519 F.2d 650 (3rd Cir. 1975), 74-2119, United States v. Bedford

Docket Nº:74-2119.
Citation:519 F.2d 650
Party Name:UNITED STATES of America v. Murrell BEDFORD, Appellant.
Case Date:June 30, 1975
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 650

519 F.2d 650 (3rd Cir. 1975)

UNITED STATES of America

v.

Murrell BEDFORD, Appellant.

No. 74-2119.

United States Court of Appeals, Third Circuit

June 30, 1975

Argued March 6, 1975.

As Amended July 15, 1975.

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[Copyrighted Material Omitted]

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Byrd R. Brown, Pittsburgh, Pa., for appellant.

James J. West, Richard L. Thornburgh, Charles F. Scarlata, U. S. Attys., Pittsburgh, Pa., for appellee.

OPINION

ADAMS, Circuit Judge.

We are confronted in this case with the issue of the admissibility in a federal prosecution of evidence seized under the authority of a state search warrant, executed by city and federal law enforcement officers eight days after its issuance, despite the provision in the warrant to search defendant's residence "forthwith."

The district court held the warrant was stale when executed, and accordingly granted a motion to suppress evidence with respect to narcotics seized in the search of defendant's own apartment. However, the court also held that the

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three ounces of heroin found in a trash area located on the ground floor of the apartment house were abandoned, and thus denied the motion in this respect. The jury found the defendant guilty of possession based upon the evidence seized from the trash area, and this appeal followed.

I

The challenged search warrant was issued by a police magistrate to Detective Joseph Joiner of the Pittsburgh Police Bureau on August 27, 1973. Predicated on a probable violation of state narcotics laws, the warrant authorized the search of "1723 Fifth Avenue. Residence of Myrel (sic) Bedford and Mary Bedford (Mary Hughes)," and, in pre-printed form, provided that Detective Joiner was to conduct the search of the premises "forthwith."

Eight days later, on September 4, 1973, Detective Joiner executed the warrant. He attributed the delay to his having been off duty for a few days during the intervening 3-day Labor Day weekend and for another day or so as a result of illness. After these periods of absence, he decided to wait for additional information as to when "the bulk of the narcotics" would be in defendant's apartment. On the day of the search, the same informant whose earlier information had been used in establishing probable cause for issuance of the warrant, notified the police that the defendant was still in possession of narcotics. Soon thereafter Joiner executed the warrant. He was accompanied by seven other city police officers and four special agents of the Federal Drug Enforcement Administration. The special agents had been asked by Joiner, on the day of the search, to assist the local police officers in the execution of the warrant.

The Bedford residence was one of two apartments located on the top floor of a three-story, four-unit apartment house. Prior to searching the premises the officers executing the warrant established a surveillance of the immediate surrounding area and observed Bedford leave the building and drive away. Bedford was followed and stopped by some of the officers and taken back to the apartment house.

Upon arrival, Joiner notified Mary Hughes, who had been looking out of a third-floor window, that they had a warrant to search her apartment and asked her to open the outer door of the apartment building which was secured by a buzzer/lock system. She agreed, and about five minutes later appeared at the door and admitted the officers into the building. Most of the officers proceeded upstairs to search the Bedford-Hughes apartment, where a large quantity of heroin was seized.

One of the federal officers, Special Agent Maffett, remained on the ground floor to secure the entranceway. While there, Maffett was approached by a tenant of the building and asked to place a trash bag in the trash area located in the common hallway behind the stairwell on the ground floor. With the tenant's permission, Maffett inspected this bag and found it contained refuse. He then deposited the bag in the trash area, where he examined other bags already left there. Search of the area and the bags resulted in the discovery by Maffett of three ounces of heroin and narcotics packaging paraphernalia.

The seized items were taken by the Pittsburgh police officers to be examined by local authorities for the purpose of establishing their contraband nature. Bedford was subsequently indicted by a state grand jury, but a pretrial motion to suppress was granted, and, inasmuch as the Commonwealth had no further evidence to present, an order was entered adjudicating him not guilty. Indictment by a federal grand jury followed, charging Bedford with a violation of the federal narcotics laws. See 21 U.S.C. § 841(a)(1).

II

When a warrant's validity is being examined for federal prosecutory purposes and the resulting search is "state" in character, the warrant need onlysatisfy federal constitutional requirements 1 rather than those of state law, which may involve stricter standards. Thus, even if the warrant did not comply with state law, evidence obtained from a subsequent search and seizure would not necessarily be inadmissible in a federal criminal trial. The test is whether the fourth amendment's imperatives have been observed. 2

(a) Particularity of the Warrant

Although neither party raised the issue of the warrant's particularity, we deem it necessary to comment briefly on this point since a state court previously held the warrant to be constitutionally defective for its failure adequately to specify the place to be searched.

While it is not entirely clear whether the state court relied on federal or state law as authority for its holding, we are not, in any event, bound by its decision. 3 "In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed." Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960).

Consonant with the fourth amendment's dictate that warrants particularly describe the place to be searched, a search warrant directed

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against an apartment house will usually be held invalid if it fails to describe the particular apartment to be searched with sufficient definiteness to preclude a search of other units located in the building and occupied by innocent persons. 4 However, "it is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended." Steele v. United States No. 1,267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925). "The standard . . . is one of practical accuracy rather than technical nicety." United States v. Gomez, 42 F.R.D. 347 (S.D.N.Y.1967). Accordingly, a warrant has been considered valid if it specifies the name of the occupant of the apartment against which it is directed, despite the absence of any physical description of the particular apartment. 5

The warrant at hand fits this exception to the general rule, and therefore is valid under federal constitutional standards. 6 It specified that the place to be searched was the "Residence of Myrel (sic) Bedford" located at "1723 Fifth Ave. being a 3 story brick dwelling." Thus, reasonably construing the warrant, the search of the building was restricted to defendant's residence. 7

(b) Staleness of the Warrant

The element of time can admittedly affect the validity of a search warrant. 8 Since it is upon allegation of presently existing facts that a warrant is issued, it is essential that it be executed promptly, "in order to lessen the possibility that the facts upon which probable cause was initially based do not become dissipated." 9 If the police were allowed to execute the warrant at leisure, the safeguard of judicial control over the search which the fourth amendment is intended to accomplish would be eviscerated. Thus, a search pursuant to a "stale" warrant is invalid.

It is generally accepted, however, that a warrant need only be executed within a reasonable time after its issuance, notwithstanding the presence of "forthwith" language in the warrant. 10 Timeliness of execution should not be determined by means of a mechanical test with regard to the number of days from issuance, nor whether any cause for delay was per se reasonable or unreasonable. Rather it should be functionally measured in terms of whether probable cause still existed at the time the warrant was executed. 11 "Only a probability of criminal activity is

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necessary for there to be probable cause," United States v. Gimelstob, 475 F.2d 157, 160 (3d Cir.), cert. denied, 414 U.S. 828, 94 S.Ct. 49, 38 L.Ed.2d 62 (1973), and since the record reveals that there was continuing probable cause on the day of the search, execution of the warrant was reasonable. 12

The district court below held that under either federal or state 13 law the warrant was invalid because of an unreasonable delay in its execution. As a basis for holding the warrant stale under federal law, the district court noted the lack of any reasonable cause for the delay and also indicated that under Rule 41(c) of the Federal Rules of Criminal Procedure 14 the execution of the warrant was improper. The court apparently did not consider whether there had been continuing probable cause as measured by federal constitutional law, which we believe is the appropriate inquiry under the facts presented.

In a number of cases involving prosecutions for federal narcotics offenses, courts have found that the...

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