        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206               2    United States v. Malveaux                  No. 02-5382
     ELECTRONIC CITATION: 2003 FED App. 0411P (6th Cir.)
                 File Name: 03a0411p.06                       Tennessee, for Appellee. Elizabeth T. Ryan, OFFICE OF
                                                              THE ATTORNEY GENERAL, Nashville, Tennessee, for
                                                              Intervenor. ON BRIEF: Barry L. Abbott, CAVETT &
UNITED STATES COURT OF APPEALS                                ABBOTT, Chattanooga, Tennessee, for Appellant. Steven S.
                                                              Neff, ASSISTANT UNITED STATES ATTORNEY,
               FOR THE SIXTH CIRCUIT                          Chattanooga, Tennessee, for Appellee. Elizabeth T. Ryan,
                 _________________                            OFFICE OF THE ATTORNEY GENERAL, Nashville,
                                                              Tennessee, for Intervenor.
 UNITED STATES OF AMERICA , X
             Plaintiff-Appellee, -                                               _________________
                                   -
                                   -   No. 02-5382                                   OPINION
            v.                     -                                             _________________
                                    >
                                   ,                            SILER, Circuit Judge.       Defendant Albert Vincent
 ALBERT VINCENT                    -
 MALVEAUX, a/k/a VINNY THE -                                  Malveaux, a/k/a Vinny the Shark, appeals from the denial of
                                                              his motion to suppress two ounces of cocaine base (“crack”),
 SHARK ,                           -                          a handgun, and a large amount of cash found in his hotel
          Defendant-Appellant. -                              room. For the reasons stated below, we AFFIRM.
                                   -
                                  N                                                BACKGROUND
        Appeal from the United States District Court
   for the Eastern District of Tennessee at Chattanooga.        Between January and March 2001, a confidential informant
  No. 01-00083—R. Allan Edgar, Chief District Judge.          made five cocaine purchases from Malveaux. These
                                                              “controlled buys” were monitored by police officers. On
               Argued: September 18, 2003                     April 30, 2001, a confidential informant notified Chattanooga
                                                              Police Department Detective Randy Noorbergen that, within
         Decided and Filed: November 21, 2003                 the previous 72 hours, the informant had been in Malveaux’s
                                                              hotel room at the Main Stay Suites in Chattanooga, Hamilton
  Before: SILER, BATCHELDER, and COOK, Circuit                County, Tennessee.         The informant told Detective
                     Judges.                                  Noorbergen that Malveaux possessed four ounces of crack, a
                                                              pistol, and a large amount of cash. Detective Noorbergen
                   _________________                          knew this informant, whom he had known for approximately
                                                              one year, to be reliable. In addition, Detective Noorbergen
                        COUNSEL                               had received information from another Chattanooga narcotics
                                                              detective that Malveaux had recently been involved in
ARGUED: Barry L. Abbott, CAVETT & ABBOTT,                     “heavy” drug trafficking.
Chattanooga, Tennessee, for Appellant. Paul W. Laymon, Jr.,
ASSISTANT UNITED STATES ATTORNEY, Chattanooga,

                             1
No. 02-5382                  United States v. Malveaux       3    4    United States v. Malveaux                   No. 02-5382

