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West Virginia Law Review

Article Title

Warrant Nullification

Document Type

Article

Abstract

Police officers execute thousands of search warrants in the United States every year, often looking for drugs in people's homes. Many search warrants are executed by militarized "dynamic entry" teams who violently conduct raids late at night with little or no warning, guns drawn. These raids have killed and injured hundreds of people nationwide-not just suspects but also officers and bystanders. Protests erupt in response, the community divides, and trust in institutions crumbles.

Legislative and executive policy can reduce the violence of search warrant executions, but could there also be a judicial option? This Article explores one such option: nullification. Like other actors in the criminal justice system, judges can nullify the law, selectively turning off the punitive and violent machine of criminal justice by refusing to ratify militarized law enforcement action.

Judges have the power to reduce the violence and disorder caused by militarized police raids by simply denying search warrant applications even if there is probable cause to approve them. This Article defines this judicial power of warrant nullification, assesses the violent toll of search warrants, and proposes three pragmatic (as opposed to political or partisan) bases for radical judicial action: judicial independence, harm reduction, and community stability.

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