United States v. Murrell Bedford

ROSENN, Circuit Judge

(dissenting):

I believe this is a classic case for the application of the exclusionary rule if that rule is to continue to have any vitality. Despite the command of a city magistrate to execute “forthwith” the search warrant in this important case, the police dawdled for eight days without, as the district court found, credible explanation for the delay. The majority nonetheless hold that the search warrant was not stale because the police believed that the facts recited in the affidavit for the warrant continued to exist at the time the warrant was executed. I respectfully dissent.

I.

I agree with the majority that, even if the police violated state law in executing the warrant, the narcotics seized in the instant search were admissible if the search complied with federal constitutional standards. See United States v. Scolnick, 392 F.2d 320, 325-26 (3d Cir.), cert. denied, 392 U.S. 931, 88 S.Ct. 2283, 20 L.Ed.2d 1389 (1968). The principal federal constitutional standards applicable here are contained in the fourth amendment. It requires that, absent exigent circumstances,1 a judicial officer determine in advance whether probable cause exists for a search. Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

Probable cause is a time-oriented concept, a condition which does not continue indefinitely. Thus a judicial ruling, if made, by the issuing authority concerning the duration of probable cause is as important to the warrant requirement as a ruling that probable cause exists at the time a warrant is issued. A search conducted after the expiration of probable cause is no more lawful than one for which probable cause never existed. Transgression of a judicially determined time limit for execution of a warrant therefore is as much a violation of the fourth amendment as a warrantless search absent exigent circumstances.

In the present case, the city magistrate mandated that the search be made *658“forthwith.” Such a judicial requirement “controls the officer' who executes the warrant.” Mitchell v. United States, 103 U.S.App.D.C. 341, 258 F.2d 435, 437 (1958) (Bazelon, J., concurring). The majority all but characterize this judicial order as “boiler plate” since the word “forthwith” was printed on the warrant. I doubt that crucial language in a search warrant may be disregarded because it is printed, especially in what essentially is a three-sentence document.

For the proposition that the judicial command “forthwith” effectively may be discounted, the majority apparently rely on a line of federal cases which attempted to reconcile the “forthwith” requirement of rule 41(c) of the Federal Rules of Criminal Procedure, since eliminated by amendment,2 with the ten-day limit imposed by rule 41(d). See, e. g., United States v. Wilson, 491 F.2d 724 (6th Cir. 1974). This reconcilation resulted in some dilution of the term “forthwith.” Another line of cases, however, construed unamended rule 41 in a manner which preserved the “forthwith” requirement more or less intact. These cases held that a search must be made “forthwith,” i. e., with reasonable diligence, and in no event more than ten days after the warrant is issued. See United States v. Bradley, 428 F.2d 1013, 1015-16 (5th Cir. 1970); House v. United States, 134 U.S.App.D.C. 10, 411 F.2d 725, 728 (1969), cert. denied, 399 U.S. 915, 90 S.Ct. 2220, 26 L.Ed.2d 574 (1970); Spinelli v. United States, 382 F.2d 871, 885-86 (8th Cir. 1967), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Mitchell v. United States, supra, 258 F.2d at 437 (Bazelon, J., concurring). Of course, the comparative stringency of these interpretations of the term “forthwith” is of little relevance here since both the “forthwith” and the “ten-day” requirements of unamended rule 41, not being of constitutional dimension, are inapplicable to the warrant in the present case.

Since the “forthwith” time limit was contained in a state warrant form and was approved by a city magistrate, I believe whatever legal gloss is to be superimposed upon the ordinary meaning of the term “forthwith” ought to be imported from Pennsylvania law. Although state law is not directly applicable in determining the validity of the warrant at the time of execution, the terms of the warrant must be interpreted in the legal context in which they were employed by the magistrate. I unfortunately have been unable to find any Pennsylvania appellate decision, statute or court rule defining the term “forthwith.” I note, however, that the relevant Pennsylvania rule of criminal procedure, adopted shortly after the search in this case, requires that all search warrants be executed within two days of issuance. See Pa.R.Crim.P. 2005(d), 19 P.S. Appendix. I also note that decisions in other states, unaffected by the ten-day limit imposed by rule 41(d), have construed the term “forthwith” in a manner requiring diligence upon the part of the executing authorities. See, e. g., People v. Fetsko, 332 Ill. 110, 163 N.E. 359, 360 (1928); People v. Wiedeman, 324 Ill. 66, 154 N.E. 432 (1926); State v. Guthrie, 90 Me. 448, 38 A. 368 (1897); State v. Miller, 329 Mo. 855, 46 S.W.2d 541, 542 (1932). As the court stated in Miller, supra.

