KY: Judge who signed the SW is not automatically disqualified from hearing the motion to suppress

The judge who signed the search warrant is not automatically disqualified from hearing the motion to suppress by the Canons of Judicial Ethics and the “appearance of impropriety” standard. There might be cases where the facts would support it, but there is no per se rule and this case doesn’t have the facts. The federal and state courts are almost uniform on this. Minks v. Commonwealth, 2014 Ky. LEXIS 166 (April 17, 2014):

Many of our sister states allow a warrant-issuing judge to preside over later proceedings in the same case. The Mississippi Court of Appeals stands alone in Brent v. State, 929 So.2d. 952 (Miss. App. 2005), having ruled that a trial judge who issued a search warrant and later reviewed the warrant during a suppression hearing was required to recuse himself despite pronouncing his impartiality. The Brent court held that the circumstance was inherently problematic, concluding that “[n]ot only might a reasonable person harbor doubts about the impartiality of the judge in this situation, we find that any reasonable person should have such doubts.” Id. at 955.

Having carefully considered the question, we decline to adopt a rule that any judge must automatically recuse from hearing a challenge to a search warrant which he or she issued. As in other contexts, pursuant to statute and our rules governing judicial ethics, there must be evidence drawing the judge’s impartiality into question before an appellate court will find abuse of discretion in the judge’s refusal to recuse.

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This Court has interpreted our standards governing disqualification of a judge as requiring a showing of more than “a party’s mere belief that the judge will not afford a fair and impartial trial[.]” Webb v. Commonwealth, 904 S.W.2d 226, 230 (Ky. 1995) (citing Howerton v. Price, 449 S.W.2d 746, 748 (Ky. 1970)).

The United States Supreme Court’ has stated that “opinions held by judges as a result of what they learned in earlier proceedings” are not considered examples of bias or prejudice likely to require a judge’s recusal or threaten a party’s due process rights. Liteky v. United States, 510 U.S. 540, 551 (1994). Moreover, the decision to recuse is vested in the sole discretion of the judge. Mandating a rule of automatic recusal in instances where there has been no evidence of prejudice, bias, or impartiality would strip our judges of their discretion to consider each motion for recusal on a case-by-case basis.

Of course, there may be circumstances in which a judge who has issued the warrant and then presides over the suppression hearing will be disqualified by virtue of his or her impartiality being compromised. For example, the judge in the Mississippi Court of Appeals’ Brent decision assumed an active role in
establishing the validity of the search warrant, as he engaged in a prosecutorial-like questioning of a police officer during the suppression hearing. 929 So. 2d at 956. The Brent judge thus “moved from his seat of impartiality” and “in essence fell into the realm of the prosecutor.” Id.

Certainly this kind of evidence establishes a situation in which a judge’s “impartiality might reasonably be questioned” and recusal is necessary. KRS 26A.015; SCR 4.300 Canon 3E(1). In the present case there is no evidence that Judge Butler engaged in conduct that raised questions about his impartiality.

Minks has failed to present any evidence to indicate that the judge harbored a personal bias, had personal knowledge of any disputed evidentiary facts concerning the suppression proceeding, or had expressed any opinions about the merits of the proceedings. See KRS 26A.015(2)(a). As such, we find that Judge Butler properly exercised his discretion when he declined to recuse.