United States v. Lonnie Gooding, United States of America v. Leon F. Barnett

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 *430The 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

1. The Applicable Statute

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 §§ 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.

Two other provisions deal with nighttime search in the more limited area of offenses “involving controlled substances.” Title 33 of the D.C.Code § 414(h) (1967) as amended (Supp. V, 1972) provides that, when such offenses are involved, “the judge or commissioner shall insert a direction that it may be served at any time of the day or night.” However, § 414(c) arguably imposes an additional requirement that the complainant and any witnesses must be ex*431amined on oath before the warrant is issued. There is no showing that this requirement was met in these cases, so we will proceed on the assumption that § 414 would not validate the search warrants challenged here.6

Finally, the federal narcotics search warrant provision, 21 U.S.C. § 879(a), provides that

A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge or United States magistrate ... is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.

Since none of the other statutory standards were met, these search warrants can only be held valid if § 879(a), the specific federal statute, is the applicable provision.7

Judge Gesell in Gooding held that the general nighttime search provisions in the D.C.Code govern and require a special showing of need to search at night even in narcotics cases. In Barnett Judge Corcoran agreed. The District Court’s holding in Gooding was apparently based on the ground that a statute which is more specific and more recent should govern when conflict appears between such a statute and an older or more general law.8 While we agree with that general principle, we disagree with its application in this case.

Although, as the District Court noted, 23 D.C.Code Sections 521-523 are more specific in the sense that they apply only to the limited geographical area of the District of Columbia, 21 U.S.C. § 879(a) is clearly the more specific or “special” provision as to subject matter — search in narcotics cases. Although § 879(a) went into effect before §§ 521-523, § 879(a) was considered and passed after §§ 521-523.9 Thus, the federal narcotics search statute — § 879(a) — is in fact both the more specific and the more recent provision.10

Viewed in that light, the apparent inconsistency between the general local nighttime search statute and the special federal nighttime narcotics search statute disappears.11 Sections 521-523 of Title 23 of the D.C.Code were enacted because (1) there was no general D.C. provision relating to the time for exeeu*432tion of search warrants12 and (2) Congress desired to insert criteria of “need” which were felt superior to the “positivity” test found in the Federal Rules. There is no reason to believe that narcotics searches were to be affected because, in contrast, (1) there was already a specific federal provision relating to narcotics searches (18 U.S.C. § 1405(1)), and (2) the “positivity” requirement needed no revision in regard to narcotics searches because it had not been applied in that context.13 When Congress later turned to the specific problem of standards governing the issuance of warrants by U.S. magistrates in narcotics cases, § 879(a) was its response to this narrower problem and that section must govern in these cases.14

11. Application of the Statute

Since we conclude that § 879(a) provides the relevant tests by which to judge the validity of these search warrants, the obvious next inquiry is whether those tests were met. Appellees contend that § 879(a) requires a special showing of a need to search at night. They argue that the magistrate must be satisfied that there is probable cause to believe-that grounds exist both “for the warrant” and “for its service at such time” (at any time of the day or night). The Government contends that no special showing of need is required and admit that, if it is, no such showing was made and the warrants were invalid.15

If appellees’ interpretation of the words of the statute were the only possible reading, we would have to agree with their position. However, the requirement of probable cause to search at night does not necessarily call for a special showing of need for nighttime as opposed to daytime search. Rather, at least as natural an interpretation would imply that this added clause, “for its service at such time,” requires only grounds for service at night in the sense that the narcotics sought will probably be present on the named property at night.16

Confronted with this ambiguity, we can gain guidance from the legislative history. Section 879(a) is a direct descendant of 18 U.S.C. § 1405(1).17 Indeed, the House Report notes that

*433Subsection (a) of this section [21 U. S.C. § 879] incorporates 18 U.S.C. § 1405 and authorizes service of a search warrant at any time of the day or night if probable cause has been established to the satisfaction of the judge or U.S. Magistrate issuing the warrant.18

Section 1405(1) was uniformly interpreted to require only a showing of probable cause to search in order for a warrant relating to narcotics to be executed at night.19

