U.S. v. Towne

Decision Date18 June 1993
Docket NumberNo. 91-10562,91-10562
Citation997 F.2d 537
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Arthur Theodore TOWNE; Dane Joseph Treiber, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Miguel Rodriguez, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellant.

Dale A. Drozd, Blackmon & Drozd, Sacramento, CA, for defendants-appellees.

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

Before: CHOY, NOONAN, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We confront the metaphysical question, what is a search warrant? In more prosaic terms, we must decide whether a search warrant may be comprised of pieces of paper that are not physically attached to each other.

I

On May 27, 1990, Sutter County Municipal State Court Judge Robert Damron issued a search warrant for the residence of Dane Treiber ("Treiber"). The warrant was executed by California state law enforcement personnel, who discovered evidence of drug manufacturing and trafficking on the premises, including a working methamphetamine laboratory and marijuana grow room. A federal grand jury indicted Treiber and Arthur Towne ("Towne") on charges related to the manufacture, possession, and distribution of methamphetamine. The grand jury also indicted Treiber for manufacturing marijuana.

Treiber and Towne moved to suppress the fruits of the search of Treiber's residence on the ground that the search warrant was insufficiently particular because it contained no description of what the executing officers were to search for and seize. In the space reserved for such a description on the search warrant application, Officer John Buckland had typed: "See Attachment B." However, when the state municipal court file was certified to the federal district court, the search warrant contained therein had no such attachment.

In opposing the suppression motion, the government pointed out that the municipal court file did contain Officer Buckland's affidavit in support of the warrant application, and that this affidavit did have an Attachment B. The government submitted the declaration of Officer Buckland, who attested that Attachment B to the affidavit "was identical to, and the same as, Attachment B to the search warrant." Officer Buckland's declaration further stated that a copy of Attachment B had "accompanied" the search warrant at the time it was presented for authorization. To confirm this, the government submitted the declaration of Judge Damron, who stated that the search warrant presented to him by Officer Buckland "included an Attachment B to the search warrant." Judge Damron further attested that in issuing the warrant he "did not vary" from his general practice of "insur[ing] that all attachments are present and are reviewed at the time" of issuance. Neither declaration, however, stated that Attachment B was physically affixed to the search warrant presented to Judge Damron.

The district court refused to consider the proffered declarations, and granted appellees' motion. The court stated that "for the purpose of hearings on motions to suppress held in this court, the contents of the [state] municipal court file define the contents of the warrant at the time it was signed by the magistrate and extrinsic evidence is inadmissible in this court for the purpose of impeaching the municipal court's file." The court then held that, since the search warrant contained in the municipal court's file described the items to be searched for and seized by reference to a nonexistent Attachment B, it was necessarily overbroad. By the same token, the warrant's facial overbreadth was deemed "so pronounced as to preclude reasonable reliance" by the executing officers, thus removing it from the ambit of the good faith exception to the exclusionary rule.

A motion was then brought in the California municipal court asking that its record be revised or corrected to reflect that Attachment B was part of the search warrant as issued. The motion was heard by Judge Damron, who refused to alter the state court record. The district court subsequently denied the government's motion to reconsider its suppression ruling. The government now appeals.

II

We turn first to the question whether the district court should have considered the affidavits submitted by the government in support of its contention that Attachment B was part of the search warrant.

A

The court's conclusion that the affidavits could not be considered rested primarily on the proposition that "the contents of an official court record cannot be impeached in the absence of fraud." The court reasoned that, since Attachment B was not included with the copy of the search warrant contained in the municipal court file, to allow the government to attempt to prove that the attachment was included with the copy of the search warrant presented to Judge Damron would countenance "impeachment" of the state court record. This reasoning is unsound.

Simply put, the cases cited for the "no impeachment" rule relied upon by the district court, Baker v. Ellis, 204 F.2d 353 (5th Cir.1953), and Wagner v. Hunter, 161 F.2d 601 (10th Cir.), cert. denied, 332 U.S. 776, 68 S.Ct. 39, 92 L.Ed. 361 (1947), have no application under the facts at hand. The rule for which these cases stand 1 comes into play only when an attempt is made in a collateral proceeding to contradict the truth of something that is affirmatively shown by an official court record. See Riddle v. Dyche, 262 U.S. 333, 336, 43 S.Ct. 555, 556, 67 L.Ed. 1009 (1923) ("The power to inquire into facts outside the record, allowed under some circumstances, cannot be extended to such as are inconsistent with the record."); see also Brainerd v. Beal, 498 F.2d 901, 902 (7th Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 664 (1974); Chick v. Wingo, 387 F.2d 330, 330-31 (6th Cir.1967).

