Warrantless Searches

Your private records aren’t so private. A Washington law adopted in 1971 allows investigator’s to get a suspect’s bank, phone, email and other records without a search warrant. Prosecutors have been able to get those records without even showing probable cause that a crime has occurred, the standard that applies to search warrants.  Instead, law enforcement can get the information with a subpoena issued under a lesser standard in a secret hearing called a special inquiry. But some judges and justices are having problems with these warrantless searches.

Justices on Washington’s Supreme Court heard arguments over whether that’s a violation of privacy protections in the state constitution. A King County senior deputy prosecutor argued that while a warrant is required to search someone’s home or their actual phone, probable cause should not be required to obtain records a person voluntarily turns over to third parties, such as phone records. Some justices questioned that analysis noting that in many cases phone companies or cloud computing firms maintain virtually everything that’s stored on a phone, making a records search very similar to a physical search. Justice Mary Yu stated,”The distinction you’re drawing between something that exists in the phone and what’s stored offsite is a reality that doesn’t exist anymore.” Defense counsel told the justices that such a vast intrusion into someone’s private affairs must require a more stringent showing by prosecutors than that required under the special inquiry law.

The Legislature created the special inquiry proceedings following a wide-ranging public corruption investigation in Seattle. They were designed to be a more efficient alternative to the grand jury system, which prosecutors found to be expensive and cumbersome. The procedure allows the judge to issue subpoenas for evidence, such as bank or phone records, at the request of a prosecutor who has ‘reason to suspect’ crime. Reasonable suspicion is a lesser standard than probable cause and that’s the problem. Under Washington’s Constitution, people can’t be disturbed in their private affairs without ‘authority of law’. The high court has never ruled on whether a special inquiry judge subpoena meets that standard. Under the federal constitution, such third-party records are not generally protected but Washington’s Constitution is considered more protective of people’s privacy.

Prosecutors have used the special inquiry judge subpoenas as substitutes for warrants. The justices noted that subpoenas are used to obtain records in a variety of legal proceedings, including civil business disputes and divorces, however, the key difference is that the records aren’t obtained by police. Furthermore, the party whose records are being sought has an opportunity to contest the subpoena or narrow the scope. No such opportunity is afforded under the special inquiry law; the person whose records are being searched may not ever learn about it. If the court rules that probable cause is needed to obtain records in criminal investigations, it should also clarify that subpoenas based on less than probable cause are still valid in other settings. The Seattle attorney who challenged the use of special inquiry proceedings stated, “Sometimes you want things to be more difficult and more expensive for the government, to discourage them from sifting through all our records.”