United States of America v. DAVID JEREMY PARKER; BARBARA JEAN SUTTON; and PETER JANSEN SUTTON

*The Honorable Patrick J. Duggan, United States District Judge for
the Eastern District of Michigan, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0197P (6th Cir.)
File Name: 04a0197p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
DAVID JEREMY PARKER;
BARBARA JEAN SUTTON; and
PETER JANSEN SUTTON,
Defendants-Appellees.
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No. 03-5303
Appeal from the United States District Court
for the Western District of Kentucky at Owensboro.
No. 02-00028—Joseph H. McKinley, Jr., District Judge.
Argued: April 22, 2004
Decided and Filed: June 28, 2004
Before: MERRITT and MOORE, Circuit Judges;
DUGGAN, District Judge.*
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_________________
COUNSEL
ARGUED: Jo E. Lawless, UNITED STATES ATTORNEY,
Louisville, Kentucky, for Appellant. Gregory W. Butrum,
GREGORY WARD BUTRUM, PLLC, Louisville, Kentucky,
for Appellees. ON BRIEF: Jo E. Lawless, Terry M.
Cushing, UNITED STATES ATTORNEYS, Louisville,
Kentucky, for Appellant. Gregory W. Butrum, GREGORY
WARD BUTRUM, PLLC, Louisville, Kentucky, for
Appellees.
_________________
OPINION
_________________
PATRICK J. DUGGAN, District Judge. In this
interlocutory appeal, the government challenges the district
court’s decision to suppress evidence seized at the residence
of Barbara Jean Sutton and Peter Jansen Sutton (collectively
the “Suttons”) pursuant to two search warrants. The district
court concluded that the trial commissioner who issued the
search warrants was not neutral and detached because she also
served as an administrative assistant at the county jail. The
court therefore held that the search warrants were invalid.
The district court additionally ruled that the exception to the
exclusionary rule set forth in United States v. Leon, 468 U.S.
897, 104 S. Ct. 3405 (1984), is inapplicable under these
circumstances. The government filed this appeal, challenging
the district court’s decision. For the reasons that follow, we
affirm.
I. Standard of Review
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

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No. 03-5303 United States v. Parker, et al. 3
1The only district judge for Ohio County was not in the district when
the warrants were signed.
2The 38 th Judicial District covers Butler, Edmonson, Ha ncock, and
Ohio counties in K entucky.
novo. United States v. Pennington, 328 F.3d 215, 216-17 (6th
Cir. 2003)(citing United States v. Avery, 137 F.3d 343, 348
(6th Cir. 1997).
II. Factual Background
On July 21 and 24, 2001, law enforcement officers in Ohio
County, Kentucky, seized seventy-one firearms, marijuana,
cocaine, methamphetamine, drug paraphernalia, explosive
materials, and allegedly stolen personal property pursuant to
two search warrants executed for the Suttons’ residence.
Ohio County Trial Commissioner Michelle Madison
(“Madison”) signed both warrants.1 Judge Renona C.
Browning (“Judge Browning”), District Judge for Kentucky’s
38th Judicial District, swore in Madison as a trial
commissioner for Ohio County several weeks earlier, on July
2, 2001.2 Madison was married to Judge Browning’s brother,
who died on September 2, 2000.
On June 25, 2001, Judge Browning had written Kentucky
Supreme Court Chief Justice Joseph E. Lambert, requesting
the appointment of a temporary trial commissioner for Ohio
County based on a district judge vacancy. In her letter, Judge
Browning advised Chief Justice Lambert that she had been
unable to find an attorney in the county interested in this
responsibility but that Madison agreed to take the position if
it became available. Judge Browning informed Chief Justice
Lambert that Madison was an employee of the Ohio County
Detention Center and that her “duties at the jail are
bookkeeping, finance officer, purchasing agent and general
lieutenant.” On June 29, 2001, Chief Justice Lambert signed
an order approving the appointment of a temporary trial
4 United States v. Parker, et al. No. 03-5303
commissioner for Ohio County pursuant to Kentucky
Supreme Court Rule 5.010 and Section 113(5) of the
Kentucky Constitution; although he did not specifically
approve the appointment of Madison.
Although there was some indication in the record that
Madison’s title at the detention center was “Chief Lieutenant
Deputy Jailer,” the district court concluded that her duties
were similar to those of an administrative assistant. The court
further found that Madison served at the pleasure of a law
enforcement agent, as the Ohio County Jailer hired and could
fire her. The court determined that Madison’s job
responsibilities included the following: handling the purchase
orders for all jail bills; assisting the jailer with the yearly
budget; keeping track of expenditures for the jail; billing
surrounding counties for housing their inmates; maintaining
the records of the jail’s commissary account; handling the
jailer’s correspondence; and purchasing jail supplies.
Madison additionally handled inmates’ work release requests
by obtaining information from the prisoners and completing
work release forms. She assisted inmates with their child
support obligations, helped inmates obtain legal
representation, and facilitated inmates’ drug rehabilitation
placements. Unlike the county’s deputy jailers, Madison did
not carry a weapon; nor did she wear a badge or uniform. She
never arrested anyone, did not participate in the ongoing
training required of deputy jailers, and was not on the regular
rotation of duties for monitoring prisoners.
Based on the evidence seized at the Suttons’ residence, a
federal grand jury returned a five-count indictment against the
Defendants on September 4, 2002.
III. Applicable Law and Analysis
It is a long established requirement that, to be valid under
the Fourth Amendment, a search warrant must be issued by a
neutral and detached magistrate. Shadwick v. City of Tampa,
407 U.S. 345, 350, 92 S. Ct. 2119, 2123 (1972)(citing

