U.S. v. Martin, 77-3453

• Decision Date: 20 August 1979
• Docket Number: No. 77-3453,77-3453
• Citation: 600 F.2d 1175
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Thomas W. MARTIN, III and Eva Joe Stancil, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1175

600 F.2d 1175

UNITED STATES of America, Plaintiff-Appellant, v. Thomas W. MARTIN, III and Eva Joe Stancil, Defendants-Appellees.

No. 77-3453.

United States Court of Appeals,

Fifth Circuit.

Aug. 20, 1979.

J. R. Brooks, U. S. Atty., Bill L. Barnett, Dayle E. Powell, Asst. U. S. Attys., Birmingham, Ala., for plaintiff-appellant.

Fred A. Erben, Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before COLEMAN, GEE and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This appeal presents a somewhat novel question of Fourth Amendment law. We must determine whether evidence seized by State officers under a State warrant issued to them by a State court is inadmissible in a Federal prosecution as a result of the State officers' failure to comply with a requirement of State law. We reverse in part and affirm in part the District Court's decision to suppress the evidence.

I.

The facts are not in dispute. ¹

On August 18, 1977, Sergeant J. Cameron Guy of the Birmingham Police Department appeared before a State judge of the District Court of Jefferson County, Alabama and executed an Affidavit requesting a search warrant. ² On the basis of this Affidavit, a State search warrant was issued directing any lawful officer of the County or State to search an apartment located outside the corporate limits of Birmingham, Alabama. ³ The search warrant was not directed to an officer of the Birmingham Police Department, a municipal law enforcement agency. The search warrant was executed by Sergeant Guy and others on the same day it was issued. Sergeant Guy was accompanied by two federal agents of the Drug Enforcement Agency and two additional officers of the Birmingham Police Department. Also present during the search were two Deputy Sheriffs from Jefferson County. At Sergeant Guy's request, the Deputies participated in the overall execution of the warrant. They helped secure the outside of the premises, and remained with the Appellees in one room of the apartment while the other law enforcement officers performed the physical search. The law enforcement officers executing the warrant found approximately fourteen pounds of marihuana, in various places inside the premises. The marihuana, several documents, a cassette tape recording, and a locked safe were seized. The safe was taken to the office of the Drug Enforcement Agency where it was opened in the presence of the federal and municipal officers, without the Deputy Sheriffs being present. To this extent, the search was not complete when the Deputy Sheriffs left the premises. The contents of the safe revealed approximately one hundred and thirty-eight grams of cocaine. There is no question that the search both on the premises and at the safe opening was conducted beyond the jurisdiction of the City of Birmingham and within the jurisdiction of Jefferson County. Sergeant Guy made the return on the search warrant in the State District Court of Jefferson County. The contraband was eventually turned over to federal officers. Our inquiry relates only to the marihuana and the safe.

On September 8, 1977, Appellees were indicted on three counts for conspiring to distribute cocaine, possessing cocaine with intent to distribute, and possessing marihuana with intent to distribute. 18 U.S.C.A. § 2; 21 U.S.C.A. § 841(a)(1). Appellees filed a motion to suppress the controlled substances seized during the search which was referred to a Magistrate. The Magistrate recommended, after a hearing, that the motion to suppress be denied. ⁴

The District Court rejected the Magistrate's recommendation. The District Court concluded that Alabama law authorized the execution of a search warrant "only by a sheriff, a deputy sheriff, a constable or some other person acting at the request of one of the aforementioned and in the presence of one of those persons." Since the District Court also concluded that Sergeant Guy did not satisfy any of these requirements, the evidence was suppressed. From the granting of Appellees' motion to suppress, the Government brings this appeal. 18 U.S.C.A. § 3731.

Our own analysis begins with a review of Alabama law. In Title 15, section 5-1, the Code of Alabama defines a search warrant as "an order in writing in the name of the state signed by a judge, or by a magistrate authorized by law to issue search warrants, And directed to the sheriff or to any constable of the county, commanding him to search for personal property and bring it before the court issuing the warrant." Ala. Code tit. 15, § 5-1 (1975) (emphasis added). The requirement that a search warrant be directed to a county law enforcement officer is twice more repeated in the Alabama statutes. The issuance of a search warrant is governed by Title 15, section 5-5 of the Alabama Code: "If the judge or magistrate is satisfied of the existence of the grounds of the application or that there is probable ground to believe their existence, he must issue a search warrant signed by him And directed to the sheriff or to any constable of the county, commanding him forthwith to search the person or place named for the property specified and to bring it before the court issuing the warrant." Ala. Code tit. 15, § 5-5 (1975) (emphasis added). Title 15, section 5-6 of the Alabama Code provides a form for search warrants which, in pertinent part, reads: "To the sheriff or any constable of .......... county." Ala. Code tit. 15, 5-6 (1975) (emphasis added). In addition to these statutory directives, the Alabama Code clearly identifies those who are authorized to execute a search warrant: "A search warrant may be executed By any one of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution." Code tit. 15, § 5-7 (1975) (emphasis added). Thus, the provisions of the Alabama Code which deal specifically with the question limit the issuance and execution of search warrants to county law enforcement officers. The search warrant involved here clearly complies with these requirements as it is directed to "ANY LAWFUL OFFICER OF SAID COUNTY AND SAID STATE." See note 3, Supra. Focusing on the face of this warrant, no issue may be taken with its lawfulness. ⁵ These statutes authorizing search warrants must be strictly construed. Both the issuance and the execution of warrants must strictly comply with the formalities prescribed by statute, including the specifics of authorization to execute search warrants. ⁶

The District Court and all the parties seem to agree that the execution of this search warrant by Sergeant Guy, a municipal officer only, was illegal under Alabama law. Of course, Sergeant Guy was not named on the search warrant ⁷ and is not generally authorized to execute search warrants under Title 15. As we shall explain, however, we believe that he was acting sufficiently at the requirement of the Deputy Sheriffs to allow the admission of some of the evidence in the federal trial. We do assume that Sergeant Guy had no authority of his own to execute a search warrant under Title 15. ⁸

This assumption begins our analysis of admissibility in the federal court.

This was not a federal search warrant issued by a state court. ⁹ Here, the search warrant was issued by a State judge pursuant to State law and was directed to a State officer. This was a State search warrant. Nevertheless, we are constrained by precedent to conclude that this was a federal search in its execution.

As we have noted, two federal agents of the Drug Enforcement Agency were invited to go along with Sergeant Guy. They met with the Deputy Sheriffs along the way and participated in the execution of this search warrant. The safe was removed to their office and opened. The contraband was eventually turned over to their custody. Federal charges ultimately were brought against Appellees. The Supreme Court has not directly addressed this federal/state cooperation issue since its decisions in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ("Silver Platter" Doctrine struck down) and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (exclusionary rule applied in state criminal prosecutions). However, this Court has had occasion to explain when the involvement of federal officers is sufficient to render the execution of the warrant a "federal search:"

The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter. The decisive factor . . . is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it. Where there is participation on the part of federal officers it is not necessary to consider what would be the result if the search had been conducted entirely by State officers.

Navarro v. United States, 400 F.2d 315, 317 (5th Cir. 1968), Quoting Lustig v. United States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949). Here the agents of the Drug Enforcement Agency participated in the execution of this warrant in their capacity as federal agents upon the possibility that something would be disclosed of official interest. This degree of federal involvement was more than sufficient to constitute this a federal search. Since this was a federal search then federal standards apply to its execution. ¹⁰

This is so despite the fact that there was an independent State ground for issuance and execution of the warrant. Still not, every procedural aspect...