Electronic Warrants in Hillsborough County, Florida
Update on E-Warrants on August 19, 2016:
Hillsborough’s New Electronic Warrants Should Speed Up Justice – During the week of August 15, 2016, the Hillsborough Circuit Court launched an e-warrant pilot program. The program allows the on-call judge to log on to a secure site and view a warrant right away – the moment that it is uploaded into the system.
In a violation of probation case, it means the judge can get an arrest warrant electronically processed so the person sitting across from clerk can be served with the warrant immediately. The e-warrant system in Hillsborough County is being launched as a pilot program. Only a small group of detectives from the Hillsborough County Sheriff’s Office will be using the new system, but eventually, every agency in the county will be able to use it.
At this time, the new pilot program is not available to Traffic Homicide Investigators requesting a search warrant for blood in a DUI with death or serious injury case in Hillsborough County, FL.
The rest of this article questions why electronic warrants sent by email are not being used in traffic homicide investigations for forced blood draws until the new pilot program is expanded county-wide.
Original Article on e-Signing the e-Warrant in Hillsborough County, FL
The United States Supreme Court in Missouri v. McNeely, 569 U. S. ___ (2013), considered whether exigent circumstances would exist for a DUI-related forced blood draw because of the technological “advances in the last 47 years since Schmerber was decided that allow for more expeditious processing of warrant applications.”
Even before Fla. Stat. Ann. § 933.07 was amended in 2013 to expressly allow electronic warrants and electronic signatures in Florida, police officers in Palm Bay, expedited the warrant process by emailing an affidavit to the judge and then video conferencing with the judge via Skype. See Palm Bay Florida Police, Innovative Policing Creating a Safer Community (2011).
Law enforcement officers acknowledged that the “process takes an average of less than thirty minutes in comparison to several hours it would have taken using traditional means.”
It is important to remember that the Florida legislature had already enacted the “Electronic Signature Act of 1996,” which specifically provides that “[u]nless otherwise prohibited by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature.” Section 668.004 (Fla. Stat. 2003) indicated a clear acceptance of this alternative signature form.
668.004 Force and effect of electronic signature.—Unless otherwise provided by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature.
The Florida Supreme Court, in In re Amendments to the Rules of Judicial Administration-Rule 2.090, 681 So.2d 698, 700 (Fla. 1996), stated its intention to “cooperate with the Secretary of State in implementing any electronic signature processes and procedures in the court system.”
Most importantly, on July 1, 2013 (just a few months after the McNeely decision), legislation in Florida took effect which allowed:
- officers in the field could e-sign the warrant application;
- the signature could be sworn to by another officer at the scene;
- judges could send and receive an e-warrant by any reliable electronic means (which would include e-mail); and
- judges could e-sign the warrant;
- the warrant became effective the moment it was e-signed by the judge.
After July 1, 2013, no jurisdiction in Florida can claim that electronic warrants don’t exist in their jurisdiction because it is expressly allowed under Florida law and much easier than the old fashion ways of getting a warrant.
Judges Can Sign an Electronic Warrant in Florida
As of July 1, 2013, the statute was amended so that Florida judges are expressly authorized to sign an electronic warrant (which includes a warrant send via e-mail or any other reliable electronic means).
As explained in 14A Fla. Jur. 2d Criminal Law – Procedure Section 717:
§ 933.07(3), Fla. Stat., as added effective July 1, 2013, provides that a judge may electronically sign a search warrant if the requirements of §§ 933.07(1), (2), Fla. Stat. are met and the judge, based on an examination of the application and proofs submitted, determines that the application: (§ 933.07(3), Fla. Stat.):
(a) Bears the affiant’s signature, or electronic signature if the application was submitted electronically. (§ 933.07(3)(a), Fla. Stat.).
(b) Is supported by an oath or affirmation administered by the judge or other person authorized by law to administer oaths. (§ 933.07(3)(b), Fla. Stat.).
(c) If submitted electronically, is submitted by reliable electronic means. (§ 933.07(3)(c), Fla. Stat.).
