U.S. v. Stefanson

Decision Date28 August 1981
Docket NumberNo. 80-1624,80-1624
Citation648 F.2d 1231
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Bert Samuel STEFANSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Sanford Svetcov, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Ray Archuleta, San Francisco, Cal., for defendant-appellant.

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

Before TRASK and BOOCHEVER, Circuit Judges, and CURTIS, * District Judge.

CURTIS, District Judge:

Bert Samuel Stefanson appeals from a judgment of conviction for illegal possession of firearms 1 and an unregistered machine gun, 2 alleging that the district court erred in denying his motion to suppress evidence obtained from his person, his vehicle and his residence. Appellant argues that evidence taken from his person and vehicle should have been suppressed because the initial arrest was illegal; evidence The government urges us to affirm the judgment because substantial evidence supports the district court's judgments, both that probable cause existed to authorize the issuance of a telephonic search warrant, and that the appellant's arrest by California Park District Officers was valid under California law. We agree and consequently affirm both the district court's rulings and uphold the judgment of conviction.

taken from his residence should have been suppressed because the federal magistrate failed to comply with Rule 41, Federal Rules of Criminal Procedure, when granting a telephonic search warrant.

FACTS

On March 29, 1980, Officer McClain of the East Bay Regional Park District stopped and arrested appellant Stefanson for reckless or drunk driving on Highway 580 in Oakland, California, after observing him driving a pickup truck in excess of 80 miles per hour, weaving erratically from lane to lane. Following appellant's stop at 4:25 p. m., Officer McClain seized weapons and ammunition, which were in plain view, from appellant's person and his truck. While McClain removed two loaded .380 caliber pistols and an ammunition magazine containing twenty rounds from appellant's belt, Officer Spradlin spotted and seized a .380 caliber automatic pistol (machine gun) protruding from under the seat of appellant's truck.

Several hours later, ATF Agent William Bertolani made a telephonic application for a search warrant covering appellant's residence, relying both on evidence obtained from the traffic stop of Stefanson, and on facts drawn from appellant's criminal record. Magistrate Rothwell found probable cause to exist and authorized the search warrant, although he recorded only a portion of the telephone call because of problems with the recording device. The warrant issued at 9:45 p. m., and Stefanson's residence was searched at 10:10 p. m., a search in which agents seized two shotguns, ammunition and other contraband.

Two days after granting the search warrant, March 31, 1980, Magistrate Rothwell prepared a transcript of Bertolani's telephone call, using both the tape-recorded conversation, and his own memory. When the defense challenged the accuracy and validity of the magistrate's transcript, the parties obtained the original tape recording, listened to it, and a second transcript was prepared by the government which the defense stipulated was accurate. Briefly, the stipulated transcript shows the agent submitted the following facts in applying for the warrant:

1. That Agent Bertolani, who had sixteen years of experience, was part of a task force investigating the Hells Angels Motorcycle Club, and that Stefanson was one of thirty-two persons currently on trial as a result of that investigation.

2. That on June 13, 1979, Stefanson was indicted and his residence was searched pursuant to a warrant; that his wife Charlene was present and was arrested when an automatic pistol (machine gun) and some drugs were found.

3. That Stefanson had prior felony convictions in 1973 for both firearm, explosives and drug offenses.

4. That on March 21, 1980, eight days before the warrant application, shots were fired near Stefanson's residence; and that Stefanson, thereafter, came out of the residence and entered a car; and that the car was stopped and both Stefanson and his wife were inside.

5. That on March 29, 1980, earlier the same day as the warrant application, Stefanson was stopped in his car for reckless or drunk driving while driving 80 miles per hour in an erratic manner; and that two loaded pistols, a machine gun and an ammunition belt for the machine gun; and that each weapon seized from Stefanson was manufactured outside California and firearm records showed that no guns were registered to him; and that one of the guns had its serial number obliterated by drilling; and that Stefanson left a plastic bag with fourteen "seconal" capsules in the backseat of the police car after his arrest.

