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Page 37

37. A vast body of case law has refined those two excep-

tions.  For a general overview, see Hall, pp. 379-463

(consent), 581-99 (exigent circumstances).

38. 403 U.S. 443 (1971).

39. Quoted in ibid. at 452.

40. Ibid. at 453.  It should be noted that in Ocampo v.

United States, 234 U.S. 91 (1914), the Supreme Court sanc-

tioned a statutory procedure whereby arrest warrants could

issue solely upon a prosecutor's information.  Fortunately,

however, the Court has subsequently recognized that the

Ocampo ruling was mistaken and has made it clear that that

holding has no precedential value.  See Gerstein at 118

n. 20.

41. Interestingly, when the New York Court of Appeals en-

countered a situation where the state legislature had

tried to vest executive powers in a judge, Chief Judge

Benjamin Cardozo saw that law as an "encroachment upon the

independence of the judicial power"--and thus a violation

of the separation-of-powers principle.  See In Re

Richardson, 160 N.E. 655, 657-58 (1928).  By parity of

reasoning, the legislative branch should not be permitted

to invest judicial powers in executive agents.

42. For some inexplicable reason, the Supreme Court has

been hesitant to rely upon a separation-of-powers analysis.

Thus far, the Court's jurisprudence has rested upon the

nebulous requirement of a "neutral and detached magis-

trate."  See, for example, Shadwick v. City of Tampa, 407

U.S. 345 (1972).  For a glimmer of hope that someday the

Court will move to the proper foundation, see United

States v. United States District Court, 407 U.S. 297, 317

(1972).

43. 381 N.W.2d 391 (1985).

44. Ibid. at 395.  See also State v. Davey, 89 A.2d 871,

874-75 (1952); State v. Ruotolo, 247 A.2d 1, 3-4 (1968);

and Hagerstown v. Dechert, 32 Md. 369 (1870).

45. See, for example, the separation-of-powers analysis in

United States v. Klein, 80 U.S. 128 (1871), where the Su-

preme Court resisted a congressional attempt to manipulate

the outcome of pending legal claims.  See also Plaut;

Murneigh v. Gainer, 685 N.E.2d 1357 (1997); and People v.

Tenorio, 473 P.2d 993 (1970).