   Armed with this information, Detective Noorbergen took         investigation of Tennessee constitutional law was
his materials to Judicial Commissioner Robert Meeks, who          unnecessary because the exclusionary rule does not exclude
was on duty that evening. Hamilton County judicial                evidence under circumstances such as these, specifically
commissioners are on duty during the evening hours when           remarking that the officers’ good faith reliance on
state judges are usually unavailable. As a common practice,       Commissioner Meeks’s search warrant was objectively
Chattanooga law enforcement officers normally obtain              reasonable. Moreover, the district court recognized that a
warrants from these judicial commissioners, rather than           strong presumption exists that an act promulgated by the
awaking state judges during late hours. At 10:09 p.m. on          legislature is constitutional.  Consequently, it denied
April 30, 2001, Detective Noorbergen appeared before              Malveaux’s motion to suppress.
Commissioner Meeks, who issued a search warrant for
Malveaux’s hotel room.                                              Malveaux entered a conditional guilty plea to both counts
                                                                  of the indictment but reserved his right to appeal the district
  After obtaining the warrant, Detective Noorbergen and           court’s denial of his motion to suppress. He was sentenced to
additional law enforcement officers rented a room at the Main     117 months’ imprisonment.
Stay Suites and commenced surveillance of Malveaux’s
room. During their surveillance, the police officers observed                            DISCUSSION
an individual arrive at, enter, and then exit Malveaux’s room.
The officers learned that the individual had just purchased         “We review for clear error the district court’s findings of
cocaine from Malveaux. Pursuant to the officers’ insistence,      fact made with regard to a motion to suppress; we review de
the individual knocked on the door of Malveaux’s room.            novo the court’s legal conclusions.” United States v. Elmore,
When Malveaux opened the door, the officers entered the           304 F.3d 557, 560 (6th Cir. 2002), citing United States v. Ivy,
room and executed the warrant. Once inside, the officers          165 F.3d 397, 401-02 (6th Cir. 1998).
discovered approximately two ounces of crack, a loaded
handgun, and a large amount of cash.                                A fundamental tenet of the Fourth Amendment is protection
                                                                  from unreasonable searches and seizures. Knox County Educ.
  Malveaux was later indicted on two counts, charging him         Ass’n v. Knox County Bd. of Educ., 158 F.3d 361, 371 (6th
with possession of crack cocaine, in violation of 21 U.S.C.       Cir. 1998). “As a general rule, in order to be reasonable, a
§§ 841(a)(1) and (b)(1)(A), and possession of a handgun in        search must be undertaken pursuant to a warrant issued upon
furtherance of a drug trafficking crime, in violation of 18       a showing of probable cause.” Id. at 373, citing Skinner v.
U.S.C. § 924(c). Malveaux moved to suppress the evidence,         Railway Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989).
contending that the search warrant was invalid because
Commissioner Meeks was not authorized to issue search               Tenn. Code Ann. § 40-1-111 permits the appointment of
warrants. Malveaux alleged that because Section 3, Chapter        judicial commissioners in counties with certain populations.
192 of the 1996 Private Acts (“Chapter 192 § 3”) conflicted       Chapter 192 § 3, enacted after Tenn. Code Ann. § 40-1-111,
with and was irreconcilable with Tenn. Code Ann. § 40-1-          permits the Hamilton County legislative body to appoint
111, it was violative of Article XI, section 8 of the Tennessee   judicial commissioners despite the fact that Hamilton
Constitution and thus unconstitutional. Although the district     County’s population does not fit within the delineated
court touched upon the interpretation of each of the              population brackets of Tenn. Code Ann. § 40-1-111. Since
aforementioned sections, it found that a comprehensive            Hamilton County’s population does not fall within the
No. 02-5382                       United States v. Malveaux             5    6     United States v. Malveaux                 No. 02-5382

statutorily-prescribed parameters of Tenn. Code Ann. § 40-1-                    Although not directly on point, United States v.
111, Malveaux contends that Commissioner Meeks was                           Pennington, 328 F.3d 215, 217 (6th Cir. 2003), provides
unauthorized to issue the search warrant.1 This contention                   substantial assistance to our disposition of Malveaux’s claim.
notwithstanding, no analysis of Tennessee law is necessary,                  In Pennington, a Shelby County, Tennessee Judicial
as the district court properly denied Malveaux’s motion to                   Commissioner issued a warrant to search the defendant’s
suppress. Accordingly, we affirm without comment as to any                   home. In moving to suppress evidence seized from his
alleged conflict between Chapter 192 § 3 and Tenn. Code                      residence, Pennington alleged that the commissioner was not
Ann. § 40-1-111.                                                             neutral and detached because he was appointed by a local
                                                                             legislative authority. Pennington also claimed that the
  In support of his argument that Commissioner Meeks was                     commissioner was prohibited from issuing search warrants or
never authorized to issue the search warrant, Malveaux relies                acting as a neutral and detached magistrate for Fourth
upon United States v. Scott, 260 F.3d 512 (6th Cir. 2001). In                Amendment purposes because he was neither a judge nor an
Scott, a deputy sheriff obtained a search warrant from a                     attorney. Premised upon Leon, the district court properly
retired judge of the General Sessions Court for Sequatchie                   denied Pennington’s motion to suppress because the police
County, Tennessee. The deputy sheriff chose to present the                   “officers relied in good faith on the warrant issued by the
search warrant to a retired judge instead of an active judge                 judicial commissioner.” Id. at 217.
whom he knew to be at home. In concluding that the district
court erroneously denied Scott’s motion to suppress, this                      This rationale is applicable to Malveaux’s argument.
court observed that the deputy sheriff did not “rel[y] on a                  Commissioner Meeks issued the search warrant under
warrant that contained a mere technical deficiency[;]” rather,               Tennessee law. Id. at 217. As Commissioner Meeks was
the retired judge “possessed no legal authority pursuant to                  legally appointed under Tennessee law, he had the apparent
which he could issue a valid warrant.” Id. at 515. The Scott                 authority to issue the warrant to search Malveaux’s hotel
court held “that when a warrant is signed by someone who                     room. Pursuant to both Pennington and Leon, the police
lacks the legal authority necessary to issue search warrants,                officers, acting in good faith, relied upon Commissioner
the warrant is void ab initio.” Id. at 515.                                  Meeks’s apparent authority to issue the search warrant.
  Malveaux’s reliance upon Scott is misplaced. Unlike the                        AFFIRMED.
retired judge in Scott, Commissioner Meeks was authorized
to issue search warrants. The police officers properly
obtained the search warrant because, premised upon their
objective good faith, they had no reason to question whether
Commissioner Meeks possessed the authority to issue the
search warrant. See United States v. Leon, 468 U.S. 897, 922
(1984).



    1
      Malveaux does not allege that the search warrant was invalid for any
other reason.
