Dixon v. Com., s. 91-CA-002998-MR

• Decision Date: 01 July 1994
• Docket Number: CA-002999-MR,Nos. 91-CA-002998-MR,s. 91-CA-002998-MR
• Citation: Dixon v. Com., 890 S.W.2d 629 (Ky. Ct. App. 1994)
• Court: Kentucky Court of Appeals
• Parties: Greer David DIXON Jr. and Pamela Sue Dixon, Appellants, v. COMMONWEALTH of Kentucky, Appellee. & 91-

Page 629

890 S.W.2d 629

Greer David DIXON Jr. and Pamela Sue Dixon, Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 91-CA-002998-MR & 91-CA-002999-MR.

Court of Appeals of Kentucky.

July 1, 1994.

Rehearing Denied Sept. 23, 1994.

Discretionary Review Denied By

Supreme Court Feb. 8, 1995.

Will A. Kautz, Charlotte B. Scott, Bradley, Bryant & Kautz, P.S.C., Paducah, for appellants.

Chris Gorman, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Frankfort, for appellee.

Before HUDDLESTON, JOHNSTONE and SCHRODER, JJ.

HUDDLESTON, Judge.

This case presents one question: Is a district court trial commissioner a neutral and detached magistrate capable of issuing search warrants when that commissioner practices law with the county attorney? For the reasons hereinafter set forth, we hold that the answer is "no."

On May 11, 1991, Sheriff Michael Reilly of Hickman County and Sheriff Will Ben Martin of Carlisle County went to Hickman County Trial Commissioner Sue Ellen Morris for a warrant to search the home of Pamela Sue Dixon and Greer David Dixon Jr. They had received information from an informant that the Dixons were growing marijuana. Morris "transcribed" the statements of the sheriffs onto a printed affidavit for search warrant form. Based upon this affidavit and other information supplied by the sheriffs, Morris drafted and issued a search warrant for the Dixons' residence. The resulting search produced evidence of marijuana cultivation and possession. As a result, a Hickman County Grand Jury indicted David for cultivating marijuana for sale, possession of drug paraphernalia and possession of marijuana, and it indicted Pamela for cultivating marijuana for sale.

Both David and Pamela made motions to suppress the evidence obtained in the search. They argued that the affidavit supporting the search warrant was insufficient for it failed to state when the police informant observed marijuana cultivation on the Dixons' property. They also argued that Morris was not a neutral and detached magistrate for she was the law partner of Tom Bugg, the Hickman County Attorney.

After conducting a hearing, Hickman Circuit Court denied the Dixons' suppression motions. The circuit court found the affidavit to be defective because it did not indicate when the observations supporting the search were made. However, the court also found that since Morris knew when the observations were made (although the affidavit did not include this information), under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the exclusionary rule did not require suppression of the evidence.

Following the denial of their motion to suppress, the Dixons entered conditional guilty pleas according to RCr 8.09 ¹ expressly reserving the right to appeal the court's suppression ruling. Pamela received a twelve- month sentence and David received a five-year sentence. On appeal, the Dixons claim that Hickman Circuit Court denied their suppression motion in error.

Section 10 of the Kentucky Constitution and the Fourth Amendment to the United States Constitution prohibit unreasonable searches and seizure. One of the fundamental elements of these constitutional protections is that a detached and neutral magistrate must find probable cause for a search before a warrant is issued. "Part of the protection of the Fourth Amendment consists of requiring that inferences in determining probable cause be drawn by a neutral and detached issuing authority instead of the police or government agents." Rooker v. Commonwealth, Ky., 508 S.W.2d 570, 571 (1974). Under RCr 13.10, an affidavit alleging facts supporting a finding of probable cause must be sworn to before a judge or other officer with the authority to issue search warrants. From that affidavit, the judge or other officer determines whether probable cause exists to justify the issuance of a search warrant. The judgment of a neutral and detached magistrate helps to prevent law enforcement authorities from engaging in unlawful searches.

As earlier noted, the issue which this case raises is whether a district court trial commissioner can be a neutral and detached magistrate capable of issuing search warrants when that commissioner practices law with the county attorney? We hold that the association of a trial commissioner and a county attorney in the practice of law presents an insurmountable conflict of interest and appearance of impropriety which destroys the district court trial commissioner's character as a neutral and detached magistrate.

In counties without a residing district judge, "the chief judge of the district shall appoint a trial commissioner." Supreme Court Rule 5.010. A trial commissioner is authorized to perform many judicial functions including the issuance of search warrants. SCR 5.030(a)(i). Under SCR 5.050, a trial commissioner is required to "disqualify himself in all...