U.S. v. Bookout, 86-1461
| Decision Date | 03 February 1987 |
| Docket Number | No. 86-1461,86-1461 |
| Citation | 810 F.2d 965 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Charles Patrick BOOKOUT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Vince D'Angelo, Albuquerque, N.M., for defendant-appellant.
Stanley K. Kotovsky, Asst. U.S. Atty. (William L. Lutz, U.S. Atty. and Larry Gomez, Asst. U.S. Atty., on the brief), Albuquerque, N.M., for plaintiff-appellee.
Before LOGAN and ANDERSON, Circuit Judges, and SAFFELS, District Judge. *
Defendant, Charles Patrick Bookout, appeals from his conviction on a contingent guilty plea to possession of marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841, and aiding and abetting, in violation of 18 U.S.C. Sec. 2. On appeal, he argues that because a search warrant was obtained from a state judge who was not "a judge of a court of record" as required by Fed.R.Crim.P. 41(a), the evidence seized in a search of his residence pursuant to the warrant must be suppressed.
The search and seizure at issue resulted from an elaborate surveillance operation initiated by U.S. Customs officers in a drug-smuggling investigation. The operation was carried out with the assistance of New Mexico state law enforcement officers. On August 17, 1984, a Customs officer observed boxes being loaded into a travel trailer attached to a pickup truck at defendant's New Mexico residence. Federal Customs officers and state police officers followed the truck and trailer to Oklahoma City, Oklahoma, where they contacted Oklahoma state law enforcement officers. Oklahoma officers stopped the truck for a traffic violation in the early hours of August 19; smelling the odor of marijuana they searched the trailer, seized about 600 pounds of marijuana, and arrested the driver, who was defendant's brother.
A Customs officer testified at the hearing on defendant's motion to suppress that he had briefed New Mexico officers who were with him in Oklahoma City on the facts and circumstances of the investigation, seizure and arrest. One of these New Mexico police officers then called his supervisor, David Velarde, in New Mexico to arrange a search of defendant's residence. Velarde prepared an affidavit alleging violation of New Mexico and United States controlled substance laws and secured a search warrant from a state magistrate.
Solely with the assistance of state and local law enforcement officers, Velarde maintained surveillance of the residence until the state magistrate issued the warrant, and then executed the warrant by searching defendant's residence. Return of the search warrant was made to the state magistrate; custody of evidence seized in the search was maintained by state police agents, who filed a state criminal complaint against defendant charging various state drug offenses. The federal criminal indictment underlying the conviction now on appeal was issued a little more than a year later.
Defendant asserts that the search of his residence was the result of a joint federal and state undertaking, and was therefore a "federal search," subject to the requirements of Fed.R.Crim.P. 41. Because the warrant was not issued by a federal magistrate or the judge of a state court of record, as required by the federal rule, he contends that the evidence is inadmissible. The government counters that the search was strictly a state undertaking, asserting that as soon as the investigation established that the illegal operation involved transporting marijuana within the United States rather than smuggling marijuana into the United States, the Customs Service properly referred the case to state and local authorities, first in Oklahoma, and then in New Mexico. Because it was a state search, the government contends, with no federal officers participating in the application for the warrant or the search itself, the requirements of Rule 41(a) need not be met before permitting the use of the fruits of the search in federal court.
The factual record before us is not in dispute. The issue is the characterization of that record as a matter of law. Defendant does not suggest that the search did not conform to constitutional or state law requirements, or that there was any deliberate disregard of or intent to flout Fed.R.Crim.P. 41. The rule of law we...
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