                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2165
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the District of
                                        * Nebraska.
Tylan Lucas,                            *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: November 14, 2005
                                Filed: June 16, 2006
                                 ___________

Before ARNOLD, BEAM, and RILEY, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       Tylan Lucas was tried before a jury and convicted on five counts: possession
with intent to distribute five grams or more of a mixture or substance containing
cocaine base; possession of a firearm in furtherance of a drug trafficking crime;
possession of a firearm after a felony conviction; conspiracy to distribute or possess
with intent to distribute fifty to one-hundred-fifty grams of a mixture or substance
containing cocaine base; and obstructing, influencing, or impeding or attempting to
obstruct, influence, or impede an official proceeding. He was found not guilty on two
other counts.
      Lucas appeals his conviction on eight separate grounds. Finding that a
"Warrant of Arrest," signed by the Nebraska Director of Correctional Services
(Corrections Director), is not a valid arrest warrant, we reverse and remand.1

I.    BACKGROUND

       On October 22, 2003, then Corrections Director Harold Clarke issued a
document titled "Warrant of Arrest (for Escaped Prisoner)" for Tylan Lucas, after his
escape from the custody of the Department of Correctional Services. On January 4,
2004, Sergeant Timothy J. Carmody, a member of the Omaha Police Department
fugitive task force, received a telephone call from Crime Stoppers indicating that a
caller had information about Tylan Lucas. Carmody put Deputy Gerald Kellogg of
the Douglas County Sheriff's Department in contact with the caller. Kellogg met with
the caller, and the pair drove past a residence, which the caller reported was Lucas'
location.

       Carmody, Kellogg, and members of the fugitive task force then went to the
residence, and knocked on the front door. Theresa Scaife, whom they believed to be
the tenant, answered the door and told the officers that she had to get dressed. She
returned to the door after a couple of minutes. Scaife initially denied that Lucas was
present and asked the officers if they had a search warrant. The officers told her that
because of the arrest warrant, they would search the residence. Scaife then admitted
that Lucas was inside the residence. Scaife was handcuffed and placed in a police
cruiser.



      1
        We are presented with a situation in which the police used an invalid arrest
warrant to make an arrest in a private residence. Had Lucas been arrested in a public
place, the validity of the warrant may not have been at issue. See United States v.
Watson, 423 U.S. 411, 423-24 (1976) (holding that a public arrest, based on probable
cause that a felony had been committed, did not require a warrant).

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       Officers announced their presence and directed Lucas to come out of the house.
When he did not, officers entered and found Lucas in the basement, wearing only
boxer shorts. Because the weather was bitterly cold, the officers determined that it
was necessary to dress Lucas. Kellogg located a pair of pants, which Lucas admitted
were his, but asked to wear a different pair. Kellogg had already begun searching the
first pair of pants and found $2900, two bags of crack cocaine, and one bag of
marijuana. Lucas was then dressed and placed in a police cruiser.

       Scaife was returned to the residence, and her handcuffs removed. At that point,
officers explained the situation to her and told her that they believed Lucas had
contraband in the residence, including a weapon. Scaife verbally consented to a
search and signed a consent form. Officers then located a large amount of marijuana
and a stolen six-shot revolver.

       Prior to trial, Lucas moved to suppress the evidence. The district court denied
the motion, finding that Scaife did not consent to the search, but rather acquiesced to
the execution of an arrest warrant. The district court determined that Clarke was
neutral and detached and had authority to sign an arrest warrant. The district court
also found that the officers properly executed the warrant. Lucas appeals the validity
of the warrant, and we remand.

II.   DISCUSSION

       Lucas argues that the search was an invalid, nonconsensual search of a
residence. He contends that the warrant was invalid because its issuer was a member
of the executive branch, rather than a detached and neutral magistrate. The United
States counters that Clarke had the authority to sign the warrant and was capable of
determining whether probable cause existed for the requested arrest or search. In the
alternative, the United States argues the good-faith exception applies.



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       A.     The Arrest Warrant

       As the district court correctly determined, the Corrections Director has
statutory authority to "[i]ssue or authorize the issuance of a warrant for the arrest of
any person committed to the department who has escaped from the custody of the
department." Neb. Rev. Stat. § 83-173(11). However, a statutory grant of authority
is not dispositive, as we must determine whether that grant conforms to the Fourth
Amendment.


       In Payton v. New York, the Supreme Court determined that the Fourth
Amendment, applied to the states through the Fourteenth Amendment, "prohibits the
police from making a warrantless and nonconsensual entry into a suspect's home in
order to make a routine felony arrest." 445 U.S. 573, 576 (1980). A defendant who
has been illegally arrested does not get a free pass; he must still stand trial. Id. at 592,
n.34. However, evidence found during an unlawful arrest might be subject to the
exclusionary rule and might not be admissible at trial. Id. at 591-92. Lucas argues
that the arrest warrant was invalid, that the arrest in a private residence was unlawful,
and that the evidence found during the arrest was not admissible. Thus, we must
determine whether the warrant for Lucas' arrest was valid.


