Magistrates regularly determine whether probable cause exists to issue search warrants, see G.S. 15A-245(b), arrest warrants, see G.S. 15A-304(d), and criminal summonses, see G.S. 15A-303(c). They also decide whether probable cause exists to issue magistrates’ orders after warrantless arrests made by law enforcement officers. See G.S. 15A-511(c)(1). When making these decisions, should a magistrate refuse to hear evidence that the magistrate believes violates the rules of evidence? Should a magistrate “suppress,” or refuse to consider, evidence that the magistrate believes has been unlawfully obtained?
A magistrate should not consider the rules of evidence, as they do not apply to magistrates’ decisions about search warrants or criminal process. A magistrate should not refuse to hear or to consider evidence because it is inadmissible under the North Carolina Rules of Evidence. The rules, codified at G.S. 8C-1, generally do not apply to proceedings for the issuance of search warrants, arrest warrants, or other criminal process. See N.C. R. Evid. 1101(b) (stating that the rules, "other than those with respect to privileges," do not apply in proceedings concerning the “issuance of warrants for arrest, criminal summonses, and search warrants”). That is consistent with Brinegar v. United States, 338 U.S. 160 (1949), in which the Supreme Court of the United States ruled that evidence that would be inadmissible at trial may still be used “to show probable cause for arrest or search.” See also Draper v. United States, 358 U.S. 307 (1959) (hearsay may provide probable cause for arrest even though not admissible at trial; defendant’s contention otherwise was “entirely in error”). Cf. State v. Beam, 70 N.C. App. 181 (1984) (“It is well established that an indictment will not be quashed on the ground that testimony before the grand jury given by a qualified witness may have been hearsay and incompetent.”).
Although the rules of evidence do not apply, some of the considerations behind the rules may inform magistrates’ probable cause determinations. For example, while the 400-series rules regarding relevancy do not apply, information that is not pertinent to the matter at hand obviously will not support a finding of probable cause. Similarly, while the 700-series rules regarding expert witnesses do not apply, if an officer presents information from a person who claims special expertise, the magistrate might well ask himself or herself questions similar to those found in Rule 702: are the person’s conclusions “based upon sufficient facts or data”? Are they “the product of reliable principles and methods”? If not, the person’s opinions will be unlikely to support a finding of probable cause.
As to hearsay, again, the 800-series rules do not apply. Nor should a magistrate categorically be reluctant to find probable cause based on second-hand information. It is common and often necessary for law enforcement officers to initiate charges based on information that they have received from other officers, victims, or witnesses, rather than on first-hand observations. The case law in this area directs magistrates to focus on who the source of information is. In general, magistrates should be more skeptical of information coming from anonymous tipsters and confidential informants, and less skeptical of information coming from everyday people who happen to have information about criminal activity. See, e.g., Wayne R. LaFave, 2 Search & Seizure § 3.4(a) (6th ed.) (“In the [confidential] informant cases, it is critical that there be a showing that the informant is a credible person or that his information is reliable upon the particular occasion at issue; veracity is not assumed, indeed, it might be said that veracity is assumed to be lacking until the contrary is established. . . . It is generally agreed, however, that a comparable showing is not needed to establish veracity when the information comes from an average citizen who is in a position to supply information by virtue of having been a crime victim or witness.”).
A magistrate should not consider whether evidence was illegally obtained when deciding whether to issue criminal process. When an officer obtains evidence in violation of a suspect’s Fourth Amendment rights, such evidence generally may not be used at trial to establish the suspect’s guilt. This exclusion or suppression of unlawfully obtained evidence is not required by the Fourth Amendment. Rather, it is a judicially-created prophylactic measure intended to discourage Fourth Amendment violations. See Penn. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363 (1998).
In United States v. Calandra, 414 U.S. 338 (1974), the Supreme Court of the United States ruled that the exclusionary rule does not extend to grand jury proceedings regarding probable cause for an indictment. The Court reasoned that any Fourth Amendment violation is complete when it occurs, and the subsequent use of the seized evidence before the grand jury does not constitute a new Fourth Amendment violation. Further, any deterrent value of excluding evidence during grand jury proceedings would be “incremental” and “uncertain” yet the impact on grand jury operations would be substantial, making the juice of applying the exclusionary rule not worth the squeeze.
