Enhanced Oversight of Search Warrants and Title III Wiretaps

The warrant requirement is grounded in the fact that it is a serious intrusion on privacy when the government either makes a physical trespass on private property or records someone's private telephone conversations. Under the Constitution, the government may take these steps only if a neutral magistrate concludes that probable cause exists to believe that these steps will uncover evidence of criminal activity. While the warrant requirement is a crucial protection for all Americans, there are limits to the utility of the safeguard of judicial approval. As we discuss in this article, there are steps that the courts and Congress can take to strengthen these safeguards and thereby protect both the accused and those who are never even charged with a crime.

The Warrant Requirement Is An Imperfect Safeguard of Fourth Amendment Rights

As an initial matter, the process of obtaining a search warrant is not an adversarial process; the prosecutor and case agent bring the application papers to a federal judge, who reviews and approves the application without any input from defense counsel. The target of the warrant or wiretap and their counsel (if any) are necessarily unaware of the government's investigation and only receive a copy of the warrant application after the defendant is indicted, as part of discovery. The reviewing judge will often be unable to identify factual misstatements in the application, as the judge will not be familiar with the case and typically only spends a short period of time examining the application, which is reviewed while the judge might be handling a host of other "Part I" business (such as arrest warrants, arraignments, presentments, pen register applications, bail hearings, and temporary restraining orders).