What is the effect of the majority opinion in the Court of Appeal requiring the approval of a judicial review of an abatement determination?

Secondly, I tend to agree with the district judge that requiring judicial authorization of an abatement determination "would impose untoward burdens upon local governments as well as the courts." See Shadwick v. City of Tampa, 407 U.S. 345, 353, 92 S.Ct. 2119, 2124, 32 L.Ed.2d 783 (1972) ("Communities may have sound reasons for delegating the responsibility of issuing warrants to competent personnel other than judges or lawyers").

Third, in the Fourth Amendment context, the purpose of review by a "judicial officer" prior to issuance of a warrant is to "insure that the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police, to assess the weight and credibility of the information which the complaining officer adduces as probable cause." Wong Sun v. United States, 371 U.S. 471, 481-82, 83 S.Ct. 407, 413-14, 9 L.Ed.2d 441 (1963). There is nothing in the record to suggest that the city council--which is part of the legislative, not executive, branch of government--was anything but competent, impartial, neutral and detached. The hearings before the city council most assuredly constituted an adequate buffer between the municipal police officers and the Conners. For all practical purposes, the conclusion that a nuisance existed in violation of municipal law, and was therefore subject to abatement pursuant to the governmental power of the municipality, was "judicially" determined. Moreover, an application for a search warrant is ex parte. The subject is never asked for his side of the story. In this sense, the Conners enjoyed an opportunity not available to the usual "suspect." As I stated at the outset, I am concerned that the majority's opinion elevates form over substance.

Qualified Immunity