When removing tainted evidence from the affidavit for the search warrant and retesting it, the issuing judge is not to be a witness. It’s the court’s duty to reevaluate the application for the search warrant on its own. United States v. Richardson, 2019 U.S. Dist. LEXIS 45218 (D. Mont. Feb. 12, 2019), adopted, 2019 U.S. Dist. LEXIS 45003 (D. Mont. Mar. 20, 2019):
Under the second finding, Richardson argues the Court cannot determine whether the search warrant application contained probable cause without the tainted evidence. Although it’s somewhat unclear, it appears Richardson does not argue the search warrant did not contain probable cause without the tainted evidence, but instead that the Court cannot make that finding without the testimony of the judge who issued the warrant. Richardson’s argument presumably stems from the Supreme Court’s phrasing of the independent source test in Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988). There, the Supreme Court articulated the second prong as whether “information obtained during the [illegal] entry was presented to the Magistrate and affected his decision to issue the warrant.” Murray, 487 U.S. at 542. The Supreme Court’s phrasing was perhaps clumsy, but it has never been understood to require the issuing magistrate’s subjective thoughts on whether he or she would have granted the search warrant without the tainted evidence. Instead, the practice has always been for the reviewing court to excise the tainted evidence and determine whether the search warrant application contained probable cause. See Washington, 700 Fed.Appx. at 621-622. That is precisely what Judge Cavan did here, and the Court agrees with his analysis of probable cause. Richardson’s objection is overruled.