CONNOR v. The People, Real Party in Interest.

Reset A A Font size: Print

Court of Appeal, Fifth District, California.

James O'CONNOR, Petitioner, v. MADERA COUNTY SUPERIOR COURT, Respondent, The People, Real Party in Interest.

No. F029232.

Decided: June 26, 1998

Ilan Funke-Bilu, San Luis Obispo, for Petitioner. No appearance for Respondent. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Venturi and Susan J. Orton, Deputy Attorneys General, for Real Party in Interest.

OPINION

In this case of first impression, we hold that the good-faith exception to the exclusionary rule, recognized in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (Leon ), applies to the requirement that a search warrant be issued by a “neutral and detached” magistrate.   In the unpublished portion of our opinion, we apply Leon to the circumstances of this particular case and reject the claim that the search warrant at issue here was invalid for want of probable cause.

PROCEDURAL HISTORY

By information filed July 26, 1997, petitioner James O'Connor was charged with possession of marijuana for sale (Health & Saf.Code, § 11359;  count 1) and cultivation of marijuana (Health & Saf.Code, § 11358;  count 2).   It was further alleged that O'Connor was armed with a firearm during commission of the charged offenses (Pen.Code, § 12022, subd. (a)(1)).

O'Connor subsequently moved to suppress evidence (Pen.Code, § 1538.5) on the grounds that (1) the search warrant for his residence was issued without probable cause;  (2) the search warrant was not issued by a neutral and detached magistrate;  and (3) the executing officers' reliance on the warrant was not objectively reasonable.   The motion was denied and a trial date was set.

On September 23, 1997, O'Connor filed the instant petition for writ of mandate/prohibition, challenging the denial of his suppression motion.   On November 3, we issued an order to show cause why the relief prayed for in the petition should not be granted.   We also ordered that trial be stayed pending a determination of this action or further order of this court.   Following oral argument, we requested supplemental briefing from the parties on the applicability of Leon to the neutrality requirement.   We now deny the petition.

FACTS

In the early morning hours of August 16, 1996, Madera County Sheriff's Deputy Darin McMechan presented an affidavit requesting a search warrant to his father, the Honorable Richard McMechan, Judge of the Mariposa County Superior Court.1  The affidavit in support of the search warrant recited Deputy McMechan's training and experience.2  The “investigation” section of the affidavit stated:

“0110 hrs. 8/16/96 I was contacted by Sgt. Barber of the Madera County Sheriff's office.   I was advised that he along with Dep. Adkins responded to the location in North Fork which was the scene of a fire.   Sgt. Barber advised that a[n] outbuilding burn [sic ] to the ground.   In the structure that burned were hoods from lights.   I was advised that about 20 yards away from the outbuilding that burned down, was a double wide mobile home with a[n] attached wood shed at the rear of the mobile home.   Sgt. Barber advised that there was a tarp over the door entering into the wood shed.   Sgt. Barber was able to see that lights were on inside the wood shed.   Sgt. Barber was advised by a fireman that there were about 20, six foot tall marijuana plants inside the wood shed.   The deputies were advised by the fireman that a citizen who observed the fire entered the wood shed to make sure that everyone was out of the residence when the marijuana plants were located.   Sgt. Barber advised me that there were other structures on the property associated to the residence.   No subjects associated with the location were located.   I was advised that [sic ] by Madera Sheriff's dispatch that the deputies arrived at the location at 0047 hrs. this date.   I request night service because a deputy is securing the scene for a warrant to be obtained.”

Based on the foregoing information, together with his training and experience, Deputy McMechan opined in the affidavit that marijuana plants were located in the wood shed, that the burned outbuilding may have contained a marijuana cultivation operation, and that evidence in the residence would indicate who was involved in that operation.

According to Deputy McMechan's declaration (which was appended as an exhibit to the People's informal response), upon receiving information from Sergeant Barber, Deputy McMechan immediately went to his home computer and prepared the search warrant affidavit, completing the necessary documents between 2 and 3 a.m. He felt he was under some pressure to present his documents to a magistrate and to respond to the officers who were waiting at the scene.   Deputy McMechan stated:  “There are two judges in the area:  my father, Judge Richard Lee McMechan, who lives next door, and Judge Thomas Fletcher of Bass Lake. I decided that if I was going to have to wake up a judge at that hour, it would be better to call upon my father.”

At approximately 3 a.m., Judge McMechan issued the search warrant.   Deputy McMechan served the signed search warrant that morning.   At O'Connor's preliminary hearing, Deputy McMechan testified that, pursuant to the warrant, he searched a mobile home located at 33325 Road 230 in North Fork. There, he found evidence that O'Connor lived in the mobile home.   The search also resulted in the seizure of several bags of marijuana, a triple beam scale, three loaded firearms, and pay-owe sheets from the residence, and a marijuana garden with 14 plants in an attached shed.

As noted, O'Connor moved to suppress evidence in superior court.   In denying the motion, the court stated:

“THE COURT:  Very well.   Then the Court having read the moving papers and papers in opposition and argument of counsel, your first argument is this is not supported by probable cause.   The witnesses saw grow light hoods in the burned building, there was light from the shed, a fireman, without going through a citizen informant, ignoring citizen informant, a fireman advised there were marijuana plants in the shed, so it is supported by probable cause.

“The next issue is the warrant was not issued by a neutral magistrate, the deputy's father.   And I would say, first of all, any magistrate would have issued the warrant based on declarations.   And, secondly, as far as being neutral is concerned, Deputy Dar[in] McMechan was not a direct witness, his credibility was not in issue.   He was simply reporting on what other witnesses had advised him.   It isn't like he had seen and was telling his father.   This is something that other witnesses had told him, and he was simply the reporting officer.   So the Court finds it was a neutral magistrate as it was effected.

“And the officer's reliance was not objectively reasonable, I would disagree.   The deputy reasonably relied upon the warrant.”

DISCUSSION

O'Connor contends his suppression motion should have been granted because (1) the search warrant was not issued by a neutral and detached magistrate;  (2) the search warrant was not supported by probable cause;  and (3) the executing officer(s) could not reasonably rely on the warrant in good faith.   We reject all three contentions.

I.

APPLICABILITY OF LEON TO THE NEUTRALITY REQUIREMENT

O'Connor contends that Judge McMechan, by virtue of being the affiant's father, was not a neutral and detached magistrate when he issued the search warrant based on his son's affidavit in support of probable cause.   Based on this fact, he concludes the search warrant was void;  hence, the evidence seized under color thereof must be suppressed.   O'Connor further contends that a search warrant issued in violation of the neutrality requirement cannot, under any circumstances, be saved by reliance on Leon.

As we shall explain, we believe the true issue in this case is whether, assuming a violation of the neutrality requirement, the exclusionary rule applies.   In this regard, we hold that Leon 's good faith exception to the exclusionary rule applies to violations of the neutrality requirement.   To conclude otherwise would mean that suppression is mandated where a magistrate who issues a search warrant is not “neutral and detached,” irrespective of whether a reasonably well-trained police officer would or should know of this defect.   Such a holding would place the magistrate's state of mind in issue in every suppression hearing, thereby encouraging defendants to challenge magistrates' neutrality and resulting in magistrates frequently being called upon to deny allegations of bias through affidavit or testimony at a suppression hearing.   It would also punish police officers for magistrates' errors.   Such a result is neither consistent with the orderly administration of justice nor required by the Fourth Amendment.

 “To decide whether relevant evidence obtained by assertedly unlawful means must be excluded in a trial for crimes allegedly committed after June 8, 1982, we look exclusively to whether its suppression is required by the United States Constitution.  [Citations.]”  (People v. Glaser (1995) 11 Cal.4th 354, 363, 45 Cal.Rptr.2d 425, 902 P.2d 729;  In re Lance W. (1985) 37 Cal.3d 873, 885-890, 210 Cal.Rptr. 631, 694 P.2d 744.)   Our starting point is, of course, the Fourth Amendment to that Constitution, which provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment says nothing expressly about a “neutral and detached” magistrate.   However, it evinces a “strong preference for searches conducted pursuant to a warrant․” (Illinois v. Gates (1983) 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527.)   In this regard, “[t]he judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime.’  [Citation.]”  (United States v. Chadwick (1977) 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538, abrogated on other grounds in California v. Acevedo (1991) 500 U.S. 565, 576, 579, 111 S.Ct. 1982, 1989, 1990, 114 L.Ed.2d 619.)   Thus, the United States Supreme Court has held, a neutral and detached magistrate is required by the Constitution.  (Coolidge v. New Hampshire (1971) 403 U.S. 443, 453, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 [state attorney general in charge of investigation issued search warrant in capacity as justice of peace];  see also Lo-Ji Sales, Inc. v. New York (1979) 442 U.S. 319, 326, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920 [magistrate participated in generalized search under invalid warrant];  Connally v. Georgia (1977) 429 U.S. 245, 247-250, 97 S.Ct. 546, 547-549, 50 L.Ed.2d 444 [magistrate was paid fee for each warrant issued, but received nothing if warrant denied].)

 It is important to keep in mind why neutrality is required for Fourth Amendment purposes:  the requirement of a neutral magistrate was engrafted onto the concept of probable cause as being necessary to ensure there was probable cause.   The existence of probable cause is often a close question, and the neutrality requirement ensures that the appropriate entity -one without a stake in the criminal investigation - makes the determination, so that the balance is not tipped by bias.  (See Steagald v. United States (1981) 451 U.S. 204, 212, 101 S.Ct. 1642, 1647-1648, 68 L.Ed.2d 38.)  “The point of the Fourth Amendment ․ is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence.   Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate․” (Johnson v. United States (1948) 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436.)   Thus, while the existence of probable cause does not render irrelevant noncompliance with the warrant procedure (Coolidge v. New Hampshire, supra, 403 U.S. at p. 450, 91 S.Ct. at p. 2029), the requirement that a search warrant be issued by a neutral and detached magistrate is inextricably bound up with the question of probable cause.   As the United States Supreme Court explained in Shadwick v. City of Tampa (1972) 407 U.S. 345, 350, 92 S.Ct. 2119, 2122-2123, 32 L.Ed.2d 783:

“The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause․ Thus, an issuing magistrate must meet two tests.   He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.”

 We emphasize that, in our view, the most important issue in this case is not whether Judge McMechan should have signed a search warrant presented by his son.3  Rather, the fundamental question here is whether, having done so, and assuming a violation of the Fourth Amendment's neutrality requirement, application of the exclusionary rule is appropriate.   For the reasons which follow, we conclude that an alleged neutrality violation is analyzed in the same manner as any other violation of the Fourth Amendment for purposes of Leon;  if the requirements for the good-faith exception to the exclusionary rule set out in that opinion are met, the exclusion of evidence is not an appropriate remedy for the violation.   This rule does not change simply because it is the neutrality requirement that is violated.   In other words, issuance of the search warrant by a neutral and detached magistrate is not somehow a prerequisite to application of Leon.

 The exclusionary rule is not a necessary corollary of the Fourth Amendment.  (Leon, supra, 468 U.S. at pp. 905-906, 104 S.Ct. at p. 3411.)   Instead, the rule “operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’   [Citation.]”  (Id. at p. 906, 104 S.Ct. at p. 3412.)   Because of this, “ ‘[t]he application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.’  [Citations.]”  (Id. at p. 908, 104 S.Ct. at p. 3413.)   If application of the exclusionary rule does not result in appreciable deterrence, then its use in a particular situation is unwarranted.  (Id. at p. 909, 104 S.Ct. at p. 3413.)

