3.5.3 "neutral and Detached" Magistrate

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

3.5.3 "Neutral and Detached" Magistrate

All warrants must be issued by a "neutral and detached" magistrate. However, it is not necessary that the magistrate be a judge or a lawyer. A municipal court clerk may issue warrants so long as that clerk is independent and capable of determining probable cause.⁹⁸

Neutrality will be determined by the specific circumstances. For instance, the Court has held that a magistrate who has a financial interest in issuance of the warrant or who participates directly in law enforcement is not an acceptable issuing magistrate. A magistrate receiving a five-dollar fee conditioned upon the issuance, but not the...