City charter provision authorizing municipal court clerks to
issue arrest warrants for breach of municipal ordinances
held to comport with requirements of the Fourth Amendment
that warrants be issued by a neutral and detached magistrate who
must be capable of determining whether probable cause exists for
issuance of the warrant. The clerks, though laymen, worked within
the judicial branch under supervision of municipal court judges,
and were qualified to make the determination whether there is
probable cause to believe that a municipal code violation has
occurred. Pp.
407 U. S.
347-354.
250 So. 2d 4, affirmed.
POWELL, J., delivered the opinion for a unanimous Court.
MR. JUSTICE POWELL delivered the opinion of the Court.
The charter of Tampa, Florida, authorizes the issuance of
certain arrest warrants by clerks of the Tampa Municipal Court.
[
Footnote 1] The sole question
in this case is whether
Page 407 U. S. 346
these clerks qualify as neutral and detached magistrates for
purposes of the Fourth Amendment. We hold that they do.
Appellant was arrested for impaired driving on a warrant issued
by a clerk of the municipal court. He moved the court to quash the
warrant on the ground that it was issued by a nonjudicial officer
in violation of the Fourth and Fourteenth Amendments. When the
motion was denied, he initiated proceedings in the Florida courts
by means of that State's writ of common law certiorari. The state
proceedings culminated in the holding of the Florida Supreme Court
that
"[t]he clerk and deputy clerks of the municipal court of the
City of Tampa are neutral and detached 'magistrates' . . . for the
purpose of issuing arrest warrants within the requirements of
Page 407 U. S. 347
the United States Constitution. . . ."
250 So. 2d 4, 5 (1971). We noted probable jurisdiction, 404 U.S.
1014 (1972).
I
A clerk of the municipal court is appointed by the city clerk
from a classified list of civil servants and assigned to work in
the municipal court. The statute does not specify the
qualifications necessary for this job, but no law degree or special
legal training is required. The clerk's duties are to receive
traffic fines, prepare the court's dockets and records, fill out
commitment papers and perform other routine clerical tasks.
Apparently he may issue subpoenas. He may not, however, sit as a
judge, and he may not issue a search warrant or even a felony or
misdemeanor arrest warrant for violations of state laws. The only
warrants he may issue are for the arrest of those charged with
having breached municipal ordinances of the city of Tampa.
[
Footnote 2]
Appellant, contending that the Fourth Amendment requires that
warrants be issued by "judicial officers," argues that even this
limited warrant authority is constitutionally invalid. He reasons
that warrant applications of whatever nature cannot be assured the
discerning, independent review compelled by the Fourth Amendment
when the review is performed by less than a judicial officer.
[
Footnote 3] It is less than
clear, however, as to who would qualify as a "judicial officer"
under appellant's theory. There is some suggestion in appellant's
brief that a judicial officer must be a lawyer or the municipal
court judge himself. [
Footnote
4] A more complete portrayal of appellant's position would be
that the Tampa clerks are disqualified as judicial officers not
merely because they are not lawyers
Page 407 U. S. 348
or judges, but because they lack the institutional independence
associated with the judiciary in that they are members of the civil
service, appointed by the city clerk, "an executive official," and
enjoy no statutorily specified tenure in office. [
Footnote 5]
II
Past decisions of the Court have mentioned review by a "judicial
officer" prior to issuance of a warrant,
Whiteley v.
Warden, 401 U. S. 560,
401 U. S. 564
(171);
Katz v. United States, 389 U.
S. 347,
389 U. S. 356
(1967);
Wong Sun v. United States, 371 U.
S. 471,
371 U. S.
481-482 (1963);
Jones v. United States,
362 U. S. 257,
362 U. S. 270
(1960);
Johnson v. United States, 333 U. S.
10,
333 U. S. 14
(1948). In some cases, the term "judicial officer" appears to have
been used interchangeably with that of "magistrate."
Katz v.
United States, supra, and
Johnson v. United States,
supra. In others, it was intended simply to underscore the now
accepted fact that someone independent of the police and
prosecution must determine probable cause.
