Investigative Court Orders

I am teaching today, so I only have time for a quick post on a subject that crops up from time to time: how can the state compel access to documents it wants or needs to review during a criminal investigation? In the federal system, the grand jury can subpoena documents in its investigative capacity, but since North Carolina grand juries don’t generally have investigative power, what’s the state to do?

There are two options. First, if the investigation has developed to the point that there is probable cause to believe that the documents are evidence of a crime, the investigating officer can obtain a search warrant. Oftentimes, such search warrants are executed cooperatively; that is, the officer presents the warrant to the entity holding the documents (say, a bank) and the entity then searches itself for records covered by the warrant and provides them to the officer.

But sometimes the state wants or needs to review documents, but it doesn’t yet have probable cause. In that case, a prosecutor may seek a court order from a superior court judge. If the prosecutor can establish “reasonable grounds to suspect that a crime has been committed, and that the records sought are likely to bear upon the investigation of that crime,” then the judge may issue an order giving the state access to the records. See In re Superior Court Order Dated April 8, 1983, 315 N.C. 378 (1986).

There are special procedures to follow for certain types of evidence, such as phone records, but the procedures described above work for most things: bank records, school records, employment records, and the like. It’s interesting how different jurisdictions address the same issue in such different ways.