U.S. v. Pennington

• Decision Date: 02 May 2003
• Docket Number: No. 01-5593.,01-5593.
• Citation: 328 F.3d 215
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clarence PENNINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

328 F.3d 215

UNITED STATES of America, Plaintiff-Appellee, v. Clarence PENNINGTON, Defendant-Appellant.

No. 01-5593.

United States Court of Appeals, Sixth Circuit.

Argued: December 13, 2002.

Decided and Filed: May 2, 2003.

Rehearing and Suggestion for Rehearing En Banc Denied: June 19, 2003^*.

Thomas A. Colthurst (argued and briefed), Assistant United States Attorney, Memphis, TN, for Plaintiff-Appellee.

Gregory C. Krog, Jr. (argued and briefed), Memphis, TN, for Defendant-Appellant.

Before: KENNEDY and GILMAN, Circuit Judges; SARGUS, District Judge.^**

AMENDED OPINION

SARGUS, District Judge.

Defendant-Appellant, Clarence Pennington ("Pennington"), pleaded guilty to possession with intent to distribute 79.2 grams of crack cocaine, in violation of 21 U.S.C. § 841. Pennington reserved his right to appeal the order of the district court denying his motion to suppress the evidence obtained following the issuance and execution of a state search warrant. After a hearing, the Magistrate Judge issued a Report and Recommendation proposing that the motion be denied. Subsequently, the district court denied the motion to suppress.

Pennington raises three issues on appeal. First, he contends that the district court erred in finding that the search warrant was issued by a neutral and detached magistrate. Second, he asserts that the good faith exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply in the context of the search warrant issued in this case. Finally, Pennington claims that the executing officers violated his Fourth Amendment rights by forcing entry into his home after knocking, without waiting a reasonable period for him to respond.

I.

It is well established that this Court reviews the district court's findings of fact in a suppression hearing under the clearly erroneous standard, while the district court's conclusions of law are reviewed de novo. United States v. Avery, 137 F.3d 343, 348 (6th Cir.1997).

A. The Issuer of the Search Warrant

The warrant at issue in this case was issued under state law by a Shelby County Judicial Commissioner. Essentially, Pennington contends that Shelby County Judicial Commissioners are not neutral and detached in that they are appointed by a local legislative authority, the Shelby County Commission. Under Tennessee law, the legislative body of a county having a population in excess of 700,000 may appoint one or more judicial commissioners who are authorized to issue search warrants upon a finding of probable cause. Tenn.Code Ann. § 40-1-111(a)(1)(A) (Supp.2002). The same statute provides that the term of office of such judicial commissioners shall be established by the legislative body, with the proviso that such term may not exceed four years. § 40-1-111(a)(1)(B). The statute further provides that the judicial commissioner shall receive compensation determined by the same legislative body. § 40-1-111(a)(2).

Appellant contends that these provisions of Tennessee law impermissibly place a legislative body, the Shelby County Commission, in ultimate control of the judicial commissioners. Appellant also asserts that such arrangement violates Art. II, Sec. 1 of the Constitution of Tennessee, which separates governmental powers into the familiar three-part alignment of executive, legislative, and judicial authority.

The Magistrate Judge, as well as the District Judge, relied upon United States v. Leon, supra, to hold that the officers relied in good faith on the warrant issued by the judicial commissioner. The Report and Recommendation was issued by the Magistrate Judge on August 28, 2000, prior to this Court's decision in United States v. Scott, 260 F.3d 512 (6th Cir.2001).

In United States v. Scott, this Court decided that the Leon exception to the exclusionary rule is not applicable if the judicial officer issuing a search warrant is wholly without legal authority. Id. at 515. In Scott, the judge who issued the search warrant had retired and had no state-law authority to issue a search warrant. Under these circumstances, law enforcement officers could not rely upon the Leon exception. Id.

Pennington essentially contends that a judicial commissioner appointed by a legislative body of a county who is not a judge or even an attorney may not lawfully issue a search warrant or act as a neutral magistrate for purposes of the Fourth Amendment. The caselaw clearly rejects this position.

