“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.
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.
- He did not, in fact, say that. I made that up. ↩
- 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. ↩
- 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. ↩