951 F.2d 350 (6th Cir. 1991), 91-5501, U.S. v. King
| Citation | 951 F.2d 350 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Mark Edward KING, Defendant-Appellant. |
| Case Date | December 27, 1991 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit |
Page 350
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)
On Appeal from the United States District Court for the Middle District of Tennessee, No. 90-00147; Higgins, D.J.
M.D.Tenn.
AFFIRMED.
Before RYAN and BOGGS, Circuit Judges, and HOOD, District Judge. [*]
PER CURIAM.
Mark Edward King appeals the district court's refusal to suppress evidence that connected him to various drug crimes. He argues that the search that discovered the evidence was based on a warrant with such serious flaws that the evidence must be suppressed. We disagree, and affirm the lower court's decision.
I
At 7:00 p.m. on Sunday, October 15, 1989, Detective Douglas Burgess, an officer with the Sheriff's Department in Putnam County, Tennessee, received a telephone call from a confidential informant. Mr. Burgess had been a police officer for ten years, and had known the informant for eight years. Mr. Burgess had relied on the informant several times in the past, and had sought between ten and fifteen search warrants based on his evidence. These warrants had led to multiple arrests and convictions. Mr. Burgess was off duty when he received the call, but met the informant within approximately fifteen minutes. The informant said that he had been in Mr. King's home within the previous twenty-four hours and had seen several ounces of cocaine there.
After this meeting, Mr. Burgess drove to the Putnam County Sheriff's Office; while driving, he radioed the dispatcher to have a judicial commissioner standing by for him. Pursuant to Tenn.Code Ann. 40-1-111, judicial commissioners in Putnam County are appointed by a majority of the 25-member county commission, and have the authority to issue search warrants. No legal training is required for the position; in fact, applicants need only have a high school diploma. At the time of the events in question, Putnam County had two judicial commissioners, one of whom was Sarina Flowers. Ms. Flowers happened to be the judicial commissioner on call to issue warrants at the time. She had received the job in May 1987, after the other commissioner encouraged her to apply for it.
The other commissioner, who had suggested that Ms. Flowers seek the job, had herself been appointed in 1985. Although she did not issue the warrant in this case, Mr. King argues that her close relationship to other county officers casts doubt on the commissioners' impartiality. She had been recommended for the job by David Andrews, a long-time friend who served both as a Putnam County Commissioner and as a deputy sheriff. At the time of the judicial commissioner's appointment, Commissioner Andrews's mother was the election commissioner in Putnam County. While the judicial commissioner was serving, she had an extra-marital affair with one of the county deputies, which continued for approximately four years. She then became involved in a second affair, apparently with the Chief Deputy of the sheriff's office. While a judicial commissioner, she also socialized with Jerry Absten, the Putnam County sheriff. She attended Christmas and campaign parties at which he was present and actively supported his efforts for reelection. She not only encouraged Ms. Flowers to apply for the office of judicial commissioner, she also spoke personally to Sheriff Absten about recommending Ms. Flowers for the job. She later told Ms. Flowers that she had spoken to the sheriff on her behalf. Shortly after becoming a judicial commissioner, Ms. Flowers began dating a deputy sheriff who worked as a corrections officer at the county jail, whom she subsequently married. Ms. Flowers also socialized occasionally with other deputies and their wives.
Because judicial commissioners do not have their own offices, Ms. Flowers met Mr. Burgess in his office roughly forty-five to sixty minutes after he had met the confidential informant. He applied for a search warrant, supporting his application with an affidavit that contained pre-printed boilerplate language and empty space for the officer to write necessary information. Part of the boilerplate language stated that the officer had received information from a "responsible and reliable citizen"; this language was included in affidavits whether or not it was true. In the affidavit, Mr. Burgess wrote that the informant had been at Mr. King's house within the last five days, even though the informant had actually stated that he had been there within twenty-four hours. This was done to protect the identity of the informant. The pre-printed language under Ms. Flowers's signature identified her as a judge, even though she was a judicial commissioner. In his testimony, Mr. Burgess explained this by stating that the form warrants generally contain both titles below the signature line, and the issuing official circles the appropriate title.
II
The courts have long recognized the general principle that any search warrant must be issued by a disinterested, detached, and neutral magistrate. In Steagald v. United States, 451 U.S. 204, 212 (1981), the Supreme Court held that "the purpose of a warrant is to allow a neutral judicial officer to assess whether the police have probable cause to make an arrest or conduct a search." (emphasis added). In United States v. United States Dist. Court, 407 U.S. 297, 316-17 (1972), the government claimed that its warrantless surveillance of a domestic radical group conspiring to destroy government property was justified by a statute. The Court rejected this argument. Nothing that "[i]nherent in the concept of a warrant is its issuance by a 'neutral and detached magistrate,' " the Court concluded that executive branch officials do not qualify as neutral magistrates under the fourth amendment. "[U]nreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."
Ms. Flowers is married to a deputy sheriff who, although he works in the jail, serves as an officer for the county, as does Mr. Burgess. Mr. King argues that this constitutes an intolerably close relationship between the magistrate issuing the warrant and the officer who seeks it. Emphasizing the close personal and social connections between Ms. Flowers, the other commissioner, and members of the sheriff's office, Mr. King argues that Ms. Flowers cannot qualify as a neutral and detached magistrate. He also emphasizes her lack of knowledge concerning the law of probable cause, and asserts that she lacks the necessary competence to issue warrants.
We believe Ms. Flowers was a neutral and detached officer. After referring to the evidence discussed by Mr. King, the district court specifically stated that it was "not convinced that Ms. Flowers was somehow biased towards issuing search warrants." The court noted...
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