Commonwealth v. Shelton

ANDRÉ BUSALD, Special Justice.

Appellee, Jerry Mac Shelton, was found guilty of possession of cocaine (KRS 218A.140), by a Hickman Circuit Court jury and was sentenced to five (5) years in prison and fined $5,000.00 on December 11, 1986. The Court of Appeals reversed on grounds that there was no probable cause to search for cocaine and that a timely motion to suppress the evidence should have been sustained.

The case is before us on a Motion and Cross Motion for Discretionary Review. The following issues are raised:

I. Was the search warrant invalid because the Trial Commissioner lacked jurisdiction to issue a warrant for Hickman County

II. Was the search warrant broad enough to include the seizure of cocaine

III. Was the search warrant rendered fatally defective due to a delayed return in violation of RCr 13.10(3)

IV. Was the conviction based on insufficient evidence

We affirm the Court of Appeals reversal of the conviction under Issue #1 (Search Warrant Invalid), without reaching Issues II, III, and IV.

The search warrant in question was issued by Fulton County Trial Commissioner, Hal Warren. The First Judicial District is comprised of Fulton, Hickman, Carlisle and Ballard Counties. The District has one Circuit and two District Judges. One District Judge lives in Hickman County and the other lives in Ballard County. The Chief District Judge has designated Hal Warren as the resident Trial Commissioner for Fulton County and another individual as the resident Trial Commissioner for Carlisle County. SCR 5.020 requires a Trial Commissioner to be a resident of the county for which he is appointed.

On July 22, 1985, Hal Warren issued a search warrant in Fulton County bearing the caption of the Hickman Circuit Court for a search to be conducted in Hickman County. The search warrant sought the seizure of marijuana and related paraphernalia. The search revealed marijuana and cocaine. The cocaine was found in a briefcase under a bed.

In Richmond v. Commonwealth, Ky., 637 S.W.2d 642 (1982), we held that District and Circuit judges had statewide authority to issue search warrants. However, the Richmond case did not discuss whether Trial Commissioners had the same broad powers.

Under Ky. Const. 113(5), District Court Trial Commissioners derive their authority solely by specific grant from the Supreme Court, SCR 5.010-.040. SCR 5.030 provides that a Trial Commissioner’s authority is confined to the county in which he resides. He may be “temporarily assigned by the chief judge of the district to serve” elsewhere “within the district” (SCR 5.040), but there is nothing in the record before this Court indicating that Hal Warren had been authorized to serve in Hickman County. In any event, he has no authority while serving in Fulton County to exercise authority beyond the limits of that county, and under our rules, he could not be given such authority. Therefore, he was without jurisdiction to issue a search warrant in or for Hickman County. Accordingly, the search warrant was invalid.

The Commonwealth argues that we should apply the “good-faith reliance” rule of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Supreme Court of the United States held that evidence obtained as a result of a search warrant which later was determined to be technically deficient would not be suppressed if the police acted with objective reasonableness in relying on the warrant. However, in the case at bar, we are not confronted with a technical deficiency; but rather a question of jurisdiction. We do not believe that Leon would be applicable were we otherwise inclined to follow its precedent.

The evidence should have been suppressed and the conviction based on that evidence must be reversed. The case is remanded for proceedings consistent with this decision.

STEPHENS, C.J. and LAMBERT and LEIBSON, JJ., and McGINNIS, Special Justice, concur. GANT, J., dissents by separate opinion in which VANCE, J., joins.