Query v. State , 2001 Ind. LEXIS 296 ( 2001 )

RUCKER, Justice,

dissenting.

I respectfully dissent. In effectuating the Fourth Amendment's command that "no Warrants shall issue, but upon probable cause," the United States Supreme Court has long required that a neutral and detached magistrate-not a police officer-make the determination of probable cause. Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). The Shadwick court defined "neutral and detached" as "severance and disengagement from activities of law enforcement." Id. Justice Jackson explained the importance of this separation in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948):

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support 'of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers.... When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.

Id. at 13-14, 68 S.Ct. 367 (footnote omitted). See also Wong Sun v. United States, 371 U.S. 471, 481-82, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (bolding that the United States Constitution requires "that the deliberate, impartial judgment of a judicial officer ... be interposed between the citizen and the police. ...").

Similarly, this Court has held that Article 1, Section 11 of the Indiana Constitution ¹ requires that a neutral and detached magistrate make the determination of probable cause. State ex rel. French v. Hendricks Superior Court, Hendricks County, 252 Ind. 213, 223, 247 N.E.2d 519, 525 (1969) (declaring "it is a long standing rule in Indiana that the determination of probable cause is a judicial determination to be made by a judge or magistrate, and not a ministerial determination."). In a case involving the warrantless search of an automobile, Justice DeBruler eloquently underscored the rationale for the requirement that judicial officers, as opposed to police officers, determine the existence of probable cause:

State judges and magistrates with authority to issue warrants have received full legal educations. They often have had considerable experience in the practice of law; they are subject to the Code of Judicial Conduct. Moreover, judges and magistrates are generally politically answerable to their communities in ways that law enforcement officers are not and judicial officers are, therefore, more likely to understand the general mores regarding reasonable behavior. This preference for warrants is based on the belief that a neutral and detached magistrate is more likely to be a fair evaluator of the relevant cireurastances than the police officer actively involved in investigating a particular crime.

Brown v. State, 653 N.E.2d 77, 80 (Ind.1995) (footnote omitted).

In this case a magistrate issued a warrant for the search of methamphetamines based upon an officer's sworn representation that a field test revealed the presence of the illegal drug. However, before the warrant was executed the officer learned that a laboratory test showed the presence of no controlled substance at all. Consistent with standard operating procedure in that jurisdiction, the officer contacted the local prosecutor with this new information. Rather than alert the magistrate, the prosecutor gave the officer the go-ahead to execute the warrant. Carving out an exception to the requirement that a neutral and detached magistrate make the determination of probable cause, this Court's majority endorsed the actions of the police and prosecutor on the ground that the new information was not "material." Op. at T72.

In my view this materiality exception is problematic because it runs afoul of both the United States and Indiana constitutional guarantees that a neutral and detached magistrate determine the existence of probable cause. Instead, it leaves into the very hands of those who are "actively involved in investigating [the] crime" the determination of whether the new information is material and thus whether probable cause exists. Stated differently, when a new fact is discovered, a police officer-or in this case a prosecuting attorney-is the one who will determine whether it is material to the magistrate's probable cause determination. This means that only when a police officer finds that a newly discovered fact is material to the magistrate's probable cause determination will that fact even get relayed to the issuing magistrate before execution of the search warrant. In my view this is incorrect. This is a magistrate's call and neither the investigating officer nor this Court should engage in speculation on whether the magistrate would have found that probable cause still exists had the magistrate been presented with this new information.

Rather than carve out an exception, I would hold that an officer has a duty to report to the magistrate any new or correcting information that defeats the original underlying basis for the magistrate's issuance of a search warrant. Because that was not done in this case, I would reverse the trial court's denial of Query's motion to suppress.

SULLIVAN, J., concurs.

1 . Nearly verbatim to the Fourth Amendment of the United States Constitution, Article 1, Section 11 of the Indiana Constitution provides in relevant part: "no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."