May a Judge Rule on a Motion to Suppress Evidence Seized Under a Search Warrant That He or She Issued?

Suppose a superior court judge issues a search warrant authorizing the search of a suspect’s house for drugs. Officers execute the warrant, find drugs, seize them, and charge the suspect with drug offenses. The charges end up in superior court, where the suspect – now the defendant – moves to suppress, arguing that the search warrant application lacked probable cause and that the judge who issued the warrant erred in doing so. Is it OK for the judge who issued the warrant to hear such a motion? It’s a fair question. It is reasonable to ask whether a judge can evaluate his or her past decisions without bias creeping in. For that reason, at least some judges prefer not to hear motions to suppress concerning warrants they issued. Indeed, some judges go even farther than that. In People v. Ventura, 2007 WL 4170847 (Westbury Just. Ct. N.Y., Nov. 15, 2007), a trial judge expressed the view that “the signing of a warrant . . . precludes the Court from any further involvement with the case,” reasoning that “[t]he signing of a warrant based upon probable cause clearly shows a pre-judgment or disposition by the Court which would preclude the Court, as a matter of law, from fairly deciding that issue anew, either on motion papers following a pre-trial hearing or during the trial itself.” The court’s recusal was not merely with regard to motions to suppress, but extended also to setting or reviewing bond, hearing other motions, and presiding over any [...]