Jones v. United
States, supra; Wong Sun v. United States, supra. The very term
"judicial officer" implies, of course, some connection with the
judicial branch. But it has never been held that only a lawyer or
judge could grant a warrant, regardless of the court system or the
type of warrant involved. In
Jones, supra, at
362 U. S.
270-271, the Court implied that United States
Commissioners, many of whom were not lawyers or judges, were
nonetheless "independent judicial officers." [
Footnote 6]
The Court frequently has employed the term "magistrate" to
denote those who may issue warrants.
Coolidge v. New
Hampshire, 403 U. S. 443,
403 U. S.
449-453 (1971);
Whiteley v. Warden, supra, at
401 U. S. 566;
Katz v. United States, supra, at
389 U. S.
356-357;
United States v. Ventresca,
380 U. S. 102,
308 U. S.
108
Page 407 U. S. 349
(1965);
Giordenello v. United States, 357 U.
S. 480,
357 U. S. 486
(1958);
Johnson v. United States, supra, at
333 U. S. 13-14;
United States v. Lefkowitz, 285 U.
S. 452,
285 U. S. 464
(1932). Historically, a magistrate has been defined broadly as "a
public civil officer, possessing such power, legislative, executive
or judicial, as the government appointing him may ordain,"
Compton v. Alabama, 214 U. S. 1,
214 U. S. 7 (109),
or, in a narrower sense "an inferior judicial officer, such as a
justice of the peace."
Ibid. More recent definitions have
not much changed. [
Footnote
7]
An examination of the Court's decisions reveals that the terms
"magistrate" and "judicial officer" have been used interchangeably.
Little attempt was made to define either term, to distinguish the
one from the other, or to advance one as the definitive Fourth
Amendment requirement. We find no commandment in either term,
however, that all warrant authority must reside exclusively in a
lawyer or judge. Such a requirement would have been incongruous
when, even within the federal system, warrants were until recently
widely issued by nonlawyers. [
Footnote 8]
Page 407 U. S. 350
To attempt to extract further significance from the above
terminology would be both unnecessary and futile. The substance of
the Constitution's warrant requirements does not turn on the
labeling of the issuing party. The warrant traditionally has
represented an independent assurance that a search and arrest will
not proceed without probable cause to believe that a crime has been
committed and that the person or place named in the warrant is
involved in the crime. 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. This Court long has insisted that inferences of probable
cause be drawn by
"a neutral and detached magistrate, instead of being judged by
the officer engaged in the often competitive enterprise of
ferreting out crime."
Johnson v. United States, supra, at
333 U. S. 14;
Giordenello v. United States, supra, at
357 U. S. 486.
In
Coolidge v. New Hampshire, supra, the Court last Term
voided a search warrant issued by the state attorney general "who
was actively in charge of the investigation and later was to be
chief prosecutor at the trial."
Id. at
403 U. S. 450.
If, on the other hand, detachment and capacity do conjoin, the
magistrate has satisfied the Fourth Amendment's purpose.
III
The requisite detachment is present in the case at hand.
Whatever else neutrality and detachment might entail, it is clear
that they require severance and disengagement from activities of
law enforcement. There has been no showing whatever here of
partiality, or affiliation of these clerks with prosecutors or
police. The record shows no connection with any law enforcement
activity or authority which would distort the independent
judgment
Page 407 U. S. 351
the Fourth Amendment requires. Appellant himself expressly
refused to allege anything to that effect. [
Footnote 9] The municipal court clerk is assigned not
to the police or prosecutor, but to the municipal court judge for
whom he does much of his work. In this sense, he may well be termed
a "judicial officer." While a statutorily specified term of office
and appointment by someone other than "an executive authority"
might be desirable, the absence of such features is hardly
disqualifying. Judges themselves take office under differing
circumstances. Some are appointed, but many are elected by
legislative bodies or by the people. Many enjoy but limited terms,
and are subject to reappointment or reelection. Most depend for
their salary level upon the legislative branch. We will not elevate
requirements for the independence of a municipal clerk to a level
higher than that prevailing with respect to many judges. The
clerk's neutrality has not been impeached: he is removed from
prosecutor or police, and works within the judicial branch subject
to the supervision of the municipal court judge.
