62 N.Y.U. L. Rev. 1173 (1987)
The Search Warrant, the Magistrate, and Judicial Review

handle is hein.journals/nylr62 and id is 1189 raw text is: NEW YORK UNIVERSITY
LAW REVIEW

VOLUME 62                      DECEMBER 1987                          NUMBER 6
THE SEARCH WARRANT, THE MAGISTRATE,
AND JUDICIAL REVIEW
ABRAHAM S. GOLDSTEIN*
In United States v. Leon, the Supreme Court held that the exclusionary rule would not
bar the admission of evidence when police obtained a search warrant for the evidence
from a magistrate and relied on it in good faith. Looking closely at our current war-
rant process, Professor Goldstein argues that Leon could offer a net gain for privacy
and the fourth amendment, but only if magistrates responsibly inquire into issues of
probable cause. Currently, however, magistrates do not fully perform this important
role; pre-warrant proceedings are done quickly and often without any inquiry into facts
underlying police affidavits. Professor Goldstein suggests that a process-oriented stan-
dard for the post-warrant review of probable cause determinations would enhance the
reliability and credibility of the warrant process. Under such a standard, if the issuing
magistrate was law-trained and experienced, and conducted a serious review of the
warrant application, the post-warrant reviewing court would treat his or her probable
cause determination with deference. But if the magistrate was not law-trained, was
inexperienced, or did not adequately probe the statements of the afflant, the reviewing
court would fully review the finding of probable cause. Through such a process-ori-
ented standard, Professor Goldstein concludes, Leon' good faith exception could en-
courage magistrates to conduct more careful inquiries, and police to present fuller
affldavits, thus ensuring greater fourth amendment protection.
INTRODUCTION
The debate about the proper scope of the exclusionary rule has oc-
cupied center stage for so long that it is easy to forget that the rule is at
best a limited remedy for the problem of illegal searches and seizures.'
* Sterling Professor of Law, Yale University. I am grateful to Professors Miran
Damaska, Steven Duke, Daniel Freed, Joseph Goldstein, and Kate Stith, all of Yale Law
School, for their comments on earlier versions of this Article.
The fourth amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.
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