M.D.Tenn.: Retired cop and current FOP member was still “neutral and detached” non-lawyer magistrate
The court declines to find a retired police officer acting as a non-lawyer judicial commissioner in issuing search warrants was not neutral and detached. His social media and socialization with police and remaining an FOP member aren’t enough, but maybe he should “reconsider” all that. United States v. Carter, 2016 U.S. Dist. LEXIS 81123 (M.D.Tenn. June 22, 2016):
On March 17, 2010, Lovett became a Judicial Commissioner for Maury County, Tennessee. Presently, there are two full-time and five part-time Judicial Commissioners in the county. They rotate and work scheduled hours. At the time the search warrant was issued in this case, Lovett was the only available judicial officer in Maury County.
Judicial Commissioners in Maury County are selected by a panel of judges and approved by the County Commission. The positions are filled through advertisements in the newspaper and on the county’s website. Being a lawyer is not a qualification for the position. Rather, one can become a Judicial Commissioner if he or she has a college degree in criminal justice, or has five years of law enforcement experience. Lovett is not a lawyer.
Initially, Lovett was hired as a part-time Judicial Commissioner. His training consisted of shadowing a Judicial Commissioner for one month. After approximately a year and a half, he assumed the role of a full-time Judicial Commissioner, which he holds to this day. He is required to attend 12 hours of continuing education yearly, including courses on ethics.
In his six years as a Judicial Commissioner, Lovett has issued around 100 search warrants, refusing to issue a warrant on just one occasion. That occurred recently — on May 17, 2016 — when Detective Albright of the Columbia Police Department sought a warrant.4 Lovett explained that most of the search warrants he has considered (1) arise from controlled buy situations, in which an officer or undercover operative is sent into a home to purchase drugs with marked money and the transaction is recorded; or (2) pertain to search requests for the telephones of suspected drug traffickers.
For the past 35 years, Lovett has been a member of the Fraternal Order of Police (“FOP”) and has a FOP license plate on his automobile. Since 1985, he has been the State Trustee for the FOP’s James K. Polk Lodge Number 26. He is also a member of the Blue Knights, a motorcycle club. Both organizations accept active and retired police officers.
Twice a year, Lovett attends memorial services for fallen officers — one in Columbia, and one in Nashville, Tennessee. At those services, he wears his dress blue uniform from his time as a Columbia police officer. In the past several years, he has also worn his dress blues on the couple of occasions when he was asked to sing at funerals for police officers or their family members.
Lovett has a “LinkedIn” page. On his page the “skill” for “law enforcement” and “criminal justice” received a 10, which is the highest rating, while “police” garnered an 8. Lovett testified that when he set up the account, he simply noted that he was a retired police officer with the Columbia Police Department and was currently a Judicial Commissioner. He did not create the ratings on the page, and believes they were assigned by others. Although Lovett has approximately 80 connections on the page (one of whom is Special Agent Utterback’s wife), he does not regularly access his LinkedIn account.
Lovett also follows the Columbia Police Department’s Facebook page. On occasion, he posts comments on that page, including congratulating officers on promotions.
Since retiring from the police force, Lovett has had no arrest authority. He carries an identification card which indicates that he is a retired Columbia police office. He also has a Columbia Police Department badge that indicates he is a retired police officer.
Lovett is not the only former police officer who works as a Judicial Commissioner in Tennessee. A retired Columbia lieutenant works as a Judicial Commissioner for Maury County; a retired Pulaski police officer works as a Judicial Commissioner for Giles County; and a former Chief Deputy of the Marshall County Sheriff’s Department works as a Judicial Commissioner for that county.
When Lovett issued the warrant in this case, he knew Special Agent Utterback from when Utterback was an officer with the Spring Hill Police Department. The only personal relationship that Lovett has with Utterback is that they had been on a couple of motorcycle rides together within the last five years.
. . .
A. Neutral and Detached
“‘[M]agistrate’ and ‘judicial officer’ have been used interchangeably,” but there is “no commendment in either term … that all warrant authority must reside exclusively in a lawyer or judge.” Shadwick v. City of Tampa, 407 U.S. 345, 349 (1972). What is required is neutrality and detachment on behalf of the issuing official, and “[w]hatever else [those terms] might entail, it is clear that they require severance and disengagement from activities of law enforcement.” Id.
“Whether a magistrate was neutral and detached in any particular case is necessarily an individualized and contextual inquiry.” United States v. Ramirez, 63 F.3d 937, 941 (10th Cir. 1995); accord, Fortson v. Davis, 2011 WL 514 8662, at *13 (S.D. Ga. Oct. 6, 2011); United States v. Loy, 569 F. Supp.2d 601, 614 (N.D. W. Va.. 2008) “Courts must focus on the specific circumstances surrounding the issuance of the warrant and decide whether the magistrate ‘manifest[ed] that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure.'” Id. (quoting Lo—Ji Sales, Inc. v. New York, 442 U.S. 319, 326)).
