The attached article comes from Popehat’s Ken White. I find myself agreeing with his sentiments, with a level playing field and pure motives he offers good advice. Unfortunately, not all motives are pure and no amount of sentence parsing is going to reveal the underlying falsehood, misdirections, half-truths and sloppy thinking that sometimes can be found in a search warrant application. The bottom line, be it a newspaper article, search warrant or other writing the reader is at the mercy of the author. One reading of one article just isn’t enough to tell if or how one is being played. How-to-read-news-like-a-search-warrant-application.
I was a Texas peace officer for thirty years. I spent fifteen of those years assigned to a narcotics task force. During that time I drafted, assisted in drafting, approved over a thousand search warrants. My work product was accepted in both State and Federal court and eventually was used as a template by every agency in the county.
My first search warrant involved police misconduct and was politically charged. No surprise when the local District Attorney declined to prosecute because of what he called a faulty search warrant. I imagine my surprise when the United States Attorney used the same search warrant to prosecute and convict three police officers. I swore I’d do better in the future and I did.
My first search warrant was signed by a Justice of the Peace who came by his legal expertise by virtue of his other job, boat builder. The JP was a kindly old gent, who maintained an office box at the police station. He once pointed out a stack of criminal complaints, arrest warrants, search warrant affidavits and search warrants already signed and sealed but otherwise blank. They were too used only when we couldn’t find him. I don’t know if anybody took him up on the offer, but I didn’t.
When I first started working narcotics all the various units used a one size probable cause statement (everything else was boilerplate). The short warrant went:
The first paragraph described the place and person and item to search for and it was fill in the blank boilerplate. The subsequent paragraph described the circumstances unique to this search.
“Your affiant was contacted by a credible and reliable person, who has provided information regarding narcotics activity on ____ occasions in the past which has proven to be true and correct. On such and such a date, said credible and reliable person stated that he/she observed ________________ in possession and control of ________________ at ________________ street.
The concluding paragraph contained a charging statement.
I guess it worked fine, provided the police had an informant, the informant had actually been in the residence, and the informant had a proven track record of providing information. I quickly learned there was more than one set of circumstances that could lead to a search warrant for a residence. My search warrants began to reflect those circumstances.
The only pushback I got came from an unlikely quarter, judges. By this time I was dealing with Municipal Court Judges who were all licensed attorneys. The chief complaint seems to be that a page and a half was just too damn much reading for them. Some made a great show of signing the warrant and affidavit unread. Eventually, not often, I was able to stretch an affidavit to twenty pages in length. It wasn’t out of spite because most of these went to the Federal Magistrate Judge and had an Assistant United States Attorneys all over it.
I’m a dip shit, this bothered me, I thought the judge was supposed to review and accept or reject my application based on the merits as outlined within the four corners of the warrant. Silly me. I wanted the challenge, give me an honest read. If the warrant needs fixing, I’ll fix it. Not reading it, giving it a perfunctory squint does not do anybody any good, bad guy included.
It occurred to me early on, that the judges that I went to were at my mercy. They had neither the means nor resources to verify the information contained in the affidavit. Subsequent events could wipe out some of the traces that the affiant relied upon to obtain the warrant. Outright lies could be characterized as misunderstandings or poor communications, nobody’s fault really.
Many are the times I woke up at four in the morning with the realization that the integrity of the whole system was limited by what the individual officer brought to the table. That thought scared me. No matter how pressed for time we were, there was always time to go over the affidavit and underlying investigation to make sure it was right.
As the modern practice of “SWATTING” demonstrates the police are susceptible to the same misleading, malignant reporting of events. My solution is to verify as many points of information as possible until you are left with just one or two. If the allegation still holds together, then you are entitled to believe the other points are present.
One place where Ken White’s analogy falls apart, in comparing the press product with the police product is the downside. When one is caught lying in the police world it is called aggravated perjury and it is a felony. The liar will almost certainly be fired and can be imprisoned. A reporter in the same circumstance may get fired, but the million dollar book deal and speaker’s fees tend to take some of the bite out the firing.