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United States of America, Appellant, v. Lonnie Gooding, Appellee.united States of America, Appellant, v. Leon F. Barnett, Appellee
United States Court of Appeals, District of Columbia Circuit. - 477 F.2d 428
Argued Oct. 25, 1972.Decided March 26, 1973.Rehearing Denied May 11, 1973
Guy H. Cunningham, III, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., at the time the brief was filed, John A. Terry and Gregory C. Brady, Asst. U. S. Attys., were on the brief, for appellant. Harold H. Titus, Jr., U. S. Atty., also entered an appearance for appellant. Kenneth Michael Robinson, Washington, D. C., entered an appearance for appellant in No. 71-1945.
Herbert A. Rosenthal, Jr., Washington D. C. (appointed by this Court), for appellee in No. 71-1669.
James A. Treanor, III, Washington, D. C., with whom Suzanne Meyer, Washington, D. C. (both appointed by this Court), was on the brief for appellee in No. 71-1945.
Before FAHY, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges.
WILKEY, Circuit Judge:
These cases arise on appeal by the United States from orders of the District Court suppressing certain evidence for use at trial on indictments for violations of the federal narcotics laws.1 The orders of the District Court rested on the view that the evidence was seized at night pursuant to warrants which failed to meet the statutory prerequisites for nighttime execution.2
Just which statute's requirements were applicable has been a matter of some debate. We can sympathize with U. S. District Judge Gesell's feeling that "[t]he search warrant statutes of possible application to narcotics searches in this jurisdiction are a bramblebush of uncertainties and contradictions."3 Unfortunately, in its search for clarity, the District Court wandered into the briar patch and came to a result, in both cases, with which we cannot agree.
There are four potentially applicable standards which relate to the showing necessary before nighttime searches may be authorized. Two of these provisions deal with nighttime search as a general matter. The District of Columbia Court Reform and Criminal Procedure Act of 1970, 23 D.C.Code Secs. 521-523 (Supp. V, 1972)4 provides that a warrant may direct execution of the search at any time of the day or night on certain specified showings of need, which were admittedly not made in this case.5 Rule 41(c) of the Federal Rules of Criminal Procedure allowed authorization of service anytime "if the affidavits are positive that the property . . . is in the place to be searched." Since the magistrates found only probable cause, the requisite "positivity" was admittedly lacking in the cases at bar.
Both Gooding and Barnett were charged with violating former 26 U.S.C. Sec. 4704(a) (1964), Act of 16 August 1954, ch. 736, Sec. 4704(a), 68 Stat. 550, repealed by Pub.L.No.91-513, Title III, Sec. 1101(b)(3) (A), 84 Stat. 1292 (1970). Gooding was also charged with violating former 21 U.S.C. Sec. 174 (1964), Act of 18 July 1956, ch. 629, Title I, Sec. 105, 70 Stat. 570, repealed by Pub.L.No.91-513, Title III, Sec. 1101(a)(2), 84 Stat. 1291 (1970)
Both warrants recited facts which were characterized as "in violation of Title 26 Section 4704(a) of the U.S.Code." Both warrants further stated:
[A]s I [the issuing magistrate] am satisfied that there is probable cause to believe that the property so described is being concealed on the (premises) above described and that the foregoing grounds for application for issuance of the search warrant exist.
You are hereby commanded to search forthwith the (place) named for the property specified, serving this warrant and making the search (at any time in the day or night1) . . .
United States v. Gooding, 328 F.Supp. 1005, 1008 (D.D.C.1971)
These sections became effective as of 1 February 1971, prior to the issuance of these warrants
Section 521(f)(5) provides that the warrant shall contain a direction that it
be executed during the hours of daylight or, where the judicial officer has found cause therefor, including one of the grounds set forth in section 23-522 (c)(1), an authorization for execution at any time of day or night.
The grounds set forth in Section 23-522 (c)(1) for execution of the warrant at any time are
. . . that there is probable cause to believe that (A) it cannot be executed during the hours of daylight, (B) the property sought is likely to be removed or destroyed if not seized forthwith, or (C) the property sought is not likely to be found except at certain times or in certain circumstances . . . .
There is also an argument that 33 D.C. Code Sec. 414(h) was impliedly repealed since 23 D.C.Code Secs. 521-523 were intended to be comprehensive and were enacted under the (albeit incorrect) assumption that "[t]he District of Columbia Code presently contains no provision at all governing the time for execution of a search warrant. H.R.Rep.No.91-907, 91st Cong., 2d Sess. at 109 (1970)." Since our conclusions concerning these warrants do not rest on the application of 33 D.C.Code Sec. 414(h), we need not reach this issue. However, we should note that the District Court firmly rejected this argument of implied repeal in United States v. Green, 331 F.Supp. 44 (D.D.C.1971)
See Part II of this opinion for a discussion of the application of Sec. 879(a) to these warrants
328 F.Supp. 1005, 1008
The District of Columbia Court Reform and Criminal Procedure Act of 1970, which included 23 D.C.Code Secs. 521-523, was enacted on 29 July 1970 but did not become effective until 1 February 1971. The Controlled Substances Act, including 21 U.S.C. Sec. 879, was enacted on 27 October 1970 and became effective, at least as to the provisions of Sec. 879(a), immediately
The District of Columbia Court of Appeals came to the same conclusion in United States v. Thomas, 294 A.2d 164, 166-167 (D.C.C.A.), cert. denied, 409 U. S. 992, 93 S.Ct. 341, 34 L.Ed.2d 258 (1972):
We think it more in harmony with the obvious intent of Congress to give special treatment to narcotics law enforcement to view such provisions [as Sec. 879 (a)] as the "special" ones . . . not subject to qualification by the general search warrant provisions of the U.S. and D.C.Codes . . . . The "special" area of legislation is narcotics law enforcement, not District of Columbia law enforcement.
