No Forum Shopping by Cops for Muni-Crt Search Warrants – State v. Broom-Smith

[3/9/10 – 10:03 pm] In this morning’s Supreme Court decision in State v. Broom-Smith, the justices established a procedure to be used when police officers seeking a search warrant do not have immediate access to their local judge. The Court ruled that in those vicinages where municipal court judges may issue search warrants, the police should generally first attempt to contact their local municipal court judge. If the judge is absent or otherwise incapacitated (for example, away on vacation or hospitalized), the officers may seek access to a different authorized judge. However, the fact that the judge is busy with other matters or home for lunch should not automatically trigger access to another judge in the vicinage. Rather, the officers should wait a reasonable period unless, for some reason, the matter is emergent and time is of the essence.

Further, the fact that a particular municipal court is not “in session,” that is, holding court, does not necessarily mean that the judge is “unable” to hear a warrant application. It may be that in furtherance of his private practice, the judge is far from his vicinage. In that case, he may, in fact, be “unable” to hear the matter, especially if there are time constraints involved. But it does not follow that a judge who is sitting in his local law office is “unable” to entertain a warrant application, especially since that is part and parcel of his judicial responsibilities.

Moreover, a vicinage-wide cross-assignment order, which may provide for more than one substitute judge, should prescribe the sequence to which substitute judges are to be resorted. That, in turn, will eliminate any question of judge shopping. Practically speaking, prescribing the sequence will militate against assigning every municipal court judge in a vicinage as a substitute for every other judge because of the burden that would cast on the first judges in the sequence.

The justices went on to note that when a warrant applicant applies to a substitute judge, a record should be made of the reason the application is not being presented to the
territorially-appropriate court. Finally, the cross-assignment order should be renewed annually to account for changes in judicial appointments.

Download a copy of State v. Broom-Smith.

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