 In view of the foregoing, the United States Supreme Court stated, “Whether the exclusionary sanction is appropriately imposed in a particular case ․ is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.’  [Citation.]  Only the former question is currently before us, and it must be resolved by weighing the costs and benefits of preventing the use in the prosecution's case in chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective.”  (Leon, supra, 468 U.S. at pp. 906-907, 104 S.Ct. at p. 3412.)   The high court's “evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible in the prosecution's case in chief.”  (Id. at p. 913, 104 S.Ct. at p. 3415.)

The Leon court again expressed a preference for searches pursuant to warrant and noted that, because reasonable minds may differ on the question whether a particular affidavit establishes probable cause, “the preference for warrants is most appropriately effectuated by according ‘great deference’ to a magistrate's determination.”  (Leon, supra, 468 U.S. at p. 914, 104 S.Ct. at p. 3416.)

“Deference to the magistrate, however, is not boundless.   It is clear, first, that the deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based.   Second, the courts must also insist that the magistrate purport to ‘perform his “neutral and detached” function and not serve merely as a rubber stamp for the police.’   A magistrate failing to ‘manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application’ and who acts instead as ‘an adjunct law enforcement officer’ cannot provide valid authorization for an otherwise unconstitutional search.

“Third, reviewing courts will not defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis for determining the existence of probable cause.’  ‘Sufficient information must be presented to the magistrate to allow that official to determine probable cause;  his action cannot be a mere ratification of the bare conclusions of others.’   Even if the warrant application was supported by more than a ‘bare bones' affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate's probable-cause determination reflected an improper analysis of the totality of the circumstances, or because the form of the warrant was improper in some respect.”  (Leon, supra, 468 U.S. at pp. 914-915, 104 S.Ct. at p. 3416, citations & fns. omitted.)

In our view, the Leon court's references to a warrant issued by a neutral and detached magistrate do not mean the Leon rationale cannot apply where the magistrate arguably was not neutral and detached.   In Leon, the United States Supreme Court was not dealing with the question of whether a Fourth Amendment violation occurred, but “only with the remedy to be applied to a concededly unconstitutional search.”  (Leon, supra, 468 U.S. at p. 915, fn. 13, 104 S.Ct. at p. 3416, fn. 13.)   If the corrective remedy of exclusion has, in a particular situation, little or no deterrent effect, employment of that sanction affords no benefit, while its cost is high.   In such situations, the use of the exclusionary remedy has been rejected.  (See Leon, supra, 468 U.S. at pp. 908-913, 104 S.Ct. at pp. 3412-3415 [discussing various situations in which rule has been held not to apply].)

Significant to the neutrality issue is the lack of deterrent effect that the exclusion of evidence has on magistrates.   In respect to the three situations described in Leon (knowing or reckless falsity of the affidavit, magistrate failing to manifest neutrality and detachment, insufficient showing of probable cause or improper form of warrant), the Supreme Court stated:

“Only in the first of these three situations [i.e., knowing or reckless falsity of the affidavit] ․ has the Court set forth a rationale for suppressing evidence obtained pursuant to a search warrant;  in the other areas, it has simply excluded such evidence without considering whether Fourth Amendment interests will be advanced.   To the extent that proponents of exclusion rely on its behavioral effects on judges and magistrates in these areas, their reliance is misplaced.   First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.   Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.14

“Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.   Many of the factors that indicate that the exclusionary rule cannot provide an effective ‘special’ or ‘general’ deterrent for individual offending law enforcement officers apply as well to judges or magistrates.   And, to the extent that the rule is thought to operate as a ‘systemic’ deterrent on a wider audience, it clearly can have no such effect on individuals empowered to issue search warrants.   Judges and magistrates are not adjuncts to the law enforcement team;  as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions.   The threat of exclusion thus cannot be expected significantly to deter them.   Imposition of the exclusionary sanction is not necessary meaningfully to inform judicial officers of their errors, and we cannot conclude that admitting evidence obtained pursuant to a warrant while at the same time declaring that the warrant was somehow defective will in any way reduce judicial officers' professional incentives to comply with the Fourth Amendment, encourage them to repeat their mistakes, or lead to the granting of all colorable warrant requests.18 ”  (Leon, supra, 468 U.S. at pp. 915-917, 104 S.Ct. at pp. 3416-3418, fns. 15-17 omitted.)

The court went on to say that “[i]f exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officers or the policies of their departments.”  (Leon, supra, 468 U.S. at p. 918, 104 S.Ct. at p. 3418, italics added.)   After discussing arguments advanced in support of excluding evidence obtained where the search warrant is technically defective or the affidavit in support thereof fails to demonstrate probable cause (the precise issue raised by the facts of the Leon case), the court concluded “that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-base basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.”   (Ibid.)

This rationale clearly applies to the neutrality issue.   That this result was intended by the Supreme Court is demonstrated by the language of Leon. First, both lack of neutrality and lack of probable cause are treated as errors of the magistrate in the court's discussion of whether Fourth Amendment interests are advanced by the exclusion of evidence.  (See Leon, supra, 468 U.S. at pp. 915-917, 104 S.Ct. at pp. 3416-3418, quoted ante.)   Second, the court refers to the magistrate “purport[ing]” to perform his or her neutral and detached role and “ ‘manifest[ing]’ ” the required neutrality and detachment.   (Id. at p. 914, 104 S.Ct. at p. 3416.)   The terms “purport” and “manifest” imply an appearance, not necessarily a reality.   If a magistrate “purport[s] to ‘perform his “neutral and detached” function’ ” and “ ‘manifest[s] that neutrality and detachment demanded of a judicial officer when presented with a warrant application’ ” (Leon, supra, 468 U.S. at p. 914, 104 S.Ct. at p. 3416, italics added), such that it appears to an objectively reasonable law enforcement officer that the magistrate is, in fact, neutral and detached, an actual lack of neutrality constitutes an error of the magistrate, not of the officer.   Suppression of evidence in such a case will not further the purposes of the exclusionary rule.   As the Supreme Court made plain, “our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.”  (Id. at p. 922, fn. 23, 104 S.Ct. at p. 3420, fn. 23.)   If the magistrate objectively appears to be neutral and detached, a reasonably well-trained officer would have no reason to know the search is illegal despite the magistrate's authorization;  hence, “there is no police illegality and thus nothing to deter․ Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.”  (Id. at p. 921, 104 S.Ct. at p. 3419, fn. omitted.)

Of course, the officer's reliance on the magistrate's determination of probable cause and on the technical sufficiency of the warrant must be objectively reasonable, and in some instances, the officer will have no reasonable grounds for believing the warrant is valid.  (Leon, supra, 468 U.S. at pp. 922-923, 104 S.Ct. at p. 3421.)

“Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.  [Citation.]  The exception ․ will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 [99 S.Ct. 2319, 60 L.Ed.2d 920] (1979);  in such circumstances, no reasonably well trained officer should rely on the warrant.   Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’  [Citations.]  Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient i.e., in failing to particularize the place to be searched or the things to be seized that the executing officers cannot reasonably presume it to be valid.  [Citation.]”  (Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 3421, italics added.)

The wording of the high court's citation to Lo-Ji is not merely fortuitous.   If a magistrate wholly abandons his or her judicial role by becoming part of the investigative team, suppression remains an appropriate remedy not simply because the magistrate is not neutral and detached, but because no reasonably well-trained officer would believe the magistrate was impartial and, hence, that the warrant was valid.   The reference to what a reasonably well-trained officer should do is a clear indication that the good-faith exception may apply to a neutrality violation, depending on the circumstances.   By its reference to Lo-Ji, the high court did not foreclose such a possibility;  instead, it clarified that if there is wholesale abandonment of the judicial role as in Lo-Ji, the good-faith exception will not apply because there can be no objectively reasonable belief in the validity of the warrant.   At some point it would be obvious to any well-trained police officer that the magistrate was not performing his or her judicial function.   Short of that point, “suppression of evidence ․ should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule” (Leon, supra, 468 U.S. at p. 918, 104 S.Ct. at p. 3418, fn. omitted) in other words, in those cases in which the officer has no reasonable grounds for believing that the warrant was properly issued (id. at p. 923, 104 S.Ct. at p. 3421).4

The preeminent commentator on Fourth Amendment jurisprudence agrees that Leon 's rationale applies to the neutrality question.5  Thus, in 1 LaFave, Search & Seizure:  A Treatise on the Fourth Amendment (3d ed.   1996) The Exclusionary Rule, section 1.3(f), page 72, it is stated:

“The second specific situation mentioned by the [Leon ] Court as one in which reliance upon the warrant would not be ‘objectively reasonable’ is ‘where the issuing magistrate wholly abandoned his judicial role.’   But that language must be read in context, particularly in relation to the Court's immediately following observation that ‘in such circumstances, no reasonably well-trained officer should rely on the warrant.’   Thus, the mere fact that the person who issued the warrant did not as a general matter or in the circumstances of the particular case qualify as a neutral and detached magistrate is not itself determinative.   Apparently on the assumption that such consequences follow from the conclusion deterrence of magistrates is unnecessary, the majority in Leon seems to have concluded that a warrant may not be invalidated merely because it was issued by a person not constitutionally authorized to do so, by a person who knew he was disqualified either generally or in the particular case, or even by a person who recklessly or intentionally issued a warrant on insufficient evidence.  Leon recognizes only deterrence of the police, and that kind of deterrence only where the police acted unreasonably, and this means that the circumstances showing the magistrate has ‘wholly abandoned his judicial role’ must have been known by (or, at least reasonably knowable by) the police.”  (Fns.omitted.)

Similarly, in discussing who cannot qualify as a neutral and detached magistrate for Fourth Amendment purposes, LaFave observes that the need to resolve this particular question appears to have been largely obviated by Leon. Pursuant to that opinion,

“whether the person who issued the warrant in fact qualified as a neutral and detached magistrate is no longer determinative on the suppression issue.   Rather, the question is whether it was ‘objectively reasonable’ for the officers who obtained and executed the search warrant to assume that the person issuing it was constitutionally authorized to do so.   As is highlighted by the fact that the Court in Leon concluded the exclusionary rule was unnecessary to deter magistrates from engaging in improper conduct, this means that neither intense bias by the issuing magistrate nor his total failure to assess the search warrant affidavit requires suppression unless the police reasonably should have known the facts demonstrating those circumstances.”  (2 LaFave, Search & Seizure:  A Treatise on the Fourth Amendment, supra, Search Warrants, § 4.2(a), p. 439.) 6

Assuming Judge McMechan's participation in this case falls within the proscription of Coolidge v. New Hampshire, supra, 403 U.S. 443, 91 S.Ct. 2022 or Connally v. Georgia, supra, 429 U.S. 245, 97 S.Ct. 546, this means the warrant does not meet the standards of the Fourth Amendment.   Those cases tell us when the Fourth Amendment has been violated because the magistrate who issued the search warrant was not neutral and detached.  Leon does not change the requirements of the Fourth Amendment or curtail its protections.

The dissent seizes on the statement in Coolidge v. New Hampshire, supra, 403 U.S. at page 453, 91 S.Ct. at page 2031, that where the issuing magistrate is not neutral and detached, “the search stands on no firmer ground than if there had been no warrant at all.”   However, neither Coolidge nor Connally addresses the requirement, imposed by Leon years after those cases were decided, that application of the exclusionary rule must result in appreciable deterrence or its use in a particular situation is unwarranted.   Leon represents a fundamental evolution in how the exclusionary rule is viewed, and the earlier cases must be read in light of that decision.

