We have previously written that search warrants play a very important role in protecting the rights of criminal suspects. Before police can search a home for evidence of drug crimes or other illegal activity, they must convince a judge that there is probable cause for such a search.
Unfortunately, thousands of search warrants issued in Wisconsin are never scrutinized by a judge. Instead, they are approved by lower level court commissioners; lawyers appointed by circuit court judges. This practice, ongoing for more than three decades, is now being challenged in the state Supreme Court.
Criminal defense advocates say that allowing court commissioners to sign search warrants runs afoul of the Wisconsin Constitution. Furthermore, Judges in the state are elected, and thereby responsible to voters. By contrast, commissioners are appointed and are not held to the same level of accountability.
While the state legislature did statutorily give judges the ability to delegate authority, critics contend that this is unconstitutional. The state constitution does not make reference to commissioners and grants judicial power only to a unified court system.
Critics also point out that the search of a one's home by police without consent is one of the most intrusive things government can do. Therefore, the founding fathers believed that the responsibility to authorize such an intrusion should only be granted by judges, and only after probable cause has been demonstrated.
Now that the Wisconsin Supreme Court has agreed to review the practice, it is possible that the wholesale issuance of search warrants by court commissioners will be brought to a halt. This could certainly make it more difficult for police to obtain warrants.
Source: Milwaukee Journal-Sentinel, "State Supreme Court to decide who can issue search warrants," Bruce Vielmetti, Sept. 26, 2011