WI: Issuing search warrants not a purely judicial function and non-elected court commissioners can issue them

Issuance of a search warrant in Wisconsin is not purely a judicial function under state law or the Fourth Amendment. Accordingly, court commissioners can issue search warrants. State v. Williams, 2012 WI 59, 341 Wis. 2d 191, 814 N.W.2d 460 (2012):

¶3 Throughout Wisconsin’s history, including before the ratification of the Wisconsin Constitution, non-judges have been authorized by statute to issue search warrants. Therefore, we conclude that the issuance of a search warrant is not an exercise of “[t]he judicial power,” as that phrase is employed in Article VII, Section 2 of the Wisconsin Constitution. Instead, issuance of a valid search warrant requires that the individual be authorized by law to issue the warrant, that he or she be neutral and detached, and that the warrant be issued only upon a showing of probable cause.

¶4 Because we also conclude that Wis. Stat. § 757.69(1)(b), which allocates the power to issue search warrants to circuit court commissioners, does not impermissibly intrude upon “[t]he judicial power” granted to the courts by Article VII, Section 2 of the Wisconsin Constitution, we hold that § 757.69(1)(b) is constitutional. Therefore, the circuit court commissioner’s search warrant was validly issued. Accordingly, we affirm the circuit court’s denial of Williams’ motion to suppress.

. . .

¶26 Therefore, we recognize that Article I, Section 11’s warrant requirement has not mandated a determination of probable cause by a judge or a court of record. Non-judges who are “neutral and detached” and are able to ascertain whether probable cause exists have been expected to issue search warrants in the past, provided that they are authorized by statute to do so. Accordingly, issuance of a search warrant does not require an exercise of the judicial power that is vested exclusively in courts under Article VII, Section 2. Although issuing a search warrant may require some exercise of quasi-judicial power, it is something less than and distinguishable from the power vested in courts and elected judges.

I remember the briefs in Leon pointing out the large number of non-trained judicial and quasi-judicial officers (like state JPs) who could issue warrants. Leon didn’t address this, and this case doesn’t cite Leon, but it doesn’t have to. If the warrant is valid, good faith doesn’t matter.

h/t to a reader