I've been asked several times recently whether an officer who asks a magistrate to issue an arrest warrant and is turned down based on a lack of probable cause can simply go to another magistrate and ask the other magistrate to issue the warrant. The answer is yes. There's no double jeopardy problem because jeopardy hasn't attached yet. In district court matters, it attaches when the first witness begins to testify, and in superior court matters, it attaches when the jury is empaneled and sworn. Nor is there any other principle of law that prevents the officer from "shopping" for a favorable magistrate. The situation is analogous to when a grand jury declines to issue an indictment in a matter -- in such a circumstance, the state is free to resubmit the case to a later grand jury in the hopes of a different result. See generally 42 C.J.S. Indictments § 39 ("At common law, and in the absence of a governing statute, the prosecuting attorney may, without first obtaining leave of court, submit to one grand jury charges which a previous grand jury has ignored."); In re Superior Court Order, 70 N.C. App. 63 (1984), rev'd in part on other grounds, 315 N.C. 378 (1986) (recognizing that "[t]here is apparently no [legal] prohibition against resubmitting the same information on a new bill of indictment," though noting that such a procedure may be burdensome). Similarly, when one magistrate turns down a search warrant application for lack of probable cause, an officer [...]
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