Prosecutors review warrantless search practices

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 only use them 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.”

ADVERTISEMENT
0 seconds of 0 secondsVolume 0%
Press shift question mark to access a list of keyboard shortcuts
00:00
00:00
00:00
 

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 and 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 run-of-the-mill 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.”

No appeals court in the state has ever ruled on whether special inquiry subpoenas issued with less than probable cause constitute “authority of law.” McBride says it does. Thompson disagrees.

With the help of Seattle attorney Lenell Nussbaum, Thompson recently challenged the charges against Alfredo Ahumada Ozuna Jr. A detective involved in Ozuna’s case did obtain a search warrant for his house and car, but in a statement supporting the search warrant, the detective revealed that he had already reviewed Ozuna’s bank records.

There was no search warrant for the bank records. Nor had the lawyers been notified by the prosecutor’s office that their client was subject to a special inquiry subpoena.

Because charges were filed, they were able to obtain the transcript of the special inquiry proceeding, which revealed that no statements to the judge had been made under oath.

Their public records request to the Benton County Prosecutor’s Office turned up two thick binders’ worth of other cases in which detectives routinely asked prosecutors to get them secretly issued subpoenas for cellphone, email, mortgage and banking records in drug, fraud, identity theft, rape and other investigations.

The lawyers successfully petitioned to have Ozuna’s case transferred to Walla Walla County, so they could challenge the Benton County Superior Court’s practices regarding special inquiries, and they filed briefs arguing that the use of the special inquiry was unconstitutional.

Just when it appeared that Ozuna’s case was on track to be the first in Washington to reach an appeals court on that issue, it settled last week, with prosecutors dropping charges related to the special inquiry subpoena. Ozuna pleaded guilty to unrelated theft and drug-possession charges and was sentenced to time served.

Thompson and Nussbaum said they were pleased to get a good deal for their client, but disappointed to have to drop their challenge to the law itself.

“That’s the problem with challenging the system — sometimes it works best for your client to take another route,” Nussbaum wrote in an email. “It’s a victory for the client, but not yet a solution for the systemic problems.”

An AP story on Ozuna’s case in May found that prosecutors around the state use special inquiries to varying degrees. King County uses it about a dozen times a year, but Pierce County Prosecutor Mark Lindquist says he always advises law enforcement to get a warrant because “that’s the safe approach.”

McBride said he expects elected county prosecutors to adopt guidelines on special inquiries later this year.

Among them: Deputy prosecutors should get approval from a supervisor before using special inquiries, and courts should be reminded of their ownership of the proceedings — that judges aren’t there to rubber-stamp law-enforcement requests.

And what about the secrecy issue? Should people who have been targeted by special inquiry subpoenas be notified?

“It’s an interesting question,” McBride said. “I’m writing a note to myself to look at that.”

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Local News

Students from Explorer Middle School gather Wednesday around a makeshift memorial for Emiliano “Emi” Munoz, who died Monday, May 5, after an electric bicycle accident in south Everett. (Aspen Anderson / The Herald)
Community and classmates mourn death of 13-year-old in bicycle accident

Emiliano “Emi” Munoz died from his injuries three days after colliding with a braided cable.

Danny Burgess, left, and Sandy Weakland, right, carefully pull out benthic organisms from sediment samples on Thursday, May 1, 2025 in Everett, Washington. (Olivia Vanni / The Herald)
‘Got Mud?’ Researchers monitor the health of the Puget Sound

For the next few weeks, the state’s marine monitoring team will collect sediment and organism samples across Puget Sound

Everett postal workers gather for a portrait to advertise the Stamp Out Hunger Food Drive on Wednesday, May 7, 2025 in Everett, Washington. (Olivia Vanni / The Herald)
Snohomish County letter carriers prepare for food drive this Saturday

The largest single-day food drive in the country comes at an uncertain time for federal food bank funding.

Everett
Everett considers ordinance to require more apprentice labor

It would require apprentices to work 15% of the total labor hours for construction or renovation on most city projects over $1 million.

Snohomish County prosecutor Kara Van Slyck delivers closing statement during the trial of Christian Sayre at the Snohomish County Courthouse on Thursday, May 8, 2025 in Everett, Washington. (Olivia Vanni / The Herald)
Jury deliberations begin in the fourth trial of former Everett bar owner

Jury members deliberated for about 2 hours before Snohomish County Superior Court Judge Millie Judge sent them home until Monday.

Christian Sayre sits in the courtroom before the start of jury selection on Tuesday, April 29, 2025 in Everett, Washington. (Olivia Vanni / The Herald)
Christian Sayre timeline

FEBRUARY 2020 A woman reports a sexual assault by Sayre. Her sexual… Continue reading

City of Everett Engineer Tom Hood, left, and City of Everett Engineer and Project Manager Dan Enrico, right, talks about the current Edgewater Bridge demolition on Friday, May 9, 2025 in Everett, Washington. (Olivia Vanni / The Herald)
How do you get rid of a bridge? Everett engineers can explain.

Workers began dismantling the old Edgewater Bridge on May 2. The process could take one to two months, city engineers said.

Christian Sayre walks out of the courtroom in handcuffs after being found guilty on two counts of indecent liberties at the end of his trial at the Snohomish County Courthouse on Monday, May 12, 2025 in Everett, Washington. (Olivia Vanni / The Herald)
Former bar owner convicted on two of three counts of sexual abuse

A jury deliberated for about 8 hours before returning guilty verdicts on two charges of indecent liberties Monday.

From left: Patrick Murphy, Shawn Carey and Justin Irish.
Northshore school board chooses 3 finalists in superintendent search

Shaun Carey, Justin Irish and Patrick Murphy currently serve as superintendents at Washington state school districts.

Paine Field Community Day returns Saturday, May 17

The youth-focused celebration will feature aircraft displays, talks with pilots and a variety of local food vendors.

FILE — Jet fuselages at Boeing’s fabrication site in Everett, Wash., Sept. 28, 2022. Some recently manufactured Boeing and Airbus jets have components made from titanium that was sold using fake documentation verifying the material’s authenticity, according to a supplier for the plane makers. (Jovelle Tamayo/The New York Times)
Boeing adding new space in Everett despite worker reduction

Boeing is expanding the amount of space it occupies in… Continue reading

Kyle Parker paddles his canoe along the Snohomish River next to Langus Riverfront Park on Thursday, May 8, 2025 in Everett, Washington. (Olivia Vanni / The Herald)
Tip to Tip: Kyle Parker begins his canoe journey across the country

The 24-year-old canoe fanatic started in Neah Bay and is making his way up the Skykomish River.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.