Florida Judges Can Attach an Electronic Signature to the Search Warrant
As of July 1, 2013, the statute was amended so that Florida Judges are expressly authorized to sign an electronic warrant with an electronic signature. 14A Fla. Jur. 2d Criminal Law – Procedure Section 717 explains that:
§ 933.07(4), Fla. Stat., as added effective July 1, 2013, provides that a search warrant shall be deemed to be issued by a judge at the time the judge affixes the judge’s signature or electronic signature to the warrant. Furthermore, it provides that the term “electronic signature” has the same meaning as provided in § 933.40, Fla. Stat.
The Definition of an Electronic Signature in Florida is Broad
What is an electronic signature? Well, when I file pleadings in criminal cases, instead of using a pen and ink to sign the document, I just type in “/s/____________” plus my name electronically. And that is all that is required for a judge attaching an electronic signature to an e-warrant in Florida.
The Florida Legislature created a broad definition to cover any electronic signature of a judge on a search warrant. For the electronic warrant statute in Florida, the definition of an electronic signature is set out in § 933.40, Fla. Stat., which provides:
(d) “Electronic signature” means any letters, characters, symbols, or process manifested by electronic or similar means and attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
That definition for an electronic signature includes typing into the document “/s/_____________” followed by the judge’s name.
No Legitimate Reason to Drive the Warrant to the Judge’s House
Also, on July 1, 2015, the Florida Legislature created F.S. 117.10 which authorizes the affiant to be sworn in while at the crash scene and to add an electronic signature to the warrant application while still at the scene.
It is important to note that F.S. 117.10 expressly includes “traffic accident investigation officers and traffic infraction enforcement officers” as qualified to administer oaths when engaged in the performance of official duties.
One Officer Can Get the Warrant While Another Gets the Blood Drawn
Florida law does not require that the officer seeking the warrant must be the same officer that serves the warrant for the forced blood draw, especially when the officer that will serve the warrant is actually mentioned in the warrant.
So in a traffic homicide case, one officer needs to do the following:
- Draft the application and proposed warrant and mention the officer designated to actually serve the warrant by taking the Defendant for a forced blood draw;
- Attach an electronic signature to the application to be verified by another officer under F.S. 117.10;
- E-mail the warrant application and warrant to the judge;
- Be sworn in by the other officer prior to talking to the judge on the phone if the judge has any questions about the warrant; and
- Wait for the judge to e-mail back the warrant with either an e-signature or with pen and ink.
At the moment the judge attaches a signature or electronic signature the warrant is valid under § 933.07(3) and can be served by the affiant or another officer mentioned in the warrant.
This process is extremely effective because it often takes some time to transport the defendant to the facility where the blood will be drawn.
Electronic Warrants Existed in Hillsborough County Since July 1, 2013
As of July 1, 2013, the proper procedure for obtaining a warrant for a forced blood draw with probable cause that a person committed a DUI with serious bodily injury or death was to either drive to the judge’s house to get the warrant signed or to send the warrant to the duty judge by a reliable electronic means which would include e-mail.
It doesn’t matter whether the Thirteenth Judicial Circuit has an updated warrant procedure for all other types of warrants. Nothing prohibits a judge from reviewing an electronic warrant after hours via email in a case seeking a forced blood draw after a DUI death or serious bodily injury investigation.
After the McNeely decision, law enforcement agencies across the county quickly started using these simple technologies that required no technological competence on the part of the recipient beyond being able to open an email, and typing “/s/________.” It is also easy to use a program like DocuSign or Adobe to attach an e-signature.
Judges have the Technological Competence to E-Sign
The Bar Board of Governors, at its July 24 meeting in Coral Gables, approved an amendment to a comment in the Florida Bar Rules to explain that lawyers should have technological competence necessary to protect clients’ interests and necessary for their areas of practice. See Propose Bar Rule on Technological Competence.
Since electronic warrants are expressly authorized under Florida law, traffic homicide investigators, prosecutors who handle traffic homicide cases, and judges who are on jury duty after hours, should all have the technological competence necessary to send or receive an email and attach an electronic signature to a document since it is necessary for their area of practice.
