## Facts

- A Jefferson County magistrate, Gail Boober, served as an on-call magistrate for emergency matters outside normal court hours.
- A police sergeant from a small local police department applied to Magistrate Boober for a search warrant.
- Magistrate Boober was married to the department’s chief of police; the sergeant worked under the chief’s supervision.
- The chief of police was not identified in the warrant affidavit and did not appear as an affiant, witness, or participant in the warrant application record.
- The sergeant had no contact with Magistrate Boober other than through her official role in the magistrate system, and the warrant application involved no discussion of her husband.
- After criminal charges were filed, the defendants sought habeas relief, arguing the warrant was void because the issuing magistrate was not “neutral and detached” and should have recused under the West Virginia Judicial Code of Ethics.
- The circuit court held the magistrate was disqualified due to her spouse’s position, treated the warrant as void, suppressed the evidence obtained, and granted habeas relief.
- The magistrate appealed.

## Issues

1. Whether a magistrate is constitutionally disqualified from issuing a search warrant solely because the magistrate is married to the chief of police of the department whose officer applies for the warrant.
2. Whether the West Virginia Judicial Code of Ethics required the magistrate’s recusal under these facts, such that the warrant should be treated as invalid.
3. Whether, in a felony case, challenges to evidence as unlawfully obtained may be litigated at a preliminary hearing rather than by motion in circuit court.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the circuit court and remanded.
- The court held that a magistrate is not automatically disqualified from issuing a warrant merely because the magistrate’s spouse is the chief of police of a small police force and another officer from that force seeks the warrant.
- The court found no showing that the magistrate acted as an agent of law enforcement or failed to make an independent probable-cause determination.
- The court rejected the conclusion that the ethics canons required recusal on this record and that any ethics concern rendered the warrant void.
- The court held that objections that evidence was acquired unlawfully are not properly made at the preliminary examination and must be raised through appropriate motion practice in circuit court.

## Legal Principles

- A search warrant must be issued by a “neutral and detached” magistrate; invalidity requires proof the magistrate acted as a mere agent of the prosecutorial process or failed to independently evaluate probable cause.
- The fact that a magistrate’s spouse is the chief of police of a small police force does not, by itself, disqualify the magistrate from issuing a warrant sought by another officer of that force.
- Judicial disqualification turns on whether impartiality might reasonably be questioned or whether the judge or spouse has an interest that could be substantially affected by the proceeding; generalized professional connections, without more, are insufficient.
- In felony proceedings, suppression-type challenges to unlawfully obtained evidence are not properly litigated at the Rule 5.1 preliminary hearing and must be brought by appropriate pretrial motion in circuit court.

## Conclusion

The court held that a magistrate’s marital relationship to a police chief does not create per se disqualification from issuing a warrant to another officer absent evidence of partiality or participation in law-enforcement functions, and it reinforced that warrant and suppression challenges must be raised through proper circuit-court motion practice rather than at the preliminary hearing stage.


State ex rel. Brown v. Dietrick, 444 S.E.2d 47 (W. Va. 1994)