Simply put, a conclusion the neutrality requirement was violated does not mean the appropriate remedy is suppression.   The very basis of the Leon rationale assumes that the warrant is defective under the Fourth Amendment, but concludes suppression is not the appropriate remedy because it does not address the purpose for which the sanction of exclusion was developed.   To hold that Leon 's rationale cannot apply to neutrality violations would mean that, even though an officer was completely unaware of the magistrate's purported bias, and even though there was probable cause to issue the warrant based on the affidavit, the evidence would be suppressed.   This would create a situation in which the officer would be penalized for conduct over which he or she had no control, and would impose upon the officer a responsibility to ensure that the magistrate is neutral and detached, or else accept the consequence of suppression.   As the exclusionary rule does not exist to deter the failures of magistrates, such a result is inconsistent with the fundamental purpose of that sanction.

 Given the foregoing, we need not decide whether Judge McMechan was a neutral and detached magistrate, as that requirement is interpreted for Fourth Amendment purposes.   Nevertheless, given the arguments of the parties on this point, we find it appropriate to observe that there is ample support for the People's position that Judge McMechan fulfilled the Fourth Amendment's neutrality requirement.

As previously referenced, the United States Supreme Court has found an issuing magistrate to run afoul of the neutrality requirement where he participated in (even becoming a leader of) a generalized search under an invalid warrant, thereby acting not as a judicial officer but as an “adjunct law enforcement officer” (Lo-Ji Sales, Inc. v. New York, supra, 442 U.S. at p. 327, 99 S.Ct. at p. 2325);  and where the state attorney general was in charge of the investigation and was to be chief prosecutor at the trial, yet issued the search warrant in his capacity as justice of the peace (Coolidge v. New Hampshire, supra, 403 U.S. at pp. 447, 449, 91 S.Ct. at pp. 2028, 2029).   No such blurring of the line between judicial and prosecutorial roles is present here.

The high court has also found a neutrality violation where the magistrate was not salaried, but instead was paid a fee for each warrant issued and received nothing if the warrant was denied.  (Connally v. Georgia, supra, 429 U.S. at p. 250, 97 S.Ct. at p. 548.)   The court described that situation as “one which offers ‘a possible temptation to the average man as a judge ․ or which might lead him not to hold the balance nice, clear and true between the State and the accused.’   It is, in other words, another situation where the defendant is subjected to what surely is judicial action by an officer of a court who has ‘a direct, personal, substantial, pecuniary interest’ in his conclusion to issue or to deny the warrant.  [Citation.]”  (Ibid.)

Here, we discern no direct, personal stake on the part of Judge McMechan in seeing the warrant issue.   We are certainly not presented with a situation in which the magistrate had some sort of personal involvement in the investigation or in seeing to it that someone was prosecuted.  (Contrast State v. Burnam (1983) 66 Or.App. 132, 672 P.2d 1366, 1367-1369 & fn. 1 [magistrate not neutral and detached under Coolidge when he issued search warrants concerning a suspect in the murder of his clerk and was “very concerned” about defendant's apprehension].)   Perhaps it might be argued that Judge McMechan had an interest in furthering his son's career as a law enforcement officer, but there is nothing in the record before us to suggest that this was anything more than a routine narcotics case hardly the type of matter that could measurably impact a career.7  Deputy McMechan's explanation of why he sought the warrant from his father does not intimate that he was seeking a “rubber stamp” for his conduct or that he believed his father would so comport himself, nor is there any suggestion that Judge McMechan so acted.  (See, e.g., U.S. v. Decker, supra, 956 F.2d at pp. 777-778 [magistrate acted as “rubber stamp” for police where he signed warrant without reading it and failed to note both that prosecutor had not signed warrant (as required by state law) and that warrant did not list property to be seized].)

What we have here is, at best, an appearance of partiality.   Such an appearance, without more, is not enough to render Judge McMechan constitutionally disqualified to act or to implicate the exclusionary rule under the Fourth Amendment.

Several cases illustrate this point.   In Dyas v. Lockhart (8th Cir.1983) 705 F.2d 993 (cert. den. sub nom.  Lockhart v. Dyas (1983) 464 U.S. 982, 104 S.Ct. 424, 78 L.Ed.2d 359), Judge Steele presided at Dyas's jury trial, following which Dyas was sentenced to life imprisonment without possibility of parole.   Judge Steele was the uncle of the prosecuting attorney (which appears to be the equivalent of a district attorney in California), and the brother and father of the two deputy prosecuting attorneys who participated in the prosecution of Dyas. (Dyas v. Lockhart, supra, 705 F.2d at p. 995.)   Although Dyas ultimately won a remand, through habeas proceedings, to afford him the opportunity to prove Judge Steele's actual bias, the Circuit Court of Appeals ruled that the familial relationships should be considered but one of several factors bearing on the question whether Dyas was denied his constitutional right to a neutral and detached trial judge.  (Id. at p. 997.)   The court concluded, however, that Judge Steele's relationship to prosecutors was insufficient, standing alone, to raise a constitutional presumption of bias or, by implication, automatically to constitute a violation of due process.  (Ibid.) The court explained:

“Judge Steele had no personal interest in the outcome of the case other than fairly trying and submitting the issues to the jury.   Dyas' sole basis for imputing bias here is that Canon 3(C)(1)(d)(ii) of the Code of Judicial Conduct 4 requires disqualification where a ‘person within the third degree of relationship’ to the judge is ‘acting as a lawyer in the proceeding.’   See Potashnick v. Port City Const. Co., 609 F.2d 1101, 1112-13 (5th Cir.1980) (court interpreted 28 U.S.C. § 455(b)(5)(ii) (1976), which is substantially identical to Canon 3 C of the Code of Judicial Conduct, to require automatic disqualification where a person within third degree of relationship to judge is acting as an attorney).   See also United States v. Conforte, 624 F.2d 869, 881 (9th Cir.1980).   However, a trial judge's disqualification under the Code of Judicial Conduct does not necessarily imply impermissible bias under the due process clause.   See Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 746 (1973).   Furthermore, the case before us is distinguishable from those cases where an unconstitutionally high probability of actual bias was found to exist, such as where the judge had a pecuniary interest in the outcome of the trial or where he had been the target of the defendant's severe personal abuse.   Here, the Prosecuting Attorneys were acting in the interest of the State of Arkansas, not in their own personal, financial interests.   Furthermore, the relationship here does not necessarily suggest that Judge Steele had such a strong personal or financial interest in the outcome of the trial that he was unable to hold the proper balance between the state and the accused.  In re Murchison [ (1955) ] 349 U.S. [133] at 136 [75 S.Ct. 623 625, 99 L.Ed. 942].” (Dyas v. Lockhart, supra, 705 F.2d at p. 997.)

In U.S. v. Ramirez (10th Cir.1995) 63 F.3d 937, 941-942, the magistrate's additions to the affidavit did not indicate he abandoned his judicial role where they were common-sense extensions of the contents of the narrative portion of the affidavit.   While the Court of Appeals found the additions “troubling,” it declined to adopt a per se rule requiring suppression whenever a magistrate altered an affidavit.   The court stated:  “Whether a magistrate was neutral and detached in any particular case is necessarily an individualized and contextual inquiry.   Courts must focus on the specific circumstances surrounding the issuance of the warrant and decide whether the magistrate ‘manifest[ed] that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure.’   [Citation.]”  (Id. at p. 941, citing Lo-Ji Sales, Inc. v. New York, supra, 442 U.S. at p. 326, 99 S.Ct. at p. 2324.)

In U.S. v. Heffington (9th Cir.1991) 952 F.2d 275, 277-279, no constitutional defect in issuance of the warrant was found where the magistrate had been defense counsel in an earlier case in which the present defendant was a codefendant.   The Court of Appeals observed that

“the cases demonstrate a measure of caution on the part of the courts before concluding that mere appearances of partiality have, in fact, risen to the level of constitutional error.  [Citations.]

“Perhaps because the cases fail to provide bright-line criteria for determining whether an ‘appearance’ has, in fact, developed into a constitutional defect, the trial court understandably was inclined toward attempting to resolve this question by determining whether or not the concept of ‘harmless error’ applied.   The trial court applied the harmless error analysis to appellant's neutral and detached magistrate claim because from all the facts before the court it was clear that any magistrate would have found probable cause for a warrant.   In its written order denying Womble's motion to suppress, the district court observed that ‘this is not a situation where the magistrate was presented with a bare-bones affidavit making it arguably probable that the search warrant was issued solely because of the magistrate's knowledge of the details of that previous prosecution.’

“Although Judge Moffat may not have been the best possible ‘neutral and detached’ magistrate in Central California to issue the search warrant, we find no constitutional defect in the warrant he issued.”  (Heffington, supra, at pp. 279-280.) 8

In U.S. v. McKeever (5th Cir.1990) 906 F.2d 129, 131-132, the magistrate was found to be neutral and detached where she was a former reserve police officer, her husband was currently a reserve deputy, and she visited the scene of the search not to assist in the investigation, but merely out of general curiosity about amphetamine laboratories.   In State v. Mandravelis (1974) 114 N.H. 634, 325 A.2d 794, 795, the court held that a finding the magistrate was not neutral and detached under Coolidge was not required from the mere fact that the magistrate had previously represented this defendant on criminal charges;  the defendant failed to show the magistrate was in fact prejudiced against him by reason of their prior associations.

 Assuming for the sake of discussion that Judge McMechan should have disqualified himself pursuant to Code of Civil Procedure section 170.1, subdivision (a)(1) or (a)(6),9 we acknowledge the general rule “that a judgment or order rendered by a disqualified judge is void whenever brought into question.”  (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 423, 285 Cal.Rptr. 659.)   However, the fact an act may be deemed to be void ab initio pursuant to a state's statutory law does not make it so for purposes of the federal Constitution the only law with which we are concerned when application of the exclusionary rule is at issue.  (People v. Glaser, supra, 11 Cal.4th at p. 363, 45 Cal.Rptr.2d 425, 902 P.2d 729;  In re Lance W., supra, 37 Cal.3d at pp. 885-890, 210 Cal.Rptr. 631, 694 P.2d 744.)   The United States Supreme Court “has recognized that not ‘[a]ll questions of judicial qualification ․ involve constitutional validity.   Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.’ ”  (Aetna Life Insurance Co. v. Lavoie (1986) 475 U.S. 813, 820, 106 S.Ct. 1580, 1584, 89 L.Ed.2d 823, citing Tumey v. Ohio (1927) 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749.)   Matters “ ‘merely of legislative discretion’ ” do not, without more, constitute violations of the Fourth Amendment.10

This court's opinion in Grimes v. Superior Court, supra, 120 Cal.App.3d 582, 174 Cal.Rptr. 623, does not compel a different conclusion.   In that case, a neighbor advised a judge that she thought marijuana was being cultivated on property owned by the jurist.   He investigated, reported the crime to police, and later signed a search warrant for the property.   In finding the judge was not neutral and detached, this court read Coolidge as standing for the proposition that in determining neutrality, “primary importance is placed on the objective external circumstances and how they could be expected to influence a magistrate's decision whether to issue a warrant and not on the subjective state of mind of the particular magistrate.”  (Grimes, supra, at p. 586, 174 Cal.Rptr. 623.)   We concluded:

“In the present case, Judge Green was the owner of the premises to be searched and the landlord to the suspects.   He personally investigated the suspected marijuana cultivation by visiting the premises and taking Polaroid photographs.   Judge Green was also listed in Officer Maloney's affidavit as an official source of the information which triggered the police investigation;  thus, in issuing the warrant Judge Green ruled upon his own credibility.

“Although the judge was acting as a conscientious citizen in investigating a suspected marijuana violation, he should have disqualified himself from issuing the search warrant because the appearance of justice was not well served by his actions.   As has been cogently stated by the California Supreme Court:  ‘It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice.   This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as is possible, the appearance of impropriety.’  [Citation.]”  (Id. at pp. 586-587, 174 Cal.Rptr. 623.)

