In one judicial district in Utah, the courts did not keep copies of search warrants that were issued, and the target of the search was unable to get copies of the warrant or supporting papers for its issuance. He sued in state court (also under § 1983) and won. The Utah Supreme Court found no basis for withholding the records under state law and held that its inherent authority over the lower courts would be exercised to make them public. Anderson v. Taylor, 2006 UT 55, 2006 Utah LEXIS 149 (September 22, 2006):
[*P20] Finally, regardless of the statutory requiements, we conclude that the practice followed by the Fourth District Court is sufficiently troubling to warrant the imposition of this court’s “inherent supervisory authority over all courts of this state.” State v. Thurman, 846 P.2d 1256, 1266 (Utah 1993); see also State v. Wareham, 772 P.2d 960, 965 (Utah 1989) (invoking supreme court’s supervisory power to require bifurcation in the context of criminal trials); In re Criminal Investigation, 754 P.2d 633, 642 (Utah 1988) (recognizing that “[t]he courts’ inherent supervisory power is that which is necessary to protect the fundamental integrity of the judicial branch”). The policy of the Fourth District Court is sound only if we may confidently assume that law enforcement always acts with complete honesty, integrity, and competence. Unfortunately, it is much more likely that even the most honest and well-intentioned officer will occasionally make mistakes in handling, preserving, and filing the warrant documents. Were it not so, there would be no need for a warrant requirement at all.
[*P21] The issues raised by this petition are similar to those that confronted this court in In re Criminal Investigation. In that case, this court faced myriad challenges to the constitutionality of the Subpoena Powers Act. In re Criminal Investigation, 754 P.2d 633 at 636. Among those challenges was the claim that the Act failed to provide for adequate records of subpoenas issued pursuant to the Act. Id. at 644. While acknowledging that the Act did not include a provision expressly requiring the maintenance of investigatory records, the court relied on various provisions of the Act suggesting that the legislature had anticipated detailed record-keeping. Id. at 653. The court further noted that adequate records were necessary in order for the courts to fulfill their constitutional role of protecting against abuse of subpoenas issued under their authority. Id. The court then called upon its inherent supervisory authority to require that all investigations under the Act be fully documented and that “such documentation . . . be maintained by the district court authorizing the investigation.” Id.
[*P22] We adopt a similar approach here. Giving law enforcement sole custody of all affidavits and warrants up through the point where the warrant has been executed and a return filed is inherently problematic for at least two reasons. First, it leaves the court without any record of the subpoena or the materials supporting its issuance until after the subpoena is executed and a return filed. Second, it allows for the possibility that affidavits and other court records may be mishandled or even altered without detection. When the records upon which the magistrate acts in issuing a warrant are handled by persons other than court personnel prior to being filed with the court, the court has no basis for confidence in the accuracy, authenticity, or completeness of those documents. In the matter of warrants for the search and seizure of persons or property, more is required. We accordingly require that magistrates issuing search warrants retain in their custody copies of all search warrants issued, as well as the material supporting search warrant applications, rather than surrendering to law enforcement the only copies of such material.
[*P23] To ensure the integrity of our court records, we have concluded that the courts of this state must retain copies of all search warrants and supporting material. Nevertheless, we are without the information necessary to prescribe the particular procedures to be followed in maintaining and disclosing such records. n7 Those particulars are best addressed by study and examination in the context of our rule-making process. We therefore refer those particulars to our Advisory Committee on the Rules of Criminal Procedure for further consideration.
…
CONCLUSION
[*P26] Utah statutes governing the issuance of search warrants contemplate that the issuing court will maintain reliable records of the warrants and the documents supporting them. We accordingly grant in part Anderson’s petition for extraordinary writ and call upon our supervisory power over the courts of this state to require that they retain copies of all warrants issued and the documents supporting the requests for such warrants. We leave to our rule-making process the particular mechanisms for implementing this requirement and managing these records.
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
