SEATTLE — Prosecutors in Washington state are re-examining their use of a little-known law that allows police to obtain bank, phone and other records without a search warrant, after an Associated Press story raised questions about the practice.
Tom McBride, executive secretary of the Washington Association of Prosecuting Attorneys, said Tuesday that investigators have drifted toward becoming too reliant on the “special inquiry judge proceedings,” and should use them only when traditional investigative techniques won’t suffice.
“This is not intended to be for mainstream, daily use,” McBride said. “We were deferring a little too much to law enforcement requests.”
McBride said he is drafting a list of best practices to help standardize the way prosecutors around the state handle special inquiries.
The proceedings were created by the Legislature in 1971, designed largely as a way to compel testimony or obtain evidence in complex public-corruption or organized-crime investigations, but some jurisdictions have used them for more common matters, including drug and rape cases.
The special inquiries function as grand juries without the grand jury: At the request of a prosecutor, a judge can secretly hear from witnesses, review evidence or issue subpoenas based on a reasonable belief that someone “may be able” to provide testimony or evidence. The proceedings are used as investigators try to develop probable cause to charge someone with a crime.
To obtain a warrant to search someone’s home, person, car or records, police need probable cause, based on a sworn statement, to believe the thing being searched contains evidence of a crime. But under the special inquiry statute, they can obtain those same records with a subpoena secretly issued by a judge based on a lesser legal standard, reasonable suspicion. No sworn statements are required, though many jurisdictions say their investigators or prosecutors are under oath when they ask the judge for a subpoena.
Unlike a search warrant, there’s no public record of the special inquiries. If no charges are ever filed, the person targeted never learns that police obtained their records. Nor is there necessarily a “return” filed with the court, explaining what evidence was obtained. It’s not clear what becomes of the records seized.
Some defense lawyers call that “sneak-and-peek stuff.” They argue that the law violates open-government principles as well as the rights of the suspects under the state and federal constitutions.
“It’s a way to avoid complying with the warrant requirement. There’s no other way to describe it,” said Bob Thompson, a Pasco attorney who recently challenged the use of a special-inquiry proceeding in a defendant’s drug and weapons case.
The Fourth Amendment to the U.S. Constitution states that people have the right to be secure in their “persons, houses, papers, and effects, against unreasonable searches and seizures … and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.”
Washington’s Constitution is considered even more protective, requiring that people not be disturbed in their private affairs without “authority of law.”