United States of America v. Albert Vincent Malveaux, a/k/a VINNY THE SHARK

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0411P (6th Cir.)
File Name: 03a0411p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALBERT VINCENT
MALVEAUX, a/k/a VINNY THE
SHARK,
Defendant-Appellant.
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No. 02-5382
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 01-00083—R. Allan Edgar, Chief District Judge.
Argued: September 18, 2003
Decided and Filed: November 21, 2003
Before: SILER, BATCHELDER, and COOK, Circuit
Judges.
_________________
COUNSEL
ARGUED: Barry L. Abbott, CAVETT & ABBOTT,
Chattanooga, Tennessee, for Appellant. Paul W. Laymon, Jr.,
ASSISTANT UNITED STATES ATTORNEY, Chattanooga,
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Tennessee, for Appellee. Elizabeth T. Ryan, OFFICE OF
THE ATTORNEY GENERAL, Nashville, Tennessee, for
Intervenor. ON BRIEF: Barry L. Abbott, CAVETT &
ABBOTT, Chattanooga, Tennessee, for Appellant. Steven S.
Neff, ASSISTANT UNITED STATES ATTORNEY,
Chattanooga, Tennessee, for Appellee. Elizabeth T. Ryan,
OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Intervenor.
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OPINION
_________________
SILER, Circuit Judge. Defendant Albert Vincent
Malveaux, a/k/a Vinny the Shark, appeals from the denial of
his motion to suppress two ounces of cocaine base (“crack”),
a handgun, and a large amount of cash found in his hotel
room. For the reasons stated below, we AFFIRM.
BACKGROUND
Between January and March 2001, a confidential informant
made five cocaine purchases from Malveaux. These
“controlled buys” were monitored by police officers. On
April 30, 2001, a confidential informant notified Chattanooga
Police Department Detective Randy Noorbergen that, within
the previous 72 hours, the informant had been in Malveaux’s
hotel room at the Main Stay Suites in Chattanooga, Hamilton
County, Tennessee. The informant told Detective
Noorbergen that Malveaux possessed four ounces of crack, a
pistol, and a large amount of cash. Detective Noorbergen
knew this informant, whom he had known for approximately
one year, to be reliable. In addition, Detective Noorbergen
had received information from another Chattanooga narcotics
detective that Malveaux had recently been involved in
“heavy” drug trafficking.

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No. 02-5382 United States v. Malveaux 3
Armed with this information, Detective Noorbergen took
his materials to Judicial Commissioner Robert Meeks, who
was on duty that evening. Hamilton County judicial
commissioners are on duty during the evening hours when
state judges are usually unavailable. As a common practice,
Chattanooga law enforcement officers normally obtain
warrants from these judicial commissioners, rather than
awaking state judges during late hours. At 10:09 p.m. on
April 30, 2001, Detective Noorbergen appeared before
Commissioner Meeks, who issued a search warrant for
Malveaux’s hotel room.
After obtaining the warrant, Detective Noorbergen and
additional law enforcement officers rented a room at the Main
Stay Suites and commenced surveillance of Malveaux’s
room. During their surveillance, the police officers observed
an individual arrive at, enter, and then exit Malveaux’s room.
The officers learned that the individual had just purchased
cocaine from Malveaux. Pursuant to the officers’ insistence,
the individual knocked on the door of Malveaux’s room.
When Malveaux opened the door, the officers entered the
room and executed the warrant. Once inside, the officers
discovered approximately two ounces of crack, a loaded
handgun, and a large amount of cash.
Malveaux was later indicted on two counts, charging him
with possession of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A), and possession of a handgun in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c). Malveaux moved to suppress the evidence,
contending that the search warrant was invalid because
Commissioner Meeks was not authorized to issue search
warrants. Malveaux alleged that because Section 3, Chapter
192 of the 1996 Private Acts (“Chapter 192 § 3”) conflicted
with and was irreconcilable with Tenn. Code Ann. § 40-1-
111, it was violative of Article XI, section 8 of the Tennessee
Constitution and thus unconstitutional. Although the district
court touched upon the interpretation of each of the
aforementioned sections, it found that a comprehensive
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investigation of Tennessee constitutional law was
unnecessary because the exclusionary rule does not exclude
evidence under circumstances such as these, specifically
remarking that the officers’ good faith reliance on
Commissioner Meeks’s search warrant was objectively
reasonable. Moreover, the district court recognized that a
strong presumption exists that an act promulgated by the
legislature is constitutional. Consequently, it denied
Malveaux’s motion to suppress.
Malveaux entered a conditional guilty plea to both counts
of the indictment but reserved his right to appeal the district
court’s denial of his motion to suppress. He was sentenced to
117 months’ imprisonment.
DISCUSSION
“We review for clear error the district court’s findings of
fact made with regard to a motion to suppress; we review de
novo the court’s legal conclusions.” United States v. Elmore,
304 F.3d 557, 560 (6th Cir. 2002), citing United States v. Ivy,
165 F.3d 397, 401-02 (6th Cir. 1998).
A fundamental tenet of the Fourth Amendment is protection
from unreasonable searches and seizures. Knox County Educ.
Ass’n v. Knox County Bd. of Educ., 158 F.3d 361, 371 (6th
Cir. 1998). “As a general rule, in order to be reasonable, a
search must be undertaken pursuant to a warrant issued upon
a showing of probable cause.” Id. at 373, citing Skinner v.
Railway Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989).
Tenn. Code Ann. § 40-1-111 permits the appointment of
judicial commissioners in counties with certain populations.
Chapter 192 § 3, enacted after Tenn. Code Ann. § 40-1-111,
permits the Hamilton County legislative body to appoint
judicial commissioners despite the fact that Hamilton
County’s population does not fit within the delineated
population brackets of Tenn. Code Ann. § 40-1-111. Since
Hamilton County’s population does not fall within the

