(2) Probable Cause Requirement
Before the magistrate or municipal judge may issue the arrest warrant for execution, he must determine whether or not there is probable cause to believe that the named defendant committed the alleged offense. It is at this stage that the magistrate or municipal judge must not only insure that the execution of the law is in proper form, but he must also exercise his independent judgment. The arrest warrant process should not be treated as a bureaucratic process in which the magistrate or municipal judge becomes merely a rubber stamp for the police. The magistrate or municipal judge should not allow himself to become an agent of the police. The primary purpose of the arrest warrant is to provide for an independent judicial officer. It is the judge, not the police officer or citizen, who decides whether the prosecutorial power of the state should be brought to bear against a person.
Both the Fourth Amendment of the U.S. Constitution and Article I, Section 10 of the S.C. Constitution protects every person from "unreasonable seizures." An arrest must be based on probable cause, otherwise it is an "unreasonable seizure." "Probable cause" may be defined as a substantial and objective belief that the person to be arrested committed the alleged offense. Probable cause does not mean an absolute certainty, but it is more than a mere suspicion.
Therefore, the magistrate or municipal judge must find within the complainant's affidavit enough information that will justify a reasonable belief that (1) a crime has been committed and (2) the person to be arrested committed the offense. The information in the affidavit must be such that the magistrate can make the determination of probable cause. That is, the affidavit must contain facts, not conclusions. For example, if the complainant merely says, "I swear under oath that Brian Smith stole an automobile," it is conclusory and insufficient.
In many instances, the law enforcement officer may rely on facts provided by an informant. Generally the magistrate or municipal judge should encourage the informant to appear and swear to the alleged facts under oath. If this is not feasible, the magistrate or municipal judge may accept the hearsay information if the complainant can show in the affidavit that the informant is reliable. Here again, the magistrate or municipal judge may not rely on a conclusory statement e.g., "I received information from an informant who is reliable." The complainant must provide the magistrate with facts upon which the magistrate may decide if the informant is reliable or not. (See Search Warrants for further discussion on hearsay affidavits).
Finally, probable cause must exist at the time the warrant is issued, i.e. ultimate proof of guilt will not cure the lack of probable cause at the time of issuance. See Prosser v. Parsons, 245 S.C. 493, 141 S.E.2d 342 (1965). Whether probable cause exists depends upon the totality of the circumstances surrounding the information at the officers disposal. State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996), cert. Denied, 520 U.S. 1123 (1997).
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