Appellant likewise has failed to demonstrate that these clerks
lack capacity to determine probable cause. The clerk's authority
extends only to the issuance of arrest warrants for breach of
municipal ordinances. We presume from the nature of the clerk's
position that he would be able to deduce from the facts on an
affidavit before him whether there was probable cause to believe a
citizen guilty of impaired driving, breach of peace, drunkenness,
trespass, or the multiple other common offenses covered by a
municipal code. There has been no showing that this is too
difficult a task for a clerk to accomplish. Our legal system has
long entrusted nonlawyers
Page 407 U. S. 352
to evaluate more complex and significant factual data than that
in the case at hand. Grand juries daily determine probable cause
prior to rendering indictments, and trial juries assess whether
guilt is proved beyond a reasonable doubt. The significance and
responsibility of these lay judgments betray any belief that the
Tampa clerks could not determine probable cause for arrest.
We decide today only that clerks of the municipal court may
constitutionally issue the warrants in question. We have not
considered whether the actual issuance was based upon an adequate
showing of probable cause.
Aguilar v. Texas, 378 U.
S. 108 (1964). Appellant did not submit this question to
the courts below, 237 So. 2d 231 (1970), 250 So. 2d 4 (1971), and
we will not decide it here initially. The single question is
whether power has been lawfully vested, not whether it has been
constitutionally exercised.
Nor need we determine whether a State may lodge warrant
authority in someone entirely outside the sphere of the judicial
branch. Many persons may not qualify as the kind of "public civil
officers" we have come to associate with the term "magistrate." Had
the Tampa clerk been entirely divorced from a judicial position,
this case would have presented different considerations. Here,
however, the clerk is an employee of the judicial branch of the
city of Tampa, disassociated from the role of law enforcement. On
the record in this case, the independent status of the clerk cannot
be questioned.
What we do reject today is any
per se invalidation of a
state or local warrant system on the ground that the issuing
magistrate is not a lawyer or judge. Communities may have sound
reasons for delegating the responsibility of issuing warrants to
competent personnel other than judges or lawyers. [
Footnote 10] Many municipal courts face
Page 407 U. S. 353
stiff and unrelenting caseloads. [
Footnote 11] A judge pressured with the docket before him
may give warrant applications more brisk and summary treatment than
would a clerk. All this is not to imply that a judge or lawyer
would not normally provide the most desirable review of warrant
requests. But our federal system warns of converting desirable
practice into constitutional commandment. It recognizes in plural
and diverse state activities [
Footnote 12] one
Page 407 U. S. 354
key to national innovation and vitality. [
Footnote 13] States are entitled to some
flexibility and leeway in their designation of magistrates, so long
as all are neutral and detached and capable of the probable cause
determination required of them.
We affirm the judgment of the Florida Supreme Court.
Affirmed.
[
Footnote 1]
The relevant Florida statute and Tampa charter provisions are
set forth below.
1. Section 168.04 of Fla.Stat. (1965) reads as follows:
"The clerk may administer an oath to and take affidavit of any
person charging another with an offense by breach of an ordinance,
and may issue a warrant to the marshal to have the accused person
arrested and brought before the mayor for trial. The marshal may,
in the absence of the mayor and clerk from the police station,
administer oaths to affidavits of complaints and issue warrants for
the arrest of persons complained against."
2. Section 495 of the Charter of the City of Tampa, enacted by
the legislature of the State of Florida in Section 17, Chapter
5363, Laws of Florida 1903, reads as follows:
"The Chief of Police, or any policeman of the City of Tampa, may
arrest, without warrant, any person violating any of the ordinances
of said city, committed in the presence of such officer, and when
knowledge of the violation of any ordinance of said city shall come
to said chief of police or policeman, not committed in his
presence, he shall at once make affidavit, before the judge or
clerk of the municipal court, against the person charged with such
violation, whereupon said judge or clerk shall issue a warrant for
the arrest of such person."
3. Section 160 of the Charter of the City of Tampa, enacted by
the legislature of the State of Florida in Section 1, Chapter
61-2915, Laws of Florida 1961, reads as follows:
"The city clerk of the City of Tampa, with the approval of the
mayor, may appoint one or more deputies, such deputy or deputies to
be selected from the approved classified list of the city civil
service, and to have and exercise the same powers as the city clerk
himself, including but not limited to the issuance of warrants. One
or more of such deputies may be designated as clerks of the
municipal court."
[
Footnote 2]
Tr. of Oral Arg. 6, 7, 20, 21.
[
Footnote 3]
Brief for Appellant 6; Tr. of Oral Arg. 10.
