State ex rel. Brown v. Dietrick, 21904

• Decision Date: 20 April 1994
• Docket Number: No. 21904,21904
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Eustace BROWN, Derek Johnson, Vincent Nelson and Donnie Smalls, Relators Below, Appellees, v. Jerry DIETRICK, Administrator, Eastern Regional Jail, and The Honorable Gail Boober, Jefferson County Magistrate, Respondents Below, The Honorable Gail Boober, Jefferson County Magistrate, Appellant.

Page 47

444 S.E.2d 47

191 W.Va. 169

STATE of West Virginia ex rel. Eustace BROWN, Derek Johnson Vincent Nelson and Donnie Smalls, Relators Below, Appellees, v. Jerry DIETRICK, Administrator, Eastern Regional Jail, and The Honorable Gail Boober, Jefferson County Magistrate, Respondents Below The Honorable Gail Boober, Jefferson County Magistrate, Appellant.

No. 21904.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 1994.

Decided April 20, 1994.

SYLLABUS BY THE COURT

1. "The constitutional guarantee under W.Va. Const., Article III, § 6 that no search warrant will issue except on probable cause goes to substance and not to form; therefore, where it is conclusively proved that a magistrate acted as a mere agent of the prosecutorial process and failed to make an independent evaluation of the circumstances surrounding a request for a warrant, the warrant will be held invalid and the search will be held illegal." Syllabus Point 2, State v. Dudick, 158 W.Va. 629, 213 S.E.2d 458 (1975).

2. Canon 3C(1) of the Judicial Code of Ethics contains an initial general admonition that a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. This admonition is followed by a number of specific instances when disqualification is required. Canon 3C(1) also recognizes that the enumerated instances are not to be considered as exclusive.

3. "[W]here a challenge to a judge's impartiality is made for substantial reasons which indicate that the circumstances offer a possible temptation to the average man as a judge not to hold the balance nice, clear and true between the State and the accused, a judge should recuse himself." Syllabus Point 14, in part, Louk v. Haynes, 159 W.Va. 482, 223 S.E.2d 780 (1976).

4. The fact that a magistrate's spouse is the chief of police of a small police force does not automatically disqualify the magistrate, who is otherwise neutral and detached, from issuing a warrant sought by another member of such police force.

5. The West Virginia Rules of Criminal Procedure provide a right to a defendant to challenge the validity of a search warrant in a felony case. However, this challenge may not be made at the preliminary hearing. Rule 5.1(a) of the West Virginia Rules of Criminal Procedure states, in part: "Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 12."

6. In a misdemeanor case, a defendant may attack the validity of a search warrant through a motion under Rule 12 of the Rules of Criminal Procedure for Magistrate Courts of West Virginia.

7. The rule of necessity is an exception to the disqualification of a judge. It allows a judge who is otherwise disqualified to handle the case to preside if there is no provision that allows another judge to hear the matter.

8. The rule of necessity is an exception to the general rule precluding a disqualified judge from hearing a matter. Therefore, it is strictly construed and applied only when there is no other person having jurisdiction to handle the matter that can be brought in to hear it.

Deborah A. Lawson, Jerome J. Dambro, Martinsburg, for appellee Eustace Brown.

Steven M. Askin, Askin, Burke & Schultz, Martinsburg, for appellee Vincent Nelson.

John M. Hedges, Charleston, for appellant Gail Boober, Jefferson County Magistrate.

James B. Rich, Martinsburg, for appellee Derek Johnson.

David A. Camilletti, Shepherdstown, for appellee Donnie Smalls.

MILLER, Justice:

In this appeal from a habeas corpus proceeding, we consider whether the Circuit Court of Jefferson County ¹ was correct in holding that a search warrant issued by a magistrate was void because the magistrate was married to the chief of police and one of his officers had procured the warrant.

The lower court determined that because the magistrate was married to the chief of police there was a violation of Canon 3C(1) and 3C(1)(d) of the Judicial Code of Ethics. ² The former provision requires the recusal of a judge if his impartiality might reasonably be questioned; the latter requires disqualification where the judge's spouse has an interest in the proceeding. ³ We have not had occasion to consider this particular question.

