Virginia has a sad state of affairs that allows magistrates — who are not required to be law school graduates unless they are a chief magistrate — to review and approve search warrant applications. Virginia non-chief magistrates only need to have bachelors degrees. Granted, a law degree by itself will not assure that a magistrate will make good decisions on such critical items as search warrant applications, bonds, and pretrial release conditions, particularly when considering that the basic required law school criminal law classes barely scratch the surface on what a judge or criminal lawyer needs to know about search and seizure and other aspects of criminal law. However, not requiring a law degree plus paying Virginia magistrates an average annual salary under $50,000 assures us of too many Virginia magistrates who simply are not qualified for the job.

Particularly vexing is that Virginia law allows magistrates rather than only judges to issue search warrants. At least if a magistrate allows an arrest without lawful basis to do so, sets bond too high or imposes excessive pretrial release conditions, a judge can fix that within days, with a hearing set soon after arrest. When a magistrate approves a search warrant application without Fourth Amendment probable cause to do so, if a remedy ever comes that will only be after the damage of an executed search warrant, property seizure, and arrest and prosecution (and often pretrial detention) of those caught up in the unlawful search.

With this sorry state of affairs with Virginia magistrates, federal magistrate judges — lawyers appointed by presidentially appointed federal judges, who handle many functions of presidentially-appointed trial judges — might want a name change that removes “magistrate” from their title.

At least some federal magistrate judges have been particularly vocal in holding the government’s feet to the fire with search warrant applications. It is no small nor brief task for a judicial official to give Fourth Amendment meaning to their reviews of often multi-page search warrant applications, which often consist of pages of boilerplate gobbledygook about the applying police officer’s training and experience and about what the officer experiences criminals often doing with their contraband and information that might lead to evidence of criminal activity. Often only buried inside these search warrant applications are the particularities of the case at hand, that are essential for a reviewing judicial official to determine whether granting the requested search warrant will pass Constitutional muster. I am simply skeptical about how many judicial officials put the necessary Fourth Amendment-required amount of time, attention, and response into reviewing and approving or denying search warrant applications, while knowing police anxieties over being unduly delayed in executing the requested search warrant, and as the judicial officials feel the pressing need to get to their next obligations.

Even when judicial officials invest due care and time into reviewing search warrant applications, they of course still can make the wrong decisions. Take the example of Zackary Robert Lull, whose trial judge found no reason to invalidate a search warrant that led to the seizure at Lull’s home of drugs, weapons, money and body armor. U.S. v. Lull, ___ F.3d ___ (4th Cir. May 25, 2016). There was just one problem: The search warrant application for Lull’s home omitted that the confidential informant whose reliability was the linchpin for obtaining the search warrant, stole twenty dollars of the police money used to make the controlled drug buy that was the essential basis for obtaining the search warrant. The police relied on the informant’s claim that Lull sold the drugs in the controlled buy, whereas if one of the several non-residents who were present at the time had sold the drugs, the police would not have had a valid Fourth Amendment basis to search Lull’s house for drugs if no resident had sold the drugs in the controlled buy and if no search was going to turn up contraband and other evidence of criminal activity from non-residents located therein. Id.

Fortunately, Lull’s attorney learned of this $20 informant theft omission from the search warrant application, got a Franks hearing (under Franks v. Delaware, 438 U. S. 154 (1978)) to challenge the search warrant application, and preserved Lull’s appellate rights by timely and correctly challenging that omission. Unfortunately, the trial judge denied relief on the matter, and Lull likely continued rotting in jail and then prison as the case worked its way from arrest, to sentencing (on a conditional guilty plea that allowed Lull to challenge the search of his home), to appeal, to hearing the appeal, to deciding the appeal (and thanks to the Fourth Circuit for deciding the appeal in only two months).

Lull is a 2-1 opinion. The dissenting judge states: “I cannot join in holding that the omitted information was ‘material’ and therefore that its absence defeated probable cause to search the Lull residence.” The Fourth Circuit being a court that prides itself on unanimous panel appellate opinions, the chances may be all the higher that Lull will be reviewed by the full/en banc Fourth Circuit Court of Appeals.

Back to the title of today’s blog entry, Lull is a perfect example why non-lawyer Virginia magistrates must be denied the authority to review and approve search warrant applications. This change will be expensive, to say the least, and will not happen unless a large percentage of Virginia voters raise the necessary, constant and long-term hues and cries to their legislators and governor to achieve such reform.