May a Judge Rule on a Motion to Suppress Evidence Seized Under a Search Warrant That He or She Issued?

Suppose a superior court judge issues a search warrant authorizing the search of a suspect’s house for drugs. Officers execute the warrant, find drugs, seize them, and charge the suspect with drug offenses. The charges end up in superior court, where the suspect – now the defendant – moves to suppress, arguing that the search warrant application lacked probable cause and that the judge who issued the warrant erred in doing so. Is it OK for the judge who issued the warrant to hear such a motion?

It’s a fair question. It is reasonable to ask whether a judge can evaluate his or her past decisions without bias creeping in. For that reason, at least some judges prefer not to hear motions to suppress concerning warrants they issued. Indeed, some judges go even farther than that. In People v. Ventura, 2007 WL 4170847 (Westbury Just. Ct. N.Y., Nov. 15, 2007), a trial judge expressed the view that “the signing of a warrant . . . precludes the Court from any further involvement with the case,” reasoning that “[t]he signing of a warrant based upon probable cause clearly shows a pre-judgment or disposition by the Court which would preclude the Court, as a matter of law, from fairly deciding that issue anew, either on motion papers following a pre-trial hearing or during the trial itself.” The court’s recusal was not merely with regard to motions to suppress, but extended also to setting or reviewing bond, hearing other motions, and presiding over any trial.

Controlling law says that it is permissible. Although some judges may choose not to hear motions to suppress involving search warrants they issued, recusal is not mandatory. In State v. Brown, 20 N.C. App. 413 (1974), the Court of Appeals found “no statutory or constitutional proscription in North Carolina against a judge’s presiding at a hearing to review the validity of a search warrant issued by that judge.”

The ruling in Brown is consistent with the decisions of many other courts across the country. See, e.g., State v. Chamberlin, 162 P.3d 389 (Wash. 2007) (finding no violation of due process or judicial ethics where a judge presided over a motion to suppress evidence seized under a search warrant the judge had issued, and noting the potential for appellate review as one potential check against any bias); People v. Antoine, 781 N.E.2d 444 (Ill. Ct. App. 2002) (holding that the mere fact that a judge “presided over the warrant proceedings and issued the search warrant” did not establish that the judge would be biased or prejudiced and therefore unable to hear a motion to suppress concerning the warrant); Heard v. State, 574 So.2d 873 (Ala. Ct. Crim. App. 1990) (rejecting the defendant’s argument that it was improper for a judge who issued a search warrant to preside over a motion to suppress concerning that same warrant and stating that “absent a showing of prejudice, an issuing magistrate may properly serve as the trial judge on the same cause”); Castillo v. State, 761 S.W.2d 495 (Tex. Ct. App. 1988) (the defendant argued on appeal that “the trial judge . . . should have recused himself because he issued the search warrant in this case, and it would be improper for him to sit as a presiding judge over the motions to suppress evidence derived from that warrant”; in the defendant’s view, the judge should not “grade his own paper,” but the reviewing court found “no basis for disqualification”).

The situation may not be too different from a litigant asking a judge to reconsider a ruling, or a defendant filing a motion for appropriate relief under G.S. 15A-1414 alleging an error by the trial judge. Those are routine circumstances in which judges are asked to take a critical look at their own prior work. See Trussell v. State, 506 A.2d 255 (Md. Ct. Spec. App. 1986) (finding a “broad consensus that a judge, in issuing a search warrant, is not thereby disqualified from presiding over the suppression hearing which will review that warrant” and reasoning that the situation is no different from when “a judge is called upon to reconsider an earlier ruling . . . [or] is asked to . . . grant a motion for a new trial,” situations in which “[i]t has never been held that there was any conflict of interest or other impropriety”).

But it isn’t the best practice. Although it did not require disqualification, the Brown court stated that “the better practice” is for a judge not to determine the validity of a warrant that he or she issued. Other courts have made similar suggestions. In United States v. Alton, 982 F.2d 285 (8th Cir. 1992), the Eighth Circuit considered a case in which “[t]he magistrate judge who conducted the hearing on the motion [to suppress] and ultimately denied it was the same magistrate judge who issued the warrant.” Although the court found no plain error in the case, it also stated: “We have some doubts about the practice, and our affirmance in this case is not to be interpreted as approving it.” See also Hirning v. Dooley, 679 N.W.2d 771 (S.D. 2004) (a judge “signed the search warrant for the search of [the defendant’s] home, and later, presided at the suppression hearing upholding the warrant”; after collecting authorities from other jurisdictions, the reviewing court ruled that this did not deprive the defendant of due process, as the judge was “only required to reconsider his earlier legal determination” regarding the sufficiency of the warrant; however, the court stated that the “better practice” is to allow a different judge to rule on the sufficiency of the warrant).

If a judge wants to avoid hearing a motion to suppress a search warrant that he or she issued, the judge may ask for another judge to be assigned, or may continue the matter until another judge is holding court in the district under the system of judicial rotation. Still, the feasibility of the “better practice” may depend on a judge’s situation. In a populous district with many other judges, it may be relatively easy to pass a case to a different judge. In a small district with fewer judges and intermittent sessions of court, that may be more challenging.

There is no reason for concern if the issue isn’t whether the issuing judge screwed up. As detailed above, a judge isn’t required to recuse him- or herself just because a defendant is arguing that he or she erred in issuing a warrant, but the situation can be awkward and some judges seek to avoid it. However, if the basis for the suppression motion is something else, such as an alleged error in how the warrant was executed, there should be no concern at all over the issuing judge handling the suppression hearing, as the judge’s prior determination is not at issue. The Court of Appeals addressed this type of situation in State v. Monserrate, 125 N.C. App. 22 (1997). In that case, a judge issued a search warrant and later presided over a Franks hearing regarding alleged misrepresentations in the warrant application. On appeal, the defendant alleged that this was improper as “by issuing the search warrant, the judge vouched for the veracity of the affidavit,” rendering him less than impartial on the Franks issue. The reviewing court disagreed, stating that “[i]n issuing the search warrant, a judge does not vouch for the veracity of the affidavit given in support thereof; he simply determines that the information in the affidavit is sufficient to provide probable cause to believe that the informant was giving truthful information.” Thus, there was no potential for bias or conflict in the matter.

What about presiding over the trial? If a judge can consider a motion to suppress challenging the judge’s own actions in issuing a search warrant, it seems clear that the judge may preside over a trial in a case in which the judge issued a warrant. Of course, in issuing the search warrant the judge may have received some information about the defendant that is not admissible at trial. But judges regularly preside over trials while knowing inadmissible information – even highly prejudicial information such as that the defendant confessed but that the confession was excluded. Cf. Withrow v. Larkin, 421 U.S. 35 (1975) (“Judges repeatedly issue arrest warrants on the basis that there is probable cause to believe that a crime has been committed and that the person named in the warrant has committed it. Judges also preside at preliminary hearings where they must decide whether the evidence is sufficient to hold a defendant for trial. Neither of these pretrial involvements has been thought to raise any constitutional barrier against the judge’s presiding over the criminal trial and, if the trial is without a jury, against making the necessary determination of guilt or innocence.”).