Views from the Bench
| Publication year | 1991 |
| Pages | 22 |
The Magisterial Role in the Search Warrant Application Proceeding
Lynn W. Davis, Judge.
PREFACE
A paper of this length cannot possibly be comprehensive. There has been no attempt, for example, to address applications for telephonic intervention (line tapping/pen registers), warrants for bodily intrusions, applications for seizure of obscene materials, problems arising with respect to the seizure of electronically maintained, computerized business records and data or to extensively treat telephonic search warrants. Each of these areas poses unique problems and challenges and requires deliberate and enhanced scrutiny and in some instances "scrupulous exactitude." Nor has there been an attempt to present exhaustive case law. The primary focus of this paper is to suggest issues of concern and areas of caution. The suggestions have particular applicability in the standard, run-of-the-mill search warrant application setting. Admittedly, these observations benefit both from judicial hindsight and appellate review.
I CONSTITUTIONAL AND STATUTORY CONSIDERATIONS
The Fourth Amendment to the U.S. Constitution provides:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.
Article I, §14 of the Utah Constitution parallels the language of the Fourth Amendment, providing:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.
Whether protections afforded under Article I, §14 expand beyond those afforded under the Fourth Amendment is subject to considerable debate and is the focus of emerging and developing case law[1]
The Utah Code of Criminal Procedure describes, with some particularity, the process of search warrant issuance, restricting issuance exclusively to magistrates.[2] Unfortunately, the search warrant procedure has rarely been an integral part of judicial training and in-depth judicial discussion. Utah's statutory guidelines are limited in scope and a magistrate is well-served to keep abreast of developing case law for additional instruction and direction.
II THE ROLE AND DUTY OF THE MAGISTRATE
A. The Role and Duty
The duty of the magistrate is to independently determine whether the bases relied upon by law enforcement in the application seeking authority to search, as well as the scope and the nature of the search, meet constitutional and statutory requirements. The magistrate must be neutral, detached and impartial in this process. It is ex parte in nature and there is no room for the magistrate to assume an adversarial or partisan role. The magistrate should take all reasonable measures to preserve impartiality.
The purpose of the warrant requirement is to prevent police from hasty, ill-advised, or unreasonable actions in the often competitive and ever-difficult enterprise of ferreting out crime.[3]In that respect, the search warrant proceeding is a preventive measure. But there is danger if it becomes over-preventive. As one scholar has noted, the process requires a reconciliation of two potentially conflicting elements: "providing a warrant proceeding that protects citizens from illegal searches and seizures, while keeping the proceedings speedy and flexible enough to induce police officers to seek warrants."[4]
B. Grounds for issuance
Chapter 23 of Title 77 of the Utah Code embodies the requirements and restrictions of the constitution. Utah Code Ann. §77-23-2, specifically provides that property or evidence can only be seized pursuant to a search warrant if there is probable cause to believe that the item to be seized:
(1) Was unlawfully acquired or is unlawfully possessed;
(2) Has been used or is possessed for the purpose of being used to commit or conceal the commission of an offense; or
(3) Is evidence of illegal conduct.
In addition, the Utah Code sets forth conditions precedent to issuance in §77-23-3:
Conditions precedent to issuance.
(1) A search warrant shall not issue except upon probable cause supported by oath or affirmation particularly describing the person or place to be searched and the person, property or evidence to be seized.
(2) If the item sought to be seized is evidence of illegal conduct and is in the possession of a person or entity for which there is insufficient probable cause shown to the magistrate to believe that such person or entity is a party to the alleged illegal conduct, no search warrant shall issue except upon a finding by the magistrate that the evidence sought to be seized would be concealed, destroyed, damaged, or altered if sought by subpoena. If such a finding is made and a search warrant issued, the magistrate shall direct upon warrant such conditions that reasonably afford protection of the following interests of the person or entity in possession of such evidence:
(a) Protection against unreasonable interference with normal business; or
(b) Protection against the loss or disclosure of protected confidential sources of information; or
(c) Protection against prior or direct restraints on constitutionally protected rights.
C. Application of statutory and constitutional requirements
The search warrant process first requires a finding of extant particularized illegal activity, i.e., there must be an independent judicial determination that the property has been possessed, acquired, used or will be used for illegal activity or is evidence of illegal conduct. Without that finding, the inquiry is over. Next, there must then be a judicial appraisal of the sufficiency of the supporting affidavit for probable cause. That necessarily re-quires an independent judicial determination of the credibility of the information and an assessment of the reliability of the police affiant, the citizen informant, or the confidential police informant. Lastly, the magistrate must examine the scope and the nature of the search.
D. The Independent judicial determination of the probable cause
1. The probable cause standard
The finding of probable cause requires a determination, given all of the information in the supporting affidavit, that there is a fair probability that contraband or evidence of a crime will be found in a particular case.[5]In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court established a "totality of the circumstances" test for determining probable cause. The Court stated that "probable cause is a fluid concept turning on the assessment of probabilities in particular factual contexts." Gates, 462 U.S., at 232.
The determination of probable cause is based upon a common sense, nontechnical, practical assessment of the affidavit and the warrant. That determination, by definition, involves the discretionary appraisal of the issuing magistrate. The Utah Supreme Court addressed this very issue in the case of State v. Babbell, 770 P.2d 987 (Utah 1989), where it concluded:
The Fourth Amendment requires that when a search warrant is issued on the basis of an affidavit, that affidavit must contain specific facts sufficient to support a determination by a neutral magistrate that probable cause exists. State v. Nielsen, 727 P.2d 188, 190 (Utah 1986), cert, denied, 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d 758 (1987). The affiant must articulate particularized facts and circumstances leading to a conclusion that probable cause exists. Mere conclusory statements will not suffice. Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2333, 76, L.Ed.2d 527 reh'g denied, 463 U.S. 1237, 194 S.Ct. 33, 77 L.Ed.2d 1453 (1983). The magistrate's task is to make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him or her . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id., at 238, 103 S.Ct. at 2332; see State v. Espinoza, 723 P.2d 420, 421 (Utah 1986).
2. Judicial Inquiry
Does judicial duty require passivity in this process? Is judicial inquiry allowed? Utah law, case law and statutory, does not preclude legitimate magisterial inquiry. Nor does it specifically allow or encourage such activity. Utah case law has never addressed the issue and the statutes governing the issuance of search warrants are silent on this issue except for a brief reference in U.C.A. §77-23-4(2) (a). But the Supreme Court has addressed this issue. In the case of Franks v. Delaware, 438 U.S. 154, 168-169 (1978), the Court declared that a magistrate is allowed "to conduct a. . .vigorous hearing" including "an extended independent examination of the affiant and other witnesses." The Court similarly concluded in Gates, at 241, that "magistrates remain perfectly free to exact such assurances as they deem necessary. . .in making probable cause determinations." The Federal Rules of Criminal Procedure 41(c) likewise allow for examination of the affiant or witnesses.
Some scholars suggest that "the judicial officer has an obligation to investigate those areas of the affidavit that are vague, ambiguous, couched in conclusory terms or suggestive of alternative, non-criminal interpretations."[6] Frankly, if the warrant is that deficient, the magistrate should not hesitate to decline to issue. Certainly there is danger with inquiry; it may lead to judicial overreaching from a neutral, detached and objective role to that of advocate.
If a judge conducts extensive inquiry as to probable cause is...
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