# United States v. Parker

> Court of Appeals for the Sixth Circuit · June 28, 2004

URL: https://www.frixlaw.com/law-library/cases/2971243

## Case

- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** June 28, 2004
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2971243. Public record. Not legal advice.