I’m not sure if I was suffering from writers block in February, whether there was nothing much of interest to write about, or whether the legislative session was just taking up too much of my time, but whatever the case may have been, I am merging the February and March blogs herein. While still not the most exciting of topics, electronic search warrants have become especially relevant in traffic-related cases in light of the Supreme Court decisions in Missouri vs. McNeely and Birchfield v. North Dakota (see Blog #41, July 2016). As such, I thought the time was right for police and prosecutors to take a serious look into implementing electronic search warrant protocols across the state.
Maryland Rule 4-601
In 2015, Maryland Rule 4-601(b) was amended by the Rules Committee to authorize an applicant to submit an application for a search warrant by (A) delivery of three copies of (i) the application, (ii) a supporting affidavit, and (iii) a proposed search warrant in person or by secure facsimile; or (B) transmission of those documents to the judge by a secure and reliable electronic mail that permits the judge to print the complete text of the documents. If the documents are transmitted electronically the proposed warrant shall be sent in an electronic text format specified by the State Court Administrator and the judge shall print and retain a copy of the documents.
Subsection (c) authorizes the judge to sign and date the document and deliver it in person, via secure fax or via secure and reliable electronic mail that permits the applicant to print the complete text of the documents.
Court of Appeals Administrative Order
As a result of that amendment, on June 26, 2015, Judge Mary Ellen Barbera, Chief Judge of the Court of Appeals signed an order, effective July 1, 2015, regarding the implementation of electronic search warrants. Preliminarily, the Order laid out the following:
- Electronic submission and issuance can be done either through secure facsimile (fax) or secure electronic mail;
- Amended Rule 4-601 requires the State Court Administrator to designate the electronic text format for the submission of search warrant documents from law enforcement officers;
- The State Court Administrator has designated the secured PDF as the electronic text format for the submission of electronic search warrants by law enforcement officers;
- The Court Technology Committee proposed a uniform procedure to the Judicial Council that would assist judges in ensuring that they maintain an acceptable level of security when receiving and approving search warrants through the electronic medium; and
- The Judicial Council expressed the need to establish standards of security related to the processing of electronic search warrants.
The substance of the Order laid out a four-part requirement:
- The administrative judges of the Circuit and District Courts in each jurisdiction should meet to develop protocols for the implementation of electronic search warrants, taking into consideration the procedures drafted by the Court Technology Committee regarding appropriate security standards for the receipt and issuance of the electronic search warrant documents.
- That any established protocols for the use of e mail must require a written certification from the law enforcement agency indicating that the domain from which the documents are sent is secured by a Secure Sockets Layer (SSL) certificate. While I have no idea what a SSL Certificate is, I trust that every law enforcement agency has an IT person who can provide/create such a certificate;
- That any established protocols that provide for transmission via fax shall require all search warrant documents to be sent from a fax machine controlled by the law enforcement agency directly to the judge’s fax machine or to a fax machine that, for purposes of sending or receiving search warrant documents, is controlled by the judge; and
- That Administrative judges shall adopt the secured PDF as the electronic text format for search warrant documents as designated by the State Court Administrator pursuant to Rule 4-601.
Judicial Council Court Technology Committee Electronic Search Warrant Procedure Overview
The Electronic Search Warrant Procedure Overview is a five-page document that will be attached to the e mail distributing this blog. It outlines all the procedures that law enforcement and judges should follow when instituting electronic search warrants in their jurisdictions.
Implementing electronic search warrant procedures in your jurisdiction
I know what you’re thinking: This is all great, but we’ve been talking about electronic search warrants for a couple of years now and we don’t seem to be any farther along in their implementation than we were two years ago, so thanks for nothing.
I actually do have a suggestion in that regard. It is my recommendation that a senior prosecutor (probably a deputy state’s attorney) and someone from the command staffs of some of the larger law enforcement agencies in your jurisdiction arrange to meet with your administrative District and Circuit Court judges to determine what the courts would deem acceptable. Without judicial buy-in and the creation of well-established and accepted protocols in your particular jurisdiction, electronic search warrants will be subject to the whims of each particular judge.
Once those protocols are firmly established in your county (or Baltimore City) all of the smaller police agencies can be brought in on the fun. It will still be imperative that each local law enforcement agency seeking to utilize electronic search warrants comply with the established procedures and protocols, but it will be much easier to manage in a smaller group.
I am attaching two sample forms of electronic search warrants (Search Warrant for Blood Draw DUI – manual version | Search Warrant for Blood Draw DUI – electronic version), created by my former colleague, Jon Naylor. One can be filled-in via pen, scanned and electronically mailed (or hand delivered) to the judge. The other contains drop boxes which can be completed on the officer’s laptop and electronically mailed to the judge. They both include the required Oath or Affirmation, Application, Return and Warrant.
If you find them helpful please feel free to use them as you see fit. If you create your own, I would greatly appreciate being sent a copy so I can keep them in a central file.
As always, please consult with your local state’s attorney’s office with any specific questions regarding this subject matter.