United States v. Randy Neil

Filing

PER CURIAM OPINION FILED - THE COURT: RAYMOND W. GRUENDER, MYRON H. BRIGHT and BOBBY E. SHEPHERD (UNPUBLISHED) [3748044] [09-3845]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 09-3845
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United States of America,

*
*
Plaintiff-Appellee,
* Appeal from the United States
* District Court for the
v.
* Western District of Missouri.
*
Randy Lee Neil,
* [UNPUBLISHED]
*
Defendant-Appellant.
*
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Submitted: September 21, 2010
Filed: January 25, 2011
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Before GRUENDER, BRIGHT, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Appellant Randy Lee Neil appeals the denial of his motion to quash a search
warrant and suppress evidence discovered in his Polk County, Missouri, residence.
Neil contends that the judge who issued the warrant lacked jurisdiction to do so. We
disagree and affirm.1
In August 2007, Sergeant Daniel P. Basanik of the Missouri State Highway
Patrol applied in the Circuit Court of Polk County, Missouri, for a warrant to search
1

The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

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Neil’s Polk County, Missouri, residence. But no Polk County judge was available at
the time of the application and in accordance with Local Rule 6.6, the application was
forwarded to an associate circuit judge in nearby Dallas County who issued the
warrant. The warrant was executed and resulted in Neil’s conditional guilty plea in
federal court to one count of possession with intent to distribute five grams or more
of actual methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
Neil argues that the Dallas County judge lacked statutory authority to issue a
search warrant for his residence in Polk County. He contends that under Mo. Rev.
Stat. § 542.266, the issuing judge was required to be a judicial officer in Polk County.
Accordingly, he asserts, the warrant was invalid and the evidence discovered through
the execution of the warrant must be suppressed and his conviction reversed.
But Neil’s contention “fails to recognize that ‘in determining whether evidence
obtained solely by state officers is admissible in federal court in the first instance, it
is usually irrelevant whether a state rule of criminal procedure was violated.’” United
States v. Howard, 532 F.3d 755, 760 (8th Cir. 2008) (quoting United States v. Maholy,
1 F.3d 718, 721 (8th Cir. 1993)). The legality of the search and seizure is not
determined by reference to a state statute, but by Fourth Amendment analysis. Id.
Here, Neil does not argue that the warrant was unsupported by probable cause or not
issued by a detached and neutral magistrate judge. And our review of the record
indicates that the warrant complies with the Fourth Amendment. Accordingly, Neil’s
argument fails.
Alternatively, Neil’s challenge fails even under state law. Missouri is divided
into numerous “judicial circuits.” Mo. Rev. Stat. § 478.073. Circuit number thirty
includes Polk and Dallas Counties. Id. § 478.150. The circuit courts “have original
jurisdiction over all cases and matters, civil and criminal.” Id. § 478.070; see also id.
§ 541.020 (“Except as otherwise provided by law, the circuit courts shall have
exclusive original jurisdiction in all cases of felony, misdemeanor and infractions.”).
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Subject to limited exceptions not at issue here, circuit judges and associate circuit
judges “may hear and determine all cases and matters within the jurisdiction of their
circuit courts.” Id. § 478.220. With respect to warrants, “[a] search warrant may be
issued by an appellate judge or by any judge of a court having original jurisdiction of
criminal offenses within the territorial jurisdiction where the person, place, or movable
or immovable thing to be searched is located at the time of the making of the
application.” Id. § 542.266. Local Rule 6.6 provides that “[w]hen the regular judge
of any Associate or Probate Division is unable to act for any reason, any Judge of the
circuit, other than Municipal judges, may . . . issue search warrants as provided by law
or Supreme Court rule.”
Here, the federal magistrate judge determined that no regular judge of Polk
County was available to review the warrant application.2 Accordingly, under Rule 6.6
another circuit judge could issue the warrant. And because Polk and Dallas Counties
are part of the same judicial circuit, the Dallas County associate circuit judge had
authority to issue the warrant for the search of Neil’s Polk County residence.
Neil relies on State v. Berkwit, 689 S.W.2d 763, 765 (Mo. Ct. App. 1985), for
the proposition that a judge from one county cannot issue a warrant authorizing a
search in another county. But Berkwit is not so broad. In that case, the Missouri
appellate court held that a judge in the City of St. Louis had no authority under Mo.
Rev. Stat. § 542.266 to issue a warrant in Greene County because the subject of the
warrant was not within the judge’s territorial jurisdiction at the time the application
was made. See State v. Elliott, 845 S.W.2d 115, 119 (Mo. Ct. App. 1993) (explaining
the holding of Berkwit). Here, as previously explained, Polk and Dallas Counties are
part of the same judicial circuit and the subject of the warrant, Neil’s residence, was
within the territorial jurisdiction of the judge who authorized the warrant.
2

Neil contends that the government failed to prove the unavailability of the Polk
County judge. But Neil has not established that the magistrate judge’s factual finding
(adopted by the district court) was clearly erroneous.
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The judgment of the district court is affirmed.
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