875 F.2d 446 (5th Cir. 1989), 88-1803, United States v. Tedford

Docket Nº:88-1803.
Citation:875 F.2d 446
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles Richard TEDFORD, Defendant-Appellant.
Case Date:June 02, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 446

875 F.2d 446 (5th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles Richard TEDFORD, Defendant-Appellant.

No. 88-1803.

United States Court of Appeals, Fifth Circuit

June 2, 1989

Page 447

Jesse Carrillo, Austin, Tex., for defendant-appellant.

Dan Mills, Asst. U.S. Atty., Austin, Tex., LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before ALDISERT, [*] REAVLEY, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Charles Richard Tedford, a former police officer with the Texas Capitol Police Department, was convicted on two counts of possessing an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d). He appeals the trial court's refusal to suppress firearms seized during a search of a rented storage unit. Tedford alleges that the search was tainted by a prior nighttime search of his residence pursuant to a warrant issued without probable cause and without specific authorization to search at night as required by Fed.R.Crim.P. 41(c). He further denies that his consent to search the storage space was voluntary. We agree with the trial court that the officers relied in "good faith" upon the validity of the warrant to search Tedford's residence. We are persuaded that the search of Tedford's residence violated Rule 41(c), but we refuse on that ground to suppress the firearms seized during the later search of the storage unit. We also conclude that the trial court's finding of consent to search the storage unit was not clearly erroneous.

I

Federal and state officers participated in a joint investigation of Tedford. Deciding to seek a search warrant for his residence, they presented the affidavit of Harold O'Brien, a narcotics officer with the Texas Department of Public Safety to Texas State District Judge Jon Wisser. At approximately 11:00 p.m. on February 3, 1988, Judge Wisser authorized the search of Tedford's residence. Federal and state officers executed the search warrant at approximately 11:55 p.m. that evening. The search lasted approximately two hours, during which time Tedford was arrested for possession of a controlled substance. 1 Officers later confronted Tedford with a receipt for storage space seized during the search of his residence. Tedford signed a form consenting to a search of the storage unit. During this latter search, officers

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found a Russian sub-machine gun and a short-barreled shotgun.

The seized weapons led to Tedford's indictment on two counts of possession of an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d). Tedford moved to suppress the firearms. The district court denied the motion after an evidentiary hearing, finding the search of Tedford's residence lawful and Tedford's consent to the search of his storage unit voluntary. Tedford entered a conditional guilty plea pursuant to Fed.R.Crim.P. 11(a)(2), preserving his right to appeal the denial of his motion to suppress.

II

Tedford contends here that the trial court erred by refusing to suppress the firearms because (1) the state search warrant for his residence was not supported by probable cause; (2) the "good faith" exception to the exclusionary rule did not apply; (3) the nighttime search of his residence violated Fed.R.Crim.P. 41(c); and (4) his consent to search the storage unit was not voluntary.

  1. LEGALITY OF RESIDENTIAL SEARCH

    When federal officers participated in the joint search of Tedford's residence it became a "federal search" subject to the constraints of federal law. See, e.g., United States v. Comstock, 805 F.2d 1194, 1200-1205 (5th Cir.1986) (Rule 41 applicable to state search warrant executed by both state and federal officers), cert. denied, 481 U.S. 1022, 107 S.Ct. 1908, 95 L.Ed.2d 513 (1987); United States v. Hanson, 469 F.2d 1375, 1377 (5th Cir.1972) ("if a federal agent is invited to participate in a joint search with state officers, the legality of the search and the admissibility of the evidence seized in the search must be tested, in a federal prosecution, as if the search were exclusively federal") (citing Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927); Lustig v. United States, 338 U.S. 74, 79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949)). We therefore look to federal law to determine the legality of this search.

    1. Good Faith

    Tedford first argues that the search of his residence was unlawful because the search warrant was not supported by probable cause. He also contends that the "good faith" exception to the exclusionary rule adopted in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply because the officers did not rely in "good faith" upon that warrant. We decide the Fourth Amendment probable cause issue before considering the officers' "good faith" if its resolution would provide important guidance on Fourth Amendment limitations. United States v. Harper, 802 F.2d 115, 119 (5th Cir.1986) (citing Leon, 104 S.Ct. at 3422); United States v. Maggitt, 778 F.2d 1029, 1033 (5th Cir.1985), cert. denied, 476 U.S. 1184, 106 S.Ct. 2920, 91 L.Ed.2d 548 (1986). Tedford contends only that the underlying affidavits failed to provide sufficient factual support to establish probable cause for the warrant. Because this claim would be answered by well-settled Fourth Amendment principles, we proceed directly to...

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