Grimes is distinguishable on its facts from the present case.   To the extent Grimes expresses a policy regarding disqualification, we do not read it as necessarily equating the existence of grounds for disqualification with a mandated Fourth Amendment consequence.   If that is, indeed, what the opinion means, it was decided before Leon and Proposition 8 and, as previously noted, we are now governed by federal constitutional law in determining whether to apply the exclusionary rule.   As for Grimes 's reading of Coolidge, a number of federal cases would appear to permit inquiry into the magistrate's subjective motivations and state of mind.  (See, e.g., U.S. v. Ramirez, supra, 63 F.3d at p. 941;  U.S. v. McKeever, supra, 906 F.2d at pp. 131-132.) 11

The dissent contends that the Constitution compels application in this case of a per se rule of disqualification on the grounds of inherent bias, apparently as a function of due process.   It is true that in Tumey v. Ohio, supra, 273 U.S. at page 532, 47 S.Ct. at page 444, the United States Supreme Court stated:  “Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.”   Earlier in the opinion, however, as we have noted, the court categorized “matters of kinship, personal bias, state policy, [and] remoteness of interest” as seeming “generally to be matters merely of legislative discretion.”  (Id. at p. 523, 47 S.Ct. at p. 441.)   To our knowledge, the United States Supreme Court has not extended Tumey 's definition or a constitutionally mandated per se rule of disqualification to matters of kinship.  (See Whitacre v. Davey (D.C.Cir.1989) 890 F.2d 1168, 1173 for discussion of distinction drawn in Tumey.)   Even assuming Lo-Ji and Connally types of apparent bias are approached differently, as the dissent argues, the result is the same here:  there is no due process violation under the circumstances of this case.   A familial relationship does not, without more, violate due process.  (See Dyas v. Lockhart, supra, 705 F.2d at p. 997.)

Moreover, Tumey is a pure due process case in the sense that the Fourth Amendment was not implicated.   Assuming due process plays a part in an exclusionary rule analysis under the provisions of that amendment to the Constitution (see Connally v. Georgia, supra, 429 U.S. at p. 250, 97 S.Ct. at p. 548), we must focus on the rationale behind the exclusionary rule.   As Leon makes clear, that rule is inextricably bound up with police misconduct not with the failings of magistrates.

The dissent seeks to couch the issue in narrow terms:  can a son validly have his father issue a search warrant?   In reality, however, the principle is not so restricted;  we must express a general rule that is then applied to specific facts.   The broad question before us is whether a search warrant issued by an arguably biased magistrate falls outside the purview of Leon for purposes of the exclusionary rule.12

Under the dissent's analysis, exclusion would be mandated in every case in which a search warrant was issued by an arguably biased magistrate, regardless of whether the bias was actual or merely apparent, and regardless of whether the officer had any awareness, either actual or imputed, of the lack of neutrality.   Despite the fact that the due process violation seen by the dissent would be the fault of the magistrate in those cases in which the officer lacked knowledge, the dissent would punish the officer by excluding evidence in spite of the absence of misconduct on the part of the police.   As we have explained, such a result is inconsistent with the express discussion in Leon of the purpose of the exclusionary rule, which does not exist either to deter magistrates or to redress individual wrongs.  (Leon, supra, 468 U.S. at pp. 906, 916, 104 S.Ct. at pp. 3411, 3417.)

II.-III.***

The order to show cause is discharged and the petition for writ of mandate/prohibition is denied.   Stay of trial previously ordered is vacated upon finality of this court's decision herein.

I respectfully dissent.

Our criminal justice system necessarily rests upon the bedrock of public confidence in it as an institution.   Of late, the criminal justice system has taken its share of blows which have greatly diminished its validity in the eyes of those it is designed to serve-the public.   Regrettably, I fear my colleagues have dealt that confidence yet another serious blow.   Today, the majority becomes the first appellate court in the nation to hold that a search warrant (and presumably an arrest warrant) may be issued by a magistrate who has a personal interest in the case so long as there is a showing of probable cause.   In effect, my colleagues have cut out the heart of the Fourth Amendment by excising one of its protections against unlawful searches and seizures of a citizen-the requirement that warrants be issued by neutral and detached magistrates.   In spite of well established precedent to the contrary from the United States Supreme Court, my colleagues have chosen to build their legal house of cards upon the lukewarm musings of a well known legal commentator.

Winston Churchill once commented, “This is one of those cases in which the imagination is baffled by the facts.”  (House of Commons (May 13, 1941).)   His words come to mind in this case.   The majority finds no problem when a son approaches his father in the middle of the night to receive authorization to search a person's home.   Instead, my colleagues believe the father-son relationship actually decreases the likelihood that improper factors might enter into the judicial decision.   Of greater concern is the majority's decision to abandon the traditional case-by-case approach to resolving questions of neutrality.   Under the majority's reasoning, the requirement that a warrant be issued by a neutral and detached magistrate is an irrelevant consideration.   Taking the majority's reasoning to its logical conclusion, a magistrate could issue a valid warrant to search the home of the magistrate's own worst enemy and for the purpose of the magistrate's own financial gain.   Any citizen would seriously question the validity of such a warrant, no matter what facts its issuance was based upon.

It is difficult to understand why the majority feels compelled to reach its conclusion that “the good-faith exception to the exclusionary rule, recognized in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (Leon ), applies to the requirement that a search warrant be issued by a ‘neutral and detached’ magistrate.”   There is absolutely no need for the majority to blaze significant new constitutional ground.   In fact, the Attorney General's office never contended that Leon applied, and only addressed the issue when directed to do so by this court.   This is especially true since the majority opinion adopts the Attorney General's argument that Judge McMechan was a neutral and detached magistrate and that there was probable cause for issuance of the warrant.   Having reached these conclusions, that should end the discussion and the petition should be denied.

Setting aside why the majority would even want to apply Leon to these facts, it is difficult to understand how the majority can legally do so.   Leon clearly requires that before the good-faith exception can even come into play, the warrant must be issued by a neutral and detached magistrate.   There are eight separate references to the neutral and detached magistrate requirement in the body of the Leon opinion.   I will recite them here:

“This case presents the question whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.”  (Leon, supra, at p. 900, 104 S.Ct. at p. 3409, italics added.)

“Only the former question is currently before us, and it must be resolved by weighing the costs and benefits of preventing the use in the prosecution's case in chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective.”  (Id. at pp. 906-907, 104 S.Ct. at p. 3412, italics added.)

“As we discuss below, our evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible in the prosecution's case in chief.”  (Id. at p. 913, 104 S.Ct. at p. 3415, italics added.)

“Because a search warrant ‘provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer “engaged in the often competitive enterprise of ferreting out crime,” ’ [citation], we have expressed a strong preference for warrants and declared that ‘in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.’ ”  (Id. at pp. 913-914, 104 S.Ct. at pp. 3415-3416, italics added.)

“Second, the courts must also insist that the magistrate purport to ‘perform his “neutral and detached ” function and not serve merely as a rubber stamp for the police.’ ”  (Id. at p. 914, 104 S.Ct. at p. 3416, italics added.)

“A magistrate failing to ‘manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application’ and who acts instead as ‘an adjunct law enforcement officer’ cannot provide valid authorization for an otherwise unconstitutional search.”  (Id. at p. 914, 104 S.Ct. at p. 3416, italics added.)

“Judges and magistrates are not adjuncts to the law enforcement team;  as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions.”  (Id. at p. 917, 104 S.Ct. at p. 3417, italics added.)

“In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.”  (Id. at p. 926, 104 S.Ct. at p. 3422, italics added.)

In light of these multiple references, I am at a loss to understand how the United States Supreme Court's opinion in Leon can be read to mean there is no longer a requirement that a warrant be issued by a neutral and detached magistrate.

The mantra of the majority opinion is that suppression of evidence seized as a result of a warrant issued by a magistrate who is not neutral and detached does not deter police misconduct.   What the majority misses is that sometimes there are public policy issues of greater magnitude than deterrence of police misconduct.   One of them is that the citizens of the State of California have confidence that when their homes or businesses are searched by law enforcement, someone without an ax to grind has authorized the proceedings.

In the words of Abraham Lincoln, “If you once forfeit the confidence of your fellow citizens, you can never regain their respect and esteem.”  (McClure, Lincoln's Yarns and Stories (1904).)

1.  A search warrant must be issued by a neutral and detached magistrate.

Rather than follow the backward approach to analyzing the issues adopted by the majority, I will follow convention.   To borrow a memorable line from the popular film classic, “The Wizard of Oz,” “It's always best to start at the beginning.”   I begin with the threshold question of whether a father who issues a warrant to his investigating officer son is a neutral and detached magistrate.   For the reasons that follow, I cannot agree that the Fourth and Fourteenth Amendments permit such a procedure.

In my view, the majority is not focused on the real problem, i.e., the kinship between a parent and child.   The natural bond or connection between a parent and child could hardly be more personal and direct.1  My colleagues instead focus on the “routine” nature of the case.   In doing so, the majority has created its own test for determining whether a magistrate is neutral and detached.

The potential for bias between close family members is so obvious that it is specifically addressed by statute-both state and federal.   As a matter of law a father cannot serve in a judicial role on a case involving his son who is a material witness.  (See Code Civ. Proc., § 170.1;  28 U.S.C. § 455.)   These statutes simply codify what any layperson already knows to be true-a parent has an inherent bias in matters involving his or her child and should not be allowed to make decisions in a judicial role which may affect their child's interests and those with an adverse interest.   As will be shown, these laws were intended to promote respect for the judicial branch of government and to avoid violations of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution.   The majority dismisses this patent bias potential by characterizing it as involving matters “merely of legislative discretion.”

The majority fails to apply the test developed by the United States Supreme Court to determine if there was a constitutional violation.   The high court quoted with approval Justice Cooley's writings on “Constitutional Limitations” to the effect that except where the “ ‘interest is so remote, trifling and insignificant that it may fairly be supposed incapable of affecting the judgment of or of influencing the conduct of an individual․ [¶] ․ we do not see how the legislature can have any power to abolish a maxim which is among the fundamentals of judicial authority.”  (Tumey v. Ohio (1927) 273 U.S. 510, 531, 47 S.Ct. 437, 444, 71 L.Ed. 749.)

The high court went on to conclude:

“From this review we conclude, that a system by which an inferior judge is paid for his service only when he convicts the defendant has not become so embedded by custom in the general practice either at common law or in this country that it can be regarded as due process of law, unless the costs usually imposed are so small that they may be properly ignored as within the maxim de minimis non curat lex.

“The Mayor received for his fees and costs in the present case $12, and from such costs under the Prohibition Act for seven months he made about $100 a month, in addition to his salary.   We can not regard the prospect of receipt or loss of such an emolument in each case as a minute, remote, trifling or insignificant interest.   It is certainly not fair to each defendant, brought before the Mayor for the careful and judicial consideration of his guilt or innocence, that the prospect of such a loss by the Mayor should weigh against his acquittal.

“․ There are doubtless mayors who would not allow such a consideration as $12 costs in each case to affect their judgment in it;  but the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice.   Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.”  (Tumey v. Ohio, supra, 273 U.S. at pp. 531-532, 47 S.Ct. at p. 444, italics added.)

In my opinion, the kinship between a parent and child is such that it naturally would “offer a possible temptation to the average [ ] judge to forget the burden of proof required ․ or which might lead him not to hold the balance nice, clear and true ․” While my colleagues apparently do not agree with this conclusion, both the state and federal legislative bodies do.  (See Code Civ. Proc., § 170.1;  28 U.S.C. § 455.)