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No. 03-5303 United States v. Parker, et al. 5
Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369
(1948)). The issue before the Supreme Court in Shadwick
was whether municipal court clerks qualified as neutral and
detached magistrates. Concluding that the clerks satisfied this
requirement, the Court stated:
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 . . . The
municipal clerk is assigned not to the police or
prosecutor but to the municipal court judge for whom he
does much of his work. In this sense, he may well be
termed a ‘judicial officer.’
Id. at 350-51, 92 S. Ct. at 2123.
Following Shadwick, several courts have upheld search
warrants issued by individuals connected to the judiciary.
See, e.g., United States v. Mitro, 880 F.2d 1480 (1st Cir.
1989)(approving state warrant issued by assistant district
court clerk); United States v. Martinez-Zayas, 857 F.2d 122
(3d Cir. 1988)(upholding warrant issued by municipal court
bail commissioner); United States v. Comstock, 805 F.2d
1194 (5th Cir. 1986)(upholding warrant issued by justice of
the peace). Similarly, this court upheld a search warrant
issued by a judicial commissioner in Shelby County,
Tennessee, despite the defendant’s claim that the county’s
judicial commissioners could not be considered neutral and
detached because they were appointed by a local legislative
authority which also set the terms of their office and
compensation. United States v. Pennington, 328 F.3d 215
(6th Cir. 2003). Quoting from Shadwick, the Pennington
court reasoned that the commissioners’ connection to the
6 United States v. Parker, et al. No. 03-5303
legislature, alone, did not violate the Fourth Amendment’s
neutral and detached requirement:
“ . . . 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 218 (quoting Shadwick, 407 U.S. at 351, 92 S. Ct. at
2123). As the Shadwick Court stated further, “The clerk’s
neutrality has not been impeached: he is removed from
prosecutor or police and works within the judicial branch
subject to the supervision of the municipal court judge.”
Shadwick, 407 U.S. at 351, 92 S. Ct. at 2123.
The government relies on Pennington, as well as this
court’s unpublished opinion in United States v. King, 1991
WL 278983 (6th Cir. December 27, 1991), to argue that
Madison’s position at the county jail did not, by itself,
contravene her neutrality and detachment as a trial
commissioner. In King, the defendant moved to suppress
evidence seized from his home pursuant to a search warrant,
claiming that the warrant was invalid because the issuing
judicial commissioner was married to a deputy sheriff who
worked as a corrections officer at the county jail and because
the couple occasionally socialized with other deputies and

