The Chittenden County state’s attorney and Burlington’s police chief Friday asked senators to change the law to stop what they called a “huge problem” of judges who sometimes call for hearings with defense attorneys before issuing search warrants.
The Senate Judiciary Committee agreed to work on legislation to remedy the practice, perhaps in a bill about the Center for Crime Victims Services.
Defender General Matthew Valerio, however, said prosecutors simply don’t like the fact that judges are protecting the constitutional rights of defendants who have attorneys.
In a short hearing Friday morning, Chittenden State’s Attorney T.J. Donovan told senators that in the past few months, a few judges have begun allowing defense attorneys to be present when signing search warrants in cases where a defendant has already been charged with a crime and has a lawyer.
Often police want to search an object, perhaps a backpack or cellphone, that they have obtained after someone has been charged with a crime, he said.
Search warrants are supposed to be granted ex parte, for the interest of one party, Donovan argued. To obtain one, police must show probable cause.
“Allowing it to be a probable cause challenge at the time of the issuance of the warrant really gives the defense two bites at the apple,” Donovan said.
A defense attorney can challenge the probable cause and can also later file a motion to suppress evidence obtained as a result of that warrant, he said.
Burlington Police Chief Michael Schirling said inviting the defense to search warrant hearings has caused police to lose evidence.
In a child pornography case, he said, a defendant deleted a Gmail account after a hearing with a defense attorney.
Schirling said he knows of five other cases in which this is an issue. Usually warrants are for searching electronic evidence, he said.
“They contact witnesses, they can can destroy evidence, they can have people go and destroy evidence, they can erase phones,” Schirling said.
Schirling said not all judges do this, but prosecutors can’t “judge shop.”
“It creates a major investigatory hurdle, and telegraphs information to a defendant or co-defendant,” Schirling said.
Chief Administrative Judge Amy Davenport, reached by email Friday afternoon, said the decision by Judge David Suntag in a 2012 trial court case in Windham County, has led to this practice.
In that case, State of Vermont v. Jodi LeClaire, prosecutors sought a warrant to obtain LeClaire’s medical records. Since LeClaire had an attorney, Sontag ordered the state to provide notice to the defendant or establish why notice was not required.
Suntag argued that ex parte communication with police and prosecutors about post-charge search warrants violates the language of the Vermont Code of Judicial Conduct unless it is an emergency.
“Many of the judges have reviewed the Windham decision and some agree with its conclusion that warrants that are issued after the defendant is charged and has an attorney should be noticed. Ultimately, I expect that one of these decisions will be appealed and the Supreme Court will decide,” Davenport said in an email Friday.
Donovan said it is hard to appeal a judge’s decision when it is based on ethics.
Judiciary Committee Chairman Sen. Dick Sears, D-Bennington, on Friday first said he is uncomfortable changing the law because warrants are governed by rules of criminal procedure, in this case Rule 41.
He then said language could be worked into another bill.
Schirling said he only wants one sentence that says “applications for search warrants shall not be subject to a contested hearing.”
Sen. Joe Benning, R-Caledonia, asked whether there is another way to educate “rogue” judges.
“How do you rein in a rogue judge?” Benning said. He said the judges in Chittenden County have taken a narrow opinion and applied it too broadly.
Valerio pushed back on law enforcement’s argument, and the term “rogue.”
“It is inappropriate to call them rogue judges. We hear that term used whenever a judge does something a prosecutor doesn’t like,” Valerio said. “Rogue judges may just be enforcing your constitutional rights.”
Valerio also said it is possible to retrieve deleted Gmail accounts and his office has done so.
