Going Back to the Well, er, Magistrate

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I’ve been asked several times recently whether an officer who asks a magistrate to issue an arrest warrant and is turned down based on a lack of probable cause can simply go to another magistrate and ask the other magistrate to issue the warrant. The answer is yes.

There’s no double jeopardy problem because jeopardy hasn’t attached yet. In district court matters, it attaches when the first witness begins to testify, and in superior court matters, it attaches when the jury is empaneled and sworn. Nor is there any other principle of law that prevents the officer from “shopping” for a favorable magistrate. The situation is analogous to when a grand jury declines to issue an indictment in a matter — in such a circumstance, the state is free to resubmit the case to a later grand jury in the hopes of a different result. See generally 42 C.J.S. Indictments ยง 39 (“At common law, and in the absence of a governing statute, the prosecuting attorney may, without first obtaining leave of court, submit to one grand jury charges which a previous grand jury has ignored.”); In re Superior Court Order, 70 N.C. App. 63 (1984), rev’d in part on other grounds, 315 N.C. 378 (1986) (recognizing that “[t]here is apparently no [legal] prohibition against resubmitting the same information on a new bill of indictment,” though noting that such a procedure may be burdensome). Similarly, when one magistrate turns down a search warrant application for lack of probable cause, an officer generally may submit the same application to another magistrate. United States v. Pace, 898 F.2d 1218 (7th Cir. 1990) (holding that the government is not estopped “from seeking a second magistrate’s approval to search when another magistrate denies a search warrant”).

Of course, if a magistrate is aware that another magistrate has previously refused to issue a warrant in a particular matter, the magistrate should pay close attention to the officer’s showing of probable cause. But in the end, the magistrate must make a probable cause determination using his or her best independent judgment. The first magistrate may have erred, or the officer may have obtained additional evidence in the interim that justifies a different result.

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