Category Archives: Neutral and detached magistrate

D.Nev.: Ability to manage day-to-day operations doesn’t give standing over whole business space

(1) “Accordingly, although Defendant had the discretion to manage the day-to-day operation of LLB, the Court finds he did not actually manage the day-to-day operations of the business.” “In this context, ownership of premises alone does not automatically confer standing. … Continue reading

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OH4: No bar to judge who issued SW also hearing suppression motion

There is no due process or judicial ethics restriction on a suppression hearing judge hearing the validity of the warrant he or she issued. State v. Taylor, 2023-Ohio-2995, 2023 Ohio App. LEXIS 2982 n.1 (4th Dist. Aug. 22, 2023):

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Forbes: Will The Judge Who Let Police Raid A Small Kansas Newspaper Be Held Accountable?

Forbes: Will The Judge Who Let Police Raid A Small Kansas Newspaper Be Held Accountable? by Andrew Wimer:

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DE: SW issuing magistrate not barred from hearing suppression motion

The suppression hearing judge is not disqualified just because he or she considered the affidavit and issued the search warrant. Willis v. State, 2023 Del. LEXIS 238 (July 24, 2023). Setting inaccuracies in the search warrant affidavit aside, there was … Continue reading

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CA11: Magistrate who came to the scene to sign SW was still neutral and detached

The issuing magistrate was still neutral and detached. He came to the location of the search to assist in getting the warrant issued, but he stayed away from the building and signed the paperwork. He did not get involved or … Continue reading

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CA8: SW issuing judge not “neutral and detached” just because he didn’t ask questions

A search warrant in Killeen, Texas was issued to look for evidence of a Hobbs Act murder in Lincoln, Nebraska. The affidavit combined information from Texas and Nebraska. There was potential confusion as to whose information was whose but it … Continue reading

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M.D.Fla.: The fact a USMJ issued SW doesn’t preclude that judge from hearing a motion to suppress

The fact a USMJ issued a search warrant doesn’t preclude that judge from hearing a motion to suppress. United States v. Silva, 2022 U.S. Dist. LEXIS 233243 (M.D. Fla. Dec. 29, 2022). State court’s finding of procedural default on Fourth … Continue reading

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M.D.Fla.: 14 years of emails in a complicated tax fraud scheme wasn’t overbroad

Fourteen years worth of emails wasn’t overbroad here. “The case involves a complex tax evasion scheme taking place over many years and across international borders. A wide variety of documents would be relevant to prove this scheme. The warrant in … Continue reading

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CA10: State SW issued for DNA in Indian country was still in good faith

A state search warrant for defendant’s DNA for an offense in Indian Country was relied upon in good faith, despite defendant’s contention the warrant was issued by an issuing authority outside the jurisdiction. McGirt doesn’t change this. United States v. … Continue reading

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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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