Further, the question to be answered is an objective one:  Might a person reasonably entertain a doubt whether the judge will be able to be impartial?   This question calls for a “yes” or “no” answer which does not depend on whether the case is “a routine narcotics case” or a complex murder case.   It is the nature of this relationship and the possible temptation it creates, not the seriousness of the case, which is the proper focus for inquiry.

The majority opinion basically concedes, as it must, that the relationship between a father and son offers “an appearance of partiality.”   However, in the same breath it then dismisses this potential bias as not likely to exist in a “routine narcotics case-hardly the type of matter that could measurably impact a career.”

In footnote 7, the majority states:  “It would seem logical that, if anything, Judge McMechan would have more of a stake in assuring that a search in which his son participated was valid and based on ample probable cause.”   However, having a “stake” in the matter is the antithesis of the requirement of being “neutral and detached.”   The majority unwittingly concedes that a natural temptation existed for the magistrate to treat the case differently.   Whether this temptation was to lean forward or to lean backward, the balance could not remain true.

In addition, my colleagues' characterization of this case as “routine” raises an interesting question.   Are they sending the message that in future cases they would reach the opposite result if the case was not routine, such as a triple ax-murder?   Applying the majority's reasoning would result in a determination that Judge McMechan could not be a neutral and detached magistrate because such a case is not routine and could “measurably impact [his son's] career.”   Such a test clearly injects subjective factors into the inquiry.   As a result, the magistrate's state of mind erroneously becomes the determinative factor.

The majority's conclusion that the patent bias did not likely influence the magistrate in this “routine narcotics case” is the same type of justification which the United States Supreme Court has repeatedly refused to accept.   For example, in Tumey, the high court rejected the argument that payment of $12 per conviction was too trivial to impact a judge, stating “the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice.”  (Tumey v. Ohio, supra, 273 U.S. at p. 532, 47 S.Ct. at p. 444.)

Similarly in Connally v. Georgia (1977) 429 U.S. 245, 251, 97 S.Ct. 546, 549, 50 L.Ed.2d 444 (Connally ), the high court once again rejected a similar argument that a $5 search warrant fee was de minimis and that the unilateral character of the justice's adjudication of probable cause distinguished it from Tumey.

“The situation, again, is one which offers ‘a possible temptation to the average man as a judge ․ not to hold the balance nice, clear and true between the State and the accused․” (Id. at p. 250, 97 S.Ct. at p. 548.)  “We therefore hold that the issuance of the search warrant by the justice of the peace in Connally's case effected a violation of the protections afforded him by the Fourth and Fourteenth Amendments of the United States Constitution.”  (Id. at p. 251, 97 S.Ct. at p. 549.)

Like Tumey and Connally, this case cries out for a per se rule of disqualification on the grounds of inherent bias.   This constitutionally compelled rule may not be evaded by speculating on how the particular circumstances of the case might have affected the magistrate's state of mind.   In this respect, this case is not similar to Lo-Ji Sales, Inc. v. New York (1979) 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (Lo-Ji ), where the magistrate's conduct is what provided the strong appearance that the magistrate was not neutral and detached.   This critical distinction escapes the majority on two levels:  the neutrality question;  and the applicability of good-faith reliance on the warrant (to be discussed later).   As a result, its entire analysis is fatally flawed.

The proper test in a Lo-Ji-type challenge is whether the magistrate, by conduct, abandoned his or her judicial role, not whether the magistrate, due to an inherent interest or bias, did not qualify as neutral and detached in the first place:

“Whether a magistrate was neutral and detached in any particular case is necessarily an individualized and contextual inquiry.  [In that situation] courts must focus on specific circumstances surrounding the issuance of the warrant and decide whether the magistrate ‘manifest[ed] that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure.’ ”  (U.S. v. Ramirez (10th Cir.1995) 63 F.3d 937, 941, quoting Lo-Ji Sales, Inc. v. New York, supra, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920.)

Thus, while a number of federal cases focus on specific circumstances to see if the magistrate acted in a neutral and detached manner, the nature of the attack on the magistrate's neutrality dictates which test applies.

For example, in Ramirez, supra, the defendant argued the magistrate abandoned his judicial role as in Lo-Ji Sales, Inc. v. New York, supra, 442 U.S. at page 327, 99 S.Ct. at page 2325.   He contended the magistrate was no longer neutral and detached because he altered the warrant and affidavit listing the items to be searched and seized.   The court was troubled by the magistrate's alteration of the affidavit because it could mean the magistrate abandoned his judicial role.   However, the court refused to adopt a per se rule requiring suppression any time a magistrate alters an affidavit.   Instead, it held that an individualized and contextual inquiry must be made.   Thus, Ramirez was a Lo-Ji-type case involving conduct,2 instead of a Connally-type case involving an inherent conflict of interest.

I hasten to add that a contextual inquiry may be appropriate in both Lo-Ji and Connally questions of neutrality.   For example, a son's role in the warrant process may make a difference in determining the magistrate's ability to be neutral.   Obviously, just because Judge McMechan has a son who is a deputy in the Madera County Sheriff's Department does not mean he is per se disqualified to issue warrants to other members of that department.3

The case of United States v. McKeever (5th Cir.1990) 906 F.2d 129 is instructive because it involved both Lo-Ji and Connally questions of neutrality.   There, the magistrate who issued the search warrant was the wife of a reserve deputy with the Kaufman County Sheriff's Department.   The court rejected the defendants' contention that the magistrate was neither neutral nor detached based on this connection to law enforcement, which, did not alone, make the magistrate an interested party.   However, in rejecting defendants' contention, the court stated:  “There is no indication in the record that her husband was present when [Magistrate] McBurney issued the warrant or that he participated in the search.”  (Id. at p. 131.)   The clear implication is that if McBurney's husband had been present at the issuance of the warrant or participated in the search, the result would have been different.   Unlike McKeever, here Deputy McMechan was present when the search warrant was issued and did participate in the search.   In addition, Deputy McMechan made the request for the search warrant;  he provided his own affidavit in support of his request;  he was the only law enforcement person present when the search warrant was issued;  and he was the only witness for the prosecution at petitioner's preliminary hearing.   These additional “contextual” circumstances are the type identified in McKeever as providing a possible basis for finding the magistrate was an interested party.4

The case of U.S. v. Heffington (9th Cir.1991) 952 F.2d 275, cited and quoted at length by the majority, bears little resemblance to this case.   There the magistrate, Madera Superior Court Judge Moffat, had previously worked as a federal public defender.   In that role, he had represented Steven Silva in 1983 in a case in which Heffington and Kirk were codefendants.   Five years later, Judge Moffat issued a search warrant in their case.   The defendants argued Judge Moffat was not neutral and detached because of this prior connection to the defendants via Silva.   Not surprisingly, the court dismissed the attacks on the magistrate's neutrality, finding “it would be unreasonable to hold that Judge Moffat's representation of Silva in the 1983 methamphetamine case would count as involvement ‘concerning the matter’ presented in th[is] case․” (Id. at p. 279.)

The defendants also argued that Judge Moffat “might have received confidential information from Silva about his manufacturing efforts with codefendants Heffington and Kirk so that he had ‘personal knowledge’ of evidentiary facts at the warrant hearing within the meaning” of federal recusal statutes.   The court dismissed the contention as sheer speculation.   In dicta, the court noted that assuming there was an appearance of partiality, “the appearance clearly is not so ‘extreme’ that it constitutes a constitutional violation.”  (Heffington, supra, 952 F.2d at p. 279;  also contrast State v. Mandravelis (1974) 114 N.H. 634, 325 A.2d 794-795 [court held the mere fact the magistrate had previously represented the defendant did not render him not neutral and detached because no showing was made that the magistrate was actually prejudiced against defendant based on their prior associations];  U.S. v. Czuprynski (6th Cir.1995) 46 F.3d 560, 564 [dispute between the magistrate and the defendant which occurred 13 years earlier found too remote to demonstrate partiality].)

In contrast to the tenuous connections involved in Heffington, Mandravelis, and Czuprynski, the connection between Judge McMechan and his affiant/neighbor/son here registers on the opposite end of the spectrum.   It is so strong that it rises to the level of a constitutional due process disqualification, not simply a statutory disqualification.   Thus, while I agree with my colleagues that not all questions of judicial qualification involve constitutional validity, I disagree that this judicial disqualification did not rise to that level.   The majority, however, completely fails to apply the Tumey test to determine whether the judicial disqualification in this case, i.e., the undeniable appearance of partiality, rises to a constitutional level.

Case law supports my conclusion that a kinship bias may rise to a constitutional deprivation of due process.

In People v. Ebey (1908) 6 Cal.App. 769, 93 P. 379, the court reversed the judgment in a case where the judge was disqualified to act because he was the defendant's half-brother.   Commenting on the provisions of former Code of Civil Procedure section 170, the court stated:

“A sound policy seems to demand that, independent of the rights of the parties to the action, the judicial tribunals appointed by law to administer justice should be preserved from discredit by a broad and liberal construction of the statute to the end of securing a judgment untainted with bias or interest.   Courts should be slow to discover subtle and refined distinctions for indulging a doubtful jurisdiction where the liberty of a citizen is at stake.” 5  (People v. Ebey, supra, 6 Cal.App. at p. 772, 93 P. 379;  accord People ex. rel. Carrillo v. De La Guerra (1864) 24 Cal. 73, 77, [judge who was related to the parties because his wife was a cousin to both parties, found incompetent to act in the case, even though no objection made, and the proceeding was dismissed as void];  De La Guerra v. Burton (1863) 23 Cal. 592 [the judge, who was a first cousin of the plaintiff, was held incompetent to try the matter, which was reversed for a new trial].)

A look at cases from other jurisdictions also leads to the conclusion that Judge McMechan was constitutionally disqualified to act.

In In re Faulkner (5th Cir.1988) 856 F.2d 716, Mary Pick was the first cousin of Judge Joe Fish, and their relationship was close.   Pick was an important participant in certain transactions which formed the basis for the indictments against the defendants, and had spoken to Judge Fish about the case in the past.   Judge Fish denied a motion to disqualify him to sit as judge.   The appellate court reversed, stating:

“The facts speak for themselves, ․ a relative with a close relationship to the judge has been an important participant in key transactions forming the basis of an indictment.   Perhaps even more importantly, that relative has communicated to the judge, substantially though maybe not extensively or in great detail, material facts and her opinions and attitudes regarding those facts.

“A reasonable person easily could question the judge's impartiality, given these circumstances․

“․ We make clear that we are not required to decide whether in fact [the judge] was influenced, but only whether sitting on the case ․ would offer a possible temptation to the average [judge] ․ [to] lead him not to hold the balance nice, clear and true.   The Due Process Clause may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.   But to perform its high function in the best way, justice must satisfy the appearance of justice.   [Citations.]”  (In re Faulkner, supra, 856 F.2d at p. 721, fn. and inner quotation marks omitted;  italics added.)

In State ex rel. Brown v. Dietrick (1994) 191 W.Va. 169, 444 S.E.2d 47, the court reversed the judgment of the lower court which had suppressed evidence obtained under a warrant.   The trial court had held the search warrant issued by the magistrate was void because the magistrate was married to the chief of police and one of his officers had procured the warrant.   The appellate court acknowledged the Judicial Code of Ethics relating to judicial disqualification could foreclose a magistrate from issuing a warrant sought by his or her spouse who is a police officer.   However, it found that situation did not occur.   The court held:

“There was no evidence to show any actual bias or partiality on the part of Magistrate Boober.   The entire argument centered on an implied partiality because of the magistrate's relationship to Chief Boober.   We indicated earlier that any criminal matters which the magistrate's husband is involved with cannot be brought before her because of their spousal relationship.   We decline to extend such a per se rule with regard to the other members of the Ranson police force.   The fact that a magistrate's spouse is the chief of police of a small police force does not automatically disqualify the magistrate, who is otherwise neutral and detached, from issuing a warrant sought by another member of such police force.   However, a small police force coupled with the chief's active role in a given case may create an appearance of impropriety that would warrant a right to challenge the validity of a search warrant.   Certainly, prudence dictates that Magistrate Boober's involvement with warrants from the Ranson police force should be severely curtailed.”   (State ex rel. Brown v. Dietrick, supra, 444 S.E.2d at p. 54, fn. omitted, italics added.)

