GOURLEY (SHAWN R.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 6, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001098-MR
SHAWN R. GOURLEY
v.
APPELLANT
APPEAL FROM CARLISLE CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 08-CR-00021
COMMONWEALTH OF KENTUCKY
AND
NO. 2009-CA-001121-MR
SARAH GOURLEY
v.
APPELLEE
APPELLANT
APPEAL FROM CARLISLE CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 08-CR-00020
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; COMBS AND NICKELL, JUDGES.
COMBS, JUDGE: Shawn and Sarah Gourley appeal their convictions in the
Carlisle Circuit Court. After careful review, we affirm.
On June 19, 2008, pursuant to a warrant signed that same day,
Kentucky State Police executed a search of the Gourleys’ residence. KSP
discovered ninety-two marijuana plants and nine firearms. A small amount of
methamphetamine was found in Shawn’s truck. Following their indictment, the
Gourleys filed a motion to suppress the evidence, which was denied. Following a
jury trial, Shawn was convicted of: cultivation of marijuana, five or more plants;
use or possession of drug paraphernalia, first offense; and possession of a
controlled substance, methamphetamine in the first degree, first offense. He was
sentenced to ten-years’ incarceration. Sarah was convicted of possession of
marijuana and was ordered to pay a fine of five hundred dollars. The Gourleys
both appeal, arguing that the court erred in denying the motion to suppress the
evidence obtained in the search.
In reviewing a ruling on a motion to suppress, we must defer to the
factual findings of the trial court if they are supported by substantial evidence.
Kentucky Rule(s) of Criminal Procedure (RCr) 9.78 provides that, “If supported by
substantial evidence the factual findings of the trial court shall be conclusive.”
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However, with respect to the trial court’s application of the law to the facts, our
review is de novo. Lynn v. Commonwealth, 257 S.W.3d 596, 598 (Ky. App. 2008).
In this case, since the parties do not dispute the facts, our review is de novo.
Unreasonable searches and seizures are prohibited by the Fourth
Amendment of the United States Constitution and Section 10 of Kentucky’s
Constitution. Any evidence obtained in an illegal or unreasonable search is not
admissible in court. Wilson v. Commonwealth, 37 S.W.3d 745, 748 (Ky. 2001).
See also Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
“Inherent in this protection is the guarantee that the determination of probable
cause to search is to be made by a neutral issuing authority[.]” Commonwealth v.
Brandenburg, 114 S.W.3d 830, 832 (Ky. 2003) (internal citations omitted). Thus,
the validity of the search warrant is a priori a critical issue.
The Gourleys argue that the warrant to search their property was
invalid because Bourke Mantle, the trial commissioner who signed the warrant,
was not qualified by law to be serving as trial commissioner.
Mantle was appointed to be trial commissioner in Carlisle County on
December 6, 1996, nunc pro tunc to October 15, 1996, by District Court Judge
Keith Myers.1 The appointment was made pursuant to Supreme Court Rule (SCR)
5.010, which mandates that “[i]n each county in which no district judge resides, the
chief judge of the district shall appoint a trial commissioner subject to the approval
of the Chief Justice.” See also Ky. Const. § 113(5).
1
Two different spellings (Myers and Meyers) appear in the briefs and various orders in the
appendices. The correct spelling is “Myers.”
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At the time of the appointment, Judge Myers was serving an
unfinished term due to the retirement of his predecessor. After Judge Myers was
elected to a full term in 1999, he did not re-appoint Mantle. Nonetheless, Mantle
continued serving de facto as trial commissioner throughout that term – as well as
throughout Judge Myers’s subsequent terms beginning in 2000, 2004, and 2008.
Mantle was not re-appointed at the beginning of any of those terms.
The Gourleys argue that because Mantle was not re-appointed and did
not take the oath of office as required by Section 228 of the Kentucky Constitution,
he had actually acted criminally in performing as trial commissioner, rendering
invalid the warrant that he signed. Section 228 requires the taking of the oath and
sets forth the specific language of Kentucky’s colorful oath of office. Its mandate
is repeated and reinforced statutorily by Kentucky Revised Statute(s) (KRS)
62.010, which provides as follows:
(1) No officer shall enter upon the duties of his office
until he takes the oath required of him by law.
(2) Each person elected to an office shall take the oath of
office on or before the day the term of office to which he
has been elected begins . . . .
