§ 10.02 The Warrant Application Process

• Jurisdiction: North Carolina

§ 10.02 The Warrant Application Process⁵⁷

An investigating officer who seeks a warrant prepares an application for a search (or arrest) warrant; an affidavit sworn under oath or by affirmation setting out the facts supporting the warrant; and the warrant itself.⁵⁸ Often, the officer then seeks approval of the documents from a police supervisor or, in some jurisdictions, an assistant prosecutor.

Once approval is obtained, the officer goes to the courthouse or, if necessary, to the home of a judge.⁵⁹ When choices are available, such as in large urban areas, judge-shopping is common: the officer seeks a judge known to issue warrants liberally.⁶⁰During the daytime, the officer ordinarily presents the application to the judge while he is on the bench or in chambers, during a court recess.

Ideally, the judge carefully reads the officer's documents and questions him regarding any ambiguities in the materials. When the application includes hearsay information, which is common, the judge should be expected to question the officer, if needed, to determine whether the informant's basis of knowledge was good and his veracity high. Although it is exceedingly rare, the judge may require the informant to be identified or produced, if necessary to the probable cause determination.⁶¹

In practice, warrant proceedings are brief. According to one study, the average time taken by a reviewing magistrate to consider an application was two minutes, 48 seconds; the median time was two minutes, 12 seconds. Ten percent of all applications were reviewed in less than one minute. Fewer than 10 percent of all applications were rejected.⁶²

After a warrant is approved and signed by the judge, he gives the original warrant and a copy to the officer, and retains a copy and the supporting documentation. Frequently, a clerk will establish a file for the case. After execution of the warrant, the officer files a "return" with the court, indicating when the search occurred and what, if anything, was seized.

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Notes:

^[57] See generally Laurence A. Benner & Charles T. Samarkos, Searching for Narcotics in San Diego: Preliminary Findings from the San Diego Search Warrant Project, 36 Cal. West. L. Rev. 222 (2000); Richard Van Duizend et al., The Search Warrant Process: Preconceptions, Perceptions, and Practices (National Center for State Courts ed. 1984); Abraham S. Goldstein, The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U. L. Rev. 1173 (1987).

^[58] Increasingly, police...