6. That in Agent Bertolani's experience, persons who have firearms also keep ammunition, parts and holsters in their residences; and that in Bertolani's experience, persons who possess drugs often keep drug paraphernalia, along with their main supply of drugs at their residences. 3

Because of the alleged defects in the magistrate's transcript, an evidentiary hearing was held. Magistrate Rothwell testified that on March 29, 1980, shortly before 10:00 p. m., Agent Bertolani telephoned him at home for a search warrant. The magistrate then testified that while he did not have a current copy of Rule 41 available, nor was he familiar with its contents regarding telephonic applications, he, nevertheless, was aware generally that the application was to be recorded and later transcribed. He specifically recalled the call, and that Agent Bertolani declared the truth of his statements under penalty of perjury. The declaration of oath was not recorded on the tape, possibly because of machine failure, or because of accidental erasure when the magistrate replayed the call for himself. However, the magistrate specifically recalled the declaration occurring at the end of the call, but only noted its absence from the tape during subsequent transcription two days later. 4 Magistrate Rothwell testified that he did not put Agent Bertolani under oath at the beginning of the conversation, admitting he was not aware that Rule 41 so required; however, he testified he did not intentionally disregard it. Magistrate Rothwell confirmed in his transcript that he attributed to Agent Bertolani the statement about a need for nighttime service due to destruction of evidence, because the agent verified as much by stating "yes" in response to the magistrate's inquiry about it.

Appellant's motion to suppress evidence obtained both from the search of the truck and his residence was denied after holding an evidentiary hearing. Thereafter, Stefanson pled guilty to Count 1 (felon in possession of two loaded pistols found on his person during the truck stop). During trial on Count 2 (possession of an unregistered machine gun), the machine gun found in Stefanson's car and the ammunition magazine for it found on his person were introduced into evidence. In addition, the shotguns found in the master bedroom of Stefanson's home were introduced in support of Count 3 (felon in possession of two shotguns). Corroborative evidence in the form of ammunition found in the residence was also presented. The jury convicted appellant on Counts 2 and 3, and appellant appeals therefrom.

DISCUSSION

1. Validity of telephonic search warrant.

We first examine the issue of whether the search warrant was valid despite certain noncompliances with Rule 41. Appellant alleges that the process by which Agent Bertolani secured the telephonic search warrant violated Rule 41 because Magistrate Rothwell failed to place Agent Bertolani under oath before accepting testimony from him. Furthermore, appellant alleges that the magistrate failed to record the oath altogether. Consequently, he contends that all evidence seized thereunder should have been suppressed by the district court. This argument is unsupportable on the facts and the law.

Rule 41(c)(2)(D) states:

When a caller informs the Federal magistrate that the purpose of the call is to request a warrant, the Federal magistrate shall immediately place under oath each person whose testimony forms a basis of the application and each person applying for that warrant. If a voice recording device is available, the Federal magistrate shall record by means of such Only one case directly supports appellant's rather technical reading of this rule. United States v. Shorter, 600 F.2d 585 (6th Cir. 1979). Here the sixth circuit reversed the trial court's denial of a motion to suppress evidence secured by a telephonic search warrant because the oath was given after the oral information, rather than immediately before it. We, in the ninth circuit, however, do not follow this construction of Rule 41, but, instead, have adopted the standard which declares that unless a clear constitutional violation occurs, noncompliance with Rule 41 requires suppression of evidence only where,

device all of the call after the caller informs the Federal magistrate that the purpose of the call is to request a warrant. Otherwise a stenographic or longhand verbatim record shall be made. If a voice recording device is used or a stenographic record made, the Federal magistrate shall have the record transcribed, shall certify the accuracy of the transcription, and shall file a copy of the original record and the transcription with the court. If a longhand verbatim record is made, the Federal magistrate shall file a copy with the court. (Emphasis added.)

(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...

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