U.S. v. Bennett

• Decision Date: 23 March 1999
• Docket Number: No. 97-5901,97-5901
• Citation: 170 F.3d 632
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby BENNETT, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 632

170 F.3d 632

UNITED STATES of America, Plaintiff-Appellee, v. Bobby BENNETT, Jr., Defendant-Appellant.

No. 97-5901.

United States Court of Appeals Sixth Circuit.

Argued Nov. 6, 1998.

Decided March 23, 1999.

Terry M. Cushing, Asst. U.S. Attorney (briefed), Alexander T. Taft, Jr., Asst. U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Louisville, KY, for Plaintiff-Appellee.

Scott C. Cox (argued and briefed), Louisville, KY, for Defendant-Appellant.

Before: KEITH, KENNEDY, and NORRIS, Circuit Judges.

OPINION

KEITH, Circuit Judge.

The defendant, Bobby Bennett, Jr., challenges his conviction for various drug related offenses. For the reasons detailed below, the judgment and sentence entered by the district court are AFFIRMED.

I.

In July of 1995, a confidential informant ("CI") informed the Kentucky State Police that the defendant, Bobby Bennett, Jr., sold marijuana and other narcotics from his home. The CI was instructed by the police department to purchase any drugs the defendant might offer for sale. In mid-July, the CI purchased one pound of marijuana and 1.56 grams of methamphetamine from Bennett at Bennett's residence. At the end of July, the CI purchased another 2.47 grams of methamphetamine from the defendant. At that meeting, Bennett also discussed buying 25 pounds of marijuana from the CI at some point in the near future. A few days later, the CI and Bennett met at Bennett's home to finalize the purchase plans for the 25 pounds of marijuana.

As arranged, the defendant and the CI met in the parking lot of a shopping mall on August 4, 1995. Bennett approached the vehicle in which the CI and an undercover Kentucky State Police Officer were sitting. Bennett examined a package, which he was told contained the 25 pounds of marijuana he was interested in purchasing. After the defendant viewed the package, he was arrested on state charges.

On June 3, 1996, nearly one year after his arrest on state charges, the defendant's case was presented to a federal grand jury. The grand jury returned a six count indictment, charging the defendant with: Count 1, distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1); Count 2, distribution of marijuana in violation of 21 U.S.C. § 841(a)(1); Count 3, distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1); Count 4, attempt to possess marijuana with intent to distribute in violation of 21 U.S.C. § 846; Count 5, possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and Count 6, carrying a firearm in relation to the attempted possession of marijuana in violation of 18 U.S.C. § 924(c).

On June 6, 1996, Bennett was arraigned and pled not guilty to each of the six federal counts pending against him. The defendant's jury trial commenced on March, 18, 1997. The jury returned guilty verdicts for Counts 1-5, but Bennett was acquitted of Count 6. On June 23, 1997, the district court sentenced Bennett to 33 months imprisonment, three years of supervised release and a special penalty assessment. On July 3, 1997, the defendant filed a timely notice of appeal.

II.

Bennett first questions the validity of a search warrant issued which authorized a search of his residence. That warrant was issued by Pat Goad, the Circuit Court Clerk for Warren County, Kentucky. Several weeks prior to the issuance of the warrant, Ms. Goad was informed that all of the judges for Warren County would be absent from the county and that she would be responsible for signing all search warrants. Ms. Goad contacted the court's legal counsel to confirm that she possessed the authority to sign search warrants in this situation. Ms. Goad was advised that under Kentucky statutory law, she, as the Circuit Court Clerk, was authorized to sign search warrants when all of the judges were absent from Warren County.

After the defendant's arrest, a detective from the Kentucky State Police Department and the Commonwealth Attorney for Warren County went to Ms. Goad's office to obtain the search warrant at issue. They presented Ms. Goad with a search warrant, an affidavit in support thereof, and a certification that all judges were absent from the county. Ms. Goad read both the search warrant and the affidavit. She found that there was sufficient probable cause for the warrant to issue and she signed the warrant.

In a nutshell, Bennett argues that while allowing Ms. Goad to issue a search warrant in the absence of Warren County judges might comport with Kentucky state law, it did not satisfy the warrant requirements imposed by federal law pursuant to Rule 41(a) of the Federal Rules of Criminal Procedure. Thus, he argues, the search warrant was defective for federal purposes and the evidence seized was improperly admitted at his federal trial. We reject this argument.

