The National Center for State Courts just released new rankings of judicial salaries. How does North Carolina fare? Continue reading
Tag Archives: magistrates
Today’s post is the last for the week since the School of Government is closed Thursday and Friday for the Thanksgiving holiday. In honor of the occasion, I want to recognize five criminal-law-related institutions, programs, and people for which I am particularly grateful. Continue reading →
I’ve had the same question several times recently: can a magistrate issue a search warrant for a computer or a cell phone? The answer is yes. This post explains why that’s so, and why there’s some confusion about the issue. Continue reading →
From time to time, I am asked about the right of private citizens to initiate criminal charges by approaching a magistrate. The arrest warrant statute, G.S. 15A-304, requires only that a magistrate be “supplied with sufficient information, supported by oath or affirmation” to find probable cause. The statute doesn’t limit the source of that information to law enforcement officers. As most readers know, it is common in North Carolina for private citizens to seek the issuance of an arrest warrant or a summons.
I have long thought that this was a distinctive feature of North Carolina law, but it seems to be somewhat more common than I believed. Continue reading →
The decades-old state supreme court decision in State v. Knoll, 322 N.C. 535 (1988), dismissing charges against three impaired driving defendants, is confusing. For starters, the Knoll court’s decision hinged in part on its determination that the defendants were unlawfully detained. Yet the court never even mentioned G.S. 15A-534.2—the statute authorizing the detention of impaired drivers or explained why its provisions did not apply. Second, the court held that a defendant charged with a per se violation of the impaired driving laws had to establish prejudice to be entitled to relief, but the court then failed to apply a higher standard than it had applied under an earlier presumptive prejudice test.
This lack of clarity is problematic. Because Knoll granted such drastic relief—dismissal—for defendants charged with a very common crime—driving while impaired—many motions are filed seeking relief pursuant to its holding. Several years ago, the legislature reacted to defendants’ success in procuring such relief by enacting additional procedures that apply in initial appearances for DWIs. See G.S. 20-38.4. Now a magistrate who finds by clear and convincing evidence that a defendant’s impairment presents a danger to persons or property if he is released must record those findings on AOC-CR-270. Magistrates also must inform defendants who are jailed for implied consent offenses of the procedures by which they may have others appear at the jail to observe them or to administer an additional chemical analysis. G.S. 20-38.4(a)(4)b. Finally, magistrates must require people detained for implied consent offenses to list the names and phone numbers of people they wish to contact from jail. G.S. 20-38.4(a)(4)b.
Magistrates work hard to follow the appropriate procedures in these cases. And I spend a lot of time talking to them about how best to do that.
What I wish for. I’m always excited when our appellate courts consider motions under Knoll. Judicial officials would benefit from a more exhaustive list of the types of errors or procedural irregularities that warrant such relief as well as a clearer definition of what constitutes prejudice.
State v. Kostick. Thus, I eagerly read this week’s opinion in State v. Kostick, ___ N.C. App. ___ (March 18, 2014), which held that the trial court did not err in denying the defendant’s motion to dismiss pursuant to Knoll.
The defendant in Kostick, a non-Indian, was stopped at a checkpoint within the Qualla boundary of the reservation of the Eastern Band of Cherokee Indians, and subsequently was arrested for DWI. He submitted to a breath test that resulted in an alcohol concentration of 0.15. About a half-hour later, at 1:05 a.m., the defendant appeared before a magistrate for an initial appearance. The magistrate imposed a secured bond of $500 as a condition of release. The magistrate imposed this condition because (1) he deemed the defendant “pretty drunk” based on the results of the breath test, (2) the defendant was a South Carolina resident, and (3) the defendant had a gun in his car. (Charges against the defendant for carrying a concealed weapon were dismissed at trial after the defendant produced a South Carolina gun permit.) The defendant told the magistrate he did not wish to contact anyone, and was confined in the county jail. While in jail, he was allowed to use the telephone, and he phoned a bail bondsperson. The defendant posted bond and was released at 4:50 a.m.
