Examining Applicants under Oath before Issuing Search Warrants

Suppose that Officer Oxford is investigating a murder. Oxford believes that Steve Smith is the killer, and that the murder weapon is in Smith’s house. Oxford approaches Magistrate Martin with a search warrant application. The heart of the application is Oxford’s sworn affidavit, which lays out the evidence establishing probable cause. G.S. 15A-245(a) provides that “[b]efore acting on the application, the issuing official may examine on oath the applicant.” Should Magistrate Martin swear Oxford and ask Oxford to explain the case? Or should Martin ask Oxford to sit quietly while Martin reviews the written application? Either approach is legally permissible, but if I were in Magistrate Martin’s shoes, I would focus on reviewing the written application. This post explains why. Either approach is legally permissible. As noted above, G.S. 15A-245 states that a judicial official “may” examine the applicant. It doesn’t say “must,” so Magistrate Martin is free to talk to Oxford about the case or to refrain from doing so. I have heard the argument that State v. Upchurch, 267 N.C. 417 (1966), requires the judicial official to examine the applicant, but I disagree. The court in that case did invalidate a search warrant issued by a clerk based in part on the clerk’s noncompliance with G.S. 15-27, which then provided that a judicial official must “examin[e] [the applicant] or complainant in regard [to the affidavit].” But the central problem in Upchurch wasn’t that the clerk focused on the written affidavit to the exclusion of oral testimony – it was [...]