If illegally obtained evidence may be considered by a grand jury when determining probable cause, it would seem to follow that magistrates may also consider such evidence. Further support for this conclusion comes from the fact that several federal circuit courts have ruled that illegally obtained evidence may be used by officers to establish probable cause for arrest. See Lingo v. City of Salem, 832 F.3d 953 (9th Cir. 2016) (collecting cases and stating that “nothing within the fruit-of-the-poisonous-tree doctrine suggests that an officer must ignore facts that would give him probable cause to arrest a person merely because those facts were procured through an unlawful search” and therefore rejecting the “suggestion that probable cause to arrest may be supported only by information that was obtained in accordance with the Fourth Amendment”); Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999) (stating that a “lack of probable cause to stop and search does not vitiate” probable cause to arrest based on the evidence found as a result of the unlawful stop and search because the exclusionary rule does not extend that far).
In some instances, the same facts that render the evidence illegally obtained may call its reliability and accuracy into question. For example, if an officer approached a magistrate saying that the officer arrested one suspect and physically threatened the suspect until he confessed and inculpated a second suspect, the confession might be inadmissible at trial because it was involuntary. As explained above, the statement’s inadmissibility at trial would not prevent a magistrate from considering the evidence, but the inherent unreliability of coerced statements would be a proper factor for a magistrate to consider in assessing probable cause.
A magistrate generally should not consider whether evidence was illegally obtained when deciding whether to issue a search warrant, though this is more a matter of practicality than law. If a magistrate issues a search warrant based on evidence that was obtained in violation of the Fourth Amendment, the search pursuant to the warrant normally will also violate the Fourth Amendment. See State v. Lombardo, 306 N.C. 594, 597-98 (1982) (stating that if the “information used to obtain [a search] warrant was procured through an unconstitutional seizure . . . then the warrant and the search conducted under it were illegal and the evidence obtained from them was ‘fruit of the poisonous tree’”). There are some exceptions to this principle, such as when there is sufficient evidence to support probable cause even without considering the illegally obtained evidence. See State v. Norman, 388 N.C. 438 (2025) (stating that a court should “excise the tainted evidence” and determine whether probable cause remains).
A magistrate might reasonably want to avoid issuing a search warrant that will result in an unlawful search that violates a person’s Fourth Amendment rights. If it is obvious that critical evidence in the search warrant application was illegally obtained, it may be appropriate for a magistrate to refuse to issue the warrant. However, given the nature of proceedings before magistrates, magistrates should be cautious about excluding evidence. As the Ninth Circuit explained in United States v. Vasey, 834 F.2d 782 (9th Cir. 1987):
A magistrate’s role when presented with evidence to support a search warrant is to weigh the evidence to determine whether it gives rise to probable cause. A magistrate evaluating a warrant application based in part on evidence seized in a warrantless search is simply not in a position to evaluate the legality of that search. Typically, warrant applications are requested and authorized under severe time constraints. Moreover, warrant applications are considered without the benefit of an adversarial hearing in which the evidentiary basis of the application might be challenged. Although we encourage magistrates to make all possible attempts to ensure that a warrantless search was legal before relying on the fruits of that search, we are mindful of the limitations on a magistrate's fact-finding ability in this context.
Id. at 789-90.
Other courts have expressed similar concerns, sometimes even more strongly. See, e.g., United States v. Edwards, 443 F. Supp. 192, 197 (D. Mass. 1977) (magistrates are “to determine whether the government presented sufficient evidence to establish probable cause for issuance of a warrant . . . not to decide whether the evidence was obtained by constitutional means” as the latter issue is “reserved for trial courts at motions to suppress”); United States v. Jackson, 2004 WL 1784756 n.3 (S.D. Ind. Feb. 2, 2004) (unpublished) (“When the police apply for a search warrant, the job of the magistrate is to determine whether the evidence shows probable cause for the search, not to investigate whether all the evidence presented was obtained in a constitutional manner.”); United States v. Walton, 2018 WL 258993 (E.D. Mich. Jan. 2, 2018) (unpublished) (collecting cases supporting the idea that it is not the magistrate’s function to decide whether the evidence in the application was illegally obtained).
In short, there may be a legal basis for a magistrate to consider whether information in a search warrant application was illegally obtained. However, magistrates should be cautious in suppressing evidence at this stage given the nature of the proceeding and the suspect’s ability to file a motion to suppress evidence in district or superior court.