[
Footnote 4]
Brief for Appellant 12-13; Reply Brief for Appellant 8.
[
Footnote 5]
Reply Brief for Appellant 8; Tr. of Oral Arg. 112.
[
Footnote 6]
The United States Commissioner system has, of course, been
replaced by the Federal Magistrates Act of 1968, 82 Stat. 1107.
[
Footnote 7]
In
Compton, a notary public was deemed a "magistrate,"
but the Court has nowhere indicated that the term denotes solely a
lawyer or judge. Webster's Dictionary (2d ed.1957), defines
magistrate as "[a] person clothed with power as a public civil
officer; a public civil officer invested with executive or judicial
powers. . ." or, more narrowly,
"[a] magistrate of a class having summary, often criminal,
jurisdiction, as a justice of the peace, or one of certain
officials having a similar jurisdiction. . . ."
Random House Dictionary (1966) defines magistrate as (1) "a
civil officer charged with the administration of the law" and (2)
"a minor judicial officer, as a justice of the peace or a police
justice, having jurisdiction to try minor criminal cases and to
conduct preliminary examinations of persons charged with serious
crimes."
[
Footnote 8]
United States Commissioners were not required to be lawyers
until passage of the Federal Magistrates Act of 1968. Even under
this Act, a limited exception to lawyer's status is afforded
part-time magistrates. 28 U.S.C. § 631(b)(1).
[
Footnote 9]
Tr. of Oral Arg. 10.
[
Footnote 10]
Some communities, such as those in rural or sparsely settled
areas, may have a shortage of available lawyers and judges and must
entrust responsibility for issuing warrants to other qualified
persons. The Federal Magistrates Act, for example, explicitly makes
provision for nonlawyers to be appointed in those communities where
members of the bar are not available. 28 U.S.C. § 631(b)(1).
[
Footnote 11]
See generally Mass Production Justice and the
Constitutional Ideal (C. Whitebread ed., 1970).
[
Footnote 12]
States differ significantly as to whom they entrust the
authority to grant a warrant.
See Burke v. Superior Court,
3 Ariz.App. 576, 579, 416 P.2d 997, 1000 (1966);
Parks v.
Superior Court, 236 P.2d 874, 882 (Ct.App.Cal.1951);
Kennedy v. Walker, 135 Conn. 262, 272, 63 A.2d 589, 594
(1948);
Grano v. State, ___ Del. ___, ___,
257 A.2d
768, 773-774 (1969);
Shadwick v. City of Tampa, 250
So. 2d 4 (Fla.1971);
State v. Swafford, 250 Ind. 541, 546,
237 N.E.2d
580,
584 (1968);
State ex rel. French v. Hendricks Superior Court, 252 Ind.
213,
247 N.E.2d
519 (1969);
Bailey v. Hudspeth, 164 Kan. 600, 606, 191
P.2d 894, 898 (1948);
State v. Guidry, 247 La. 631,
635-636,
173 So. 2d
192, 194 (1965);
Wampler v. Warden of Maryland
Penitentiary, 231 Md. 639, 648, 191 A.2d 594, 600 (1963);
LaChapelle v. United Shoe Machinery Corp., 318 Mass 166,
168-170, 61 N.E.2d 8, 10 (1945);
State v. Paulick, 277
Minn. 140,
151 N.W.2d
591 (1967);
People v. Richter, 206 Misc. 304, 306-307,
133 N.Y.S.2d 685, 688 (1954);
State v. Furmage, 250 N.C.
616, 625-626,
109 S.E.2d
563, 570 (1959);
Moseley v. Welch, 218 S.C. 242, 250,
62 S.E.2d
313, 317 (1950);
State v. Jefferson, 79 Wash. 2d
345, 348-349,
485 P.2d
77, 79 (1971);
State ex rel. Sabley v. Thompson, 151
W.Va. 336, 342-343,
151 S.E.2d
870, 873 (1966);
State ex rel. White v. Simpson, 28
Wis.2d 590, 137 N.W.2d 391 (1965);
State v. Van Brocklin,
194 Wis. 441, 217 N.W. 277 (1927).
[
Footnote 13]
Harlan, Thoughts at a Dedication: Keeping the Judicial Function
in Balance, 49 A.B.A.J. 943, 944 (1963).