Because getting a warrant is just so tedious. Grumble

“I mean, it’s like, oh my gosh, as if!” said Wethersfield, CT police chief James Cetran when asked whether obtaining cell phone records of citizens of Connecticut should require a showing of probable cause.1Warrants based on probable cause are, like, so “tedious”, he followed up2. Further:

“It makes things faster, easier and better for us,” said Cetran. “It’s something you can do within minutes, not hours.

“Best of all, of course, would be no requirement to get a pesky judge involved, but I’m feeling like a fat cat from where I’m sitting already, so…” he most certainly did not say, but I’m going to pretend that he thought it to himself nonetheless.

This came about during an interview conducted by ace NBC CT reporter and my friend George Colli for a story he did on obtaining cell phone records in Connecticut.

In Connecticut, unlike, say, in MA [PDF], police departments can obtain cell phone records of anybody by getting a judge to sign an “ex parte application“.

The difference is that the ex parte application merely requires a showing of ‘reasonable and articulable suspicion’, which is the standard that police need to meet in order to stop you on the street and ask you a question, as opposed to ‘probable cause’, which is what they need to search you, your house, your car, or to arrest you. It’s a much lower standard and one that’s only slightly higher than “because I felt like it”.

There are two things that stand out about the story: one unremarkable but still noteworthy and the other quire remarkable. The former is the hubris exhibited by the likes of Police Chief James Cetran who find it “tedious” to have to comply with the requirements of the Fourth Amendment to the United States Constitution3 and value convenience over having a neutral magistrate review and approve their requests by making some significant showing of proof.

Which brings me to the second thing: as per Colli’s report, it seems that of the 13,000+ ex parte applications made since 2005, not a single one has been rejected.

Not one in over 8 years. And you think the FISA court was an NSA rubber stamp? Are you confident that all 13,000+ requests involved people whom the police had reason to believe were committing or had committed a crime?

What this does, in essence, is reduce these ex parte applications from a judicial order to an investigative subpoena issued by the prosecutor’s office that functionally has no judicial oversight. And we all know the problems with giving prosecutors the power to issue investigative subpoenas.

Cetran makes a big deal about how this “saves time” and is quick compared to getting a warrant. That makes no sense to me. A judge still has to sign an ex parte order; the only difference is the modicum of proof contained in that request to obtain records.

Are we saying that it takes more time and effort to develop a greater level of proof than lesser? I would probably agree with that and then turn right around question the quality of that lower level of evidence.

The concern isn’t that police are abusing their power, but rather that the potential exists for them to do so and there is no safeguard for our individual rights.

I think the legislature should take up a bill that mandates a warrant based on probable cause as a prerequisite for obtaining cell phone records and the contents of those phones and emails, but that’s a longer column for another day.

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  1. He did not, in fact, say that. I made that up.
  2. It’s unclear if this is a direct quote. The reporter seems to attribute it to Cetran, but it may be paraphrasing. It’s unclear. Don’t sue me.
  3. The good thing, of course, is that the contents of a phone seem to be protected by a reasonable expectation of privacy in CT, but the Governor’s top criminal justice policy guy doesn’t seem too inclined to want to strengthen the protections for warrantless searches of our phones and electronic media.

6 thoughts on “Because getting a warrant is just so tedious. Grumble

  1. Pingback: How hard is it to get a warrant? | The Carolina Investigator

  2. Harriet The Spy

    What did he say?? I was initially horrified until I got to the bottom. Been saying for years that Wethersfield needs a police commission or some sort of civilian oversight and thought I had found the smoking gun. Did he say anything objectionable?

    Reply
  3. George Colli

    Gideon – Thank you for the post. With you bringing this up, I want to be fair to the Chief and include his full answer here. . The question was “If after nine years, and now having all this data, should the law be re-examined? What things would you like to see re-looked at? His full answer was “I think some of the time restrictions are just way too constrictive. We need more time. So, I think that aspect of it alone should reconstitute a re-look at this. From 2005, you’re talking 9 years, that’s a long time for any technology- or to combat technology type crimes- to last that long. it should be re-looked at it. The time and an expansion of what it should be looked for would be helpful too because of the fact it is expedient and as far as I know no one has abused this. It is a very important tool that is helping police protect all of us. That’s what’s important. It’s a public safety issue. I don’t think it’s being used to invade privacy. It’s helpful to everyone but criminals. The problem is criminals evolve and the law doesn’t. A re-look at this could help us.”

    George Colli
    @GeorgeColli

    Reply
  4. George Colli

    And to continue – for the questions regarding the difference between obtaining Ex Parte vs. Search Warrants. Here are the full transcripts. Thanks for the chance to present this.

    Difference between getting search warrant to ex parte? “You have to be more specific. It has to be more, it is more intrusive. You need more evidence and it’s gonna be a higher level of reasonable suspicion vs. probable cause.” …

    How have these Ex Parte orders changed the way you’ve been able to investigate here in Wethersfield? “It just streamlines it. Makes it much more efficient. You can do it faster and simpler. It still has to pass judicial review. You’re talking a one page document. It’s easier for the companies, like Verizon, to process cause I’ts just one sheet and easier to understand for them. I think there’s, it just streamlines everything, probably best term to use for it. Makes things faster, easier and better for us. And, of course, 9 out of 10 of these cases are quick. Need to move fast….

    (discusses exigent circumstance cases)… “When you’re dealing with life and death situations it can be extremely frustrating. In the old days, when you had to get an actual search warrant, meaning you’ve gotta hunt down a judge and prosecutor. Type up the warrant. It’s 6-pages long. Find a judge, find a prosecutor. Somehow get it signed and done and then get it where it’s gotta go. That takes up hours and hours. With an ex parte, 9 out of 10, in today’s day and age, you can type it up electronically. You can do it within minutes, not hours…. We’re careful with it. It’s too important a factor. ”

    What is that process to get ex parte order? “It’s a single sheet of paper, signed by judge. This versus a 6-page report (holds up report, discusses extensions in notification can be gotten for both.) ….both have to go before a judge only thing different is a little bit lower standard of evidence. Reasonable suspicion vs. Probable Cause. It just streamlines the whole process when you’re dealing with one sheet of paper instead of six. And the time and effort that has to go through to get it.”

    Reply
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