{"id":6598,"date":"2012-05-28T20:54:10","date_gmt":"2012-01-28T11:24:03","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-01-28T11:24:03","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=6598","title":{"rendered":"CA10: Judge issuing SW who was past ADA and prosecuted defendant still neutral and detached magistrate"},"content":{"rendered":"

A judge was still neutral and detached in issuing a search warrant against the defendant even though the judge was once an assistant prosecutor who prosecuted the defendant. United States v. Freerksen<\/a>, 457 Fed. Appx. 769 (10th Cir. 2012) (unpublished):<\/p>\n

A search conducted based on a warrant authorized by a magistrate who lacks the requisite neutrality and detachment \u201cstands on no firmer ground than if there had been no warrant at all.\u201d Coolidge v. New Hampshire<\/a>, 403 U.S. 443, 453, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). \u201cWhether a magistrate was neutral and detached in any particular case is necessarily an individualized and contextual inquiry. Courts must focus on the specific circumstances surrounding the issuance of the warrant ….\u201d Ramirez<\/a>, 63 F.3d at 941.<\/p>\n

Freerksen contends Judge Work was not neutral and detached because he recused himself from a related state proceeding and because prior to becoming a judge he prosecuted Mr. Freerksen for two sex offenses while working as an assistant district attorney in Woodward County. These two facts are insufficient to show Judge Work was not \u201cneutral and detached.\u201d A warrant issued by a magistrate who had previously prosecuted the defendant does not violate the Fourth Amendment. United States v. Outler<\/a>, 659 F.2d 1306, 1312 (5th Cir. 1981), overruled on other grounds by United States v. Steele<\/a>, 147 F.3d 1316, 1317 (11th Cir. 1998). Nor under these circumstances does Judge Work\u2019s recusal show he lacked the requisite neutrality and detachment to issue the search warrant in this case. Judge Work\u2019s recusal came after an in camera request made by Freerksen\u2019s counsel pursuant to Rule 15(a) of the Rules of the District Court of Oklahoma. There is therefore no record of the basis for the recusal. There is also no evidence Judge Work acted improperly or considered matters outside the warrant affidavit when making his probable cause determination. The court therefore rejects this argument.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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