Neutral and Detached Magistrate

• Jurisdiction: Maryland

III. Neutral and detached magistrate

A warrant can be issued only by a neutral and detached decision maker, often referred to as a "magistrate." The "magistrate" may be any judicial officer who is authorized to issue warrants. Johnson v. United States, 333 U.S. 10, 13 (1948).

In Thompson v. State, 192 Md. App. 653 (2010), the Court of Special Appeals stated: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Rather, it requires that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Id. at 673-74 (internal quotations omitted).

A. Executive branch is not neutral and detached

A neutral and detached magistrate must be a member of the judicial branch. Executive branch personnel cannot be neutral and detached magistrates under the Fourth Amendment because their duty and responsibility is to enforce, investigate, and prosecute. See United States v. U.S. Dist. Ct. for E. Dist. of Mich., S. Div., 407 U.S. 297, 317 (1972).

In Wood v. State, 185 Md. 280 (1945), the Court of Appeals held: "The question of probable cause must be determined by the judge, not by the applicant for the search warrant. But in making this determination, the experience and special knowledge of police officers who are applicants are among the facts which may be considered." Id. at 286 (internal citations omitted). The duty of law enforcement officers does not include neutrally reviewing whether there is probable cause and particularity. United States District Court, 407 U.S. at 316.

In Coolidge, 403 U.S. at 450, the state attorney general, acting as a justice of the peace, issued the warrant. At that time, the attorney general was personally in charge of all police activities related to the murder investigation and later served as the lead prosecutor. Id. at 451. The Supreme Court held that the search warrant was not issued by a neutral magistrate, considering the attorney general's role in the investigation and prosecution. Id.

B. Judicial branch is presumptively neutral and detached

1. Direct, personal, substantial, and/or pecuniary interest renders the magistrate non-neutral

A judicial officer is rebuttably presumed to be neutral. However, a magistrate who benefits financially from the issuance of a warrant is not neutral. In...