U.S. v. Harrington, 73-1986

• Decision Date: 11 October 1974
• Docket Number: No. 73-1986,73-1986
• Citation: 504 F.2d 130
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marion HARRINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 130

504 F.2d 130

UNITED STATES of America, Plaintiff-Appellee, v. Marion HARRINGTON, Defendant-Appellant.

No. 73-1986.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 9, 1974.

Decided Oct. 11, 1974.

Palmer K. Ward, Indianapolis, Ind., for defendant-appellant.

Stanley B. Miller, U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before SWYGERT, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit judges.

CUMMINGS, Circuit Judge.

In October 1972, a two-count indictment was returned against defendant. The first count charged that he unlawfully possessed 19 packages of heroin on September 18, 1972. The second count charged that on the same date he illegally possessed seven packages of cocaine. Both counts were based on 21 U.S.C. 841(a)(1). After a bench trial, defendant was found guilty as charged and received three-year concurrent sentences on each count, plus a special parole term of three years.

The sole question presented on appeal is whether defendant's motion to suppress the evidence described in the indictment should have been granted on the ground that the search warrant had not been obtained and served in compliance with Rule 41 of the Federal Rules of Criminal Procedure.

The testimony developed at the hearing on the motion to suppress showed that two Indianapolis, Indiana, police department officers had been assigned to the federal Drug Abuse Law Enforcement program ('DALE'). On September 18, they received information from two confidential informants that during the prior 48 hours defendant had been selling heroin and cocaine in apartment 21 at 962 Pennsylvania Street in Indianapolis.

Upon the affidavit of one of the police officers, Judge Valan S. Boring of the Municipal Court of Marion County, Indiana, issued a search warrant in the name of that state, directed to the superintendent and any member of the Indianapolis police force.

Agent Albert Cotton of the Indianapolis police department was in charge of the search party. Two other Indianapolis police officers and two agents of the Marion County, Indiana, Sheriff's department participated in the execution of the search warrant. These agents were also detailed to the DALE task force. Two federal employees, the chief investigator of DALE and an Assistant United States Attorney, were present during the search as observers.

The five participating agents arrived at the apartment in question about 9:00 p.m. on September 18. Since no one admitted them after they requested entry, they entered by force after waiting a few minutes. The apartment was empty. Only three agents actually participated in the search of the apartment, while the other two took up a watch at the front door of the building.

One of the Indianapolis policemen found 19 packages of heroin in the top drawer of a dresser in the bedroom. Thereupon, Minnie Jordan, who shared the apartment with the defendant, arrived home. The agents read the search warrant to her, allowed her to peruse it and told her that she could obtain a copy from the clerk of the state court. She was then apprised of her rights and placed under arrest.

One of the deputy sheriffs then found seven packages of cocaine concealed between the window sill and the air conditioner in the bedroom. Thereupon defendant and two others arrived at the apartment. As they had with Minnie Jordan, the agents read the search warrant to defendant, allowed him to peruse it and told him where he could obtain a copy. Defendant was told that narcotics had been found on the premises, was apprised of his rights and was placed under arrest. Defendant acknowledged to one of the agents that the drugs were his and requested that Miss Jordan not be arrested, but the agent refused this request. Both defendant and Miss Jordan were taken into custody and were booked and jailed at Indianapolis police department headquarters.

The narcotics in question were deposited in the property vault of the Indianapolis police department. On September 19, defendant and Miss Jordan were taken before the Municipal Court of Marion County, Indiana, for a preliminary hearing on the charge of violating the 1935 Indiana Narcotic Act, and bond was sent. A month later, these facts were presented to the federal grand jury that returned the present indictment.

The Government first contends that the search was conducted by local officials and was, therefore, a state undertaking, so that Rule 41 of the Federal Rules of Criminal Procedure was inapplicable. On the other hand, the chief investigator of DALE and an Assistant United States Attorney were present at the search as observers. Since the search ultimately resulted in a federal indictment and the state proceedings were dismissed when the federal indictment was returned, we will assume that this was a federal search, as did the Fifth Circuit under similar circumstances in United States v. Sellers, 483 F.2d 37, 42 (5th Cir. 1973), certiorari denied 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212.

Appellant cites Navarro v. United States, 400 F.2d 315 (5th Cir. 1968), in support of his contention that the court below erred in denying his motion to suppress. In Navarro, state and federal agents conducted a search, which the court held to be 'federal,' pursuant to a search warrant issued in a state court. The state court was not a court of record and, therefore, the search warrant failed to meet one of the requirements of Rule 41 as it then read. ¹ The court exercised its supervisory power and held that the evidence seized pursuant to the warrant should be suppressed. Here, however, the search warrant was issued by a judge in a court of record in accordance with the first requirement of Rule 41 of the Federal Rules of Criminal Procedure prior to its amendment. Therefore, the precise holding in Navarro is of no aid to defendant.

Furthermore, in Sellers the Fifth Circuit held that its decision in Navarro does not require the exclusion of evidence under the court's supervisory powers in every situation where a 'federal' search pursuant to a state search warrant fails to comply with all the requirements of Rule 41. In clarifying the holding in Navarro, the Fifth Circuit said:

'If, however, the warrant was issued under authority of state law then every requirement of Rule 41 is not a sine qua non to federal court use of the fruits of a search predicated on the warrant, even though federal officials participated in its procuration or execution. The products of a search conducted under the authority of a validly issued state warrant are lawfully obtained for federal prosecutorial purposes if that warrant satisfies constitutional requirements and does not contravene any Rule-embodied policy designed to protect the integrity of the federal courts or to govern the...