In Shadwick v. City of Tampa, 407 U.S. 345, 347, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), a defendant challenged the issuance of an arrest warrant by a clerk of the Tampa, Florida Municipal Court. The clerk had no law degree or special legal training. Florida law permitted a clerk assigned to the municipal court to review affidavits presented and to determine whether an arrest warrant should issue. Shadwick contended that warrants could only be issued by judicial officers, rather than executive officials not possessed of legal training.

A unanimous Supreme Court held:

The substance of the Constitution's warrant requirements does not turn on the labeling of the issuing party. The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime. Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search. This Court long has insisted that inferences of probable cause be drawn by "a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."

The requisite detachment is present in the case at hand. Whatever else neutrality and detachment might entail, it is clear that they require severance and disengagement from activities of law enforcement. There has been no showing whatever here of partiality, or affiliation of these clerks with prosecutors or police. The record shows no connection with any law enforcement activity or authority which would distort the independent judgment the Fourth Amendment requires.... While a statutorily specified term of office and appointment by someone other than "an executive authority" might be desirable, the absence of such features is hardly disqualifying. Judges themselves take office under differing circumstances. Some are appointed, but many are elected by legislative bodies or by the people. Many enjoy but limited terms and are subject to re-appointment or re-election. Most depend for their salary level upon the legislative branch. We will not elevate requirements for the independence of a municipal clerk to a level higher than that prevailing with respect to many judges.

Id. at 350-51, 92 S.Ct. 2119 (internal citations omitted).

A somewhat similar challenge to the authority of a judicial commissioner under Tennessee law was addressed by this Court in United States v. King, 951 F.2d 350 (6th Cir.1991) (unpublished table decision) (No. 91-5501 available at 1991 WL 278983). In King, the judicial commissioner was married to a law enforcement officer of the county. She had no legal education regarding the issuance of search warrants. This Court held that her lack of education did not prevent her from issuing valid search warrants. Further, notwithstanding her connection to a law enforcement officer, this Court found that the search warrant she issued satisfied the requirement of the Fourth Amendment.

Appellant in the case at bar supports his position with the testimony of Officer Black, who stated that the judicial commissioner in this case had never rejected a warrant sought. The record, however, is devoid of any estimate of how many search warrants Officer Black had requested. Further, in the absence of any other evidence on the issue, it is just as logical to conclude that Officer Black presented affidavits in support of search warrants which justified the issuance of such requested process. The record is insufficient to draw any conclusions as to the lack of neutrality of the judicial commissioner who issued the search warrant in this case.

Finally, a number of other courts have found that no constitutional violation occurs when a search warrant is issued by a non-lawyer. United States v. Mitro, 880 F.2d 1480, 1485-86 (1st Cir.1989); United States v. Comstock, 805 F.2d 1194, 1200 (5th Cir.1986), cert. denied, 481 U.S. 1022, 107 S.Ct. 1908, 95 L.Ed.2d 513 (1987).¹

Pennington's constitutional challenge to the authority of a Shelby County Judicial Commissioner to issue a valid search warrant is without merit.

B. Knock and Announce Rule

The Appellant next challenges the search itself, contending that the officers violated the knock and announce rule as articulated under Fourth Amendment jurisprudence. Pennington contends that the district court erred in finding that the officers knocked and waited a sufficient period of time under the circumstances before forcibly entering his dwelling.

The Magistrate Judge made the following factual findings, which were adopted by the district court: At approximately 3:45 p.m. on November 30, 1999, six to seven Memphis police officers came to Pennington's residence to execute the search warrant. All of the officers were wearing shirts marked "Police." A chain-link fence surrounded the house. Beyond these facts, the record contains a sharp divergence in testimony.

Four officers testified concerning the timing of the entry into Pennington's home. Detective Wright testified that he was the first officer to reach the front door. As he banged on the door, he yelled in a loud voice "Memphis Police Department. Search Warrant." Wright also testified that he then heard footsteps that sounded as if someone was running away from the door. Wright estimated that approximately eight to ten seconds passed...