Partisan and Interested Magistrates?

 Posted on August 13, 2010 in Uncategorized

In regard to the search of a place, the United States Supreme Court has consistently favored the issuance of a warrant by a neutral and detached judicial officer as a more reliable safeguard against improper searches. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920 (1979). The failure of the magistrate who issued the search warrant to act as a neutral and detached officer may justify the suppression of the evidence seized pursuant to the warrant. See, e.g., id. at 326-27, 99 S.Ct. at 2324-25. While participation of the issuing magistrate in the actual search of the place designated in the search warrant may well be indicative of a failure on the issuing magistrate's part to fulfill his or her duty to remain a neutral and detached judicial officer, the magistrate's presence at the execution of the warrant will not necessarily justify or mandate suppression of the items seized pursuant to that warrant, depending upon whether the magistrate's conduct is more akin to that of a mere observer, as opposed to that of an adjunct member or leader of the law enforcement authorities who requested the warrant. See, e.g., id.; Bellamy v. State, 742 S.W.2d 677 (Tex.Crim.App.1987).

Lyons v. State, 149 S.W.3d 811, 812 (Tex. App.-Ft. Worth 2004, pet. ref'd.).

When does a magistrate become an adjunct member of law enforcement authorities? Maybe when he "volunteers" to help the DA's Office to make arresting people "as efficient as possible"?

Thank you again for agreeing to help out with the Holiday No Refusal program. I know that you've been very generous with your time in the past, and I'm trying to "share the opportunity" with as many people as possible so that we don't abuse those Judges who haven't needed the arm-twisting to help! I'm also working to find a long-term solution that doesn't impose on the county court judges.At any rate, the short-term dictates that I stick with looking for volunteers...Is there any chance that tomorrow night the 12th is convenient? If not, how about next Thurs, Fri or Sat?"

E-mail from Assistant District Attorney Catherine Evans to County Criminal Court at Law No. 14 Judge Mike Fields, dated 12/11/2009 (via Houston DWI lawyer Paul B. Kennedy).

For this past weekend, we filed more intoxication charges than on Thanksgiving weekend last year but sought far fewer search warrants. My hope is that we will continue to procure good evidence by consent without having to resort to a search warrant. I am certainly looking for ways to make No Refusal Weekends as efficient and effective as possible, so please let me know if you have any requests or recommendations.

E-mail from Assistant District Attorney Catherine Evans to County Criminal Court at Law No. 15 Judge Jean Hughes, dated 12/3/2009. (also via Paul).

This stuff may prove solid gold for lawyers looking for suppression issues to litigate in no-refusal blood warrant cases. Paul is in Austin today for the TCDLA's Top Gun seminar, but I'm sure there are more good things in store.

Paul tells me, by the way, that Judge Jean Hughes claimed that all of the judges' records related to no-refusal weekends are privileged and not revealable under Rule 12 of the Texas Rules of Judicial Administration. That position seems poorly thought-out since some of those records will be (as appears from the records produced by the DA's Office) emails between lawyers and prosecutors.

Violating Rule 12 is a violation of Canon 3 of the Texas Code of Judicial Conduct.