In Commonwealth v. Sharp (1996) 453 Pa.Super. 349, 683 A.2d 1219, the court reversed the denial of a motion to suppress because the warrant was not supported by probable cause.   Before reaching that issue, however, the court agreed with the trial court that there was no actual conflict of interest which disqualified the magistrate from issuing the warrant.   There, the sheriff, Sheriff Frownfelter, was the magistrate's husband.   Although the sheriff was involved in the case, he played more of an administrative role than an investigative role since it was his deputy who applied for the warrant.   The court made it clear, however, that the magistrate should have recused herself to avoid the appearance of impropriety.   The court also stated that an actual conflict would have existed if the sheriff had been the affiant.  (Id. 683 A.2d at 1222 [“We agree there was no actual conflict of interest here, as the Sheriff was not the affiant”].) 6

In light of the statutory and case law discussed above, the conclusion is inescapable-Judge McMechan was disqualified and constitutionally unable to issue the search warrant for his affiant son.   Here, Deputy McMechan played an active role in securing the warrant.   It was based on his own affidavit, and he conducted the search.   Therefore, under the protections of the Fourth and Fourteenth Amendments (see Tumey and Connally ), Judge McMechan could not act as a neutral and detached magistrate on his son's case, and the search warrant he issued was void.

The majority cites a single case which arguably supports its conclusion that Judge McMechan was neutral and detached for constitutional purposes.  (See Dyas v. Lockhart (1983) 705 F.2d 993.)   However, close examination reveals it contains key factual and procedural differences not present here.   In Dyas, the question of constitutional disqualification of the judge was raised by collateral attack in a petition for writ of habeas corpus decided eight years after the defendant had been convicted in Arkansas.   Before Dyas's trial in 1975, the trial judge assigned to the case, Judge Bobby Steele, offered to disqualify himself because of his relationship to the prosecuting attorney, George Steele, Jr., his nephew.  (Id. at p. 995;  see also Dyas v. Lockhart (8th Cir.1985) 771 F.2d 1144, 1146;  Dyas v. State (1976) 260 Ark. 303, 539 S.W.2d 251, 254-255.) 7  Dyas' counsel declined Judge Steele's offer to disqualify.   In his appeal, Dyas contended he was not personally aware of Judge Steele's disqualification offer.   The Arkansas Supreme Court rejected the claim because the record was deficient and the issue could not be raised for the first time on appeal.   In addition, the court stated:  “We note that the identical surnames of the judge and the prosecuting attorney were obviously known.”  (Dyas v. State, supra, 539 S.W.2d at p. 263.)

Under these circumstances, it is not surprising the Eighth Circuit was unwilling to overturn the judgment by finding a constitutional disqualification based on the uncle-nephew relationship.   The defendant had exhausted his state review of his claim and was before the court on a petition for writ of habeas corpus after conviction and affirmance of his conviction in state court.   As noted by the court, “[g]enerally, a habeas petitioner seeking reversal of his conviction on due process grounds because of the trial judge's alleged bias must demonstrate that the judge was actually biased or prejudiced against the petitioner.”  (Dyas v. Lockhart, supra, 705 F.2d at p. 996.)   The court then applied a presumption of honesty and integrity in favor of Judge Steele, and concluded that “Judge Steele's relationship to the Prosecuting Attorneys was, standing alone, insufficient to raise the conclusive presumption of his actual bias.”  (Id. at p. 997.)   Still, the matter was remanded for a hearing on whether Dyas was aware of the recusal offer and to present evidence of actual bias.

This case is before us pretrial, and neither petitioner nor his counsel have ever waived Judge McMechan's disqualification.   Rather, they have insisted upon it from the beginning.   Since petitioner has not been convicted, and is not seeking reversal of a conviction by collateral habeas attack, he is not required to demonstrate Judge McMechan was actually biased or prejudiced against him.   Given the many factual and procedural distinctions between the cases, Dyas provides little persuasive authority on which to ground a decision here.   Instead, as in State ex rel. Brown v. Dietrick, supra, 444 S.E.2d at page 47, we should adopt a per se rule that any criminal matters which Deputy McMechan is involved with cannot be brought before Judge McMechan because of their father-son relationship.   Under the Tumey and Connally test, it is unrealistic to assume this paternal bond would not have affected Judge McMechan's ability to be impartial.

2. A search warrant which is not issued by a neutral and detached magistrate is void.

On the issue of whether the warrant was issued by a neutral and detached magistrate, the trial court upheld the validity of the warrant by finding that “any magistrate would have issued the warrant based on [the] declarations.”   This ruling was incorrect.   The law is clear:  a search conducted under the authority of a void warrant is the same as a search conducted without a warrant.   Since Judge McMechan “was not the neutral and detached magistrate required by the Constitution, the search stands on no firmer ground than if there had been no warrant at all.”  (Coolidge v. New Hampshire (1971) 403 U.S. 443, 453, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564.)   Therefore, if a warrant for the search was required by the Fourth Amendment, no amount of probable cause will save it.   We noted in Grimes v. Superior Court (1981) 120 Cal.App.3d 582, at page 586, 174 Cal.Rptr. 623 that Coolidge “rejected the argument that the magistrate's lack of neutrality was irrelevant because the showing of probable cause was so strong that any magistrate would have issued a warrant based upon that showing.”  (See also Baggett v. State (1974) 132 Ga.App. 266, 208 S.E.2d 23, 24 [judgment summarily reversed after finding warrant was invalid because issuing magistrate was also a part time police radio dispatcher].)

In Coolidge, supra, the high court addressed and rejected the state's arguments as follows:

“[T]he State argues that the Attorney General, who was unquestionably authorized as a justice of the peace to issue warrants under then-existing state law, did in fact act as a ‘neutral and detached magistrate.’   Further, the State claims that any magistrate, confronted with the showing of probable cause made by the Manchester chief of police, would have issued the warrant in question.   To the first proposition it is enough to answer that there could hardly be a more appropriate setting than this for a per se rule of disqualification rather than a case-by-case evaluation of all the circumstances․  As for the proposition that the existence of probable cause renders noncompliance with the warrant procedure an irrelevance, it is enough to cite Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145, decided in 1925:

“ ‘Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant.   And such searches are held unlawful notwithstanding facts unquestionably showing probable cause’ ” (Coolidge v. New Hampshire, supra, 403 U.S. at pp. 450-451, 91 S.Ct. at p. 2030, fn. omitted.)

There is no evidence that Judge McMechan overtly showed any bias in issuing the subject warrant to his son.   However, as discussed earlier, the “average judge” might be tempted “not to hold the balance nice, clear and true between the State and the accused” in matters involving his or her child.   For example, it may be that Judge McMechan, as a demanding father, actually held his son's affidavit to a higher standard than required by law.   If this were to happen, it would be unfair to the People.   Even if we could somehow determine what the magistrate's subjective state of mind was in this case, it would still totally fail to satisfy the appearance of justice.   Close kinship gives a natural, common-sense reason to question the validity of such a determination.   This, no doubt, is why legislative bodies have enacted disqualification rules.   It follows that courts have refused to even consider deciding whether the judge was, in fact, influenced by the bias or interest inherent in close family relationships.

3. Leon does not apply when a warrant is issued by a magistrate who is not neutral and detached.

In the published portion of the opinion, the majority has concluded Judge McMechan was a neutral and detached magistrate when he issued the search warrant in this case.   In the unpublished portion of the opinion, the majority holds that probable cause supports the issuance of the warrant.   Based on these conclusions alone, the petition should be denied-end of discussion.   However, the majority nonetheless goes on to address whether the good-faith reliance exception adopted in Leon would apply to a warrant issued by a magistrate who was not neutral and detached.   Even though the Leon discussion is nonbinding as precedent because it is dictum, I wish to register my disagreement with the court's hypothetical analysis.

First, conducting a search pursuant to a warrant which is void ab initio because it was issued by a magistrate who is not neutral and detached must be viewed as a search conducted without a warrant at all.   If no exception to the warrant requirement applies, the search is invalid and its fruits are not admissible in court.  Leon provides no basis for retreating from our Grimes decision on this point.   The Coolidge case and its progeny are also binding on this question.

Second, Leon does not come into play unless the defective warrant was issued by a neutral and detached magistrate.  Leon begins:  “This case presents the question whether the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found unsupported by probable cause.”  (Leon, supra, 468 U.S. at p. 900, 104 S.Ct. at p. 3409, italics added.)   The issue is restated later as one which “must be resolved by weighing the costs and benefits of preventing the use in the prosecution's case in chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective.”  (Id. at pp. 906-907, 104 S.Ct. at p. 3412, emphasis added.)

Further, the court prefaces its recognition of a good-faith exception to the Fourth Amendment exclusionary rule as follows:

“As we discuss below, our evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible in the prosecution's case in chief.

“․

“Because a search warrant ‘provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer “engaged in the often competitive enterprise of ferreting out crime,” ’ [citations] we have expressed a strong preference for warrants and declared that ‘in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.’  [Citations.]”  (Leon, supra, 468 U.S. at pp. 913-914, 104 S.Ct. at pp. 3415-3416, fn. omitted.)

The Leon opinion concludes:  “In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.”  (Id. at p. 926, 104 S.Ct. at p. 3422.)   This statement clearly indicates that as a prerequisite to a Leon analysis, the magistrate at one point must have had a “detached and neutral role” in issuing the warrant.   It follows that where the issuing judge never qualified as a neutral and detached magistrate, as here, this prerequisite is not met and Leon does not apply.   Thus, from beginning to end, Leon makes it clear that a valid authorization for a search requires the warrant be issued by a neutral and detached magistrate.  (See U.S. v. Ramirez, supra, 63 F.3d at p. 941 [citing Leon for the proposition that “it is essential that a magistrate issuing a search warrant be neutral and detached”].)   This is an indispensable requirement of the Fourth Amendment, absent exceptions to the warrant requirement, which are not present here.

Given the clarity of Leon, I would not stretch it to apply to situations not contemplated by the court itself.   Absent direction from a higher court, I believe the doctrine of stare decisis limits us to apply the remedies previously designed by the United States Supreme Court in Coolidge and Connally.   For reasons that are not apparent, the majority ignores the repeated references in Leon to the neutral and detached magistrate requirement.   Instead, the majority focuses on language which it believes supports its conclusion.   The majority states “the Leon court's references to a warrant issued by a neutral and detached magistrate do not mean the Leon rationale cannot apply where the magistrate arguably was not neutral and detached.”  (Italics added.)   However, surely a distinction can be made between a magistrate who “arguably was not neutral and detached” and a magistrate who per se was not neutral and detached.