The defendant moved to dismiss the charges pursuant to Knoll. The trial court denied the motion, determining that the “‘magistrate was under an obligation not to turn [the defendant] out in the public in that kind of condition,’” that the magistrate did not “‘deny him any rights by setting a bond,’” and that, in any event, the defendant was not prejudiced by the nearly four-hour detention. The trial court applied retrograde extrapolation to determine whether the defendant was prejudiced, and concluded that he was not since, had he sought an independent chemical analysis at the time he was released, he “‘still would have been at or near .08, if the breathalyser [sic] was accurate.’” Thus, the trial court concluded “that the magistrate’s processing of defendant was not prejudicial because defendant was so intoxicated that his length of detention and bond amount [were] proper.”
The court of appeals held that the trial court’s findings and conclusions were supported by competent evidence, that the magistrate followed G.S. 15A-511(b), and that any deviation from the statutory requirements was not prejudicial to the defendant. Thus, the court concluded that the trial court did not err in denying the defendant’s motion to dismiss pursuant to Knoll.
The State prevailed in Kostick, but the court’s reasoning may prove a boon for defendants in future cases. In my view, rather than clarifying the circumstances that warrant relief under Knoll, Kostick further confuses the analysis.
Here are my concerns:
- Kostick fails to distinguish between the purposes for setting bond and for imposing an impaired driving hold. The court appears to assume that imposing a secured bond for a defendant is an acceptable way of ensuring that he or she is not released while impaired. That’s obviously not the case, since some defendants manage to post bond fairly immediately. Moreover, when a defendant charged with an impaired driving offense is impaired to the extent that his release poses a danger, magistrates are authorized to impose an impaired driving hold. A defendant subject to an impaired driving hold may be released to a sober, responsible adult who is willing and able to assume responsibility for him until he is no longer impaired or when he is no longer impaired to the extent he imposes a danger. G.S. 15A-534.2. To impose such a hold a magistrate must complete AOC-CR-270 and must make written findings about the basis for her conclusion that the defendant is so impaired that a hold is warranted.
- When a magistrate appropriately advises a defendant at his initial appearance and he is lawfully held, the court need not consider whether the defendant is prejudiced by the detention. Knoll provided for relief for defendants who suffer a substantial denial of their right to pre-trial release and who are prejudiced by that denial. Kostick suggests that the $500 secured bond might have been improperly imposed due to the magistrate’s consideration of the gun in defendant’s truck. Thus, the appellate court, like the trial court, proceeded to the prejudice analysis. This strikes me as an unnecessary step that confused the analysis. Given that a $500 secured bond is an entirely appropriate and relatively routine release condition for an out-of-state resident charged with DWI, the appellate court could have avoided the prejudice analysis altogether.
- The court’s analysis about the defendant’s likely alcohol concentration at the time he is released is particularly concerning. While a defendant has the right to obtain an independent chemical analysis after he is released, he has no right to be released so that he may obtain such an analysis. While Kostick might be read to support this latter proposition, any such interpretation would contravene the magistrate’s authority to set conditions of release and to impose impaired driving holds when appropriate. Cf. State v. Bumgarner, 97 N.C. App. 567 (1990) (holding that dismissal was not warranted based upon the failure of law enforcement officials to take the defendant to the hospital for additional testing or to withdraw blood for later testing).
- Kostick suggests that prejudice results from a defendant’s inability to obtain an independent chemical test. The prejudice with which Knoll primarily was concerned, however, was a defendant’s lack of access to witnesses who could form an opinion about his impairment. Thus, it seems quite probable to me that informing a defendant of the procedures for gaining access to witnesses and affording that access may be sufficient to extinguish any prejudice resulting from a substantial statutory violation of a defendant’s right to pretrial release. Cf. State v. Daniel, 208 N.C. App. 364 (2010) (determining that even if a statutory violation occurred, the defendant was not irreparably prejudiced, since a witness met with the defendant shortly after her initial appearance).
Litigants, what do you make of Kostick?