When reviewing a district court's denial of a motion to suppress evidence, the district court's factual findings are examined simply for clear error, but its conclusions of law are subject to de novo review. United States v. Jenkins, 124 F.3d 768, 771-72 (6th Cir.1997). The evidence is reviewed in a light most favorable to the district court's conclusions. Id. at 772.

As a matter of law, the district court concluded that since federal officers were not involved in obtaining the search warrant, Rule 41(a), by its own terms, does not apply to this case. Rule 41(a) states, in its entirety:

Upon the request of a federal law enforcement officer or an attorney for the government, a search warrant authorized by this rule may be issued (1) by a federal magistrate judge, or a state court of record within the federal district, for a search of property or for a person within the district and (2) by a federal magistrate judge for a search of property or for a person either within or outside the district if the property or person is within the district when the warrant is sought but might move outside the district before the warrant is executed.

The defendant's entire argument is that this Circuit has long held that federal law, not state law, governs the validity of a search warrant in a federal criminal proceeding. See United States v. Shields, 978 F.2d 943, 945 (6th Cir.1992) (citing United States v. Allen, 954 F.2d 1160, 1167 (6th Cir.1992); United States v. Smith, 966 F.2d 1045, 1049 (6th Cir.1992); United States v. Combs, 672 F.2d 574, 578 (6th Cir.), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982)). On that basis alone, he reasons that the search warrant involved in his federal prosecution must comport with the Federal Rules of Criminal Procedure, namely Rule 41(a). He argues that while under Kentucky law Ms. Goad, a Circuit Court Clerk, may be authorized to issue a search warrant, Rule 41(a) confers such authority only upon federal and state judges.

Indeed, we acknowledge the longstanding precept that federal law governs federal proceedings, and we continue to support it. What the defendant fails to realize, however, is that simply because federal law governs the validity of a search in a federal prosecution, it does not automatically follow that Rule 41(a) applies to the search in question.

An objective review of Rule 41(a) reveals that the Rule concerns itself only with search warrants requested by "a federal law enforcement officer or an attorney for the government...." As we have unequivocally stated, "by its terms Rule 41 does not apply in a case where no federal officers are involved." United States v. Shields, 978 F.2d 943, 946 (6th Cir.1992). In Shields, it was questioned whether evidence should be suppressed for failing to comply with Rule 41(c). Id. at 945. We affirmed the denial of the defendant's motion to suppress, finding that Rule 41(c) was not implicated because no federal officers were involved in that investigation. Id. at 946-47. We further noted that the validity of a search warrant obtained by state officers for seizure of evidence ultimately used in a federal prosecution turns only on constitutional issues. Id. at 946 n. 5. Where, however, the warrant is a federal warrant obtained by federal officers for use in a federal prosecution, the inquiry is not confined to constitutional matters, but must take into consideration Rule 41. Id.

Similarly, in United States v. Searp, 586 F.2d 1117 (6th Cir.1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979), we confronted the issue of whether evidence seized in conformity with state law, but in violation of federal requirements, was admissible in federal court. In that case, federal and state law enforcement officers participated in a joint investigation of Jerry Searp. Id. at 1119. A warrant was issued by a Kentucky state judge, authorizing a search of the home of Searp's mother. Id. That warrant was served in a manner which complied with state law, but did not satisfy requirements outlined by Rule 41(c). Id. We held that "federal officers, investigating a federal crime, must comply with the federal rules governing their conduct ... when a federal officer has participated in a search in an official capacity, his or her conduct, and thus the legality of the search, is to be judged by federal standards." Id. at 1121. By way of background, we acknowledged that as state search and seizure standards are, in some respects, more lenient than federal procedures, federal officers might be tempted to take advantage of that flexibility. Id. at 1119-21. We explained that the "participation doctrine" was developed to discourage attempts to evade the Fourth Amendment, by establishing that if federal officers participated in the search, the search was to conform with federal procedures. Id. at 1120. ¹

As we turn to the facts of the instant matter, it is clear that the case before us poses no reason to fear that federal officers were in danger of circumventing any Fourth Amendment guarantees or of running afoul of the participation doctrine. In that respect, the instant matter is...