The language in Leon is significant because Leon involved the question of the proper remedy where the warrant was issued by a neutral and detached magistrate.   If the magistrate were not neutral or detached for reasons such as those involved in Connally and Coolidge, it is safe to assume exclusion would have been applied and the case would not have been taken for review.   There is not a single citation to either Connally or Coolidge in the 27-page Leon opinion.   This is not accidental.   The warrants in Connally and Coolidge were issued by magistrates that were per se constitutionally disqualified since they were not neutral and detached.   In contrast, in Leon the magistrate issuing the warrant was neutral and detached.   Given the very clear distinction in the facts of the cases, it is extremely unlikely that Leon overruled Connally and Coolidge.8

It is also significant that Leon discussed Lo-Ji and specifically held the remedy of exclusion continued to apply in those cases.   It held that good-faith principles apply where the magistrate does not wholly abandon his or her judicial role.  Lo-Ji involved a town justice who was neutral and detached when first approached to issue a warrant for the search and seizure of two films believed to be obscene.   However, the warrant was open-ended with regard to the search and seizure of other materials, leaving to the officer's discretion the decision of what items were obscene.   The warrant application requested that the town justice accompany the investigator to execute the warrant and help determine what items were in violation of the law.   In finding constitutional violations by this procedure, the court held:

“The Town Justice did not manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure.  Coolidge v. New Hampshire, supra, at 449 [91 S.Ct. at 2029].   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 which was essentially a police operation.   Once in the store, he conducted a generalized search under authority of an invalid warrant;  he was not acting as a judicial officer but as an adjunct law enforcement officer.”  (Lo-Ji Sales, Inc. v. New York, supra, 442 U.S. at pp. 326-327, 99 S.Ct. at pp. 2324-2325.)

The magistrate in Lo-Ji, like the magistrates in Connally and Coolidge, was not neutral and detached, but for different reasons.   In Coolidge the magistrate was not neutral or detached because he conducted the investigation and would later lead the prosecution of the defendant.   In Connally the magistrate was not neutral or detached because his compensation was dependent on his decision to issue search warrants, i.e., he had a pecuniary interest in issuing search warrants.   Because he had a pecuniary interest he was asked to serve two masters, which called into question his was ability to be neutral.   The magistrate in Lo-Ji was, by all appearances, neutral and detached until he joined in executing the search warrant.   In executing the warrant the town justice lost all appearance of neutrality and detachment.   At that point he was not acting as a judicial officer and instead acted as “an adjunct law enforcement officer” (id. at p. 327, 99 S.Ct. at p. 2325), which brought him within the Coolidge constraints.

At pages 914-915 [104 S.Ct. at p. 3416] of Leon, the court refers to three situations where prior to Leon the courts would invalidate warrants issued by neutral and detached magistrates and exclude the evidence:

“[T]he deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based.  [Citation.]  Second, the courts must also insist that the magistrate purport to ‘perform his “neutral and detached” function and not serve merely as a rubber stamp for the police.’  [Citations.]  A magistrate failing to ‘manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application’ and who acts instead as ‘an adjunct law enforcement officer’ cannot provide valid authorization for an otherwise unconstitutional search.  [Citation.]

“Third, reviewing courts will not defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis for determining the existence of probable cause.’  [Citation.]”  (Leon, supra, at pp. 914-915, 104 S.Ct. at p. 3416, fn. omitted.)

By setting forth these three limited situations, the court only addressed these three bases for applying the exclusionary rule in cases where a warrant was obtained.   It did not address the fourth basis-where the magistrate is not neutral and detached as in Coolidge and Connally.   This situation is treated as a warrantless search and seizure.   The court noted that it had previously set down a rationale for applying the exclusionary rule only to the first situation.   The court then states:

“Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.   Many of the factors that indicate that the exclusionary rule cannot provide an effective ‘special’ or ‘general’ deterrent for individual offending law enforcement officers apply as well to judges or magistrates.   And, to the extent that the rule is thought to operate as a ‘systemic’ deterrent on a wider audience, it clearly can have no such effect on individuals empowered to issue search warrants.   Judges and magistrates are not adjuncts to the law enforcement team;  as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions.   The threat of exclusion thus cannot be expected significantly to deter them.   Imposition of the exclusionary sanction is not necessary meaningfully to inform judicial officers of their errors, and we cannot conclude that admitting evidence obtained pursuant to a warrant while at the same time declaring that the warrant was somehow defective will in any way reduce judicial officers' professional incentives to comply with the Fourth Amendment, encourage them to repeat their mistakes, or lead to the granting of all colorable warrant requests.”   (Leon,, supra, at pp. 916-917, 104 S.Ct. at p. 3417, fns. omitted, italics added.)

Again, it is unmistakably clear that the court was addressing only mistakes or errors committed by neutral and detached magistrates who have no stake in the matter.  Leon obviously did not consider the wholesale abandonment of the “essential,” “bulwark of Fourth Amendment protection,” “that the inferences from the facts which lead to the complaint ‘․ be drawn by a neutral and detached magistrate.’ ”9

Although the majority concludes the language of the Leon opinion at pages 915-917, 104 S.Ct. at page 3416 demonstrates lack of neutrality is treated as an error of the magistrate, I find nothing in those pages, nor elsewhere in the Leon opinion, which indicates that lack of neutrality constitutes magistrate error.   Rather, the language clearly indicates that magistrate neutrality is a condition precedent to a consideration of whether the warrant may be invalid for reasons such as lack of probable cause.

Further, Leon expressly held that suppression remained the appropriate remedy “where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji․” (Leon, at p. 923, 104 S.Ct. at p. 3421.)   I agree with the majority that “The wording of the high court's citation to Lo-Ji is not merely fortuitous,” but for much different reasons.   While I agree that the remedy of exclusion of evidence is essentially to deter police misconduct, what possible deterrent effect is there to police misconduct when evidence is suppressed after a magistrate wholly abandons his or her judicial role?   The majority does not answer this question.   Instead it adds its own spin to what Leon might have meant when it stated “in such circumstances, no reasonably well trained officer should rely on the warrant” (ibid.), i.e., that “no reasonably well-trained officer would believe the magistrate was impartial and, hence, that the warrant was valid.”

However, if the court meant to say what the majority believes it said, the court would have used the word “could” instead of the word “should.”   In my opinion, the court chose its words carefully and said exactly what it meant.   Where the magistrate wholly abandons his or her judicial role, the evidence continues to be excluded under the rationale of Lo-Ji and Coolidge.   The officer should not rely on the warrant because the evidence will not be admissible in any event.   By refusing to conduct a search or seizure under such a warrant, the well-trained officer will avoid violating the Fourth Amendment right of the person(s) subject to the search warrant.   In addition to preserving the individual's constitutional right of privacy and freedom from unreasonable searches and seizures, a civil lawsuit for constitutional violations is also prevented.

The clear and unambiguous language used in Leon encourages magistrates to act as judicial officers.   Further, it discourages magistrates from acting as adjunct law enforcement officers.   Finally, it encourages law enforcement officers to maintain the integrity of the Fourth Amendment.   This interpretation is consistent with past decisions of the court which encourage law enforcement in close cases “to err on the side of constitutional behavior.”  (United States v. Johnson (1982) 457 U.S. 537, 561, 102 S.Ct. 2579, 2593, 73 L.Ed.2d 202 [rejecting the Government's argument that all rulings resolving unsettled Fourth Amendment questions should be nonretroactive because it would not serve the policies underlying the exclusionary rule].)

Contrary to the majority's reading of Leon, warrants that are void because they were issued by non-neutral magistrates-unlike warrants subsequently ruled invalid for lack of probable cause-are not treated as magistrate errors.   A magistrate who, unbeknownst to law enforcement, acts as a “rubber stamp,” is not the same as a person who acts as a magistrate when he or she is not empowered to do so.   Judge McMechan was not empowered to act as a magistrate in this case-he was constitutionally forbidden to do so because he could not “ ‘provide[ ] the detached scrutiny of a neutral magistrate․’ ” (Leon, at p. 913, 104 S.Ct. at p. 3415.)   Judges who are disqualified from performing a judicial role by their inherent non-neutrality or non-detachment from a case or who wholly abandon their judicial role in the case lack the power to act judicially.   Thus, their purported judicial actions are void ab initio and not subject to a probable-cause analysis.  (See State v. Nunez (R.I.1993) 634 A.2d 1167, 1171;  U.S v. Baker (10th Cir.1990) 894 F.2d 1144, 1148;  Com. v. Shelton (Ky.1989) 766 S.W.2d 628, 629-630;  State v. Brady (1986) 130 Wis.2d 443, 388 N.W.2d 151, 156-157 [Abrahamson, J., concurring, opining that where the judge lacked statutory authority to issue a “John Doe” arrest warrant, it was not an appropriate case for Leon application because it is unclear whether Leon applies to cases “in which the magistrate has no authority whatsoever to issue the warrant”];  contrast State v. Hyde (1996) 186 Ariz. 252, 921 P.2d 655, 668, 676-677 [Leon applied where neutral and detached magistrate committed state error by failing to question the officer seeking the arrest warrant regarding his information and belief];  United States v. Breckenridge (5th Cir.1986) 782 F.2d 1317, 1319, 1321 [failure by magistrate to read the warrant affidavit was a failure to fully perform his judicial role, but not a whole abandonment of his judicial role as in Lo-Ji, therefore the Leon exception applied].)

The majority's citation to LaFave on Search & Seizure gives force to its position only to the extent LaFave is right.   Examination of LaFave's discussion reveals he is simply guessing at how Leon affects the exclusionary rules adopted in Coolidge, Connally and Lo-Ji. He states:  “The Leon rule has to do with a presumptively valid warrant.”   LaFave's lack of certainty is apparent in footnote 55, which states:  “It is unclear whether the rule extends to a warrant ‘that was essentially void ab initio ’ because of ‘the issuing court's lack of jurisdiction to authorize the search in the first instance.’ ”  (1 LaFave, Search & Seizure:  A Treatise on the Fourth Amendment (3d ed.   1996) The Exclusionary Rule, 1.3(f), p. 70.)   Of course, that is the situation we have here.

LaFave suggests the fact the warrant was not issued by a neutral and detached magistrate is not itself determinative.   In doing so he states:

“Apparently on the assumption that such consequences follow from the conclusion deterrence of magistrates is unnecessary, the majority in Leon seems to have concluded that a warrant may not be invalidated merely because it was issued by a person not constitutionally authorized to do so, [or] by a person who knew he was disqualified either generally or in the particular case․” (Id. at p. 72;  italics added.)

This hypothesis, couched in terms indicating uncertainty and relying on assumptions, is not persuasive commentary.

Ironically, the one case cited in this discussion reaches a contrary conclusion.   At footnote 70, LaFave states:

“But see State v. Nunez, 634 A.2d 1167 (R.I.1993)(search warrant issued by retired judge invalid under state law;  ‘even were this court to adopt Leon 's good-faith-exception rule, that rule would be inapplicable in this case because, without being signed by a magistrate with either de jure or de facto authority, the search warrant is void ab initio ’).”  (1 LaFave, Search & Seizure, supra, at p. 72.)

The majority does not attempt to distinguish Nunez.  Nunez involved a state law that did not permit the retired judge to issue the warrant, as in this case.   Instead, the majority attempts to categorize Nunez with U.S. v. Baker, supra, 894 F.2d at p. 1144, which involved a warrant issued by a judge who lacked subject matter jurisdiction to issue a state warrant to search property within the boundaries of Indian tribal lands.  (See maj. opn., fn. 6.) However, by taking this position, the majority contradicts the basis for its initial premise that suppression of evidence is only available for Fourth Amendment violations, not violations of any other laws.   The two positions cannot be reconciled.   In any event, as I have previously concluded, Judge McMechan lacked judicial power to issue a search warrant to his son by statutory prohibition, and also by constitutional prohibition because he lacked neutrality and detachment under the Fourth and Fourteenth Amendments.   Therefore, since the search warrant was void ab initio, the good-faith exception of Leon is inapplicable.