And the "bramblebush" of statutes appears less forbidding
The possibility that Congress thought there was no D.C. provision at all dealing with nighttime search warrants is discussed at note 6. That fact might relate to doubts about the continuing validity of 33 D.C.Code Sec. 414(h), although that issue does not need to be decided in this case. However, even congressional intent to enact a comprehensive nighttime search statute when it passed 23 D.C.Code Secs. 521-523 would not serve to negate its subsequent decision to reaffirm a specific and different rule for U. S. magistrates regarding narcotics nighttime searches in regard to federal violations-by passing 21 U.S.C. Sec. 879(a)
See United States v. Stallings, 413 F.2d 200 (7th Cir. 1969), cert. denied, 396 U.S. 972, 90 S.Ct. 460, 24 L.Ed.2d 440 (1969). See footnote 22, infra
We have noted that, if the special local statute (33 D.C.Code Sec. 414) is still valid, these warrants may not have met its requirement of examination under oath. However, Sec. 414 of Title 33 is concerned only with "violations of the provisions of this chapter" (i. e., Chapter 4, entitled "Narcotic Drugs"-the local narcotic laws). Thus the requirements of Sec. 414 (c), which were not demonstrated to have been met by the warrants in these cases, simply do not apply here because these warrants were issued for violations of federal law
Appellant's Reply Brief at p. 2, n. 5
Section 879(a) was given this reading by the District of Columbia Court of Appeals in United States v. Thomas, 294 A.2d 164 (D.C.C.A.), cert. denied, 409 U.S. 992, 93 S.Ct. 341, 34 L.Ed.2d 258 (1972)
Act of 18 July 1956, ch. 629, Title II, Sec. 201, 70 Stat. 573, repealed by Pub.L.No. 91-513, Title III, Sec. 1101(b)(1)(A), 84 Stat. 1292 (1970). This section provided, in pertinent part, that a "search warrant [relating to narcotics offenses] may be served at any time of the day or night if the judge of United States Commissioner issuing the warrant is satisfied that there is probable cause to believe that the grounds for the application exist."
H.R.Rep.No.91-1444 (Part I), 91st Cong., 2d Sess. 54 (1970) (emphasis added). See U.S.Code Cong.Adm.News, 91st Cong., 2d Sess., at pp. 4621-22 (1970). Exactly the same language is contained in the Senate Report. S.Rep.No.91-613, 91st Cong., 1st Sess. 30-31 (1969)
United States v. Stallings, 413 F.2d 200, 207 (7th Cir. 1969), cert. denied, 396 U.S. 972, 90 S.Ct. 460, 24 L.Ed.2d 440 (1969); United States v. Castle, 213 F.Supp. 52 (D.D.C.1962); United States v. Tucker, 262 F.Supp. 305 (S.D.N.Y.1966)
In Gooding, Judge Gesell conceded that "the legislative history [of 21 U.S.C. Sec. 879(a)] indicates that no change from the prior law was intended." 328 F.Supp. 1005, 1007
21 U.S.C. Sec. 879(a) is part of the Controlled Substances Act, "legislation designed to deal in a comprehensive fashion with the growing menace of drug abuse in the United States . . . through providing more effective means for law enforcement aspects of drug abuse prevention and control . . . ." H.R.Rep. No. 91-1444 (Part I), 91st Cong., 2d Sess. 1 (1970) U.S.Code Cong. & Admin. News, p. 4567
Section 1405(1) was intended to provide an exception to the inflexible and archaic requirement of "positivity" in Rule 41(c). See S.Rep.No.1997, 84th Cong., 2d Sess., 8-9 (1956). Rule 41(c)'s test required the affidavits to be "positive" about the fact that "the property is on the person or in the place to be searched." The new provision, Sec. 1405(1), merely changed the degree of certainty required as to that fact. Ignoring a potential ambiguity, the courts wisely consulted congressional intent and found, as we do here, no desire to establish an additional required showing of need when narcotics search was involved
The District Court in Gooding stated that "[t]here is no suggestion that . . the need for nighttime warrants [is] any greater where narcotics offenses are involved rather than other crimes." 328 F.Supp. 1005, 1008. That comment simply ignores the whole background and purpose of both 18 U.S.C. 1405(1) and 21 U.S.C. 879(a). See United States v. Castle, supra
Both search warrants found probable cause to believe that the narcotics were being "concealed" on the relevant premises. Both incorporated affidavits which alleged that the drugs were being "secreted." In the absence of any indication that such concealment was other than continuous, the natural inference would be that they could be found on the premises at any time of the day or night. In this context, any requirement of a more specific finding by the magistrate would be an absurd linguistic artificiality which the statute does not require