Here, the municipal court file does not "affirmatively show" that the issuing judge was not presented with an Attachment B to the search warrant, or that the executing officers did not rely on Attachment B in conducting the search. The file, containing as it does a search warrant without an attachment, at best permits an inference that no attachment was present at the relevant times. Extrinsic evidence tending to invalidate that inference would not contradict the state court record itself.

Appellees have alleged that they were the victims of an unreasonable search. Whether this allegation has merit turns on the underlying facts, not whether the state court record fails to reflect those facts. The "assertion of a violation of rights guaranteed ... by the Constitution of the United States occasions an inquiry into the factual question" relevant to that assertion of rights, "and we are only incidentally concerned with the subordinate question of whether or not the primary fact [viz., what the search warrant authorized] was properly recorded in the records of the [issuing] court. The records of that court should receive our great respect and proper deference, but being silent on the subject of our concern, they do not necessarily foreclose our further inquiry." Bradley v. Smith, 255 F.2d 45, 47 (4th Cir.1958). The district court therefore erred in refusing the government's affidavits on the basis of the "no impeachment" rule.

B

The district court gave two other reasons for refusing to consider the affidavits proffered by the government. First, the court cited "federalism concerns," noting that to accept Judge Damron's affidavit might necessitate his testifying at an evidentiary hearing, and suggesting that there could be "no greater affront to the relationship between state and federal courts than to permit a party to haul a judge of the state court before this court for the purpose of testing his credibility." 2

No authority has been cited either by the court or by the appellees to support the idea that this is, under the circumstances, a valid concern. The government, meanwhile, cites a few of the many cases in which affidavits and live testimony have been elicited from state judges in federal proceedings. See United States v. Piver, 899 F.2d 881, 883 (9th Cir.1990); see also Weidner v. Thieret, 932 F.2d 626, 632-33 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 883, 116 L.Ed.2d 786 (1992); United States v. Massey, 687 F.2d 1348, 1356 (10th Cir.1982); Thorne v. United States, 406 F.2d 995, 997 (8th Cir.1969). Presumably, the risk of an "affront" to the state-federal relationship was at least as strong in those cases as here. At bottom, we do not believe that the possibility that a state judicial officer will be called upon to confirm and perhaps to explain at an evidentiary hearing matters to which he has already sworn on penalty of perjury should prevent his affidavit from being considered by a federal court.

The second supporting reason advanced by the district court for refusing the affidavits rested on the full faith and credit statute, 28 U.S.C. § 1738, which requires that state court records be given "the same full faith and credit in every court of the United States ... as they have by law or usage in the courts of the State ... from which they are taken." The court deemed it "appropriate" in light of this provision to "refuse to entertain a suggestion that a state court's records are inaccurate."

The fundamental problem with this reasoning is that the full faith and credit statute does not authorize a federal court to determine what constitutes an "appropriate" attitude toward a state court's file. Rather, the statute mandates that an official record be accorded the same treatment in federal court that it would be given in the courts of the state from which it comes. If the statute was implicated at all on these facts, the question the district court was bound to ask is what sort of "credit" this record would have been given in California state court if...

To continue reading

Request your trial
84 cases
  • US v. Gantt
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 7, 1999
    ...affidavit did not accompany warrant "Van Damme could look at no document specifying what the officers could take."); United States v. Towne, 997 F.2d 537, 545 (9th Cir.1993); United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986) (one purpose of "accompany" requirement is to "inform the......
  • State v. Kleypas
    • United States
    • Kansas Supreme Court
    • December 28, 2001
    ...1982); U. S. v. Gahagan, 865 F.2d 1490, 1496-98 (6th Cir. 1989); U. S. v. Tagbering, 985 F.2d 946, 950 (8th Cir. 1993); U. S. v. Towne, 997 F.2d 537, 548 (9th Cir. 1993); United States v. Wuagneux, 683 F.2d 1343, 1351 n.6 (11th Cir. 1982); U. S. v. Maxwell, 920 F.2d 1025, 1031-32 (D.C. Cir ......
  • United States v. Manafort
    • United States
    • U.S. District Court — District of Columbia
    • June 21, 2018
    ...that the scope of the warrant be limited by the probable cause on which the warrant is based." Id. , quoting United States v. Towne, 997 F.2d 537, 544 (9th Cir.1993). Defendant challenges the search warrant on both grounds. Def.'s Mot. at 14–20.A. The search warrant was particularized. Sear......
  • Baranski v. Fifteen Unknown Agents
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 3, 2006
    ...States v. Jones, 54 F.3d 1285, 1290 (7th Cir.1995); United States v. Bianco, 998 F.2d 1112, 1116-17 (2d Cir. 1993); United States v. Towne, 997 F.2d 537, 544 (9th Cir.1993); United States v. Washington, 852 F.2d 803, 805 (4th Cir. 1988); United States v. Vaughn, 830 F.2d 1185, 1186 (D.C.Cir......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT