¶1dissenting.
¶2I respectfully dissent.
¶3I agree with the legal principle in the majority opinion and the legal conclusions that the trial judge in this case is not “disqualified” under the constitution or statutes of this state, from presiding over the suppression hearing or subsequent proceedings. Nevertheless, to better serve the appearances of justice in criminal eases, I believe this Court should adopt a judicial rule requiring a judge to recuse himself under circumstances similar to those presented in this case.
¶4In Hamilton v. State, 218 Tenn. 317, 403 S.W.2d 302 (1966), the judge who presided at the trial had issued a warrant for the defendant’s arrest, after an ex parte hearing, when he was serving as a General Sessions Judge. The Tennessee Constitution requires disqualification in any case, “in which he may have presided in any inferior court, except by consent of all the parties.”
¶5The Hamiltoncourt did not grapple with the question of whether an ex parte hearing to determine probable cause to issue an arrest warrant was, in the constitutional sense, equivalent to presiding in an inferior court, but rather based its holding that Judge Faquín should not have presided as trial judge on the rationale that there is,
“[T]he possibility that prior knowledge of the facts could in some way influence a criminal judge generally, in exercising his discretion — for example, in whether or not to grant a new trial — is one of the reasons for which we think this constitutional provision exists.” 218 Tenn. at 321, 403 S.W.2d at 303.
¶6We recently observed that both arrest and search warrants involve a judicial determination of the issue of probable cause by a neutral and detached magistrate who must judge for himself the persuasiveness of the facts relied upon. In re Dender, 571 S.W.2d 491 (Tenn.1978). Upon the subsequent filing of a motion to suppress the search warrant, the trial judge may be called upon to rule on the validity of his own judicial determination theretofore made on evidence heard at the ex parte hearing, and the possibility arises that prior knowledge of the facts could in some way influence his disposition of that motion— and rulings upon subsequent proceedings. Thus, in principle the facts here are indistinguishable from those in Hamilton. Whether the judge who is to preside at the criminal trial was, at the time he conducted a probable cause hearing and issued the arrest or the search warrant, a judge of an inferior court or a trial court is immaterial.
¶7For the reasons stated above, I would grant the petition and direct the entry of an order granting defendants’ motion of recusal.
¶8Mr. Justice HENRY joins me in this dissent.