           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
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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.
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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.
