State v. Holloway

Judge Hedrick

dissenting.

I agree with that part of the majority opinion which concludes that the Deputy Clerk had probable cause to issue the search warrant, and that the trial judge did not err in denying defendant’s motion to suppress the evidence seized pursuant to a search of the basement of the building described in the warrant. I strenuously disagree, however, with the majority’s holding that the trial judge erred in not requiring the issuing magistrate to answer, “even for purposes of the record on appeal,” whether she had “any type of social relationship with any of the officers.” Further, I question the clarity of the majority’s order that reverses “this case,” and remands for “a plenary hearing,” at which defendant is to be given an opportunity “to develop an adequate record, at least for appellate purposes, to support his contentions.”

N.C. Gen. Stat. Sec. 15A-977(a), in pertinent part, provides:

A motion to suppress evidence in superior court made before trial must be in writing and a copy of the motion must be served upon the State. The motion must state the grounds upon which it is made. The motion must he accompanied by an affidavit containing facts supporting the motion. The affidavit may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated. The State may file an answer denying or admitting any of the allegations.

(Emphasis added.) The Official Commentary immediately following this statute states:

*501This section is structured to produce in as many cases as possible a summary granting or denial of the motion to suppress. The defendant must file an affidavit as to the facts with his motion, and the State may file an answer denying or admitting facts alleged in the affidavit. If the motion cannot be otherwise disposed of, subsection (d) provides for a hearing at which testimony under oath will be given. . . .

In the instant case, the unverified motion to suppress, signed by defendant’s counsel, states:

4. Defendant is informed and believes and alleges on information and belief that the aforesaid Deputy Clerk of Superior Court of Wilkes County was not a “neutral and detached magistrate” as required to justify the issuance of the search warrant. . . .

The motion did not identify the “source of the information and the basis for the belief,” nor was it accompanied by a supporting affidavit. Contrary to the majority’s statement that “[defendant specifically asserted that Ms. Handy’s decision to issue the warrant was based on personal reasons and personal relationships,” defendant failed to set out in his motion a single fact or contention even hinting at such an assertion. Because defendant failed to identify any factual basis for his challenge to the Deputy Clerk’s issuance of the warrant, I believe thp trial judge could have confined his inquiry to an examination of the warrant and affidavit filed in support thereof.

Our conclusion in this regard finds support in a decision by the California Court of Appeals, reached on similar facts. In People v. Kashani, 143 Cal. App. 3d 77, 191 Cal. Rptr. 562 (1983), the defendant sought to suppress evidence seized pursuant to a search warrant based on her specific allegation that the issuing magistrate had failed to read all the supporting material prior to issuing the warrant. The trial court quashed service of a subpoena on the issuing official, ruling that defendant had alleged insufficient facts to overcome the “presumption of regularity attending issuance of the warrant.” Id. at 79, 191 Cal. Rptr. at 563. On appeal, defendant contended she was “prejudicially denied the opportunity to establish fatal irregularity by the magistrate in the issuance of the search warrant.” Id. The response of the California court is instructive:

*502Absent some palpable indication to the contrary, it is assumed the magistrate considered all the material presented him in support of an application for search warrant. . . . This assumption is not indulged where substantial irregularity appears on the face of the record. ... If the assumption arises, however, the burden of dispelling it rests on defendant. . . . That burden is not satisfied by a sweeping pro forma assertion that the magistrate did not read all material offered in support of the search warrant application. . . . Such an assertion could and, if deemed legally adequate to place in issue the conduct of the magistrate, most assuredly would be made in virtually every instance where a search warrant has been issued.

Id. at 79-80, 191 Cal. Rptr. at 564.

In the present case, examination of the warrant and supporting affidavit discloses no irregularity such as was present in State v. Miller, 282 N.C. 633, 194 S.E. 2d 353 (1973). And in North Carolina, as in California, “[a] search warrant is presumed to be valid unless irregularity appears on its face.” State v. Dorsey, 60 N.C. App. 595, 597, 299 S.E. 2d 282, 283, disc. rev. denied, 308 N.C. 192, 302 S.E. 2d 245 (1983). I would hold on these facts that the trial judge was not obliged to permit defense counsel to conduct a sweeping inquiry into Ms. Handy’s social relationships or personal convictions.

