United States v. Parker

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 United States v. Parker, et al. No. 03-5303

ELECTRONIC CITATION: 2004 FED App. 0197P (6th Cir.)

File Name: 04a0197p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: Jo E. Lawless, UNITED STATES ATTORNEY,

FOR THE SIXTH CIRCUIT Louisville, Kentucky, for Appellant. Gregory W. Butrum,

_________________ GREGORY WARD BUTRUM, PLLC, Louisville, Kentucky,

for Appellees. ON BRIEF: Jo E. Lawless, Terry M.

UNITED STATES OF AMERICA , X Cushing, UNITED STATES ATTORNEYS, Louisville,

Plaintiff-Appellant, - Kentucky, for Appellant. Gregory W. Butrum, GREGORY

- WARD BUTRUM, PLLC, Louisville, Kentucky, for

- No. 03-5303 Appellees.

v. -

> _________________

,

DAVID JEREMY PARKER; - OPINION

BARBARA JEAN SUTTON ; and - _________________

PETER JANSEN SUTTON , -

Defendants-Appellees. - PATRICK J. DUGGAN, District Judge. In this

- interlocutory appeal, the government challenges the district

N court’s decision to suppress evidence seized at the residence

Appeal from the United States District Court of Barbara Jean Sutton and Peter Jansen Sutton (collectively

for the Western District of Kentucky at Owensboro. the “Suttons”) pursuant to two search warrants. The district

No. 02-00028—Joseph H. McKinley, Jr., District Judge. court concluded that the trial commissioner who issued the

search warrants was not neutral and detached because she also

Argued: April 22, 2004 served as an administrative assistant at the county jail. The

court therefore held that the search warrants were invalid.

Decided and Filed: June 28, 2004 The district court additionally ruled that the exception to the

exclusionary rule set forth in United States v. Leon, 468 U.S.

Before: MERRITT and MOORE, Circuit Judges; 897, 104 S. Ct. 3405 (1984), is inapplicable under these

DUGGAN, District Judge.* circumstances. The government filed this appeal, challenging

the district court’s decision. For the reasons that follow, we

affirm.

I. Standard of Review

This court reviews the district court’s findings of fact in a

suppression hearing under the clearly erroneous standard,

*

The Honorable Patrick J. Duggan, United States District Judge for while the district court’s conclusions of law are reviewed de

the Eastern District of Michigan, sitting by designation.

1

No. 03-5303 United States v. Parker, et al. 3 4 United States v. Parker, et al. No. 03-5303

novo. United States v. Pennington, 328 F.3d 215, 216-17 (6th commissioner for Ohio County pursuant to Kentucky

Cir. 2003)(citing United States v. Avery, 137 F.3d 343, 348 Supreme Court Rule 5.010 and Section 113(5) of the

(6th Cir. 1997). Kentucky Constitution; although he did not specifically

approve the appointment of Madison.

II. Factual Background

Although there was some indication in the record that

On July 21 and 24, 2001, law enforcement officers in Ohio Madison’s title at the detention center was “Chief Lieutenant

County, Kentucky, seized seventy-one firearms, marijuana, Deputy Jailer,” the district court concluded that her duties

cocaine, methamphetamine, drug paraphernalia, explosive were similar to those of an administrative assistant. The court

materials, and allegedly stolen personal property pursuant to further found that Madison served at the pleasure of a law

two search warrants executed for the Suttons’ residence. enforcement agent, as the Ohio County Jailer hired and could

Ohio County Trial Commissioner Michelle Madison fire her. The court determined that Madison’s job

(“Madison”) signed both warrants.1 Judge Renona C. responsibilities included the following: handling the purchase

Browning (“Judge Browning”), District Judge for Kentucky’s orders for all jail bills; assisting the jailer with the yearly

38th Judicial District, swore in Madison as a trial budget; keeping track of expenditures for the jail; billing

commissioner for Ohio County several weeks earlier, on July surrounding counties for housing their inmates; maintaining

2, 2001.2 Madison was married to Judge Browning’s brother, the records of the jail’s commissary account; handling the

who died on September 2, 2000. jailer’s correspondence; and purchasing jail supplies.

Madison additionally handled inmates’ work release requests

On June 25, 2001, Judge Browning had written Kentucky by obtaining information from the prisoners and completing

Supreme Court Chief Justice Joseph E. Lambert, requesting work release forms. She assisted inmates with their child

the appointment of a temporary trial commissioner for Ohio support obligations, helped inmates obtain legal

County based on a district judge vacancy. In her letter, Judge representation, and facilitated inmates’ drug rehabilitation

Browning advised Chief Justice Lambert that she had been placements. Unlike the county’s deputy jailers, Madison did

unable to find an attorney in the county interested in this not carry a weapon; nor did she wear a badge or uniform. She

responsibility but that Madison agreed to take the position if never arrested anyone, did not participate in the ongoing

it became available. Judge Browning informed Chief Justice training required of deputy jailers, and was not on the regular

Lambert that Madison was an employee of the Ohio County rotation of duties for monitoring prisoners.

