[tptacek]

Aren't magistrate judges supposed to take the police's word for this? You can't have an adversarial process for getting a search warrant. The remedy for broken warrants happens at trial, with motions to exclude evidence.

There was grave misconduct in the Taylor case! Police shouldn't routinely be assaulting homes with weapons drawn. My issue is just the process you're describing here.

[fountainofage]

I'm mainly commenting on the way up parent here:

"They got a warrant. Judges aren't going to issue a warrant based on asking a bunch of people if they sent a message."

Judges absolutely issue warrants all the time just for the hell of it. The very up parent seems to be indicating that some sort of due process was done because "oh, a judge issued a warrant" and I'm emphatically stating: a judge issuing a warrant means as much as me saying the sky is made of M&M's - just the ravings of irrelevant madmen in the face of actual facts.

Edit: I will say - the warrant process should absolutely be adversarial. Justice is to be blind. Which means if a crackhead and a cop come to a judge and requests the legal authority to break into a home with lethal force, the judge should weigh both requests the same. That's the intent of our legal system - the executive does what it thinks it's supposed to do in light of what the legislative has passed, while the judicial watches them to make sure they don't screw up.

Instead they all get together as buddies and stomp their collective boots into the skull of their fellow citizens.

[tptacek]

This isn't realistic. Warrants occur relatively early in the investigative process and are often the first indication a target has that they're under investigation. An adversarial warrant process would simply result in the destruction of most evidence.

A good way to prosecute your side of this argument would be to point out any country in the world that has an adversarial warrant system and how well it works. I'm unfamiliar with any. Much of Europe doesn't even have the exclusionary rule, meaning that evidence of crimes obtained under false or broken warrants remain admissible.

If your argument is simply that most police shouldn't be armed, you'll get no argument from me.

[fountainofage]

To my knowledge, much of the rest of the developed world doesn't have a problem with cops being able to lie under oath with no punishment. The non-adversarial systems you reference rely on the confidence that when a cop gets caught knowingly lying to get a warrant, that cop is fucked. Here in the US, it's just another Tuesday morning at the coffee shop with the boys.

On the destruction of evidence, this one has always baffled me - so is there evidence or not? Presumably when I go to a judge saying I need the legal authority to kill some babies at 3 AM because otherwise the evidence will be destroyed... I have enough evidence to justify killing those babies, right?

... So this begs the question... Why do I need authorization to kill babies at 3 AM? In case the suspects destroy more evidence? What was my evidence to kill babies to begin with? Just a hunch? Because a judge should absolutely shit on that, and it should be adversarial. A judge should laugh when evidence for a warrant request is "oh, I need the warrant because they'll destroy the evidence for me to request this warrant."

From my rough observation of the news for the past 20 or so years, the evidence of these crimes these babies died to protect has never been worth it. Maybe you know of a few where the death of a few babies were worth it because the crimes were so heinous. Every time I'm aware of - it's just been drugs, which could have been done in daylight hours, with no dead babies.

Now maybe this is your point about unarmed police. I'm not sure. But a warrant tends to be a fuck ton of latitude (as I've said in prior comments - judges just hand them out like candy), so just send in cops who want to kill with their bare hands and you'll get the same result, in my opinion.

I agree I'm being extreme, but that's where we are today. We tried the whole "let's just all get along and try to fight crime together" method, and it turns out cops will just lie to judges and go kill kids. This isn't me doing a slippery slope "what if" scenario. This has already happened. A bunch of times. Too many times in my opinion.

So now it's time for us to take away everyone's toys until they can show us they can all be good.

[tptacek]

I don't really understand how this is a response to what I said. I pointed out that much of Europe doesn't even have the exclusionary rule: that if the police obtain evidence through misconduct, prosecutors are allowed to use it at trial. You responded with 6 paragraphs about killing babies.

Be specific. What country has better rules regarding warrants than the US? This should be easy, because it seems hard to believe that we could be the best country in the world at this process. Then we can go look at how that country handles things, in specifics, and learn something.

[fountainofage]

Honestly, I've typed out a few replies, and I've got nothing.