When a defendant move to dismiss DWI charges based on a violation of his pre-trial release rights, the State’s first response is predictable: Subpoena the magistrate who presided over the defendant’s initial appearance. And in case after case, our appellate courts have considered testimony from magistrates in determining whether a defendant’s rights to pretrial release were violated. See, e.g., State v. Labinski, 188 N.C. App. 120 (2008) (finding statutory violation based in part on magistrate’s testimony that he imposed an impaired driving hold because he thought anyone charged with DWI with an alcohol concentration of at least 0.08 would possibly hurt himself or someone else), State v. Bumgarner, 97 N.C. App. 567 (1990) (finding that impaired driving hold was warranted based on magistrate’s consideration of trooper’s testimony, the magistrate’s personal observations, and the results of the sobriety test, which revealed a 0.14 alcohol concentration). Recently, however, the State’s predictable reaction has met with some unexpected resistance: a motion to quash filed by the state attorney general.
Judicial Privilege. Though I haven’t seen any of these motions, my understanding is that they rest upon the long-established rule that that a judge may not be compelled to testify about her mental process in reaching a judicial decision. The United States Supreme Court recognized that principle more than a century ago in Fayerweather v. Ritch, 195 U.S. 276 (1904), ruling that it was error to admit testimony from a trial judge regarding his mental processes in reaching a judgment in an earlier case. The Court reasoned that judgments were solemn records that parties had a right to rely upon and “ought never to be overthrown or limited by the oral testimony of a judge or juror of what he had in mind at the time of the decision.” Id. at 306-07. The principle has been applied in similar contexts by several lower courts. See, e.g., Perkins v. LeCureux, 58 F.3d 214, 220-21 (6th Cir. 1995) (holding in habeas case that the trial court committed plain error by considering and relying upon the testimony of sentencing judge as to his thought processes in sentencing the petitioner ten years earlier); Proffitt v. Wainwright, 685 F.2d 1227, 1255 (11th Cir. 1982) (“[P]ost-decision statements by a judge or juror about his mental processes in reaching decision may not be used as evidence in a subsequent challenge to the decision.”)
In addition to the Fayerweather final judgment justification, courts have justified the prohibition against compelled judicial testimony as necessary to protect the integrity of the legal system. See, e.g., United States v. Roebuck, 271 F. Supp. 2d 712, 722 (D.V.I. 2003) (ruling that judge could not be compelled to answer questions proposed by defendant that related to the judge’s denial of a motion for his disqualification); Terrazas v. Slagle, 142 F.R.D. 136, 139 (W.D. Texas 1992) (granting motion to quash subpoenas for oral depositions served on judicial law clerks and commenting that “public inquiries by the litigants as to the internal operations and communications of the Court will, not may, destroy the integrity of our present legal system.”).
Limitations. Judicial privilege, even where recognized, is limited. Judicial officers may be compelled to testify regarding facts “that do not probe into or compromise the mental processes employed in formulating the judgment in question.” See Standard Packaging Corp. v. Curwood, Inc., 365 F. Supp. 134, 135 (N.D. Ill. 1973).
Scope. In addition to the limitation mentioned above, the application of the privilege to contexts in which there is no recorded judgment is unclear. For example, the court in State ex rel. Childs v. Hayward, 248 A.2d 88 (N.H. 1968), held that the privilege did not prohibit a defendant from subpoenaing a justice of the peace to testify regarding what additional evidence beyond that set forth in the written application for a search warrant was presented to him. While the court agreed “that no magistrate should be subjected to interrogation with respect to his mental processes or the reasons for his decision, nor should he be subjected to interrogation with respect to the evidence presented before him when there is an existing record thereof,” it explained that judicial officers who do not preside over courts of record, are not “exempt from giving testimony as to what evidence was presented before them, when no record of such evidence was made.” Id. at 90.
North Carolina’s view. North Carolina’s courts have said relatively little about judicial privilege. The state supreme court in State v. Simpson, 314 N.C. 359 (1985), considered the defendant’s claim on appeal that the trial court erred by refusing to allow him to call the district court judge who presided over his initial appearance as a witness. The defendant sought to proffer this testimony in support of his insanity defense. Noting concerns related to judicial privilege, Simpson cited cases from other jurisdictions holding that a judge should not be called as a witness if the litigant’s rights can be otherwise protected. Applying this standard, Simpson concluded that the trial court did not err in refusing to permit the defendant to call the district court judge as a witness as the defendant failed to show that the judge was the only person who could testify about the defendant’s behavior at the initial appearance. The court explained that “[t]here were undoubtedly other persons present in the courtroom . . . who may have noticed his behavior, including the deputy clerk, the bailiffs, and other attorneys not involved in the case.” Id. at 373.