(3) Each person appointed to an office shall take the oath
of office within thirty (30) days after he receives notice
of his appointment.
Noncompliance with KRS 62.010 constitutes a misdemeanor. KRS 62.990.
Furthermore, “[i]f any person violates KRS 62.010(2) or (3) before January 1,
2010, his or her office shall be considered vacant.” KRS 62.990(2)(a). The
Gourleys observe that “when a warrant is signed by someone who lacks the legal
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authority necessary to issue search warrants, the warrant is void ab initio.” U.S. v.
Scott, 260 F.3d 512, 515 (6th Cir. 2001).
On the other hand, the Commonwealth argues that the warrant was
valid because Mantle was serving as a de facto officer. A de facto officer is
defined as follows:
one who is in the actual possession and administration of
the office, under some colorable or apparent authority,
although his title to the same . . . is in reality invalid, or at
least formally questioned.
Trimble County Fiscal Court v. Trimble County Bd. of Health, 587 S.W.2d 276,
281 (Ky. App. 1979) (quoting Black’s Law Dictionary, 1235 (4th ed. 1951)).
Pertinent to this case, the former Court of Appeals, the predecessor to
our present Supreme Court, held that, “an officer who holds over after his term of
office has expired and continues to perform the duties of the office with the
acquiescence of the public is generally regarded as a de facto officer.” Holland v.
Stubblefield, 206 S.W. 459, 460 (Ky. 1918). This concept is precisely applicable
to the case before us. In 1996, Mantle was appointed, took the oath of office, and
assumed the duties of trial commissioner. He has been recognized as the trial
commissioner ever since. Neither party asserts that anyone else in the community
has sought to serve in the office during his tenure.
We agree with the Commonwealth that, in general, courts will
recognize the acts of de facto officers as valid. Schaffield v. Hebel, 192 S.W.2d 84,
87 (Ky. 1946). This reasoning is based on the public policy interest in preserving
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“the rights of third persons and the general public.” Healy v. Covington, 202
S.W.2d 725, 727 (Ky. 1947).
The Supreme Court of the United States has more recently discussed
the public policy interest underlying and justifying the concept of a de facto
officer. In Ryder v. U.S., 515 U.S. 177, 180, 115 S. Ct. 2031, 2034, 132 L. Ed. 2d
136 (1995), the Supreme Court reasoned that the doctrine prevents:
chaos that would result from multiple and repetitious
suits challenging every action taken by every official
whose claim to office could be open to question, and
seeks to protect the public by insuring the orderly
functioning of the government[.]
In harmony with the analysis of the U.S. Supreme Court, Kentucky law makes “no
distinction . . . between the official acts of an officer de jure and those of an officer
de facto. So far as the public and third parties are concerned, the acts of the one
have precisely the same force and effect as the acts of the other.” Holland v.
Stubblefield, supra.
The Gourleys contend that because Mantle had not been appointed
and sworn in to his current “term” when he signed the warrant, he could not be a
de facto officer. In so arguing, they rely on Creighton v. Commonwealth, 83 Ky.
142 (Ky. 1885). However, in Creighton, the officer at issue had never legally
entered office. In contrast, Mantle had at one time been legally appointed and
sworn into office. In Feck v. Commonwealth, 95 S.W.2d 25 (Ky. 1936), the
predecessor of our present Supreme Court held that a special judge who continued
to preside over a trial after his term expired was acting as a de facto judge.
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Because the special judge had been lawfully appointed, “his continued action . . .
[was] performed under color of right and authority so as to immunize it against
attack based upon the ground that it was absolutely void ab initio.” Id. at 27.
The Gourleys contend that Mantle’s lack of qualification rendered the
warrant void ab initio. However, we are persuaded that because of his de facto
authority as described in Holland and Feck, the warrant was indeed valid.
Therefore, the trial court did not err in its denial of the Gourleys’ motion to
suppress.
We decline to address the Commonwealth’s argument concerning the
good faith exception for warrants. If an alleged error concerns the qualifications of
the magistrate who signed a warrant, the good faith exception does not apply.
Dixon v. Commonwealth, 890 S.W.2d 629, 632 (Ky. App. 1994).
Accordingly, we affirm the Carlisle Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
Gorman Bradley, Jr.
L. Miller Grumley
Paducah, Kentucky
Jack Conway
Attorney General of Kentucky
Jeremy Ian Smith
Paducah, Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
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