Most search warrants are obtained before anyone has been charged with a crime. But sometimes officers will charge a defendant and then decide to obtain a search warrant to seek additional evidence. In such a case, may investigators still obtain a search warrant from a magistrate, or does a magistrate lose jurisdiction over the case after the defendant’s initial appearance? And, once a defendant has been charged, may officers still seek a search warrant ex parte, or must the defendant be given notice and an opportunity to be heard?
The magistrate doesn’t lose jurisdiction. A magistrate may issue a search warrant “valid throughout the county” in which the magistrate serves. G.S. 7A-273(4). See also G.S. 15A-243(b)(3) (noting magistrates’ authority). This authority is the same as the authority of the clerk and his or her deputies and assistants. G.S. 7A-180(5); 7A-181; 15A-243(b)(2). Nothing in the relevant statute limits the authority of these officials to a particular phase of an investigation, and the state supreme court has ruled that a clerk may issue a search warrant even after a defendant has been charged with a crime. State v. Pennington, 327 N.C. 89 (1990) (“Because indictments had been returned against him, defendant argues that jurisdiction over all matters relating to his trial rested with the Superior Court . . . at the time the warrant was issued,” but “[t]he issuance of a search warrant is neither a district court matter nor a superior court matter, but pertains to pretrial investigation which need not – indeed, often cannot at that point – be classified according to the court where the defendant may eventually be tried.”). The same reasoning applies to the authority of a magistrate. The law of search warrants is therefore different than the law of pretrial release. In the latter context, G.S. 15A-534(e) provides that a magistrate loses the power to modify a defendant’s release conditions after the defendant’s first appearance in district court, and that a district court judge loses authority over the conditions after the case moves to superior court.
There’s no ex parte problem. Search warrants normally are obtained ex parte, without giving the defendant an opportunity to be heard. See generally Franks v. Delaware, 438 U.S. 154 (1978) (“The pre-search proceeding is necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove evidence.”). Before charges have been brought, this is clearly permissible. At that stage, there is no defendant to whom notice and an opportunity to be heard could be given. After charges have been brought, is proceeding ex parte improper under G.S. 15A-951(b) (motions must be served on opposing party) or otherwise? No. Although we don’t have a case directly on point in North Carolina, the search warrant statutes neither require nor provide a mechanism for notice and hearing. Furthermore, the no-tipoff rationale set out in Franks still applies. And the case law in other jurisdictions is uniform. See, e.g., State v. Blye, 130 S.W.3d 776 (Tenn. 2004) (rejecting the defendant’s argument that the “ex parte application for and the issuance of [a] search warrant [for his blood, in order to conduct DNA testing in a rape case] violated his Sixth Amendment right to the assistance of counsel” because “an ex parte application for a search warrant to obtain a blood sample from a defendant, sought after the defendant had been charged, was not a critical stage of the proceedings,” and collecting cases from other jurisdictions on point); People v. Mason, 989 P.2d 757 (Colo. 1999) (approving of prosecutor’s use of a subpoena to obtain telephone and bank records in a pending case and noting that “a search warrant supported by probable cause for these same records may be obtained by the prosecutor, ex parte, and executed without notice to the defendant and without opportunity for the defendant to challenge the search and seizure before it occurs”); People v. McNair, 926 N.Y.S.2d 101 (N.Y.A.D. 1 Dept. 2011) (“The police took custody of a cell phone that defendant was carrying at the time of his arrest. While this case was pending . . . the police obtained a search warrant to retrieve information from the phone. The ex parte procedure was lawful, since the target of a search warrant has no right to notice or an opportunity to be heard on the application.”); Dorward v. Ramirez, 2009 WL 2777880 (N.D. Tex. Aug. 28, 2009) (unpublished) (“Search warrants are routinely obtained ex parte, even after a person has been arrested or charged with a crime.”).
I have heard anecdotal reports that judges are more likely than magistrates to be concerned about proceeding ex parte after charges have been brought, so as a practical matter, seeking a search warrant from a magistrate rather than a judge once a case is pending may be advisable. But the bottom line is that officers who wish to obtain a search warrant after charges are pending against a defendant may do so in the usual way.