U.S. v. Johnson

• Decision Date: 14 July 1980
• Docket Number: No. 79-1358,79-1358
• Citation: 641 F.2d 652
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas Ellis JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 652

641 F.2d 652

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Ellis JOHNSON, Defendant-Appellant.

No. 79-1358.

United States Court of Appeals, Ninth Circuit.

July 14, 1980.

As Amended on Denial of Rehearing and Rehearing En Banc Jan. 7, 1981.

Michael D. Stein, San Diego, Cal., for defendant-appellant.

Bruce R. Castetter, Asst. U. S. Atty., Michael H. Walsh, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

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

Before CHOY, ANDERSON and PREGERSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Johnson appeals his conviction on one count of conspiracy to possess a controlled substance, in violation of 21 U.S.C. § 846, and on one count of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The sole error which Johnson raises on appeal is the trial court's denial of his motion to suppress certain items seized at his home. We affirm.

I. BACKGROUND

On September 13, 1978, Special Agent Terry Lucchesi, a San Diego police officer who was assigned to the San Diego Narcotic Task Force, contacted Assistant United States Attorney Stephen Peterson and asked permission to obtain a federal search warrant to search a residence located at 2405 Old Colony Road, Vista, California. Mr. Peterson then contacted United States Magistrate Edward A. Infante to request a telephonic search warrant. Magistrate Infante asked Mr. Peterson where he could get in touch with Agent Lucchesi, and then called Agent Lucchesi at a public telephone. Agent Lucchesi recited the facts which he felt gave rise to probable cause to search the residence, and was sworn immediately after giving the oral affidavit. Agent Lucchesi filled out the duplicate original warrant and signed Magistrate Infante's name, as instructed. The house described in the warrant was the residence of Johnson.

We set out Agent Lucchesi's oral affidavit in its entirety in the margin. ¹ The pertinent facts may be summarized as follows: Agent Lucchesi had been in contact with an unnamed confidential informant who had spoken with a person named Candy Bates. On September 2, the informant had gone to Bates' Bellflower, California, residence, where she had told the informant that two pounds of cocaine could be obtained from Linda Sue Spiking. According to Bates, Spiking lived somewhere near San Juan Capistrano, and had kept as many as five pounds of cocaine in a safe at her residence. The next evening, the informant met with Bates and Spiking again at Bates' Bellflower residence, where the informant observed what appeared to be two one-ounce packages of cocaine on her dresser. During that meeting, Spiking gave the informant a sample of cocaine, and told him to go through Bates for any immediate purchases. On September 11, the informant, accompanied by an undercover agent posing as a buyer, met with Bates at the informant's residence and discussed the proposed transaction. Bates then left the informant's residence under surveillance and met with Spiking and an unidentified couple at a restaurant. After a short conversation, Bates and Spiking took their purses and went to the women's restroom. After they returned to the booth, they and the unidentified couple left the restaurant and entered a car. The car drove a short distance, parked, and surveilling agents saw the dome light come on. The agents "surmised" that a drug transaction took place. Bates returned to the informant's residence with one ounce of cocaine, which the undercover agent purchased. Spiking was followed by agents to her residence in Vista. On September 13, the informant again met with Bates at the informant's residence. The undercover agent arrived, and attempted to negotiate further for two ounces. Bates made several telephone calls, including one in which she asked, "Doug, is Sue there?" Negotiations between the agent-buyer and Bates finally broke off. Independent surveillance of Spiking's residence at 2405 Old Colony Road in Vista established that Spiking's car had been parked in the driveway at the time that Bates was making the telephone calls. Johnson's car was also parked at the Vista residence at the same time. Johnson was apparently residing with Spiking at the time.

The subsequent search of the Vista residence uncovered cocaine and various pieces of drug paraphernalia. Both Johnson and Spiking were convicted following a bench trial on stipulated facts.

II. ISSUES ON APPEAL

Johnson argues on appeal that the warrant authorizing the search of the 2405 Old Colony Road residence was defective in two respects:

(1) The circumstances of the issuance of the warrant violated Fed.R.Crim.P. 41;

(2) The affidavit did not establish probable cause to search the residence.