“Judges … take office under different circumstances,” Shadwick, 407 U.S. at 351, and being previously employed in the law enforcement arena does not preclude one from being neutral and detached. Generally, this question arises in the context of a judge who is a former prosecutor, presumably because most judges are lawyers first. See, United States v. Lovell, 2014 WL 7069317, at *13 (E.D. Ky. Dec. 12, 2014) (“Many judges … have served as prosecutors in the past, yet they are certainly neutral and detached”); Com. v. Carter, 701 S.W.2d 409, 410 (Ky. 1985) (holding that prior county attorney was competent to take plea, with appeals court noting it was “cognizant that numerous trial and appellate judges and justices have roots which are embedded in the soil of the offices of Commonwealth Attorney and County Attorney”). Neutrality and detachment can even exist where the judge previously prosecuted the subject of a warrant. United States v. Montgomery, 395 F. App’x 177, 186 (6th Cir. 2010) (bias not shown even though judge prosecuted defendant four years before issuance of the warrant); United States v. Freerksen, 457 F. App’x 769, 772 (10th Cir. 2012) (citing United States v. Outler, 659 F.2d 1306, 1312 (5th Cir. 1981) for the proposition that a “warrant issued by a magistrate who had previously prosecuted the defendant does not violate the Fourth Amendment,” and holding that judge who issued a warrant was neutral and detached, even though he had previously prosecuted defendant for two sex offenses). Certainly, the mere fact that Lovett was a Columbia Police Officer some six years before he issued the search warrant requested by a TBI agent in this case does not mean that he was not neutral and detached. See United States v. McKeever, 906 F.2d 129, 132 (5th Cir. 1990) (“Magistrate McBurney’s former position as a reserve peace officer, her husband’s position as a reserve deputy, and her visit to the site of the search did not affect her objectivity such that she was no longer neutral and detached”); United States v. Loy, 569 F. Supp. 2d at 607 (“Although Magistrate Hicks Click for Enhanced Coverage Linking Searches was the former Chief of Police at the Weirton Police Department, there is no evidence that he was improperly influenced by the detectives at the department.”).
Nor does Lovett’s membership in fraternal clubs, social media involvement, and attendance at memorial events evidence bias. At most they show friendships and socialization with those involved in law enforcement, not engagement in the “activities of law enforcement,” which the Supreme Court in Shadwick condemned. See United States v. King, 1991 WL 278983 at *2-3 (6th Cir. Dec. 27, 1991) (bias not show even though judicial commissioner dated and then married a deputy sheriff and “also socialized occasionally with other deputies and their wives”); United States v. Pickens, 2013 WL 1155414, at *9 (N.D. Tex. Mar. 21, 2013) (bias cannot be assumed simply because “municipal judge works closely with that city’s police department”). In fact, and notwithstanding his affiliation with these groups, Lovett has no police powers, and certainly had no involvement in the investigation that lead to the issuance of a warrant in this case sought by an agent who is hardly more than a passing acquaintance. See, Brown v. Town of Greenfield, 2002 WL 467130, at *3 (D.N.H. Mar. 26, 2002) (stating that “unsupported claim that the officer seeking an arrest warrant and the Magistrate issuing the warrant are ‘friends’ is wholly insufficient to support the conclusion that the arrest warrant was invalid”). In short, Lovett was not engaged in “the often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U.S. 10, 14 (1948), when he issued the warrant in this case.
That said, Lovett may want to reconsider some of his affiliations and his involvement with social media. As Defendant points out, the Canons of the Judicial Code of Conduct requires that judges “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”; “not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment”; “not convey or permit others to convey the impression that an person organization is in a position to influence the judge”; and “not … participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.” Tenn. R. Sup. Ct. 10, Canon 1 Rule 1.2, Canon 2, Rule 2.4 & Canon 3, Rule 3.1. However, “‘the validity of a search warrant obtained by state officers is to be tested by the requirements of the Fourth Amendment of the U.S. Constitution, not by state law standards, when the admissibility of evidence in federal court is at issue.'” United States v. Beals, 698 F.3d 248, 263 (6th Cir. 2012) (quoting, United States v. Clyburn, 24 F.3d 613, 614 (4th Cir. 1994)). “[A]s the Supreme Court … stated, ‘ it is not the province of the Fourth Amendment to enforce state law.” United States v. Franklin, 284 F. App’x 266, 272 (6th Cir. 2008) (quoting, United States v. Moore, 128 S.C. 1598, 1608 (2008)).
Finally, “defendant carries the burden of proving that the issuing magistrate acted as a rubber stamp.” Frazier, 423 F.3d at 538 (citing United States v. Rodriguez-Suazo, 346 F.3d 637, 649 (6th Cir. 2003) and he has not met that burden in this case even through Lovett has refused to issue a search warrant on only one occasion in the past six years. Lovett credibly testified that most of the warrants he issues are for cell phones or as a result of controlled-buy operations, suggesting that the request are run-of-the-mill and routine. See, Pennington, 328 F.3 at 219 (bias not shown even though officer “stated that the judicial commissioner in this case had never rejected a warrant sought,” not only because record lack any estimate of how many warrants officer sought, but also because it was “just as logical to conclude that [officer] presented affidavits in support of search warrants which justified the issuance of such requested process”); United States v. Meredith, 1997 WL 73265, at *6 (6th Cir. Feb. 19, 1997) (“defendant’s recitation of the number of warrants the magistrate judge issued [200] as compared to the number he refused to issue [5] is insufficient to conclude that the magistrate judge was not acting as a detached and neutral judicial officer”).