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officers had been subverting the Fourth Amendment by issu-

ing search warrants to themselves.  Here is a telling

excerpt from the trial transcript:

The Court:  You mean that another police officer

issues these [search warrants]?

The Witness:  Yes.  Captain Couture and Captain

Shea and Captain Loveren are J.P.'s.

The Court:  Well, let me ask you, Chief, your

answer is to the effect that you never go out of

the department for the Justice of the Peace?

The Witness:  It hasn't been our--policy to go

out of the department.

Q.:  Right.  Your policy and experience, is to

have a fellow police officer take the warrant in

the capacity of Justice of the Peace?

That has been our practice.39

A.:

The Supreme Court declared the New Hampshire practice

unconstitutional precisely because search warrants were

being issued by executive branch agents.40

The judicial branch has a solemn duty to check the

legislature by invalidating laws that transfer the judicial

power to the executive branch--whether the transfer was

effectuated by purposeful design or negligence.41   That is

what the separation-of-powers doctrine is all about.  The

New Hampshire practice was a throwback to the colonial

days of multiple officeholding and executive warrants.

Thus, the Coolidge ruling was a sound application of the

doctrine.42

Some state courts have relied on the separation-of-

powers doctrine in their own state constitutions to

invalidate incursions into their warrant-issuing authority.

In People v. Payne (1985),43 for example, the Supreme Court

of Michigan relied explicitly on the Michigan Constitution

and its separation-of-powers doctrine to invalidate a

search warrant that had been issued by a district court

magistrate who was serving also as a deputy sheriff.

Echoing Lord Camden and other sages of the common law,

Justice James Ryan wrote that "the probable cause determi-

nation must be made by a person whose loyalty is to the

judiciary alone, unfettered by professional commitment, and

therefore loyalty, to the law enforcement arm of the exec-

utive branch."44