      A warrant may be issued only by an official who is "neutral and detached" and
"capable of determining whether probable cause exists for the requested arrest or
search." Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972). Lucas does not
dispute the ability of Clarke to determine probable cause, only whether he is neutral
and detached.


      The Supreme Court has examined the roles of government officials who have
issued warrants to determine whether the warrants were valid. At one end of the


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spectrum, a state attorney general, who was in charge of a criminal investigation and
served as chief trial prosecutor, could not issue a valid warrant because he was not
neutral and detached. Coolidge v. New Hampshire, 403 U.S. 443, 449-50 (1971),
overruled in part on other grounds by Horton v. California, 496 U.S. 128 (1990). At
the other end of the spectrum, city court clerks, who had "no connection with any law
enforcement activity or authority," and were assigned to and supervised by municipal
court judges, were sufficiently neutral and detached to issue arrest warrants, despite
having been appointed by the city clerk. Shadwick, 407 U.S. at 350-51. We note that
the official issuing the warrant need not actually be a judge or attorney. Id. at 352.
Though in Shadwick the Court expressly did not "determine whether a State may
lodge warrant authority in someone entirely outside the sphere of the judicial
branch.," id., the Court has warned against vesting the power to issue warrants in
members of the federal executive branch, whose job is to enforce laws, investigate,
and prosecute. United States v. U.S. Dist. Court, 407 U.S. 297, 317 (1972).


      This court has examined the need for a neutral and detached magistrate in
contexts involving United States Magistrate Judges. See, e.g., United States v.
Mathison, 157 F.3d 541, 548 (8th Cir. 1998) (holding defendant failed to show
magistrate judge was not impartial). We have also concluded that a local municipal
judge (also known as a "police magistrate") had the authority to issue a search
warrant under North Dakota law. Gallagher v. United States, 406 F.2d 102, 104, 108
(8th Cir. 1969). However, Gallagher was decided prior to Shadwick and thus did not
discuss whether the official was neutral and detached.


      The Sixth Circuit invalidated two search warrants signed by a trial
commissioner who was also an employee at the Ohio County Detention Center.
United States v. Parker, 373 F.3d 770, 771-72, 774 (6th Cir. 2004). The
commissioner had been hired by, was supervised by, and could be fired by the jailer,
and she was responsible for securing the financial stability of the jail. Id. at 773. The

                                          -5-
commissioner "was not sufficiently disengaged from activities of law enforcement,"
and therefore could not serve as a neutral and detached magistrate. Id. at 774.


        Based on the persuasive reasoning of our sister circuit, we find that the
Corrections Director, a member of the executive branch, is not sufficiently neutral
and detached to serve as a magistrate. Though confirmed by the legislature, the
Governor of Nebraska appoints the Corrections Director, establishes his salary and
may determine that his services are no longer needed. Neb. Rev. Stat. §§ 81-102, 81-
103, and 81-107. The Corrections Director supervises and is responsible for the
administration of the Department of Corrections, appoints the chief executive officer
of each facility, and provides training programs for department employees. Neb. Rev.
Stat. § 83-173. Because the Corrections Director is a member of the executive branch
and accountable directly to the Governor, he is not a neutral and detached magistrate
for purposes of issuing arrest warrants. Therefore, the "Warrant of Arrest" signed by
the Corrections Director was not a valid arrest warrant.


      B.     Good-Faith Exception


       In the alternative, the United States argues that the good-faith exception to the
warrant requirement should apply. The good-faith exception allows evidence "seized
by officers reasonably relying on a warrant issued by a detached and neutral
magistrate" to be admitted, even if the warrant is later found to be defective. United
States v. Leon, 468 U.S. 897, 913 (1984). The good-faith exception was fashioned
because the exclusionary rule is designed to deter only law enforcement officers, not
magistrates and judges. Id. at 918. However, the good-faith exception does not apply
when the individual who issued the warrant is not neutral and detached. Id. at 914.
Because the Corrections Director is not a neutral and detached magistrate, the good-
faith exception necessarily cannot apply.


                                          -6-
III.   CONCLUSION


      The Director of the Nebraska Department of Corrections, is not a neutral and
detached magistrate. The "Warrant of Arrest" is not a valid arrest warrant and the
good-faith exception to the warrant requirement does not apply. Accordingly, we
reverse and remand to the district court for proceedings consistent with this opinion.
                       ______________________________




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