[n]o discretion is conferred upon such officer to hold the warrant until such time as he may choose to serve it, and certainly none to withhold its execution until such time as in his judgment the execution thereof may produce results more satisfactory either to him or to the state, thus making himself the judge of the existence of probable cause for the search at the time it is made.

46 S.W.2d at 542 (citation omitted).

The command “forthwith” of course cannot be translated into a precise number of hours or days. As Judge Bazelon has indicated in the context of unamended rule 41, the term has some “circumstantial elasticity.” Mitchell v. United States, supra, 258 F.2d at 437 (Bazelon, *659J., concurring). Nonetheless, an inadequately explained delay of eight days, as the unexplained delay of five days in Mitchell, “is inconsistent with the command of the warrant.” Id. at 438 (Ba-zelon, J., concurring); see Spinelli v. United States, supra, 382 F.2d at 885-86.

The only evidence offered to excuse the failure to execute the search warrant “forthwith” was Detective Joiner’s testimony at the suppression hearing that he was ill or on leave during part of the period of delay. The accuracy of this testimony was drawn seriously into question on cross-examination. Consequently, the district court, describing Joiner’s testimony as “somewhat vague,” found that “reasonable diligence was not exercised, and undue delay occurred in the execution of the search warrant.” Although the district court may have applied the incorrect legal standard, I cannot join the majority in discounting this finding of fact since it definitely is not clearly erroneous.

The majority apparently adopted the standard of reasonableness set forth in United States v. Dunnings, 425 F.2d 836 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970). As I read that case, the Second Circuit held that (1) if a “forthwith” federal search warrant is executed within ten days of issuance, and (2) if the police determine that the facts obtaining at the time of the search correspond to those recited in the affidavit for the warrant, and (3) if subsequent court proceedings fail to show that the items seized were not at least in part the items believed to be on the premises when the warrant was issued, suppression is not required under rule 41. 425 F.2d at 844 — 45. In the present case, of course, neither the “forthwith” nor the “ten-day” requirement of unamended rule 41 applies.3 However, even in the context of rule 41 prior to the amendment to subsection (c), I cannot accept the broad standard propounded in Dunnings.

As the Eighth Circuit held in Spinelli, supra, a federal warrant issued under rule 41:

is executed “forthwith” if it is executed within a reasonable time after its issuance, not exceeding ten days. What is a “reasonable time” must be determined by the individual circumstances of each case.
A warrant is issued upon allegation of presently existing facts, and as such does not allow execution at the leisure of the police, nor does it invest the police officers with the discretion to execute the warrant at any time within ten days believed by them to be the most advantageous. Mitchell v. United States, 103 U.S.App.D.C. 341, 258 F.2d 435 (1958) (concurring opinion).
A warrant is a court order requiring the police to perform a ministerial function. They must be allowed certain leeway in the performance of this duty, but likewise they must be required to diligently perform according to the court’s command. A lapse of up to ten days may be reasonable when the delay is caused by distance, traffic conditions, weather, inability to locate the person or premises to be searched, personal safety, etc. However, a delay of a few hours may be unreasonable if the police are not diligent in executing the warrant and the purpose of the delay was to prejudice the rights of a suspect.

