MCCOMMON v. MISSISSIPPI - 474 U.S. 984 (1985)


U.S. Supreme Court

MCCOMMON v. MISSISSIPPI , 474 U.S. 984 (1985)

474 U.S. 984

Jerry McCOMMON v. MISSISSIPPI.
No. 85-8 Supreme Court of the United States November 12, 1985

On petition for writ of certiorari to the Supreme Court of Mississippi. The petition for writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. It is well recognized that the Fourth Amendment "imposes substantive standards for searches and seizures; but with them one of the important safeguards it establishes is a procedure; and [that] central to this procedure is an independent control over the actions of officers effecting searches of private premises." Abel v. United States, 362 U.S. 217, 251- 252, 703-704 (1960) (BRENNAN, J., dissenting ). Thus this Court has long insisted that the determination whether probable cause exists to support a search warrant be made by "a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 369 (1948) ( emphasis added). See also United States v. Leon, 468 U.S. 897, 913-914, 3416-3417 (1984); Illinois v. Gates, 462 U.S. 213, 240, 2333 (1983); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-327, 2324 (1979); United States v. Chadwick, 433 U.S. 1, 9, 2482 (1977); Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S. Ct. 2119, 2122 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 450, 2029 (1971); Aguilar v. Texas, 378 U.S. 108, 111, 1512 (1964); Giordenello v. United States, 357 U.S. 480, 486, 1250, 2 L. Ed.2d 1503 (1958); United States v. Lefkowitz, 285 U.S. 452, 464, 423 (1932). Just two Terms ago in United States v. Leon, supra, the Court vigorously reaffirmed that the probable-cause decision must be made by a neutral and detached magistrate, stating that " the courts must . . . insist that the magistrate purport to 'perform his " neutral and detached" function and not serve merely as a rubber stamp for the police.' " Id., 468 U.S., at 914 (quoting Aguilar v. Texas, supra, 378 U.S., at 111). And, as we explained in Shadwick v. City of Tampa, supra, 407 U.S., at 350, "[w]hatever else neutrality and detach-

Page 474 U.S. 984 , 985

ment might entail, it is clear that they require severance and disengagement from activities of law enforcement." Today the Court refuses to act on its convictions, denying certiorari in a case in which the judge who issued the search warrant indisputably "rubber-stamped" the police request. In this case, a large quantity of marijuana was discovered in the trunk of petitioner's automobile when it was searched pursuant to a warrant. Petitioner challenged the validity of the warrant at a pretrial suppression hearing, arguing that it was not supported by probable cause. The judge who granted the warrant testified at the hearing. With remarkable candor, he explained that he had relied principally on the fact that police officers had asked for the warrant, rather than on the underlying facts and circumstances set forth in the affidavit. The pertinent portion of the judge's testimony on cross-examination follows: "Q. You would have issued [the search warrant even if a certain statement in the affidavit either had not been included or the judge had known it not to be true]? "A. Certainly, because the officer-you've got to have enough faith and confidence in the officer that's asking for the search warrant to warrant it for him and then if it proves it's invalid, well, or whatever, there's nothing there what they're hunting-that's not the first time I ever made a Search Warrant. "Q. So, you were relying on the fact that these officers were of the law- "A. Of the law sworn- "Q. -and they were in there-they were sworn officers- "A. That's right. "Q. -they were in there telling you that this fellow was a drug dealer and they wanted to search his car- "A. That's exactly right. "Q. -and you relied on that rather than any particulars of this thing? "A. That's right. * * * * * "Q. So, you really issued the Search Warrant because you were asked for it by two sworn officers of law rather than any particular thing they told you? "A. Well, I based my decision not primarily on that, but because-if Sheriff Jones walked in there and said, 'Judge, [474 U.S. 984 , 986]




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