U.S. v. Scott
| Decision Date | 08 September 1999 |
| Docket Number | No. 1:99-CR-040.,1:99-CR-040. |
| Citation | 69 F.Supp.2d 1018 |
| Parties | UNITED STATES of America v. Donald Ray SCOTT. |
| Court | U.S. District Court — Eastern District of Tennessee |
EDGAR, Chief District J.
Defendant Scott has moved to suppress the government's use of certain evidence seized from real property or buildings located near his residence, evidence seized from his residence, and statements made by defendant while in police custody. (Court File No. 9). This Court held an evidentiary hearing and heard oral arguments by counsel on August 16, 1999. After considering the record and the applicable law, this Court concludes that the motion to suppress evidence and oral statements will be GRANTED IN PART, AND DENIED IN PART.
On April 7, 1999, Sequatchie County, Tennessee Sheriff's Department Investigator Jackie Shell ("Shell") had acquired information from a reliable informant that the informant had seen approximately 100 marijuana plants in pots with lights over them. These plants were, according to the informant, in an outbuilding on property owned by defendant Donald Ray Scott ("Scott"). The informant had been known to Shell for over 10 years and had provided reliable information in the past. The informant had seen the marijuana plants within the last 72 hours. Investigator Shell went to the location of the outbuilding, hoping to find Scott there and obtain a consent to search. Shell and Scott had known each other for many years. Scott was not there.
When he was unable to locate Scott, Shell decided to seek a search warrant for the outbuilding. At approximately 2:00 to 3:00 o'clock P.M. he called General Sessions Judge L. Thomas Austin to check on his availability. Judge Austin advised that he would be at his home or at his nearby barn later in the afternoon. Shell put his information in an affidavit and called Austin, but was unable to contact Austin by phone, although Austin was at or around his home some three or four miles outside of Dunlap, Tennessee, the county seat. Shell then sought out Hollis Barker, a retired General Sessions Judge.
Sequatchie County, sparsely populated and rural, is authorized by state law to have only one part time General Sessions Judge.1 In April 1999 that judge was Judge Austin. Austin had served since January 1998, replacing Hollis Barker, who had just retired. As a law enforcement officer Shell had frequently been present in General Sessions Court. Since retiring, "Judge" Barker had served as "Special Judge" on some occasions when Judge Austin was absent; and, prior to April 7, 1999, Shell had obtained three search warrants from Barker. Barker signed this warrant at 6:00 P.M.
On the evening of April 7th, Shell and other officers executed the warrant, and found marijuana plants in the outbuilding as well as other evidence of marijuana propagation. When Scott appeared on the scene, Shell arrested him and took him to the Sequatchie County jail. Sometime after reaching the jail Scott was Mirandized.2 Scott spent the night in jail. The next morning a deputy Lockhart brought Scott to an office in the jail and requested that Scott consent to search his residence, which is a log house near the outbuilding that the officers had searched the night before. Scott refused, and was returned to his cell. Later, Shell also asked Scott for consent. Scott agreed to allow a search of another location, but not his log house residence. Shell told Scott that it would be better for him if he signed the consent; otherwise the law enforcement officers would go to his residence, kick his door down, and search anyway. Finally, at 12:24 P.M. Scott, on the third or fourth request, signed a written consent to search his residence. At this time he was still in jail, and had not been granted a bond hearing. He was finally granted an appearance bond later in the afternoon of August 8th. Shell and other officers proceeded to Scott's residence where they kicked the door down anyway and found numerous firearms and a few harvested marijuana plants.
Scott first argues that the search warrant was not issued by a "magistrate," or an official authorized to issue warrants, and thus is void. The validity of a search warrant obtained by state officers turns only on constitutional issues, even if the fruits of the search are ultimately used in federal prosecution. United States v. Bennett, 170 F.3d 632, 635 (6th Cir.1999); United States v. Shields, 978 F.2d 943, 946 (6th Cir.1992). This Court must look to Tennessee criminal procedure requirements and federal constitutional law to test the search warrant in this case. Bennett, 170 F.3d at 636. Scott contends that former General Sessions Judge Barker is not qualified to issue a warrant under Tennessee law.