Basically, I'm saying I don't trust cops because they kill 1,100 people a year. That's it. That's my whole argument. Just 1,100 lives. Every year.

You're saying that's not relevant to what we're talking about and let's look at how European countries seem fine with their more lax evidentiary protocols, legal systems, and trusting cops. Even though their cops only kill 50 people a year (at equivalent population rates).

I really don't have a "better" warrant system to propose other than an adversarial one because at the end of the day I don't trust cops, and you're advocating for a legal system that intrinsically does. This is me saying "hey, blue is actually yellow" and you saying "no, blue is blue." Our perceived realities are too far apart.

[tptacek]

You haven't proposed an adversarial system. That would involve details, or an example of some country or system that uses one, so we can get the details from there. It's not interesting to simply wish that the warrant process was adversarial, because it doesn't appear realistic to have such a system; you might just as well abolish investigations altogether.

I'm not interested in your feelings about the police killing people, because I share them, and there's nothing for us to discuss about it.

I am interested in the provenance of warrants, because they're central to the actual story we're commenting on.

[koolba]

> Justice is to be blind. Which means if a crackhead and a cop come to a judge and requests the legal authority to break into a home with lethal force, the judge should weigh both requests the same.

A judge does not have the power to grant a random private citizen the right to break into someone else’s home, with or without legal force, under any circumstance. Even a court order to allow breaking into your own property, say to evict squatters or tenants, would involve law enforcement. The judge can’t just deputize you like it’s the Wild West.

[fountainofage]

That's my point - not that a judge should grant a warrant to a crackhead, but that they should act as if they're granting a warrant to a crackhead. So basically the opinions, social standing, and claims of the entity requesting the warrant are irrelevant. Only the actual evidence should be considered by a judge when granting a "right to wantonly kill" because that's exactly what a warrant is at the end of the day. It should be taken very seriously, and unfortunately, it's not.

[windexh8er]

> Aren't magistrate judges supposed to take the police's word for this?

No. They have to convince a judge who is neutral in the matter. They have to have probable cause the criminal activity has/is occurring at the stated location the warrant is requested to be issued for. And the officers are under oath for this process, yet we see very few repercussions for a breakdown in this process. The affiant is open to persecution for perjury. The officers in the Taylor case lied by listing her and two others on the warrant. [0]

It's not an adversarial process, it's one of fact based decision making. Why would the judge blindly trust or mistrust the officer? The judge should trust the facts being presented are true, but that doesn't constitute a rubber stamp. And, as stated, if said officer lies about that evidence they should be prosecuted appropriately. Facts are often questioned to ascertain validity, that clearly did not happen in her case.

[0] https://www.wave3.com/2020/05/12/breonna-taylor-shooting-war...

[tptacek]

Right, the facts presented to the judge, taken as stated, have to add up to cause for a search. Judges shouldn't ignore a paucity of factual assertions. I don't doubt that many do. But short of an adversarial process, which I don't think can work with warrants, I don't know what you can do to mitigate a police officer fabricating evidence.

[tremon]

This is becoming nothing but a semantic problem. Where lies the line between "judges shouldn't ignore a paucity of factual assertions" and "judges should be adversarial towards a warrant application"?

But to me, the more important question is "what are the ramifications for subverting the intended warrant process"? It seems that both sides here are arguing that the warrant process should be based on veracity and proportionality, and it regularly isn't. So what process oversees and corrects the rubber-stamping of warrants?

[tptacek]

In the US, the major ramification of exploiting misconduct to get warrants is that all the evidence stemming from that warrant is excluded from the trial, which is a rule we have that is not common in the rest of the world.

[dragonwriter]

> The remedy for broken warrants happens at trial, with motions to exclude evidence.

But merely broken (if not fraudulently obtained) warrants aren't a basis for excluding evidence, because of the good faith exception to the exclusionary rule.

[tptacek]

That's a good point.

[ClumsyPilot]

> "Aren't magistrate judges supposed to take the police's word for this?"

What do you imagine is the point of having one? It's to hold police accountable and Judge if what he/she being told is potentiality total BS.