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No. 02-5382 United States v. Malveaux 5
1Malveaux does not allege that the search warrant was invalid for any
other reason.
statutorily-prescribed parameters of Tenn. Code Ann. § 40-1-
111, Malveaux contends that Commissioner Meeks was
unauthorized to issue the search warrant.1 This contention
notwithstanding, no analysis of Tennessee law is necessary,
as the district court properly denied Malveaux’s motion to
suppress. Accordingly, we affirm without comment as to any
alleged conflict between Chapter 192 § 3 and Tenn. Code
Ann. § 40-1-111.
In support of his argument that Commissioner Meeks was
never authorized to issue the search warrant, Malveaux relies
upon United States v. Scott, 260 F.3d 512 (6th Cir. 2001). In
Scott, a deputy sheriff obtained a search warrant from a
retired judge of the General Sessions Court for Sequatchie
County, Tennessee. The deputy sheriff chose to present the
search warrant to a retired judge instead of an active judge
whom he knew to be at home. In concluding that the district
court erroneously denied Scott’s motion to suppress, this
court observed that the deputy sheriff did not “rel[y] on a
warrant that contained a mere technical deficiency[;]” rather,
the retired judge “possessed no legal authority pursuant to
which he could issue a valid warrant.” Id. at 515. The Scott
court held “that when a warrant is signed by someone who
lacks the legal authority necessary to issue search warrants,
the warrant is void ab initio.” Id. at 515.
Malveaux’s reliance upon Scott is misplaced. Unlike the
retired judge in Scott, Commissioner Meeks was authorized
to issue search warrants. The police officers properly
obtained the search warrant because, premised upon their
objective good faith, they had no reason to question whether
Commissioner Meeks possessed the authority to issue the
search warrant. See United States v. Leon, 468 U.S. 897, 922
(1984).
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Although not directly on point, United States v.
Pennington, 328 F.3d 215, 217 (6th Cir. 2003), provides
substantial assistance to our disposition of Malveaux’s claim.
In Pennington, a Shelby County, Tennessee Judicial
Commissioner issued a warrant to search the defendant’s
home. In moving to suppress evidence seized from his
residence, Pennington alleged that the commissioner was not
neutral and detached because he was appointed by a local
legislative authority. Pennington also claimed that the
commissioner was prohibited from issuing search warrants or
acting as a neutral and detached magistrate for Fourth
Amendment purposes because he was neither a judge nor an
attorney. Premised upon Leon, the district court properly
denied Pennington’s motion to suppress because the police
“officers relied in good faith on the warrant issued by the
judicial commissioner.” Id. at 217.
This rationale is applicable to Malveaux’s argument.
Commissioner Meeks issued the search warrant under
Tennessee law. Id. at 217. As Commissioner Meeks was
legally appointed under Tennessee law, he had the apparent
authority to issue the warrant to search Malveaux’s hotel
room. Pursuant to both Pennington and Leon, the police
officers, acting in good faith, relied upon Commissioner
Meeks’s apparent authority to issue the search warrant.
AFFIRMED.

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