Category Archives: Neutral and detached magistrate

MD: Appointment of state trial judges not 4A violation; they have statewide jurisdiction for SWs

Maryland trial judges have statewide jurisdiction for search warrants. Thus, the assignment of judges in Baltimore by the Chief Judge of the state high court violated nothing under the Fourth Amendment. (Without citing Virginia v. Moore. And, even if it … Continue reading

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D.D.C.: DC USMJ can issue SW for iPhone in Texas in domestic terrorism investigation

A USMJ in the District of Columbia has authority to issue a search warrant for an iPhone in Texas in a domestic terrorism investigation tied to the January 6th attack on the Capitol. In the Matter of the Search of … Continue reading

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N.D.Ga.: Former AUSA as USMJ not automatically recused from hearing motion to suppress

The USMJ hearing the motion to suppress in this case was earlier an AUSA in the office prosecuting it. She had nothing to do with this case, so recusal is not required. (“Neutral and detached” never mentioned.) United States v. … Continue reading

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OH: Plastic baggie caught in bookbag zipper wasn’t “immediately apparent” for plain view

“While executing an arrest warrant, police discovered a closed bookbag with a plastic baggie stuck in its zipper. Without obtaining a search warrant, they opened the bookbag and discovered illegal drugs. The question for us is whether the warrantless search … Continue reading

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OH4: Allegation of delay in SW execution until def was present didn’t make it unreasonable

The officers’ delay in executing the search warrant for defendant’s property until he was there so he could be searched, too, was not unreasonable. The warrant had not gone stale by the time it was executed. State v. Alexander, 2022-Ohio-1812, … Continue reading

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MT: Magistrate’s jurisdiction for SW is over place it could be found, not crime

The geographic limitation on magistrates issuing search warrants applies to the location of the evidence sought, not the location of the crime. State v. Grussing, 2022 MT 76, 2022 Mont. LEXIS 319 (Apr. 12, 2022). The telecommunication records here could … Continue reading

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D.Guam: Issuing magistrate’s later recusal for knowing target’s dad doesn’t show he wasn’t neutral and detached

After search warrant was issued, the issuing magistrate recused from the rest of the matter because defendant’s father was a longstanding employee of the court. There apparently was no relationship with defendant. This did not present a constitutional problem for … Continue reading

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MT: Lawyer suspended for telling client to refuse to cooperate in execution of a SW

A lawyer telling his girlfriend-client to refuse to cooperate in DUI blood draw by search warrant is suspended for 30 days. Multiple officers were ultimately involved with a restraint chair brought in before she relented. The lawyer was also convicted … Continue reading

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UT: Material change in circumstances found before warrant served should go back to magistrate, but this wasn’t material

Defendant was suspected of attempted video voyeurism, and a search warrant was issued for his gray cell phone. Shortly thereafter, it was discovered that was the wrong phone because it was a white one. Under plain error review, the warrant … Continue reading

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SC permits SW issuing judges to testify to PC. But why? It’s a question of law.

Search warrant issuing judges can testify in South Carolina to why they found probable cause. [Why? Probable cause is a question of law everywhere else in the United States.] The omission of some information didn’t change the probable cause analysis, … Continue reading

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WV: Family court judge can’t conduct searches for marital property; search and seizure is an executive function

In a judicial discipline case, a family court judge who had a 20 year practice of searching parties’ homes for marital property is censured. Search and seizure is an executive function, not a judicial one. This is just inappropriate. In … Continue reading

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PA: No REP in data moving back and forth over a (nearly) public wifi connection where user agreement told users that

Defendant connected to the wifi at his college, and he was aware of the computing access policy that said that he had no Fourth Amendment reasonable expectation of privacy in the information that moved back and forth over his connection. … Continue reading

Posted in Cell site location information, Computer and cloud searches, Digital privacy, Neutral and detached magistrate, Reasonable expectation of privacy | Comments Off on PA: No REP in data moving back and forth over a (nearly) public wifi connection where user agreement told users that

CA1: Burden on “neutral and detached magistrate” is on defense, and here the showing was speculative

The search warrant issuing magistrate’s husband was a doctor and a potential victim of a DoS cyberattack at a children’s hospital in Boston, allegedly perpetrated for personal reasons. The claim the USMJ was not neutral and detached is speculative. “But … Continue reading

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NY3: Issuing magistrate misstating his judicial position not reason to suppress

The issuing magistrate’s misnaming his judicial position (city judge v. acting county judge) didn’t make the search warrant void. People v. Mayhew, 2021 NY Slip Op 01807, 2021 N.Y. App. Div. LEXIS 1924 (3d Dept. Mar. 25, 2021). A “Tag … Continue reading

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CA6: Judge issuing SW isn’t barred from conducting trial

The Michigan state courts’ conclusion that the judge who issued a search warrant was not barred from hearing the trial was based on precedent, the judge didn’t remember the search warrant, and it is not an unreasonable application of existing … Continue reading

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D.S.D.: Issuing magistrate shown not to be neutral and detached in issuing SW wholly lacking in PC

A tribal judge was not a neutral and detached magistrate, and the good faith exception did not apply. The application for the search warrant was technically deficient in both form (lacking a prosecutor’s signature) and substance (completely lacking probable cause), … Continue reading

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CA11: Under GA law, court clerk qualified as “neutral and detached magistrate” for arrest warrants

Plaintiff “raised a section 1983 claim under the Fourth Amendment alleging that McCord did not have legal authority to issue the warrant. The district court concluded that Georgia law authorized McCord to issue warrants. Applying the Supreme Court’s two-part test … Continue reading

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CA6: No 4A right to recording testimony that supplements affidavit, but there’s got to be a record

The state judge who issued the search warrant was a neutral and detached magistrate under the Fourth Amendment. Whether the magistrate had state law jurisdiction is a kind of circular argument under state law, but the Fourth Amendment only requires … Continue reading

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AZ: Challenging neutral and detached magistrate requires showing “systemic or patent partiality”

“In the appeal, Macias argued against the application of the good-faith exception, claiming that the magistrate’s conduct showed he had abandoned impartiality or was unable to act in a neutral and detached manner. … However, to warrant exclusion of the … Continue reading

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OH5: Trial judge signing SW wasn’t ground to recuse

The trial judge having signed a search warrant wasn’t grounds to recuse at trial. Defense counsel wasn’t ineffective for not raising it. The validity of the search wasn’t even an issue. State v. Ray, 2020-Ohio-1265, 2020 Ohio App. LEXIS 1197 … Continue reading

Posted in Arrest or entry on arrest, Issue preclusion, Neutral and detached magistrate | Comments Off on OH5: Trial judge signing SW wasn’t ground to recuse