Washington: Judge who issued warrant can determine motion to suppress the warrant

Washington holds that the trial judge that issued a search warrant was not barred from hearing a motion to suppress that warrant under either the appearance of fairness requirement of the Code of Judicial Conduct or due process because appellate review cures any errors. State v. Chamberlin, 161 Wn.2d 30, 162 P.3d 389 (2007):

Chamberlin argues that Judge Hancock displayed actual bias when he stated that he was sure he had read carefully the application for the warrant and the sworn testimony in support of the warrant. 1RP at 4-5. In its proper context, the statement does not show bias. Judge Hancock said that he did not remember issuing the warrant. But, assuming he did, “[I] also believe I would be capable of fairly and impartially hearing any motion to suppress despite the fact that I issued the warrant.” 1RP at 5. He said he would review the warrant for issues he might have missed and, if wrong, suppress the evidence. In context, the statement has a different meaning. Judge Hancock was explaining that he believed he could, and would, compartmentalize the proceedings and be unbiased. We find no actual bias under these facts.

Even where actual bias is not apparent, a party is not without protection against prejudice or error. Independent appellate review reduces the risk of error. Appellate courts review de novo the legal conclusion of law whether probable cause is established. In re Det. of Peterson, 145 Wn.2d 789, 799, 42 P.3d 952 (2002). In determining whether probable cause is established, the appellate courts review the same evidence presented below. What this means is where the probable cause finding was error, appellate review cures the error.

Comment: This issue was not raised as a Fourth Amendment or state privacy claim. This is also the majority rule.