Rejection of search-warrant pleas rare

Judge Deborah Bernini signs far more of them than her colleagues
2011-12-29T00:00:00Z 2014-09-05T15:26:26Z Rejection of search-warrant pleas rareKim Smith Arizona Daily Star Arizona Daily Star
December 29, 2011 12:00 am  • 

When detectives ask for search warrants while investigating felony crimes, they rarely get turned down by the 70 judges in Pima County who sign them.

And although the overwhelming number of search warrants are signed by a small circle of judges - Pima County Superior Court Judge Deborah Bernini alone signed more than the bottom 60 names on the list combined - the imbalance is likely due to judicial availability than a deliberate effort by police to be selective, said Richard Fields, Pima County Superior Court's presiding criminal judge.

"Some answer the phone more than others," Fields said.

Despite what Hollywood has led many to believe, Fields said police officers also don't go to judges' homes seeking search warrant approval, they don't ask judges to bend the rules, and they don't always get what they want.

To suggest otherwise is "demeaning," Fields said.

Giving someone permission to invade someone's personal space is an "ominous and awesome responsibility," Fields said.

"They have to have the goods or we turn them down," Fields said of police officers.

Between October 2009 and October 2011, local judges and court commissioners signed nearly 3,100 search warrant requests, giving local law enforcement officers permission to tap phones, seize property, investigate social media pages and get DNA, blood and urine from suspects.

Fifty-seven percent of the time, the officers were given the OK over the phone, and the rest were granted permission in person, at the courthouse.

No statistics are kept on how many search warrants are turned down annually, but Fields said the numbers are low because officers know what they have to have legally before they even approach a judge.

Pima County Superior Court Judge Deborah Bernini signed 24 percent of the 3,080 search warrants issued over the last two years.

"My numbers may be a sign of my own issues," Bernini said with a laugh.

Bernini routinely gets to work about 7 a.m., works through lunch and beyond 5 p.m. She also considers herself a homebody.

"I think it's more of a function of I always answer my phone," Bernini said. "It's not that I always grant them."

She knows many people probably believe judges are just a "rubber stamp" for law enforcement, but she believes judges honestly do listen carefully and make reasoned decisions as to whether officers have met their legal burden.

She suspects she turns down one request for every 25 or 30 she gets.

Anytime she gets a request from officers to search a suspicious-looking box being shipped across the country, she thinks about all of the boxes she's taped up and sent back East, Bernini said.

"It makes you pause," Bernini said.

"Box warrants at shipping businesses, cellphone warrants and Facebook-type warrants are a huge number of the warrants issued," Bernini said.

Probably one-quarter of the search warrant requests she signs nowadays are for cellphones, Bernini said. Officers routinely ask for permission to retrieve photos, texts and call histories from cellphones.

"I did my first Facebook warrant about three years ago and thought it was unique. It is now commonplace," Bernini said.

It is more common for judges to place restrictions on what officers can search for than to turn them down completely, Fields said.

Fields recalled one judge chuckling because his phone stopped ringing when it became apparent he would not let officers seize every electronic device owned by a suspect, but only those they had reason to believe had evidence on them.

Officers are given an alphabetical list of judges to call for search-warrant approval, said Pima County Sheriff's Deputy Dawn Barkman and Tucson police Sgt. Maria Hawke.

"Some detectives start at the top of the list and the first person they get is the person they talk to," Hawke said.

Other times, detectives will stop at Pima County Superior Court and go from chamber to chamber looking for one of the five or six judges on each floor, Hawke said.

It is less common for juvenile court judges and justices of the peace to sign felony search warrants simply because they are located in separate courthouses. Justices of the peace more commonly sign search warrants in misdemeanor cases, particularly in driving under the influence investigations.

Pima County Superior Court Judge John Leonardo has signed 32 search warrants over the last two years and was surprised to hear about the variances between the judges. Like the others, he suspects some judges are tougher to reach than others, especially after hours.

Pima County Public Defender Robert Hirsh suspects detectives know from experience which judges are the most approachable and friendly, but he doesn't think they are chosen because of their philosophical views.

Bernini is considered by defense attorneys, prosecutors and law enforcement officers to be "one of the more fair judges," Hirsh said.

"I don't think you can say Judge Bernini leans toward law enforcement," Hirsh said.

Having said that, Hirsh wishes more search warrants were challenged in court, but said it is tougher than it used to be to get evidence tossed out of court.

"There ought to be far greater scrutiny, but the case law has tightened up on search and seizures," Hirsh said. "Nowadays the tape recordings (of the conversation between the judge and the detectives) never even get transcribed."

Leading issuers

Felony search warrants issued in Pima County Superior Court:

Judge Deborah Bernini 753

Judge Jane Eikleberry 336

Judge Richard Fields 260

Judge Teresa Godoy 211

Comm. Sharon Douglas 200

Judge Michael Cruikshank 198

Judge Christopher Browning 164

Judge Kenneth Lee 90

Judge Richard Nichols 78

Judge Ted Borek 66

Remaining 60 officials, including Pima Justice Court 724

Total 3,080

Source: Pima County Superior Court

Contact reporter Kim Smith at 573-4241 or kimsmith@azstarnet.com

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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