A former deputy public defender was now a judge. On his first day in office, he was presented with a search warrant affidavit that mentioned defendant’s name. The judge vaguely remembered the name from about five years earlier, but none of the specifics. Still, he was concerned, did research, and concluded he was still neutral and detached to issue the warrant and there was no appearance of impropriety and no bias. Oregon law is fairly well developed on this, and the court concludes that the judge was still neutral and detached. In a similar case, the court sustained a search warrant as issued by a neutral and detached magistrate when the judge was an ADA who’d gone to the scene of the same crime but which had gone cold by the time the search warrant was sought and issued and no person was associated with the killing when he was involved. State v. Pierce, 263 Or. App. ___, 2014 Ore. App. LEXIS 761 (June 11, 2014):
We observed that the requirement of a “neutral and detached” magistrate, under the Fourth Amendment, is illustrated in two, if not three lines of cases. Id. at 198 (citing U.S. v. Bowers, 828 F.2d 1169, 1174 (6th Cir 1987), cert den, 486 U.S. 1006 (1988) (positing lines of cases)). In one sort of case, the Fourth Amendment is violated by personal engagement in the investigation or prosecution. That happens, for example, when a state attorney general issues a search warrant, acting as a justice of the peace, then goes on to personally investigate and prosecute the case. Coolidge, 403 U.S. at 450; see also Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27, 99 S Ct 2319, 60 L Ed 2d 920 (1979) (town justice assists officers at the crime scene with an open-ended warrant). In another sort of case, the Fourth Amendment is violated by personal financial interest in the outcome. That happens, for example, when a justice of the peace is paid a fee for warrants issued but not for warrants refused. Connally v. Georgia, 429 U.S. 245, 250, 97 S Ct 546, 50 L Ed 2d 444 (1977). Due process principles of the Fourteenth Amendment are implicated, too. Id.
We recognized that there are problems other than just direct involvement in an investigation or having a conflict due to a financial interest. In what might be a third sort of case, we acknowledged that there “are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'” Hale, 252 Ore. App at 202 (quoting Caperton v. A. T. Massey Coal Co., Inc., 556 U.S. 868, 872, 129 S Ct 2252, 173 L Ed 2d 1208 (2009) (internal quotation marks and citation omitted)). A constitutional violation, for example, could result from actual bias or from the judge’s prior relationship with the defendant. In such a case, the inquiry “is an objective one.” Id. The court must ask “whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.'” Hale, 252 Ore. App at 203 (quoting Caperton, 556 U.S. at 883-84) (internal quotation marks and citation omitted).In Hale, our focus turned to this sort of case involving “actual bias.” We considered the matter as a constitutional question, not as an ethical question. We observed:
“[T]he question is not whether the trial court should have avoided any appearance of bias or even whether the Oregon Code of Judicial Conduct would have required Judge Bergstrom to recuse himself. Rather the question is whether, ‘under a realistic appraisal of psychological tendencies and human weaknesses,’ the average judge in Judge Bergstrom’s position, i.e., a judge with his level of involvement as a previously assigned district attorney on the murder investigation, ‘is likely to be neutral, or whether there is an unconstitutional potential for bias.'”
Id. at 204. Applying that standard, we concluded that the judge’s prior involvement did not preclude him from issuing the order. He had nothing at stake personally or professionally in the outcome of the prosecution, and he had nothing more than a passing familiarity with some of the names and possible motives involved. We held that the warrant was valid, sustained admission of the evidence, and affirmed the conviction.
Although Hale may be recent, it is not the only Oregon case to look for “actual bias.” In Burnam, 66 Ore. App at 132, we affirmed an order suppressing evidence derived from challenged search warrants. The warrants had been issued by a justice of the peace who had previously called the police and who had implored police to protect his clerk from the defendant. Unlike the pattern cases, the justice of the peace did not direct an investigation, nor did he have a financial interest, but he was not neutral and detached. A demonstrable personal interest existed in Burnam. A personal bias did not exist in Hale.
In this case, the judge who issued these warrants had not acted to direct the investigation. He had no financial interest in the warrants or stake in the outcome in the proceeding. Considering “a realistic appraisal of psychological tendencies and human weaknesses,” the circumstances did not show actual bias in the matter. See Hale, 252 Ore. at 203. The judge recalled little about defendant, and he did not rely on personal knowledge to supply information where an affidavit might have been lacking. Instead, the judge found probable cause to search within the information offered in the supporting affidavit. When issuing these warrants, Judge Butterfield was indeed “neutral and detached.” The warrants were valid. The order to suppress the evidence was properly denied.