Only a "magistrate" may issue a search warrant to a state officer in Tennessee. TENN. CODE ANN. § 40-5-101 (1994). Tennessee statutory law provides a list of individuals who constitute magistrates for purposes of issuing warrants. Those persons include
(1) The judges of the supreme court;
(2) The judges of the circuit and criminal courts;
(3) Judicial commissioners;
(4) Judges of the courts of general sessions;
(5) City judges in cities and towns; and
(6) Judges of juvenile courts.
TENN. CODE ANN. § 40-5-102. Retired general sessions judges are not included on this list.
The government argues that Judge Barker was a special general sessions judge recently designated by General Sessions Judge Austin. Indeed, special general sessions judges do have authority to issue search warrants. State v. Smith, 867 S.W.2d 343, 349 (Tenn.Crim.App.1993). However, the authority of special judges attaches only when the general sessions judge is unavailable, see TENN. CODE ANN. § 16-15-209 (), and expires after that time. In this case, Judge Austin was available to issue the search warrant, and state officers had actually contacted him to do so. Thus, any authority Judge Barker held had terminated.
Moreover, Scott correctly points out that Judge Barker's special appointment was invalid because it failed to comply with Tennessee statutory procedures for appointing a special general sessions judge. When a county's sole general sessions judge must be absent from court, he or she may choose a former or retired judge to sit as a special judge. However, the special judge may only serve by designation of the chief justice of the state supreme court. TENN. CODE ANN. § 16-15-209 (Supp.1999). In this case, Judge Barker was not designated as a special judge by the chief justice of the Tennessee Supreme Court. Therefore, his appointment failed to comply with Tennessee law. See Steadman v. State, 217 Tenn. 598, 399 S.W.2d 756, 757 (1966) (). Consequently, he did not qualify as a special general sessions judge at the time he issued the warrant to Investigator Shell.
The government next argues that Judge Barker was a de facto judge, and thus could issue a valid search warrant. Tennessee has long recognized the doctrine of de facto judges. Bankston v State, 908 S.W.2d 194, 196 (Tenn.1995). The United States Supreme Court has even ratified the doctrine in other contexts. Glidden Co. v. United States, 370 U.S. 530, 535, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962). However, this Court finds that Judge Barker does not fall within Tennessee's definition of de facto judge.
Under Tennessee law, a de facto judge is "one acting with color of right and who is regarded as, and has the reputation of, exercising the judicial function he assumes." State v. Biggers, 911 S.W.2d 715, 718 (Tenn.1995). Neither a mere claim to be a judge nor assumption of judicial duties renders one a de facto judge. Tennessee Gas Transmission Co. v. Vineyard, 191 Tenn. 331, 232 S.W.2d 403, 404 (1950). Thus neither Judge Barker's issuance of a search warrant nor his implied claim of authority to do so characterizes him as a de facto judge.
Additionally, Judge Barker's designation as a special general sessions judge by Judge Austin did not clothe him with de facto judge status.3 As a general rule, "where an officer under color of right continues in the exercise of his duties ... after his authority to act has ceased, he is an officer de facto". Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255, 258 (1930). Such "holdover" officers, claiming authorized positions, can issue valid search warrants. State v. Bexley, 1988 WL 10048 (Tenn.Crim.App.) ( that judicial commissioner remaining active after term expired could issue valid search warrant). However, the Tennessee Supreme Court has recognized a common exception to this rule for situations in which the holdover judge's successor has taken possession of the office. Ridout, 30 S.W.2d at 258. Where a general sessions judge resumes his judicial activities, his special general sessions judge replacement loses claim to de facto status. See id. (). Because Judge Austin was fully performing his judicial duties, the government cannot claim that Judge Barker's purported holdover as special general sessions judge rendered him a de facto judge. Consequently, the search warrant he issued is invalid.
The government contends that the evidence seized pursuant to the search warrant in this case should not be excluded, even if Judge Barker was not authorized to issue the warrant, because Officer Shell executed the warrant in good faith. Interestingly, no federal court has addressed the issue of whether the good faith...
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U.S. v. Pennington, 99-20277 D V.
...the Leon good faith exception in the context of a warrant signed and issued by an unauthorized individual. In United States v. Scott, 69 F.Supp.2d 1018 (E.D.Tenn. 1999), an officer received a tip from a confidential informant that Donald Scott was growing large quantities of marijuana on hi......