Alabama Attorney General Opinion 1979-0054

Tlit -ATTORNEY GENERAL STATE OF ALABAMA • MONTGOMERY. ALABAMA 36 144 1 I SI' I THIS OPINION HAS BEEN MODIFIED BY A.G. OPINION NO. 79-00381 TO JOHN D. WHETSTONE, DATED 8-10-79 CHANLICS A. ORADOICK ATTORNEY GENERAL. Honorable John B. Green Clerk, Circuit Court 30th Judicial Circuit P. 0. Sox 69 Oneonta, Alabama 35121 Magistrates - Arrest Warrants Magistrate has sole respon- sibility for drafting, pre- paring and signing arrest warrant. District Attorney and Assistant District Attorney cannot assist in interview- ing for arrest warrant or in the preparation of warrant. Dear Mr. Green: Acknowledgement is made of your request for an opinion from the Attorney General concerning the responsibility of magistrates. You asked the following questions: (1) Does the Clerk or Magistrate have the sole responsibility of (a) drafting, (b) wording, (c) typing, and (d) signing all arrest warrants? (2) Is the District Attorney or his assistants in violatj.on of any Alabama statutes or Supreme Court rulings by assisting in the (a) inter- viewing, (b) wording, or (c) typing arrest warrants to be issued or signed by the Clerk or Magistrate? -Honorable John B. Green Page 2 In your letter you cited Code of Alabama 1975, Section 12-14-51(c)(1) as the statute about which you asked the above questions. However, this statute is concerned with municipal court magistrates. Upon talking with you by telephone, it was determined that you were actually concerned with the authority of district court magistrates as governed by Code of Alabama 1975, Section 12-17-251. As to 'your first question, a reading of Section 12-17-251, supra, and the provisions concerning the issuance of an arrest warrant found at Code of Alabama 1975, Title 15, Chapter 7, Article 1 reveals that the magistrates have the sole responsibility of drafting, wording and signing all arrest warrants. Section 15-7-4 mandates that the arrest warrant be signed by the magis- trate. A form for an arrest warrant is also given in that section which the magistrate should follow in drafting the warrant. The magistrate is not required to do the actual typing of the warrant but he should supervise it. In answer to your second question, it is the opinion of the Attorney General that the district attorneys and assistant district attorneys should not assist on the interviewing for the arrest warrant or the wording or typing of the warrant. The Supreme Court of'the United States stated in Giordenello v. United States, 357 U.S. 480, 2 L.Ed. 2d 1503, 78 S. Ct. 1245, that iiiniinces to be drawn from facts in the examination of the complaint and issuing of an arrest warrant under the Federal Rules of Criminal Procedure should come from a neutral and detached magistrate instead of an officer engaged in the competitive enterprise of ferreting out crime. In Shadwick v. City of Tampa, 407 U.S. 345, 32 L. Ed. 2d 783, 92 S. Ct. 2119, the Supreme Court ruled that clerks of a municipal court which issue arrest warrants should be independent of the police and prosecution in determining probable cause for the issuance of arrest warrants. The above reasoning by the Supreme Court would likewise apply to magistrates of the district court. Thus, the district attorney or his assistants cannot assist in the interviewing of witnesses for the issuing of an arrest warrant or in the wording or preparing of the warrant. The above conclusion does not prevent the district attorney or his assistants from interviewing and aiding the complaining witness in preparing the oath or affidavit to be brought before Honorable John B. Green Page 3 the independent magistrate for the purpose of obtaining an arrest warrant. The magistrate would then decide if there was probable cause for issuing an arrest warrant. If our office can be of further assistance, please do not hesitate to contact us. Very truly yours, CHARLES A. GRADDTCK Attorney General I LYNDA F. KNIGHT Assistant Attorney General LFIC/gg