guessing of those decisions would only undermine the "preference" for law enforcement to obtain a warrant before acting. Id. ¶ 7 n. 1. And
BEN MILLER is Deputy Chief of Utah Indigent Appellate Defense Division. second, in United States v. Leon, 468 U.S. 897 (1984), the United...