III. RULE 41 VIOLATIONS

Fed.R.Crim.P. 41 outlines the procedure to be followed in the issuance and execution of federal search warrants. Johnson argues in essence that Rule 41 was twice violated in this case. The first alleged error arose when Agent Lucchesi, a state officer, was allowed to apply for the warrant. The second occurred when the magistrate did not administer an oath to Agent Lucchesi until after he had given the oral affidavit.

Rule 41(a) specifies that a search warrant may be issued "upon request of a federal law enforcement officer or an attorney for the government." Johnson contends that Agent Lucchesi was not a person authorized to "request" a warrant under Rule 41. The government does not contend that Agent Lucchesi's status as a member of the San Diego Narcotics Task Force, a joint force composed of Drug Enforcement Administration agents and members of San Diego's local police department, conferred upon him the status of a "federal law enforcement officer." Therefore, if we find that Agent Lucchesi was, as a matter of law, the person who "requested" the warrant, then we must find that Rule 41 was violated.

We are not persuaded, however, that Agent Lucchesi was the "requestor" in this instance. According to the affidavit of Assistant United States Attorney Peterson, it was he who made the initial telephone call to Magistrate Infante to request the warrant. Magistrate Infante declined to allow him to participate in the conversation with Agent Lucchesi. Rule 41 sanctions a procedure under which a witness other than the requestor may supply the facts necessary to satisfy the probable cause requirement. See Notes of Advisory Committee on Rules, 1977 Amendment. ² In this case, we find that even though Agent Lucchesi supplied the oral probable cause affidavit, the warrant was requested by Mr. Peterson. The trial judge so found and we agree.

A finding that Mr. Peterson requested the warrant, however, does not end our inquiry. As Johnson rightly points out, to find that Mr. Peterson "requested" the warrant is to find that a number of other violations of Rule 41 occurred. Rule 41(c)(2)(B) provides that "(t)he person who is requesting the warrant shall prepare a document to be known as a duplicate original warrant and shall read such duplicate original warrant, verbatim, to the Federal magistrate." In this case, it was Agent Lucchesi who prepared and read the duplicate original, and not Mr. Peterson. Rule 41(c)(2)(C) provides that, upon determining that grounds to issue the warrant exist, the federal magistrate shall then direct the person requesting the warrant to sign the magistrate's name on the duplicate original warrant. Again, it was Agent Lucchesi who signed the duplicate original, and not the requestor, Mr. Peterson. Rule 41(c)(2)(D) requires that when a caller informs the magistrate that the purpose of the call is to request a telephone search warrant, the magistrate " . . . shall immediately place under oath such person whose testimony forms a basis of the application and each person applying for the warrant." Mr. Peterson was not placed under oath when he called to request the warrant. However, he was not a person giving testimony in support of the warrant. The failure to place Mr. Peterson under oath harmed no one and would have been a useless gesture. Rule 41(c)(2)(D) further requires that the magistrate record all of the call after the caller informs the magistrate that a search warrant is requested. The call from Mr. Peterson was not recorded, at least insofar as this record discloses.

In all, therefore, the procedure used here entailed no less than four technical violations of the telephonic search warrant procedure described by Rule 41(c)(2). We are not convinced, however, that these violations required suppression. A violation of Rule 41 is not "fundamental" unless it also involves a constitutional violation. See United States v. Vasser, 648 F.2d 507 (9th Cir. 1980) "Non-fundamental" noncompliance with Rule 41 requires suppression only if (1) there was "prejudice" in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of the Rule. Vasser, supra; United States v. Radlick, 581 F.2d 225, 228 (9th Cir. 1978).

In this case, no constitutional violation tainted the warrant. Consequently, we test the validity of the procedure under the standards for "non-fundamental" noncompliance. We conclude that suppression was not required.

At every step, the spirit of Rule 41 met with full compliance. A duplicate original was properly prepared, and signed by proxy as the Rule requires. A full account of the probable cause affidavit was recorded and preserved for later examination. Agent Lucchesi was sworn as a witness, albeit after the giving of the affidavit. See infra. There is nothing to indicate that the warrant would not have been issued had the magistrate insisted that the procedure fully comply with Rule 41. Mr. Peterson could certainly have filled out the duplicate original and signed it. The only differences of any substance between the ...