382 F.2d at 885.

The Dunnings rule, in contrast to the standard articulated in Spinelli, presupposes the failure of the police to execute the warrant “forthwith.” The rule serves only to validate searches conducted after a delay which is not attributable to difficulties in executing the warrant. Under this rule,4 the police are not under *660any duty to execute a warrant before the tenth day as long as they determine that the affidavit for the warrant accurately represents the facts existing when the search is made. This determination, however, must be based upon new information such as a fresh tip from an informant. Unless the police are required to resubmit the question of probable cause to a magistrate, this new information will not be recorded until after the search, perhaps not until the date of trial. Moreover, at the time the new information is received, the facts contained in the affidavit may be too remote in time to support issuance of a second warrant, even in light of the new information. I must conclude, therefore, that the Dun-nings rule permits the police to usurp the function of an impartial magistrate.

Even under the broad standard of Dunnings, the warrant in the present case was stale. The police, unlike the situation in Dunnings, did not determine before executing the warrant that the allegations of the affidavit continued to obtain. On the contrary, the informant did not relate any information to Detective Joiner on September 4 concerning the heroin believed to be on the premises on August 27 when the warrant issued. According to Detective Joiner, “[m]y informant merely said that it is another shipment.”

Clearly the police may not use a warrant rendered stale by the passage of time to sustain a search for an entirely different shipment of narcotics. Dun-nings, however broadly interpreted, does not stand for this proposition.

II.

Because I believe the warrant was invalid when executed, I must discuss certain of defendant’s contentions not reached by the majority. Defendant was convicted for possession of only the narcotics seized from the common hallway. Thus, if the police could have gained access to the common hallway without a warrant, these narcotics were admissible and defendant’s conviction must be affirmed.

I believe the tenants of defendant’s apartment building had a reasonable expectation of privacy with respect to their common areas. Access to their four-unit building was restricted by a buzzer-lock system on the front entrance. The rear entrance was secured by a locked door, a metal gate, and at least three large watchdogs. These precautions unmistakably indicated that only persons admitted by a tenant were permitted to enter. Moreover, they acted as an effective barrier to unauthorized entry. I therefore cannot characterize the tenants’ expectation of privacy as anything but reasonable. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); id. at 360, 88 S.Ct. 507 (Harlan, J., concurring).

The officers gained entry to the common hallway under color of the search warrant. If the warrant was invalid, as I believe it was, any consent to this intrusion by Mary Hughes was vitiated. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). No other tenant consented to the officers’ presence. Thus Special Agent Maf-fett’s search of the common hallway constituted a violation of the rights accorded each and every tenant under the fourth amendment.

The district court nevertheless held that defendant lacked standing to assert fourth amendment rights because the narcotics found in the common hallway “might well be classified as abandoned goods.” I need not express an opinion concerning whether defendant could have abandoned goods in an area in which he had a reasonable expectation of privacy, for the search was of the area, not only of the goods. For purposes of standing under rule 41(e) of the Federal Buies of Criminal Procedure,5 defendant *661was a “person aggrieved” by the search which unlawfully invaded his reasonable expectation of privacy. Moreover, because defendant was charged with possession of narcotics, he, without more, was a “person aggrieved.” See Jones v. United States, 362 U.S. 257, 263-64, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Fields, 458 F.2d 1194, 1196 (3d Cir. 1972).

I believe we must reverse the judgment and sentence of the district court.

. The Government does not contend that exigent circumstances prevented the police from applying for a new warrant on September 4.

. Order, 56 F.R.D. 143 (U.S. Supreme Court, April 24, 1972).

. Since a state warrant such as the one in the present case is not governed by rule 41, application of the Dunnings rule logically could permit execution more than ten days after issuance. There would be no outside time limitation on execution.

. My research reveals that only a decision in the Ninth Circuit has embraced the Dunnings rule unequivocally. United States v. Nepstead, 424 F.2d 269, 271 (9th Cir.), cert. denied, 400 U.S. 848, 91 S.Ct. 50, 27 L.Ed.2d 86 (1970). I note, however, that a decision in the Fifth Cir*660cuit also may have adopted the Dunnings rule. United States v. Harper, 450 F.2d 1032, 1044 (5th Cir. 1971).

. Rule 41(e) specifies the procedure by which a person may regain possession of illegally seized property. Because subdivision (e) does *661not contain standards for determining the validity of a warrant but merely provides a procedure whereby the legality of a search may be challenged, it applies to controversies in federal court concerning state warrants executed primarily by state officers.