United States v. Gooding

• Citation: 477 F.2d 428,155 US App. DC 259
• Decision Date: 26 March 1973
• Docket Number: No. 71-1669,71-1945.,71-1669
• Parties: UNITED STATES of America, Appellant, v. Lonnie GOODING, Appellee. UNITED STATES of America, Appellant, v. Leon F. BARNETT, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

155 US App. DC 259, 477 F.2d 428 (1973)

UNITED STATES of America, Appellant, v. Lonnie GOODING, Appellee.

UNITED STATES of America, Appellant, v. Leon F. BARNETT, Appellee.

Nos. 71-1669, 71-1945.

United States Court of Appeals, District of Columbia Circuit.

Argued October 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

I. 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 "the 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 examined 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 execution 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

II. 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

Subsection (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 crescendoing 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 case.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...