Initially, we note that independent of the Judicial Code of Ethics, the United States Supreme Court has interpreted the Fourth Amendment to the United States Constitution ⁴ to require that a search warrant be issued by a "neutral and detached magistrate." See Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948). In Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2123, 32 L.Ed.2d 783, 789 (1972), the Supreme Court held that the office of magistrate, in order to satisfy the neutral and detached standard "require[s] severance and disengagement from activities of law enforcement." By way of illustration, the Supreme Court in Shadwick pointed to its earlier case of Coolidge v. New Hampshire, 403 U.S. 443, 450, 91 S.Ct. 2022, 2029, 29 L.Ed.2d 564, 573 (1971), where it voided a search warrant issued by the state's attorney general because he " 'was actively in charge of the investigation and later was to be chief prosecutor at trial.' " 407 U.S. at 350, 92 S.Ct. at 2123, 32 L.Ed.2d at 788. ⁵ Similarly, in LO-JI Sales, Inc. v New York, 442 U.S. 319, 327, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920, 929 (1979), the magistrate was found not to be neutral and detached when he "allowed himself to become a member, if not the leader, of the search party which was essentially a police operation." In Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977), the Supreme Court determined that a magistrate who was compensated based on a fee for the warrants issued could not be considered neutral and detached. It relied on its earlier case of Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), which invalidated on due process principles the payment of the village mayor when he acted as a judge from costs collected in criminal cases brought before him in which there was a conviction. ⁶

We afforded the same protection for a neutral and detached magistrate under our search and seizure constitutional provision in Syllabus Point 2 of State v. Dudick, 158 W.Va. 629, 213 S.E.2d 458 (1975):

"The constitutional guarantee under W.Va. Const., Article III, § 6 that no search warrant will issue except on probable cause goes to substance and not to form; therefore, where it is conclusively proved that a magistrate acted as a mere agent of the prosecutorial process and failed to make an independent evaluation of the circumstances surrounding a request for a warrant, the warrant will be held invalid and the search will be held illegal."

See also State v. Schofield, 175 W.Va. 99, 331 S.E.2d 829 (1985); State v. Wotring, 167 W.Va. 104, 279 S.E.2d 182 (1981).

As the foregoing law indicates, where there is a lack of neutrality and detachment in the issuance of the search warrant, it is void. Aside from the constitutional requirements for a neutral and detached magistrate as to warrants, similar standards are imposed by Canon 3C of the Judicial Code of Ethics relating to the disqualification of a judge. The Code defines those situations when a judge may be precluded from presiding over a case. The underlying rationale for requiring disqualification is based on principles of due process. As we recognized in Louk v. Haynes, 159 W.Va. 482, 499, 223 S.E.2d 780, 791 (1976):

"Due process requires that the appearance of justice be satisfied. The United States Supreme Court has stated:

" 'A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that "[e]very procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." Tumey v. Ohio, 273 U.S. 510, 532[, 47 S.Ct. 437, 444, 71 L.Ed. 749, 758 (1927) ].' In Re Murchison, 349 U.S. 133, 136[, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946] (1955)."

(Emphasis and ellipsis in Murchison ). ⁷

Canon 3C(1) contains an initial general admonition that "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned[.]" This admonition is followed by a number of specific instances when disqualification is required. Canon 3C(1) also recognizes that the enumerated instances are not to be considered as exclusive as it states that disqualification "includ[es] but [is] not limited to instances where: ... ⁸ See Leslie W. Abramson, Judicial Disqualification Under Canon 3 of the Code of Judicial Conduct 15-16 (2d ed. 1992). ⁹

The general standard under Canon 3C(1) to determine whether a judge should be disqualified because the judge's impartiality might reasonably be questioned is analogous to the rule contained in Syllabus Point 14, in part, of Louk v. Haynes, supra:

"[W]here a challenge to a judge's impartiality is made for substantial reasons which indicate that the circumstances offer a possible temptation to the average man as a judge not to hold the balance nice, clear and true between the State and the accused, a judge should recuse himself."

See also State v. Whitt, 183 W.Va. 286, 395 S.E.2d 530 (1990); State v. Brown, 177 W.Va. 633, 355 S.E.2d 614 (1987); Syllabus Point 3, States v. Hodges, 172 W.Va. 322, 305 S.E.2d 278 (1983).

In this case, in addition to the general...