Despite the clear legislative history reflecting congressional intent not to change the prior law in this area,20 appellees argue that the change in wording must be viewed as significant. We cannot agree. If the necessary “grounds . . . for service at such time” involve more than a showing that the narcotics will be present on the premises at any time of the day or night, then presumably the additional showing required would concern a need to search at night. Appellees argue as much by suggesting that § 879(a) incorporates the standards set forth in the general D.C. nighttime search provision. However, the exact wording of § 879(a) was proposed by the Justice Department. It is inconceivable that, confronted with a creseendoing nationwide drug abuse problem, the Department would recommend to Congress a statute making the obtaining of nighttime search warrants just as difficult for narcotics offenses as in any other ease.21

If we accepted appellees’ argument that the federal statute’s requirements for nighttime search in narcotics cases are precisely coterminous with those of the local statute which applies in all types of cases, then whatever distinction Congress sought to establish by enacting a separate and special statute regarding federal narcotics offenses would be completely obliterated. And since we are construing a federal statute, that construction would be of uniform national application. On the other hand, if appellees concede that § 879(a) does set up its own federal standard, and if the showing required is less than that set out in 23 D.C.Code §§ 521-523, but more than mere probable cause to believe that the drugs will be found “at such time,” then no source for the applicable standard appears.

Appellees are essentially arguing that great significance should be given to one possible reading of new language when an ambiguity is present, even when the legislative history suggests no intent to change the meaning of the section. Our refusal to follow that reasoning is fortified by the fact that the very same ambiguity was potentially present in the previous statute. Section 1405 provided that a search warrant could be served at any time if “there is probable cause to believe that grounds for the application exist.” It is possible to read, this statute to require a showing of need to search at night, since the “application” could be interpreted as seeking both (1) issuance of the warrant and (2) permis*434sion to search any time of the day or night, just as “probable cause to believe that grounds exist” (§ 879(a)) has been argued by appellees to require showings of “probable cause” and “grounds” both “for the warrant” and “for its service at such time.”

The courts, of course, refused to read § 1405 that way. They required only a showing of probable cause to believe that narcotics would be found.22 Judges and legislators thoroughly conversant with the special, almost unique, problems of narcotics law enforcement have long recognized that effective searches for narcotics reasonably require different methods and timing. This is basically the reason that both the U.S.Code and the D.C.Code contain two distinct provisions, one for general searches, the other for narcotics searches. Deferring to “a legislative judgment that . . . special facts existed in searches concerned with federal narcotics violations,” one court noted that the “eonclusory statements about the need for speed and surprise that [a statutory construction parallel to the one sought by appellees here] . . . would cause to appear on affidavits for search warrants would be pointless.” 23

There is absolutely no showing that this “legislative judgment” changed in any respect during the enactment of § 879(a) to replace § 1405.24 All the legislative history is to the contrary. Surely such a significant departure from prior policy would have drawn comment in the Senate and House Reports — especially in the context of a statutory scheme which had the overall purpose of much more stringent and effective suppression of narcotics trafficking. Since the new language cited by appellees does not even present a novel ambiguity, we must conclude that the previous meaning of the section “incorporated” in § 879(a) remained intact.

It has been argued that a greater showing of grounds to search at night was intended because § 879 applies in a comprehensive fashion to all offenses involving “controlled substances.” In contrast, § 1405 applied to only certain specified narcotics offenses. Appellees suggest (without, however, pointing to any concrete evidence of such congressional intent) that a tougher standard for nighttime search was established as the quid pro quo in a legislative compromise extending the availability of nighttime search authorizations to a larger number of offenses. This argument proves too much. Although the “probable cause” required to be shown by § 879 could conceivably be characterized as ambiguous and potentially read to include probable cause to believe that special need exists to search at night, the one thing that is clearest about § 879 is that it is meant to apply the same standard for nighttime search authorizations with respect to every type of controlled substance.