For years, judges in Hillsborough County have been routinely attaching their electronic signature to all kinds of orders issued every day. No one can deny that judges possess the technical competence necessary to simply open the warrant in a Word document, type in “/s/_____________” followed by their name electronically to the document, save the document, and email it back to the sender.
Judges can also just print out a search warrant emailed to them, sign it with pen and ink, take a picture of it with their cell phone, and send the picture electronically back to the officer in the field.
If you think about it for a few minutes, it is easy to imagine a dozen different ways to use modern technologies to send a warrant electronically from one place to another with e-signatures attached to the final version.
Prosecutors Knew that Electronic Warrants Existed in Hillsborough County in 2013
The State Attorney’s Office in Hillsborough County (as well as the other State Attorney’s Offices throughout Florida) were certainly aware of these statutes and provisions and the Florida Legislature’s efforts to make electronic warrants available after Missouri v. McNeely.
Through several public record request, we have learned that on October 1, 2013, an Assistant State Attorney in the Thirteenth Judicial Circuit sent an email to the General Counsel for the Thirteenth Judicial Circuit, requesting that court administration officially set up formal procedures to recognize the new requirement that electronic warrants via email should be used in forced blood draws in DUI death or serious bodily injury case.
The email from the Assistant State Attorney provided:
We would like to establish procedures that give law enforcement and judges the ability to electronically sign a search warrant. This will be helpful when a search warrant is needed quickly, and when the circumstances make it difficult for law enforcement to meet with the judge in a timely manner. We think that that revision to F.S. 933.07 would allow a procedure where the affiant could email the affidavit and search warrant to the judge, and the judge could question the affiant over the phone. The affiant could be placed under oath by a notary or, pursuant to F.S. 117.10, by another law enforcement officer. After being sworn by a qualified person, the judge could question the affiant to verify the affidavit and ask any questions the judge might have.
If we set up a procedure that everyone is comfortable with, we might be able to handle search warrants more quickly, efficiently and conveniently. My suggestion to law enforcement is that we initially try this on the DUI cases where they have been advised to seek search warrants in light of Missouri v. McNeely. If it works well and nobody has any legal concerns, we could expand it to the other cases.
We would need to iron out the details to comply with the statutory requirements, such as the method of providing an electronic signature, both by the affiant and the judge. One suggestion that has been made is that the duty judge have a secure laptop for this purpose. Please let me know what you think, and we are open to any suggestions.
Mike (Assistant State Attorney in Hillsborough County)
Although this email was sent on October 1, 2013, instead of just “ironing out the details,” the State Attorney’s Office now argues in court that electronic warrants do exist in Hillsborough County, FL. The State has to argue e-warrants don’t exist. Otherwise, their claim of exigent circumstances would be even more absurd.
The only solution to this problem is for the State Attorney’s Office to help train law enforcement officers in the field to secure an e-warrant in a timely manner. Florida Highway Patrol will need the most help. The State Attorney’s Office should be encouraging these officers to send an electronic warrant for a forced blood draw via email to the judge in any DUI-related death or serious bodily injury case. It is time for the State Attorney’s Office to stop encouraging officers in the field from relying on an exigent circumstances exception in these types of case.
The State Attorney’s Office should be encouraging these officers to send an electronic warrant for a forced blood draw via email to the judge in any DUI-related death or serious bodily injury case. It is time for the State Attorney’s Office to stop encouraging officers in the field from relying on an exigent circumstances exception in these types of case.
When warrants aren’t used in forced blood taking in Florida, the exclusionary rule will often lead to the suppression of the blood. The exclusionary rule is the only thing that encourages law enforcement officers in Traffic Homicide cases to use the tools available to them. Traffic Homicide Investigator need to draft a template that they know how to use and have it ready for their next shift.
Are Judges in Your County in Florida e-Signing the e-Warrants?
So what about your jurisdiction?
Are traffic homicide investigators getting a search warrant the old-fashioned way by driving to the judge’s house after hours, getting an e-warrant, or manufacturing their best “exigent circumstances” argument?
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