Washington's State Prosecutors Taking a Closer Look at Warrantless Searches

January 11, 2013 (Press-News.org) Most people assume that since the Fourth Amendment to the U.S. Constitution prevents "unreasonable search and seizure," they are protected against having their person or property searched without a warrant. That assumption is wrong, however, and Washington law enforcement has been heavily relying on a 1971 law designed to ferret out organized criminals to gather evidence about run-of-the-mill defendants.

When an Associated Press news story shined light on the practice of "special inquiries," the state's association of prosecuting attorneys decided to take another look at the use of warrantless searches to build cases.

Types of warrantless searches

The special inquiry method of gathering evidence is currently in the news now, but it is not the only type of warrantless search that Washington residents might encounter. There can also be warrantless searches in conjunction with an arrest for the purposes of either protecting officer safety or preventing evidence from being hidden or destroyed.

In the past, warrantless searches had also been allowed of a vehicle or locale where a suspect was arrested to secure evidence against the defendant of the crime he or she was arrested for even when there was no direct threat of evidentiary destruction or concealment. The Washington Supreme Court recently found that this last type of warrantless vehicle search is unconstitutional, saying that police need to obtain a warrant to search a vehicle the defendant occupied if there is no present threat to the sanctity of the evidence. The Court found that the importance of individual privacy rights trumps any inconvenience that law enforcement might endure to secure a warrant.

More on the special inquiry process

The special inquiry method of warrantless searches and subpoenas is a different class from those in conjunction with an arrest. The special inquiry statute - found in Title 10, Chapter 10.29 of the Revised Code of Washington - allows a special inquiry judge to examine people and records about a particular criminal case in a closed session, completely private environment. Essentially, the judge has the authority to subpoena witnesses, depose people and view documents that would be used to prove a criminal case without the need for a warrant and without a public record being generated.

A key element of the special inquiry is the anonymity; if no charges are brought as a result of the evidence viewed, then the person whose records were examined does not need to be informed that the inquiry even happened. Regardless, defense attorneys and privacy rights advocates argue that prosecutors around the state are overreaching in requesting special inquiries so often, and treat the inquiries as "fishing expeditions" in an attempt to gather enough evidence to justify charges even if there would otherwise not be enough proof to secure a warrant.

Since the prosecutorial review of warrantless search procedures is ongoing, unfair and unconstitutional searches might still be happening. If you or a loved one has been arrested and charged based on evidence gathered via a warrantless search, it may be possible to have some or all of that evidence excluded if proper procedures weren't followed; speak with an experienced criminal defense attorney in your area to learn more about your legal rights and to begin mounting your defense.

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