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Police Search Warrant Bill Hits Judicial Roablock

by Eric S. Peterson
- Posted // 2014-02-10 -

Ever since a 2012 Weber County police raid resulted in the death of a police officer and the wounding of five others, all for the sake of the confiscation of a number of marijuana plants, a debate has raged in Utah about the militarization of police forces and their tactics. House Bill 70, designed to restrict the circumstances of police raids got held in a legislative committee, Monday. Ironically it wasn't shelved because of police resistance but rather came under fire for wanting to create a law that could conflict with the judicial branches authority over criminal rules of procedure.

Rep. Marc Roberts, R-Santaquin pitched HB70 having explained that he worked closely with law enforcement representatives who showed support for the bill being able to put into code what was already the best practices of law enforcement. The bill would restrict “no-Knock” warrants by police officers, unless under certain circumstances where they would have to be approved by a judge. Situations like where a life might be jeopardized for example. The bill also allowed that  no-knock warrants would be allowed where probable cause would show that if police announced their search that it might give suspects time to quickly destroy evidence, for example by flushing drugs down a toilet.

Besides increasing the standard from reasonable suspicion to the higher bar of probable cause, the bill would also force law enforcement seeking a warrant to explain why less invasive means of effecting a warrant couldn't be used, the process they used to determine they have the right address and a rationale for why they want to conduct a raid at night versus the daytime.

“This is not mean to be an attack on law enforcement,” Roberts said. “I worked closely with the sheriffs in my county and the law enforcement comm to find a good balance.”

But it turns out the party Roberts didn't work closely enough with were representative of state prosecutors and the courts.

Paul Boyden of the Statewide Association of Prosecutors told the House Judiciary Committee that a move was undertaken in the state to take laws on the books dealing with search warrants out of the Utah code and placed under the court's rules of criminal procedure.

“Now we have a conflict if this bill becomes law between the statue and the rule,” Boyden testified. “As it turns out under the Constitution the rule would take precedent over the statute.”

With procedural rules being in the judiciary's ball court, he explained having lawmakers create a separate standard by passing a law could lead to confusion for police and prosecutors and could open warrants and searches up to litigation. A point echoed by Rick Schwermer of the Administrative Office of the Courts.

“If I am an officer seeking a search warrant what do I do if I have a rule that says one thing about what I'm supposed to and a statute that says another?” Schwermer said. “Why would we want to put people in that position?”

While lawmakers on the panel all seemed crystal clear about the need to protect citizens in their homes and police officers against the perils of unnecessary raids and searches, committee members couldn't decide if the solution should be left to the courts, pushed through with legislation alone or if the sponsor might have to take a third route—a joint resolution.

While the rules governing searches are under criminal code the Legislature can tweak those rules but doing so would mean getting the bill over a higher hurdle by having both houses passing a resolution to do so with a two-thirds majority, instead of a simple majority.

The committee decided to hold the bill and hear it again later to give the sponsor time to meet with the courts and see which approach would be best. Its a tricky issue given the separation of powers overlap, but one that many committee members felt needed action sooner, rather than later.

Rep. Eric Hutchings, R-Kearns seemed flabbergasted that the courts could have fixed such a contentious and well-publicized problem already but have not done so.

“If they've spent the last two years looking at or working on this and haven't addressed it already then I guess we're at the point where we don't have a choice,” Hutchings said.

“To my knowledge nobody has ever asked the judiciary to change this rule,” Boyden responded, drawing exasperation from Hutchings.

“Has the judiciary been asleep?” Hutchings fired back.

The bill now held, will likely be heard again in the committee sometime next week.

To read HB70 click here. To contact Rep. Roberts about his bill click here. To find your legislator to contact them about this bill click here. For more updates from the hill visit CityWeekly.net and follow @EricSPeterson and @ColbyFrazierLP on Twitter.

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