Law enforcement officers seeking a judge’s signature on an arrest or search warrant must submit criminal affidavits to the District Attorney’s Office for review before the documents are sent to a judge, per an April 15 administrative order issued by 6th Judicial District Chief Judge Jeffrey Wilson.
The order applies to all criminal affidavits for an arrest warrant, search warrant, order for production of records and order for non-testimonial identification.
In the last several years, prosecutors have reviewed affidavits only at the request of law enforcement.
However, occasionally judges have received affidavits that are defective and do not adequately demonstrate the necessary probable cause, Wilson said.
“We can't be in the position of helping (either side),” he said.
Rather than have to reject defective affidavits or ask questions and lead officers to amend the document, judges shouldn’t receive inadequate affidavits at all.
Wilson said that typically, defective affidavits are the product of an oversight or “something they didn't even think of or didn't realize they had to put in.”
In nearly every other district in the state, prosecutors review affidavits before they are seen by a judge. The practice had been standard in the 6th Judicial District, but ceased at some point in the last several years.
District Attorney Sean Murray called the order a “really good thing.”
“I think we’ll not only improve the quality of the affidavits that are being submitted to the courts, but I think it will also improve the quality of our relationship with law enforcement because we'll be more hands-on with cases at the front end,” Murray said.
The order has created an additional five hours of work weekly for Murray’s office, and prosecutors are taking turns on a two-week schedule carrying a phone for reviews of after-hours emergency affidavits, of which there have been two or three per shift.
Prosecutors have sent warrants that do not sufficiently establish probable cause back to law enforcement since the order took effect.
Despite the increased workload on the front end of cases, the review process gives prosecutors a stronger position when they face motions to suppress, given that the legality of arrest affidavits are less likely to be called into question.
“It provides greater protection for the public's constitutional rights knowing that there's an extra layer of review, protecting them from unreasonable searches and seizures,” Murray said. “… So I do think that the public will benefit from the DA's office exercising that oversight on law enforcement.”
rschafir@durangoherald.com