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No. 03-5303 United States v. Parker, et al. 7
3In support of his claim that the warrant was invalid, the defendant
in King also offered evidence to establish a close relationship between the
county’s other judicial commissioner and law enfo rcement officials. As
that judicial com missioner did not execute the search warrant, however,
this court concluded that evidence regarding her relationships with other
county officials was irrelevant. King, 1991 WL 278983, *3.
their spouses.3 Id., 1991 WL 278983, *1. We upheld the
warrant, concluding that the judicial commissioner’s social
life was insufficient to demonstrate an engagement with law
enforcement that would render her lacking in neutrality and
detachment.
In this case, the district court concluded that Madison was
engaged in law enforcement. This court agrees and therefore
finds King and Pennington distinguishable. Unlike the
judicial commissioner in King, Madison’s connection to law
enforcement was not limited to her social interactions or
relationships with law enforcement officials. Unlike the
judicial commissioner in Pennington, Madison’s connection
to the executive branch extended beyond her appointment by
an executive official.
The district court found that Madison was employed by and
worked for a law enforcement agency. Not only was she hired
by the Jailer, a law enforcement official, but the Jailer served
as her immediate and only supervisor. While Madison’s daily
duties may have been different than those of a deputy jailer,
her work was performed at and for the Ohio County jail.
Furthermore, Madison interacted with and assisted prisoners.
It also appears that Madison has an interest in the outcome
of proceedings before her because of her work as the “chief
lieutenant deputy jailor” for financial matters, including the
collection of fees and billings for housing inmates and for
trying to secure the financial stability of the jail. In Tumey v.
Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927), and Ward v.
Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80 (1972), the
mayors of towns in Ohio had a financial interest in the
8 United States v. Parker, et al. No. 03-5303
outcome of minor cases that they had jurisdiction under Ohio
law to try. The mayors had a financial interest in the sense
that they could assess fees and costs which in the case of
Tumey went into his own pocket and in the case of Ward went
to the city of which he was mayor. In the case before us,
Madison oversees the jail’s budget and is in charge of its
financial transactions. Madison’s agency stands to gain
financially in the form of bookings, administrative fees from
arrests and per diem lodging. See KY. REV. STAT.
§ 441.265. Madison explained that for arrestees for which
she would issue an arrest warrant in her county as trial
commissioner, as jailor she would collect various fees for the
jail: “[i]f someone comes in and they make bond and they’re
being released, they can pay the booking fee; the deputies can
write them a receipt and accept that money and put it into our
safe.” (J.A. at 238.) Like Tumey and Ward, Madison may
have a financial interest in the outcome of cases before her
because she can issue warrants for the arrest of persons who
would then pay fees to Madison as the jail’s financial officer
and whose lodging may be reimbursed by other government
agencies. This set of incentives reinforces our conclusion that
Madison’s ability to act as a neutral and objective magistrate
is questionable.
Based on these factual findings, which this court finds the
record supports, we conclude that Madison was not
sufficiently disengaged from activities of law enforcement to
satisfy the Fourth Amendment’s neutral and detached
requirement.
In Leon, the Supreme Court carved out a good-faith
exception to the exclusionary rule when officers act in
reasonable reliance on a search warrant issued by a neutral
and detached magistrate that is subsequently found to be
invalid. Leon, 468 U.S. 897, 104 S. Ct. 3405. However as a
matter of first impression among the Circuit Courts, this court
held in 2001 that Leon is inapplicable when a warrant is
signed by an individual lacking the legal authority necessary
to issue warrants. United States v. Scott, 260 F.3d 512 (6th

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No. 03-5303 United States v. Parker, et al. 9
Cir. 2001). The court reasoned that the Supreme Court, in
carving out a good-faith exception in Leon, “presupposed that
the warrant was issued by a magistrate or judge clothed in the
proper legal authority.” Id. at 515. The Scott court held that
a search warrant issued by an individual who is not neutral
and detached is void ab initio. Id. at 515. As Madison’s
appointment as a trial commissioner was unlawful due to her
engagement with law enforcement activities, Scott controls
this case. Thus this court concludes that the district court
properly declined to apply Leon’s good-faith exception in this
case.
The Government’s reliance on United States v. Malveaux,
350 F.3d 555 (6th Cir. 2003), is misplaced. Malveaux did not
modify or reverse Scott. In Malveaux, the defendant
challenged a search warrant signed by a Judicial
Commissioner appointed for Hamilton County, Tennessee,
contending that the commissioner was not authorized to issue
warrants because the provision of Tennessee law authorizing
his appointment conflicted with another section of the
Tennessee Code. Id. at 557. Malveaux therefore did not
address Leon’s application when a judicial officer lacking
neutrality or detachment issues a warrant. As the Malveaux
court stated in distinguishing the case before it from Scott, the
Judicial Commissioner was legally authorized to issue
warrants. The courts or legislature subsequently might find
the law authorizing the Judicial Commissioner’s appointment
inconsistent with other state law provisions; however until
that time, the Commissioner possessed the legal authority to
issue warrants. In comparison, it is a violation of the Fourth
Amendment to authorize individuals insufficiently detached
from law enforcement to issue warrants. In other words, such
individuals never could be legally authorized to issue
warrants. Therefore, because Madison was not a neutral and
detached magistrate, the search warrants she signed were void
from the beginning.
Accordingly, the district court’s decision is AFFIRMED.

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