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Non-Standard Types of Warrants:
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Composition of a Search Warrant

Rule

Rule:  The lawful issuance of a search warrant requires a "neutral and detached" magistrate, as required by the Fourth Amendment.  (Coolidge v. New Hampshire (1971) 403 U.S. 443 [29 L.Ed.2nd 564].)

The idea behind this theory is to insure that there is an impartial arbitrator between an over-zealous law enforcement officer, seeking to intrude upon a person's privacy rights, and the person whose privacy rights are about to be intruded upon, who may fairly determine whether probable cause exists sufficient to justify the intended governmental intrusion.

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Violations

Violations of this rule have occurred when:

The state attorney general in charge of the investigation issued the warrant in his capacity as a justice of the peace.  (Coolidge v. New Hampshire, supra.)

The magistrate personally participated in the search.  (Lo-Ji Sales, Inc. v. New York (1979) 442 U.S. 319 [60 L.Ed.2nd 290].)

The magistrate was paid a fee for each warrant issued, with no compensation for warrants which were not approved.  (Connally v. Georgia (1977) 429 U.S. 245 [50 L.Ed.2nd 444].)

The investigating deputy sheriff had the warrant issued by his father, a judge.  (O'Connor v. Superior Court (1998) 65 Cal.App.4th 113:  However, this warrant was saved by application of the "good faith" rule.)

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<- Previous Page
Non-Standard Types of Warrants:
^- Up One Level
Chapter 6: Searches with a Search Warrant:
Next Page ->
Composition of a Search Warrant