Detention Center and that her “duties at the jail are

bookkeeping, finance officer, purchasing agent and general Based on the evidence seized at the Suttons’ residence, a

lieutenant.” On June 29, 2001, Chief Justice Lambert signed federal grand jury returned a five-count indictment against the

an order approving the appointment of a temporary trial Defendants on September 4, 2002.

III. Applicable Law and Analysis

1

The only district judge for Ohio County was not in the district when It is a long established requirement that, to be valid under

the warrants were signed. the Fourth Amendment, a search warrant must be issued by a

2

neutral and detached magistrate. Shadwick v. City of Tampa,

The 38 th Judicial District covers Butler, Edmonson, Ha ncock, and 407 U.S. 345, 350, 92 S. Ct. 2119, 2123 (1972)(citing

Ohio counties in K entuck y.

No. 03-5303 United States v. Parker, et al. 5 6 United States v. Parker, et al. No. 03-5303

Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369 legislature, alone, did not violate the Fourth Amendment’s

(1948)). The issue before the Supreme Court in Shadwick neutral and detached requirement:

was whether municipal court clerks qualified as neutral and

detached magistrates. Concluding that the clerks satisfied this “ . . . While a statutorily specified term of office and

requirement, the Court stated: appointment by someone other than ‘an executive

authority’ might be desirable, the absence of such

Whatever else neutrality and detachment might entail, it features is hardly disqualifying. Judges themselves take

is clear that they require severance and disengagement office under differing circumstances. Some are

from activities of law enforcement. There has been no appointed, but many are elected by legislative bodies or

showing whatever here of partiality, or affiliation of by the people. Many enjoy but limited terms and are

these clerks with prosecutors or police. The record subject to re-appointment or re-election. Most depend

shows no connection with any law enforcement activity for their salary level upon the legislative branch. We will

or authority which would distort the independent not elevate requirements for the independence of a

judgment the Fourth Amendment requires . . . The municipal clerk to a level higher than that prevailing with

municipal clerk is assigned not to the police or respect to many judges.”

prosecutor but to the municipal court judge for whom he

does much of his work. In this sense, he may well be Id. at 218 (quoting Shadwick, 407 U.S. at 351, 92 S. Ct. at

termed a ‘judicial officer.’ 2123). As the Shadwick Court stated further, “The clerk’s

neutrality has not been impeached: he is removed from

Id. at 350-51, 92 S. Ct. at 2123. prosecutor or police and works within the judicial branch

subject to the supervision of the municipal court judge.”

Following Shadwick, several courts have upheld search Shadwick, 407 U.S. at 351, 92 S. Ct. at 2123.

warrants issued by individuals connected to the judiciary.

See, e.g., United States v. Mitro, 880 F.2d 1480 (1st Cir. The government relies on Pennington, as well as this

1989)(approving state warrant issued by assistant district court’s unpublished opinion in United States v. King, 1991

court clerk); United States v. Martinez-Zayas, 857 F.2d 122 WL 278983 (6th Cir. December 27, 1991), to argue that

(3d Cir. 1988)(upholding warrant issued by municipal court Madison’s position at the county jail did not, by itself,

bail commissioner); United States v. Comstock, 805 F.2d contravene her neutrality and detachment as a trial

1194 (5th Cir. 1986)(upholding warrant issued by justice of commissioner. In King, the defendant moved to suppress

the peace). Similarly, this court upheld a search warrant evidence seized from his home pursuant to a search warrant,

issued by a judicial commissioner in Shelby County, claiming that the warrant was invalid because the issuing

Tennessee, despite the defendant’s claim that the county’s judicial commissioner was married to a deputy sheriff who

judicial commissioners could not be considered neutral and worked as a corrections officer at the county jail and because

detached because they were appointed by a local legislative the couple occasionally socialized with other deputies and

authority which also set the terms of their office and

compensation. United States v. Pennington, 328 F.3d 215

(6th Cir. 2003). Quoting from Shadwick, the Pennington

court reasoned that the commissioners’ connection to the

No. 03-5303 United States v. Parker, et al. 7 8 United States v. Parker, et al. No. 03-5303

their spouses.3 Id., 1991 WL 278983, *1. We upheld the outcome of minor cases that they had jurisdiction under Ohio

warrant, concluding that the judicial commissioner’s social law to try. The mayors had a financial interest in the sense

life was insufficient to demonstrate an engagement with law that they could assess fees and costs which in the case of

enforcement that would render her lacking in neutrality and Tumey went into his own pocket and in the case of Ward went

detachment. to the city of which he was mayor. In the case before us,

Madison oversees the jail’s budget and is in charge of its

In this case, the district court concluded that Madison was financial transactions. Madison’s agency stands to gain

engaged in law enforcement. This court agrees and therefore financially in the form of bookings, administrative fees from

finds King and Pennington distinguishable. Unlike the arrests and per diem lodging. See KY. REV. STAT.

judicial commissioner in King, Madison’s connection to law § 441.265. Madison explained that for arrestees for which

enforcement was not limited to her social interactions or she would issue an arrest warrant in her county as trial

relationships with law enforcement officials. Unlike the commissioner, as jailor she would collect various fees for the

judicial commissioner in Pennington, Madison’s connection jail: “[i]f someone comes in and they make bond and they’re

to the executive branch extended beyond her appointment by being released, they can pay the booking fee; the deputies can

an executive official. write them a receipt and accept that money and put it into our

safe.” (J.A. at 238.) Like Tumey and Ward, Madison may

The district court found that Madison was employed by and have a financial interest in the outcome of cases before her

worked for a law enforcement agency. Not only was she hired because she can issue warrants for the arrest of persons who

by the Jailer, a law enforcement official, but the Jailer served would then pay fees to Madison as the jail’s financial officer

as her immediate and only supervisor. While Madison’s daily and whose lodging may be reimbursed by other government

duties may have been different than those of a deputy jailer, agencies. This set of incentives reinforces our conclusion that

her work was performed at and for the Ohio County jail. Madison’s ability to act as a neutral and objective magistrate

Furthermore, Madison interacted with and assisted prisoners. is questionable.

It also appears that Madison has an interest in the outcome Based on these factual findings, which this court finds the

of proceedings before her because of her work as the “chief record supports, we conclude that Madison was not

lieutenant deputy jailor” for financial matters, including the sufficiently disengaged from activities of law enforcement to

collection of fees and billings for housing inmates and for satisfy the Fourth Amendment’s neutral and detached

trying to secure the financial stability of the jail. In Tumey v. requirement.

Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927), and Ward v.

Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80 (1972), the In Leon, the Supreme Court carved out a good-faith

mayors of towns in Ohio had a financial interest in the exception to the exclusionary rule when officers act in

reasonable reliance on a search warrant issued by a neutral

and detached magistrate that is subsequently found to be

3 invalid. Leon, 468 U.S. 897, 104 S. Ct. 3405. However as a

In support of his claim that the warrant was invalid, the defendant

in King also offered evidence to establish a close relationship between the matter of first impression among the Circuit Courts, this court

county’s other judicial commission er and law enfo rcem ent officials. As held in 2001 that Leon is inapplicable when a warrant is

that judicial com missioner did not execute the search warrant, however, signed by an individual lacking the legal authority necessary

this court concluded that evidence regarding her relationships with other

county officials was irrelev ant. King, 1991 WL 278983, *3.

to issue warrants. United States v. Scott, 260 F.3d 512 (6th

No. 03-5303 United States v. Parker, et al. 9

Cir. 2001). The court reasoned that the Supreme Court, in

carving out a good-faith exception in Leon, “presupposed that

the warrant was issued by a magistrate or judge clothed in the

proper legal authority.” Id. at 515. The Scott court held that

a search warrant issued by an individual who is not neutral

and detached is void ab initio. Id. at 515. As Madison’s

appointment as a trial commissioner was unlawful due to her

engagement with law enforcement activities, Scott controls

this case. Thus this court concludes that the district court

properly declined to apply Leon’s good-faith exception in this

case.

The Government’s reliance on United States v. Malveaux,

350 F.3d 555 (6th Cir. 2003), is misplaced. Malveaux did not

modify or reverse Scott. In Malveaux, the defendant

challenged a search warrant signed by a Judicial

Commissioner appointed for Hamilton County, Tennessee,

contending that the commissioner was not authorized to issue

warrants because the provision of Tennessee law authorizing

his appointment conflicted with another section of the

Tennessee Code. Id. at 557. Malveaux therefore did not

address Leon’s application when a judicial officer lacking

neutrality or detachment issues a warrant. As the Malveaux

court stated in distinguishing the case before it from Scott, the

Judicial Commissioner was legally authorized to issue

warrants. The courts or legislature subsequently might find

the law authorizing the Judicial Commissioner’s appointment

inconsistent with other state law provisions; however until

that time, the Commissioner possessed the legal authority to

issue warrants. In comparison, it is a violation of the Fourth

Amendment to authorize individuals insufficiently detached

from law enforcement to issue warrants. In other words, such

individuals never could be legally authorized to issue

warrants. Therefore, because Madison was not a neutral and

detached magistrate, the search warrants she signed were void

from the beginning.

Accordingly, the district court’s decision is AFFIRMED.