It is true that reading § 879 to incorporate the showing previously required by § 1405 does make obtaining nightime search warrants easier with regard to *435some categories of drugs. However, the alternative reading, espoused by appellees, suggests that the statute was intended to make nighttime searches more difficult in hard narcotics cases. As noted earlier, the Justice Department proposed the exact language of § 879. This argument from expanded coverage necessarily suggests that the Department desired a retreat from the test of mere probable cause to search in hard narcotics cases, and that the Department accomplished this with no comment in the legislative history, in the context of a measure aimed at increasing the effectiveness of law enforcement with regard to drugs. The Justice Department’s proposals have sometimes been the subject of inaccurate interpretation and speculation, but the suggestion that the Justice Department meant to make nighttime searches for heroin more difficult is indeed novel and patently off the mark.

Another attempt to suggest that the general legislative intent was compatible with a greater required showing of grounds to search at any time implies that such a showing would be quite easy in heroin cases and would thus not impede law enforcement. That argument proves too little. Since the showing required by the reading of § 879 which appellees seek is a showing of grounds to search “at such time,” it must be noted that the requirement is of grounds to search “at any time of the day or night.” That is quite different from a requirement that there be grounds to search “at night.”

The statute’s actual phrasing implies that the real interest required to be demonstrated is the interest in speed and surprise — grounds for search as soon as tactical considerations warrant despite the fact that the earliest possible moment may be after dark. If this showing would be easy in heroin cases, we can see no reason why it would not be just as routine in any other ease involving controlled substances. Speed and surprise are equally necessary to seize any type of drug which it is generally illegal to possess. Since all controlled substances can be the subject of abuse and may have to be ferreted out in “underground” markets, there is nothing about the nature of the drug sought which renders the need for speed and surprise any less likely or any less easily shown. Therefore the expanded applicability of § 879 to a larger variety of controlled substances does not necessarily imply a departure from the standards of the previous “incorporated” section.

At worst, requiring a special showing of need to search “at any time of the day or night” would make nighttime search for narcotics more difficult. At best, and more probably, acceptance of appellees’ arguments here would generate pointless and eonclusory statements in future applications for warrants. Neither result would comport with the sound and clear legislative intent which was expressed when § 879(a) was enacted.

We hold that the applicable statute, 21 U.S.C. § 879(a), requires only a showing of probable cause to believe that the narcotics will be found on the premises at any time of the day or night. Since both search warrants clearly met this standard,25 the District Court’s grant of the motions to suppress in these cases must be reversed and the cases are remanded for further proceedings consistent with this opinion.

So ordered.

. Both Gooding and Barnett were charged with violating former 26 U.S.C. § 4704(a) (1964), Act of 16 August 1954, ch. 736, § 4704(a), 68 Stat. 550, repealed by *430Pub.L.No.91-513, Title III, § 1101(b)(3)(A), 84 Stat. 1292 (1970). Gooding was also charged with violating former 21 U.S.C. § 174 (1964), Act of 18 July 1956, ch. 629, Title I, § 105, 70 Stat. 570, repealed by Pub.L.No.91-513, Title III, § 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 night i) . . .
i. The Federal Rules of Criminal Procedure provide: “The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is onllie person or in the place to be searched, the warrant may direct that it be served at any time.” (Rule 41(c)
The warrant in Gooding was executed at 9 :30 p. m. on 12 February 1971, the day after its issuance. The warrant in Barnett was executed at 8:08 p. m. on 11 February 1971, the day it was issued.

. 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 (O) 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 § 414(h) was impliedly repealed since 23 D.C.Code §§ 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 § 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 § 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 §§ 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. § 879, was enacted on 27 October 1970 and became effective, at least as to the provisions of § 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 § 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 § 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 §§ 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. § 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 § 414) is still valid, these warrants may not have met its requirement of examination under oath. However, § 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 § 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, § 201, 70 Stat. 573, repealed by Pub.L.No. 91-513, Title III, § 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 tlie 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. § 879(a)] indicates that no change from the prior law was intended.” 328 F.Supp. 1005, 1007.

. 21 U.S.C. § 879(a) is part of the Controlled Substances Act, “legislation de- • signed 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, § 1405(1), merely changed the degree of certainty required as to that foot. 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.

. United States v. Castle, 213 F.Supp. 52, 53-54 (D.D.C.1962).

. 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.