What’s the answer? It is not clear whether magistrates can be compelled to testify in these cases. The testimony sought from magistrates frequently crosses the barrier between fact testimony and testimony about the magistrate’s mental processes. Given that magistrates are judicial officials, perhaps this line of questioning is barred by judicial privilege. On the other hand, there is seldom much of a record about what transpired at the initial appearance. If the magistrate imposed an impaired driving hold, he should have completed a form AOC-CR-270 and have made findings, but the robustness of those findings varies. Moreover, in most circumstances, there is no source for the information other than the magistrate as the law enforcement officer who accompanied the defendant to the initial appearance may not have noted or may not recall the details of what transpired.
You tell me. What’s going on in your district? Have you seen motions to quash? How are they resolved?
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 § 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.
Last term, the United States Supreme Court decided Rothgery v. Gillespie County, available here. As most folks likely know, before Rothgery, North Carolina law held that a defendant’s Sixth Amendment right to counsel “attached” when the defendant had his first appearance before a district court judge. After Rothgery, it’s clear that the right attaches at the defendant’s initial appearance before a magistrate.
Since the initial appearance almost certainly isn’t a “critical stage,” though, Rothgery doesn’t require that a lawyer be made available to the defendant before or during the initial appearance. Most defendants, in most districts, have lawyers appointed at a first appearance that takes place within a day or two of the initial appearance, and that’s very likely OK under Rothgery. However, misdemeanor defendants and out-of-custody felony defendants have no statutory right to a prompt first appearance, see G.S. 15A-601, and some districts do not provide such defendants with first appearances within a few days of arrest. Whether those districts are Rothgery-compliant isn’t clear yet. The Rothgery opinion requires that “counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself,” but doesn’t define a “reasonable time.”
As an aside, one effect of Rothgery has been to change the rules for officers who wanted to interview out-of-custody defendants after the initial appearance but before the first appearance. Previously, such defendants had neither a Fifth Amendment/Miranda right to counsel (because they weren’t in custody) nor a Sixth Amendment right to counsel (because the right hadn’t attached yet). After Rothgery, such defendants have a Sixth Amendment right to counsel, and because interviews with the police are a critical stage, an officer seeking to interview such a defendant must obtain a Sixth Amendment waiver.
But back to the main story about the appointment of counsel. Two pieces of legislation are pending before the General Assembly that would have magistrates appoint counsel. (I mentioned one briefly in the post that you can view here.) H848 would allow all magistrates to appoint counsel, but based on the General Assembly’s website, H848 doesn’t seem to be progressing. The other bill is S514, which allows a magistrate to appoint counsel only if he or she (1) is an attorney and (2) is authorized to appoint counsel by his or her chief district court judge. It seems to be rolling right along.
My understanding is that neither bill was intended as a response to Rothgery. They were simply meant to lift some of the weight off the shoulder of district court judges. Still, some of the discussion about the bills has focussed on whether they would obviate potential Rothgery problems, like the concern mentioned above about districts that don’t offer prompt first appearances to all defendants. My view is that S514, as written, probably doesn’t remove that concern. My guess is that less than 20% of North Carolina magistrates are lawyers, maybe closer to 10%. So even if every magistrate who is a lawyer were authorized to appoint counsel, it wouldn’t ensure that all defendants had counsel appointed within a few days of initial appearance — because most initial appearances would still be conducted by nonlawyer magistrates — and a number of districts would still have procedures in place that could be challenged under Rothgery. (To be perfectly clear, I’m not arguing that such challenges would be successful; that’s the subject of another post, and the majority and the concurrence in Rothgery appear to have very different views about that.)
I’m interested in hearing from readers about a lot of related issues: what do you think of allowing magistrates to appoint counsel? If you support the idea, do you think that there’s good reason to limit that to magistrates who are lawyers? More broadly, have Rothgery issues come up in your districts? If you have thoughts about any of this, please post a comment.