By Senator Alice Nitka, Windsor County, January 20, 2012
The Senate Judiciary Committee, which is one of two committees on which I serve deals with among other topics the courts and corrections and actions someone may take that gets them involved with these entities. There certainly were some grim bills this week, such as S-12 Relating to bail for persons charged with lewd and lascivious conduct with a child; S-122 Relating to human trafficking and prostitution and S-244 Relating to referrals to court diversion for driving with a suspended license. There was an update from the Law Enforcement Board with regard to the recording of interrogations of suspects and best practices for what used to be known as “line ups”.
A bill that generated the most interest and has been the subject of several newspaper articles in the Burlington area is S-138 which deals with record keeping of search warrants. Witnesses ranging from the American Civil Liberties Union to the Office of the Attorney General “weighed in”, as well as private attorneys, the administrative judge for the courts, the Police Association, a newspaper reporter and the Secretary of State. The warrants addressed in the bill are those involving the search of a person, premises, car or computer for example but not wire warrants for monitoring conversions. With accountability in government an issue these days, it was surprising to learn that many of the warrants issued were never returned to the court be they issued in the middle of the night by a judge or during regular court hours. The warrant is good for 10 days and the no return issue seems to arise when no potential evidence is found during the search, the warrant expired, the police couldn’t organize a search team, the officer decided not to act on the warrant for many possible reason including that other evidence presented itself. There were 1,273 warrants filed in the state (this doesn’t include federal requests) and the return rates varied county by county. Of 107 filed in Windham, 61 were returned; of 101 in Windsor, 78 were returned; of 447 in Chittenden, 337 came back and in Addison of 46 only 19 were returned. When the warrant isn’t returned, there is no way to track the outcome which might mean that searches are occurring without enough justification or that the warrant simply wasn’t executed. It is felt by many that in order to protect a person’s right under the Fourth Amendment of the Constitution for protection against unreasonable search and seizure there must be accountability for all warrants.
When the search does occur and evidence is taken from a person, a written inventory of any property taken must be completed in the presence of the person whose property it is or a credible person. This inventory is filed with court and confidentiality is frequently the case at this point due to ongoing police investigations or cases that have been closed with no charges being filed. There are several challenges presently in the Supreme Court re confidentiality in cases that have been in the in the news this past year.
Incidentally, under Vermont law, a warrant is needed to search a car unless the person gives permission to the officer. A search warrant could be obtained electronically these days so the officer doesn’t need to drive to the judge’s home if it is after hours. Assistant Attorney General John Treadwell testified that this is not the case under federal law and a warrant would not be needed for a car search by a federal officer. An example geographically close to us would be at the US Immigration checkpoint on Interstate 91 which is sometimes operational.
Contact me at home at 228-8432, the State House at 1-800-322-5616 or at anitka@leg.state.vt.us or P.O. Box 136, Ludlow, VT 05149 Find schedules and bills at www.leg.state.vt.us.
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