Tracy Hresko Pearl (University of Oklahoma College of Law) has posted On Warrants & Waiting: Electronic Warrants and the Fourth Amendment on SSRN. Here is the abstract:
Police use of electronic warrant (“e-warrant”) technology has increased significantly in recent years. E-warrant technology allows law enforcement to submit, and magistrate judges to review and approve, warrant applications on computers, smartphones, and tablets, often without any direct communication. Police officers report that they favor e-warrants over their traditional counterparts because they save officers a significant amount of time in applying for warrants by eliminating the need to appear in-person before a magistrate. Legal scholars have almost uniformly praised e-warrant technology, as well, arguing that use of these systems will increase the number of warrants issued throughout the United States and decrease police reliance on warrant exceptions, a seemingly ideal outcome given the strong constitutional preference for warrants. However, nearly all of this favorable commentary is premised on the assumptions that (a) convenience is a worthy goal of the criminal justice system, and (b) that more warrants necessarily mean better police work and greater fidelity to the Fourth Amendment, assumptions that quickly wither under careful scrutiny. Indeed, research shows that the inconvenience of the traditional warrant system incentivizes careful police work and disincentivizes the submission of constitutionally dubious warrant applications. E-warrants, however, by prioritizing convenience, upend this system and increase the likelihood that police will submit deficient warrant applications and that magistrates will not carefully review them. Worse, the Fourth Amendment jurisprudence that has arisen around warrants over the last 50 years makes it extremely unlikely that, once issued, these hastily issued e-warrants will be deemed invalid or any resulting evidence suppressed. In short, e-warrants amplify all of the existing problems with the warrant system and exacerbate the imbalance of power between police and citizens. Jurisdictions should sharply curtail police use of e-warrant technology by imposing new restrictions on how and when e-warrant systems can be used, and by imposing real-time conversation and transparency requirements in situations in which e-warrants are deemed preferable over their traditional counterparts.
