W.D.N.Y.: CI brought to issuing magistrate for questioning, and court won’t parse the leading questions

The CI here appeared before the judge issuing the search warrant. While there were leading questions asked, the judge had a substantial factual basis for issuing the search warrant. The reviewing court does not have to parse the questioning to determine whether probable cause exists. United States v. Glover, 2010 U.S. Dist. LEXIS 94359 (W.D. N.Y. September 10, 2010):

As has been clearly articulated by the Court of Appeals for the Second Circuit, the role of a reviewing court is “simply to ensure that the magistrate had a substantial basis for . . . conclud[ing]” that probable cause existed and not as the defendant would have this Court believe, to scrutinize the form of the questions posed by the issuing judge. Here, the defendant objects to what he characterizes as leading questions posed by Judge Drury and on that basis alone, concludes that Judge Drury did not have substantial basis for the finding of probable cause. As discussed above, Second Circuit precedent clearly establishes the role of the judge in examining the totality of the circumstances and further, what the judge is required to assess in determining whether probable cause exists. Notably, Second Circuit precedent does not mandate that judges follow a script in questioning a confidential informant, rather, judges must make a practical, common sense decision, given all the circumstances. Equally well-established by Second Circuit precedent is the role of the reviewing court. Based on the clearly delineated role of a reviewing court, this Court declines to second guess Judge Drury’s evaluation of the affidavit and testimony of the confidential informant, especially Judge Drury’s method of questioning the confidential informant and Judge Drury’s finding of probable cause.

Usually, bringing the CI to the issuing magistrate far more easily helps the prosecution prove the substantial basis for issuance of the search warrant.