Officers’ Applications for Investigative Orders and the Unauthorized Practice of Law

May a law enforcement officer submit an application for an investigative order to a judicial official, or does that constitute the unauthorized practice of law? The answer depends on the type of order sought, as a letter of caution issued last week by the State Bar’s Authorized Practice Committee reveals.

The legal framework. In general, only members of the State Bar may practice law. G.S. 84-4. Practicing law is defined by statute to include “performing any legal service for any other person, firm or corporation,” and specifically to encompass “the preparation and filing of petitions for use in any court.” G.S. 84-2.1.

While those provisions might seem to prohibit officers from seeking investigative orders, there is specific statutory authorization for officers to seek certain types of orders, such as for the installation of pen registers. G.S. 15A-262 (stating that “[a] law enforcement officer may make an application”). Officers may also apply for search warrants, even after charges have been brought, as I noted in this prior blog post.

By contrast, it is clear that an officer may not seek a nontestimonial identification order, G.S. 15A-271 (providing that an order may be issued “upon the request of a prosecutor”), or a wiretap order, G.S. 15A-291 (requiring the Attorney General or his or her designee to seek an order).

The State Bar’s letter. The letter is here. It is addressed to an officer who prepared and presented to a judge a motion “asking for an order to compel third parties to disclose financial records” concerning a criminal investigation. The letter indicates that “charges were already pending.” It is my understanding that the matter was referred to the State Bar by a defense attorney involved in the case.

The officer appears to have sought and obtained an order under the North Carolina Financial Privacy Act, G.S. 53B-1 et seq., and specifically under the court order provisions of G.S. 53B-5. The State Bar determined that the Act – which does not expressly set forth who may seek a court order – does not “provide an exception for a law enforcement officer to file a motion with the court for these records after charges are pending.” It noted that the officer “did not serve defense counsel or the defendant” with the order as required by the Act. And it noted that the Financial Privacy Act allows an officer to obtain a search warrant for records, so the officer had more appropriate avenue to obtain the records in question. G.S. 53B-4(3). The State Bar concluded that “there is probable cause to believe that [the officer’s] activities . . . violated the unauthorized practice of law statutes,” and therefore issued a Letter of Caution to the officer.

Although the unauthorized practice of law is a misdemeanor, G.S. 84-8(a), and may be enjoined, G.S. 84-7, the letter indicates that the State Bar is not planning to pursue further remedies “at this time.”

What about other kinds of applications and petitions? By its terms, the letter is “limited to the narrow circumstances presented,” which involved (a) a pending case, and (b) a motion under the Financial Privacy Act. When those circumstances are present, it would be prudent for an officer to enlist the assistance of a prosecutor if a court order is needed. But what about other types of investigative orders that an officer might seek?

The letter doesn’t seem to cast any doubt on the propriety of officers applying for search warrants or pen register orders. In fact, it expressly acknowledges the statutory authority of officers to seek such orders.

I suppose that it might call into question whether officers can seek orders under the federal Stored Communications Act, 18 U.S.C. § 2701 et seq. But I still tend to think that an officer is a “governmental entity” under the Act, and so is statutorily authorized to seek such orders. 18 U.S.C. § 2703(d) (stating that a court order “shall issue only if the governmental entity” meets the requisite standard); 18 U.S.C. § 2711(4) (defining “governmental entity” to include any “department or agency of the United States or any State or political subdivision thereof”); In re Application or the U.S., 102 F.Supp.3d 884 (N.D. Miss. 2015 (noting that “§ 2703 allows officers to obtain an order”); State v. Reynolds, 2011 WL 2536472 (Conn. Super. Ct. June 1, 2011) (unpublished) (“[S]tate and local law enforcement agencies are included within the meaning of ‘governmental entity’ under the [Stored Communications Act].”); United States v. Mullinix, 2006 WL 8435365 (E.D. Pa. Jan. 19, 2006) (“Federal law enforcement agents are included within the meaning of ‘governmental entity’ in 18 U.S.C. § 2703.”).

The principal effect of the letter would seem to be limiting officers’ ability to seek investigative orders under the general authority of In re Superior Court Order Dated April 8, 1983, 315 N.C. 378 (1986) (holding that a superior court judge has the inherent authority to require a third party to produce records relevant to a criminal investigation when presented with “reasonable grounds to suspect” that the records are relevant). Of course, it was a prosecutor who sought the order issued in that case, and I don’t know how common it is for officers to seek this kind of order on their own, so the practical impact may be small. It is worth noting that the court of appeals recently discussed the proper procedures for proceedings of this kind in State v. Santifort, __ N.C. App. __, 809 S.E.2d 213 (2017) (emphasizing that applications must be supported by affidavits and filed as special proceedings).

If there are other kinds of petitions or applications that officers regularly file and that folks think may be impacted by the State Bar’s letter, please post a comment. I’d be interested to hear about them.

Update 5/8/18: An officer asked by email about applications for court orders authorizing the installation and monitoring of GPS tracking devices. I am torn about that. On the one hand, GPS orders are usually obtained before a case is pending, and the existence of a pending case was important to the State Bar’s analysis. Further, GPS orders are similar to search warrants in that they are used to authorize an intrusion on a suspect’s constitutional expectation of privacy.

On the other hand, being similar to a search warrant is not the same thing as being a search warrant. GPS tracking orders also may include provisions like time and geographic limits that may be more complex or variable than the provisions in a typical search warrant. Finally, there is no express statutory authority for an officer to seek a GPS order from a judge, and the State Bar focused in part on the existence or non-existence of express statutory provisions or exceptions that would allow an officer to petition a court.

In the short term, the most cautious approaches may be (1) involving an ADA in these applications, or perhaps (2) seeking a “GPS search warrant” that includes authorization not to follow the normal procedures associated with execution like announcing your presence and providing a copy of the warrant to the suspect. (I noted the poor fit between the search warrant statutes and GPS tracking in this prior post.) In the long term, it may be helpful to have legislative clarification of this issue.