While I believe the trial judge could have summarily disposed of defendant’s contention that the search warrant was not issued by a neutral and detached magistrate, I feel compelled to address as well the majority discussion of the substantive law in this area. It is not surprising that the majority cites no authority for the ill-founded notion that the social relationships of a magistrate have possible relevance to her status as a neutral and detached official. My research has failed to disclose a single case in which the issuance of a search warrant was successfully challenged on these grounds. Indeed, the most impressive aspect of research on the matter is the infrequency with which courts and commentators have even recognized the possibility of such a claim.

In a recent Georgia case, Tabb v. State, 250 Ga. 317, 297 S.E. 2d 227 (1982), the defendant challenged issuance of a search war*503rant on the grounds that the issuing magistrate was not neutral and detached “because of his personal association with police officers.” Id. at 321, 297 S.E. 2d at 231. The defendant presented evidence that the issuing magistrate served as county coroner, that he had formerly been employed as a deputy sheriff, and that he “regularly visited the sheriffs office and county jail.” Id. The Georgia Supreme Court upheld the lower court’s ruling that these facts did not destroy the magistrate’s status as a neutral and detached official. The court said, “[m]ere personal associations with police officers, without more, do not disqualify a magistrate from issuing a search warrant.” Id. The court distinguished an earlier case, Thomason v. State, 148 Ga. App. 513, 251 S.E. 2d 598 (1978), “where the officer who issued the warrant took part in the actual search and seizure of evidence,” saying, “[t]here is no evidence of such misconduct ... in this case.” Tabb v. State, 250 Ga. at 321, 297 S.E. 2d at 232.

The focus of the Georgia court on the manner in which the officer performed his judicial function is typical of courts confronted with challenges to the neutrality and detachment of issuing magistrates. See, e.g., Clodfelter v. Commonwealth, 218 Va. 98, 235 S.E. 2d 340 (1977) (warrant issued two minutes after supporting affidavit filed not per se invalid); State v. Miller, 282 N.C. 633, 194 S.E. 2d 353 (1973) (warrant and supporting affidavit disclosed on face failure to properly perform judicial function); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27, 99 S.Ct. 2319, 2324, 60 L.Ed. 2d 920, 928-29 (1979) (“We need not question the subjective belief of the Town Justice in the propriety of his actions, but the objective facts of record manifest an erosion of whatever neutral and detached posture existed at the outset. He allowed himself to become a member, if not the leader of the search party. . . .”). This focus on the facts relating to the official’s performance of his judicial function has been echoed by the commentators:

Sometimes the claim is that the magistrate, while not having a financial interest in the case, had a sufficient personal interest that he cannot be deemed to have been impartial. When based upon nothing more than the fact that the magistrate was previously acquainted with the defendant and was aware of his criminal ways, this contention has rightly been rejected. Somewhat more difficult are those instances in *504which the magistrate is involved or interested in some way in the criminal activity with which the warrant is concerned. It has been held that a search warrant may be issued by a judge who knew he would probably be a witness in the forthcoming prosecution because the affidavit alleged the use of fraudulent court orders in the criminal scheme. Some limited “encouragement” to the police by the magistrate, influencing the obtaining of the warrant, has likewise been deemed not fatal, but the magistrate can go too far. . . . Another way in which the constitutional requirement that a search warrant be issued by a neutral and detached person may come into play is because of the conduct of the magistrate issuing the warrant. It is sometimes alleged that, while the magistrate was not disqualified from issuing warrants, his actions in a particular case demonstrate that he was neither neutral nor detached. But these contentions have seldom prevailed.

2 W. LaFave, Search and Seizure Sec. 4.2 (1978). See also 8B James Wm. Moore, Moore’s Federal Practice Sec. 41.03 (2d ed. 1983): “Because of the comparative accessibility to review, this . . . question [of who can be neutral and detached] tends to focus on situational neutrality and detachment rather than emotional or intellectual absence of bias” (emphasis original) (citing Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed. 2d 444 (1977); Lo-Ji Sales, Inc. v. New York, supra).