Finally, by excluding the evidence collected pursuant to the void warrant, law enforcement deterrence of Fourth Amendment violations is advanced.   As stated in Leon, “If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officers or the policies of their departments.”  (Leon, at p. 918, 104 S.Ct. at p. 3418.)   Here, exclusion of the evidence will no doubt deter Deputy McMechan, and like officers in the future, such as Reserve Deputy McBurney, Police Chief Boober and Sheriff Frownfelter, from seeking warrants from their parents or their spouses.   As previously noted (see fn. 3), Deputy McMechan had a choice of magistrates other than his father to grant his warrant request.   Exclusion will also prompt the Madera County Sheriff's Department to establish a policy, such as not to seek warrants from Judge McMechan in any case in which Deputy McMechan plays a significant role in the investigation, to avoid the Fourth Amendment problems presented here.

In sum, a peremptory writ of mandate should issue directing the Superior Court of Madera County to vacate its order entered in action No. 13974 denying petitioner's motion to suppress and directing the court to enter a new order granting the motion to suppress.

FOOTNOTES

1.   Judge McMechan is considered assigned to Madera County for certain purposes, including the issuance of search warrants.

2.   Deputy McMechan had been a deputy sheriff for approximately five years and a provisional deputy for approximately one year and six months.   He was assigned to the detective division for approximately two years and, for the past three and one-half years, been assigned to the Madera County Narcotic Enforcement Team. He had assisted in many narcotic investigations and had attended various courses (which he set out in the affidavit), including 80 hours in narcotic investigation and 40 hours in advanced narcotic investigation.

3.   Obviously, given the perceptions raised by such circumstances, the prudent course of conduct would be for magistrates to decline to act on search warrant requests involving members of their families.   Judges must avoid, to the extent possible, any appearance of impropriety.  (Grimes v. Superior Court (1981) 120 Cal.App.3d 582, 587, 174 Cal.Rptr. 623.)

FOOTNOTE.  FN“14 Although there are assertions that some magistrates become rubber stamps for the police and others may be unable effectively to screen police conduct, [citations], we are not convinced that this is a problem of major proportions.  [Citations.]”

FOOTNOTE.  FN“18 Limiting the application of the exclusionary sanction may well increase the care with which magistrates scrutinize warrant applications.   We doubt that magistrates are more desirous of avoiding the exclusion of evidence obtained pursuant to warrants they have issued than of avoiding invasions of privacy․”

4.   The Supreme Court pointed out that “[i]t is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable-cause determination.   Nothing in [this] opinion suggests, for example, that an officer could obtain a warrant on the basis of a ‘bare bones' affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search.  [Citation.]”  (Leon, supra, 468 U.S. at p. 923, fn. 24, 104 S.Ct. at p. 3420, fn. 24.)   Thus, an officer could not obtain a search warrant from a magistrate the officer knew lacked neutrality and then rely on the ignorance of the officers who actually executed the warrant in order to invoke the good-faith exception to the exclusionary rule.

5.   The federal circuit courts appear to be divided on the issue.   (See, e.g., U.S. v. Czuprynski (6th Cir.1995) 46 F.3d 560, 564 [suggesting Leon applies];  U.S. v. Breckenridge (5th Cir.1986) 782 F.2d 1317, 1321, cert. den. sub nom.  Breckenridge v. U.S. (1986) 479 U.S. 837, 107 S.Ct. 136, 93 L.Ed.2d 79 [applying Leon ];  contrast U.S. v. Decker, (8th Cir.1992) 956 F.2d 773, 778 [concluding, with little analysis, that Leon does not apply].)   At least one state court has applied Leon to the neutrality issue.  (See State v. Hyde (1996) 186 Ariz. 252, 921 P.2d 655, 678 (cert. den. sub nom. Hyde v. Arizona (1997) 519 U.S. 1153, 117 S.Ct. 1091, 137 L.Ed.2d 224) [“a court should suppress evidence only upon a showing that the police knew or should have known that its actions were unconstitutional.”].)

6.   The dissent points to LaFave's “lack of certainty” concerning whether the Leon rule extends to a warrant that is void because the issuing court lacked jurisdiction to authorize the search, and claims this is the situation we have here (dis. opn., post, at p. 161).   To the contrary, the LaFave footnote referenced by the dissent refers to a warrant that is void ab initio for lack of jurisdiction in the fundamental sense -a court's lack of subject matter jurisdiction.  (See, e.g., U.S. v. Baker (10th Cir.1990) 894 F.2d 1144, 1146-1148 [state court lacked jurisdiction to issue warrant for search of property within boundaries of Indian tribal lands].)

7.   It would seem logical that, if anything, Judge McMechan would have more of a stake in assuring that a search in which his son participated was valid and based on ample probable cause.   In any event, the dissent's emphasis on our reference to this case as routine, and suggestion that we would tailor our analysis according to the nature of the case before us, misapprehend our meaning.

FOOTNOTE.  FN“4 Canon 3C(1)(d)(ii) of the Code of Judicial Conduct ․ provides in pertinent part:

FOOTNOTE.  FN“C. Disqualification

FOOTNOTE.  FN“(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

FOOTNOTE.  FN“W27

FOOTNOTE.  FN“(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of each person:

FOOTNOTE.  FN“W27

FOOTNOTE.  FN“(ii) is acting as a lawyer in the proceedings.”

8.   Here, too, the trial court commented, in response to the claim that the warrant was not issued by a neutral and detached magistrate, that any magistrate would have issued the warrant.

9.   Code of Civil Procedure section 170.1 provides in pertinent part:“(a) A judge shall be disqualified if any one or more of the following is true:“(1) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.“A judge shall be deemed to have personal knowledge within the meaning of this paragraph if the judge, or the spouse of the judge, or a person within the third degree of relationship to either of them, or the spouse of such a person is to the judge's knowledge likely to be a material witness in the proceeding.“W27“(6) For any reason (A) the judge believes his or her recusal would further the interests of justice, (B) the judge believes there is a substantial doubt as to his or her capacity to be impartial, or (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.   Bias or prejudice towards a lawyer in the proceeding may be grounds for disqualification.”Pursuant to Code of Civil Procedure section 170.5, subdivision (f) “ ‘[p]roceeding’ means the action, case, cause, motion or special proceeding to be tried or heard by the judge.”   We assume, without deciding, that the signing of a search warrant falls within this definition.

10.   Consideration of the federal disqualification statute (28 U.S.C. § 455) leads to the same result.  (See U.S. v. Couch (5th Cir.1990) 896 F.2d 78, 81 [28 U.S.C. § 455 and due process clause not coterminous;  hence, violation of statute does not necessarily constitute violation of due process];  Southern Pacific Communications Co.v.A.T. & T. (D.C.Cir.1984) 740 F.2d 980, 991 [28 U.S.C. § 455 establishes more stringent standard for disqualification than required by due process clause].)

11.   Our citation of these cases should not be read as indicating our agreement with the practice of having magistrates testify at suppression hearings.   Such a practice should be used, if at all, only in rare cases, given its potential disruption of the orderly administration of justice and efficacious use of limited judicial resources.Interestingly, Coolidge and Grimes would, in all likelihood, reach the same result if decided post-Leon, as they present situations akin to that condemned in Lo-Ji Sales, Inc. v. New York, supra, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920.   Thus, suppression would remain an appropriate remedy.  (Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 3421.)

12.   Because of Leon 's application, the propriety of a parent issuing a search warrant for a child is appropriately dealt with in the context of a second, separate question which exists in every Leon analysis:  would a reasonably well-trained police officer have known of the deficiency?

FOOTNOTE.   See footnote *, ante.

1.   Webster's New World Dictionary (3d. college ed.1988) at page 375 defines “detached” as follows:  “1. not connected;  separate 2. not involved by emotion, interests, etc.;   aloof;  impartial․” There is an old saying that “blood is thicker than water.”   Under the word “blood,” Webster defines this saying as follows:  “family ties are stronger than others.”  (Id. at p. 150.)

2.   The case of U.S. v. Decker (8th Cir.1992) 956 F.2d 773, 777-778 is similarly distinguishable because there it was the magistrate's conduct in failing to read the warrant before signing it which gave rise to the contention the magistrate acted as a “rubber stamp” for the police.

3.   Deputy McMechan intentionally sought to have his father review the warrant application even though an unrelated magistrate was also available.   Presented with this choice, Deputy McMechan reasoned “it would be better to call upon my father.”   This benefit which specifically entered into Deputy McMechan's decision is a benefit the majority refuses to acknowledge could exist in a “routine” case.Also, to the extent Deputy McMechan implies there was a necessity to call upon his father to issue the warrant due to the early morning hours, his concern is misplaced.  Penal Code section 1526, subdivision (b) provides a simple procedure for issuance of search warrants over the telephone.   Use of this procedure would have easily allowed Deputy McMechan to have any magistrate in Madera County issue the search warrant.   Telephonic search warrants are common, and are designed to benefit rural counties where magistrates can be few and far between.

4.   Another basis urged for a finding of non-neutrality in McKeever was the magistrate's conduct in visiting the site of the search.   The facts established the magistrate simply went to the site out of curiosity and did not assist in the search.   The court found the magistrate's conduct “troubling,” but found her presence at the site did not display sufficient indicia of an interest in the investigation.   (McKeever, supra, 906 F.2d at pp. 131-132.)

5.   The trial court's reasoning in this case for upholding the warrant goes against the above caveat to the extent it tried to minimize the obvious bias in the father-son relationship by reasoning that since Deputy McMechan was not a direct witness, his credibility was not in issue.   The majority's decision for upholding the warrant similarly violates this caveat by reasoning this case is a routine narcotics case which would have affected Judge McMechan to petitioner's benefit.   Of course, neither reasoning is persuasive because both are rooted in sheer speculation as to Judge McMechan's state of mind, of which we have no evidence, and how his parental relationship to Deputy McMechan might have affected his review of the warrant application.

6.   Other jurisdictions are in accord.   In State v. Burnam (1983) 66 Or.App. 132, 672 P.2d 1366, the court affirmed the trial court's order quashing two warrants and suppressing the evidence seized by their authority where the magistrate issued the warrants in a case where the alleged victim was his clerk.  (See also Clark v. State (1995) 217 Ga.App. 113, 456 S.E.2d 672, 676 [“It is fundamental that the adjudicator who determines whether probable cause exists to issue a search warrant must be ‘neutral and detached’ ”].)

7.   Although the opinion notes that Judge Steele's brother and son also participated in the prosecution of Dyas, their roles in the trial are not clear from any of the published cases related to Dyas's murder trial.

8.   Application of familiar rules of statutory construction to determine the intent of the court also lead to this conclusion.   The opinion must be interpreted as a whole, with all other parts to produce a harmonious result.   Effect must be given to every word, clause or sentence, and construed so that no part is superfluous.   Generally, the court will not be presumed to overrule long-established principles of law unless these intentions are clear.

9.   See Illinois v. Gates (1983) 462 U.S. 213, 240, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527 [“The essential protection of the warrant requirement of the Fourth Amendment ․ is in ‘requiring that [the usual inferences which reasonable men draw from evidence] be drawn by a neutral and detached magistrate’ ”];  Franks v. Delaware (1978) 438 U.S. 154, 164, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 [“The bulwark of Fourth Amendment protection, of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant from a neutral and disinterested magistrate before embarking upon a search”];  Giordenello v. United States (1958) 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503 [“The protection afforded ․ is that the inferences from the facts which lead to the complaint ‘․ be drawn by a neutral and detached magistrate’ ”].)

ARDAIZ, Presiding Justice.

THAXTER, J., concurs.

Copied to clipboard