U.S. v. Drake

• Decision Date: 31 July 1981
• Docket Number: No. 80-2327,80-2327
• Citation: 655 F.2d 1025
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Warren Dean DRAKE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1025

655 F.2d 1025

UNITED STATES of America, Plaintiff-Appellant, v. Warren Dean DRAKE, Defendant-Appellee.

No. 80-2327.

United States Court of Appeals Tenth Circuit.

Argued and Submitted July 15, 1981.

Decided July 31, 1981.

Marianne Wesson, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., with her on the brief), for plaintiff-appellant.

Stephen M. Munsinger, Denver, Colo. (Barbara L. Bader, Denver, Colo., with him on the brief) of Keene, Munsinger & Stuckey, Denver, Colo., for defendant-appellee.

Before McKAY and LOGAN, Circuit Judges, and BROWN, District Judge. ^*

LOGAN, Circuit Judge.

The United States appeals from a district court order dismissing an indictment against Warren Dean Drake, suppressing evidence, and ordering its return to defendant. Drake was charged with offering for sale and selling two American flamingos (phoenicopterus ruber) in violation of the Migratory Bird Treaty Act, specifically 16 U.S.C. §§ 703 and 707(b).

The issues on appeal are whether the trial judge erred in (1) dismissing the indictment as a sanction for violation of pretrial publicity guidelines, (2) suppressing use of the flamingos as evidence on the ground that wildlife officers did not serve an arrest warrant they held until after completing their purchase and taking possession of the birds, and (3) ordering the return of the flamingos, asserted to be contraband, to the defendant.

It appears undercover agents of the Fish and Wildlife Service contacted Drake in response to a magazine advertisement he had placed offering various birds for sale. The agents later visited Drake at his home and place of business near Royal Gorge in Colorado. At that time, the agents observed two flamingos on the premises and inquired as to their availability. After negotiations, Drake agreed to sell the flamingos for $2500. The agents gave Drake a $200 deposit and arranged to return October 2, 1980, to pay the balance and pick up the birds.

Upon their return to Denver, the agents contacted the United States Attorney's office and were advised to obtain an arrest warrant. A complaint was sworn before a magistrate and a warrant issued October 1, 1980. The following day, the agents returned to Drake's residence, taking with them the warrant and a cage for the birds. Instead of serving the warrant immediately, they helped Drake catch the flamingos and place them in the agents' van. After paying the remaining $2300 to Drake, the agents identified themselves and made the arrest. Drake was escorted to Denver, where he was arraigned and released on his own recognizance.

That afternoon a public relations officer of the wildlife service spoke with the agents concerning the arrest, then issued a press release by telephone to the local offices of the wire services. Stories on Drake's arrest appeared in newspapers in Drake's hometown, in the city where his parents reside, and at the college where Mrs. Drake's daughter attends school. A somewhat altered version of the first press release was distributed to the local media the following day.

Drake filed motions to suppress the flamingos as evidence on the ground that their seizure was improper without a search warrant. He also moved that the indictment be dismissed on grounds that the press release violated the guidelines of the Department of Justice, the local rules of court, and the Canons of Professional Responsibility and the attendant publicity had prejudiced his right to a fair trial. Following a hearing, the district court granted both motions and ordered the flamingos to be returned to Drake. The order for return was stayed to permit the government to bring a forfeiture action. The government then appealed pursuant to 18 U.S.C. § 3731.

I

Although Drake relied upon the due process clause of the Fifth Amendment and other grounds in support of his motion to dismiss, the trial court, relying on its supervisory powers to correct prosecutorial misconduct, dismissed the action "for failure to follow the rules of this Court for failure to follow the policies of the Justice Department with regard to the issuing of the press releases and pretrial publicity." R. Vol. IV, 3-4. By local rule the wrongdoing of the wildlife public relations official is attributed to the U.S. Attorney. District of Colo. Rules of Pract. 1(f).

No actual prejudice to a fair trial for Drake is shown by the misconduct. We believe this case is controlled by United States v. Morrison, --- U.S. ----, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), in which the Supreme Court held that dismissal based on a prosecutor's violation of a defendant's Sixth Amendment rights was improper.

"(A)bsent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate. This has been the result reached where a Fifth Amendment violation has occurred, and we have not suggested that searches and seizures contrary to the Fourth Amendment warrant dismissal of the indictment. The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression."

--- U.S. ---- - ----, 101 S.Ct. 668-69. Furthermore, the Court indicated in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), that a district court may not use its supervisory powers to achieve the same result.

II

The district court determined that the flamingos should be suppressed as evidence because the agents delayed the execution of the arrest warrant in order to complete the purchase and strengthen their case against Drake.

There is no requirement that an arrest warrant be executed immediately after its issuance; rather, the general rule is that, while execution should not be unreasonably delayed, law enforcement officers have a reasonable time in which to execute a warrant and need not arrest at the first opportunity. United States v. Joines, 258 F.2d 471, 472 (3d Cir.), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). See also United States v. Kelley, 395...