Bearing in mind this emphasis on the objective circumstances surrounding the magistrate’s performance of her judicial function, we note the following facts. The Deputy Clerk in this case testified that she read the supporting affidavit supplied by the officers requesting the warrant. She testified that she placed one of the officers under oath and interrogated him as to the contents of the affidavit. The majority has upheld the trial court’s conclusion that the affidavit established probable cause for issuance of the search warrant. I think these facts establish that Ms. Handy properly performed her judicial function.

Despite the uncontradicted facts set out above, the majority concludes that the court committed prejudicial error when it refused to order Ms. Handy to answer a question about whether she has “any type of social relationship with any of the officers.” The majority attempts to bolster its conclusion by listing facts *505that are clearly irrelevant to whether the Deputy Clerk was a neutral and detached magistrate. This reliance on extraneous circumstances, such as the testimony of the alleged confidential informant, for example, is in my opinion confusing and misplaced. It makes even more difficult that task I now turn to — determination of “the rule,” set forth in the majority decision, by which lower courts are to be guided in the future.

Under the majority opinion, the test to be used in determining the relevance of profferred evidence in a challenge to the neutrality and detachment of a judicial officer is so unclear as to be no test at all. At one point, the majority states: “It is the quid pro quo — the issuing of a warrant in exchange for some benefit — that is important,” citing Connally, with its language about “a direct, personal, substantial, pecuniary interest.” (Emphasis added.) While I have no quarrel with this “warrant for benefit” test, I am baffled by any suggestion of its relevance to these facts. There is contained nowhere in the record or briefs any slight hint that Ms. Handy issued the warrant in exchange for some benefit. If this is indeed the test, the question concerning Ms. Handy’s “social relationships” was clearly irrelevant.

Other portions of the majority opinion suggest that it is not “benefit” that is crucial in determining the neutrality and detachment of the issuing official, but rather the “personal convictions and social relationships” of the magistrate whose performance is called into question. I do not doubt that deputy clerks, like the rest of us, are influenced in their perceptions and behavior by a myriad of factors, not the least of which are their personal convictions and social relationships. Indeed, an entire scientific field is devoted to identifying and understanding the extremely varied and complex causes of human behavior. I think it sheer folly, however, to attempt, as the majority does here, to categorize “personal convictions and social relationships” based on nothing more than one’s own personal experiences and unvalidated assumptions. That folly is illustrated, I believe, by the majority’s bare assertion that relationships such as those between “neighbors, hunting partners, or lifelong friends” pose less threat to the neutrality and detachment of the issuing official than do the “social relationships” here inquired about. However desirable it may be to understand fully the subjective process underlying every judicial decision, the reality is that this is a goal impossible *506of attainment. The law must content itself with assuring that an official charged with performance of a judicial function performs that function in an objectively proper manner. The evidence clearly establishes that Ms. Handy acted properly in issuing the search warrant. To say that a showing of proper performance of duty may be overcome by a showing of possible subjective bias is, to my mind, to create virtually unlimited opportunity for confusion, inconsistency, and “frivolous attacks upon [the] dignity and integrity [of the judiciary].” United States v. Dowdy, 440 F. Supp. 894, 896 (W.D. Va. 1977).

Finally, I wish to address this Court’s disposition of the case, in light of its resolution of the issues. When an appellate court remands a case for further proceedings, it is the duty of that court to give a clear mandate to the trial court as to how it shall proceed. Consider the confusion occasioned by the decision here that “reverses and remands” “this case” for “a plenary hearing” at which defendant is entitled to be given an opportunity “to support his contention.” What is reversed? What is affirmed? Since defendant’s “contentions” are nowhere specified, where is the “plenary hearing” to end? To what extent is counsel to be permitted to delve into the “personal convictions and social relationships” of the judicial official, and to what end?

In conclusion, I feel that today’s decision represents a radical and ill-advised extension of the law as it relates to the constitutional right to have the determination of probable cause made by a neutral and detached magistrate. More alarming still is the majority’s failure to anticipate and respond to the short-term and long-term effects of its unprecedented holding. For these reasons, I dissent and vote to affirm the judgment.