Justices CUNNINGHAM, NOBLE and SCHRODER, call on Judges to make themselves available 24 hours a day for review of search warrants.

Justices CUNNINGHAM, NOBLE and SCHRODER, call on Judges to make themselves available 24 hours a day for review of search warrants.

Copley v. Commonwealth, 361 S.W.3d 902 (Ky., 2012) March 22, 2012

II. Suppression of Evidence When the Rule Violation
Infringes the Defendant’s Constitutional Rights.

Suppression of evidence pursuant to the exclusionary rule applies only to searches that were carried out in violation of an individual’s constitutional rights. Brock v. Commonwealth, 947 S.W.2d 24, 29 (Ky.1997). In several prior cases, our appellate courts have admitted evidence where the underlying warrant did not strictly comply with the rules but the defendant’s constitutional rights were not violated. …… in Commonwealth v. Hubble, 730 S.W.2d 532 (Ky.App.1987), the Court declined to suppress the seized evidence even though the judge who issued the search warrant failed to retain and file with the clerk a copy of the affidavit and the warrant as required by RCr 13.10(2), and inserted information into the supporting affidavit which was not sworn to by the affiant. The Hubble Court upheld the warrant, stating that because RCr 13.02 is procedural in nature and does not confer any new substantive rights upon the defendant, a violation of the rule does not necessarily affect the defendant’s due process rights. Id. at 533. “The evidence obtained should not be suppressed unless the violation of the rule resulted in prejudice to the defendant.” Id. at 533. See also Stephens v. Commonwealth, 522 S.W.2d 181 (Ky.1975) (upholding warrant issued by magistrate on a form for the Rowan County Quarterly Court).

All sitting. All concur. CUNNINGHAM, J. concurs by separate opinion in which NOBLE and SCHRODER, JJ., join.
CUNNINGHAM, J., concurring.
I fully concur with the excellent opinion of Justice Abramson. I write simply to express my concern that apparently no judge or trial commissioner was available to sign a warrant in this murder case. With all due respect to circuit clerks, they are neither trained nor schooled in the law, nor instructed on the value of neutral and detached magistrates. They are not expected to be.
There may well have been a plausible and acceptable explanation why law enforcement in this case was unable to secure the service of a judge or commissioner. The purpose of this writing is not to pass judgment nor chastise. It is intended to simply remind our judiciary that we are on duty around the clock.
In this day of staggering technological advances in communications—both written and oral—there should be little problem in providing full time judicial coverage. E-warrants, smart phones, and fax machines now make immediate access to a judge or commissioner much easier.

A judge or commissioner neither has to leave his or her house, nor wait on the arrival of the police.
Our law enforcement people work hard, especially when involved in the rigorous demands of criminal investigations. Sometimes they are required to work around the clock, without sleep and under the pressure of circumscribing all their work within constitutional bounds. With that often comes great urgency and the immediate need of a magistrate.

Most jurisdictions in this state consist of several judges and even commissioners. A shared schedule of on call duty should not prove overly onerous.

In conclusion, I simply implore the judges and commissioners of this state to consider their distinguished positions as ones of full time service. That includes always being available to the law enforcement centurions of our cherished communities.


Annotation by Gwen Billingsley CEO LawReader.com

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