U.S. v. Mendel
| Decision Date | 28 June 1978 |
| Docket Number | No. 77-1421,77-1421 |
| Citation | 578 F.2d 668 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Ronald Steven MENDEL, Kerry Lowell Gress and Elizabeth Reeves, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William A. Barnett, Jr., Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellant.
Daniel K. Webb, Nancy Schaefer, Chicago, Ill., for defendants-appellees.
Before SPRECHER and TONE, Circuit Judges, and JAMESON, Senior District Judge. *
The government appeals under 18 U.S.C. § 3731 from an order of the District Court suppressing evidence seized pursuant to a search warrant. The ground for suppression was that the affidavit for a search warrant was insufficient, because, instead of reciting within its four corners the facts constituting probable cause, it incorporated those facts by reference to a tape recording of oral statements made under oath before the issuing magistrate. We hold the affidavit sufficient and reverse the order.
For approximately one week before September 28, 1976, agents of the Drug Enforcement Administration carried on an investigation that eventually led them to believe the coach house at 1910 North Mohawk, Chicago, Illinois, was being used for the unlawful manufacture of the controlled substance methamphetamine. Commencing at about 11:00 A.M. that day several agents maintained a continuous surveillance of the coach house. By about 3:20 P.M. they concluded that probable cause existed for obtaining a warrant. They knew from their earlier investigation and from their surveillance that day that quantities of chemicals used in manufacturing methamphetamine had been brought to the subject premises. They smelled ether, which appeared to be emanating from the coach house, indicating to them that the process of manufacturing methamphetamine was in its last stages and that therefore a search should be made promptly if they were to obtain evidence of manufacture.
At about 4:30 P.M. one or more of the agents appeared at the office of the United States Attorney and sought assistance in obtaining a search warrant. An Assistant United States Attorney, using a printed form entitled "Affidavit for Search Warrant," prepared an affidavit to be executed by Special Agent Richard L. Ripley. The document recited that the affiant had reason to believe that on the subject premises, which were carefully identified and described, were concealed certain articles that were means, instrumentalities, fruits, and evidence of the crime, which was also described. After the printed words, "And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows," the words "(SEE ATTACHED AFFIDAVIT)" were typed but then crossed out by hand, and in their place the words, "Tape to be typed later and attached," were written in by hand.
At 9:00 P.M. that evening the Assistant United States Attorney, Agent Ripley, another DEA agent, and a DEA chemist took the unsigned affidavit and a tape recorder to United States Magistrate James T. Balog at his home in Chicago. With the tape recorder operating, Agent Ripley was sworn and then proceeded to state in considerable detail the facts upon which he based his belief of probable cause. His statement was interrupted several times by questions from the Assistant United States Attorney and the magistrate. At the conclusion of the presentation, the magistrate announced that he was satisfied as to probable cause and that he would issue the warrant. The time was announced to be 9:24 P.M. The recorder was turned off at this point and then within a minute turned back on to record a discussion about when the search would be conducted. 1 After hearing why there was good reason to delay the search until after the defendants, who had left the premises, returned, 2 the magistrate announced that he would authorize the search after 10:00 P.M. provided it was conducted within one hour after the defendants' return. Sometime during the proceedings, Agent Ripley signed the affidavit form under oath. The magistrate issued the search warrant. Later, the proceedings recorded on the tape were transcribed, and the magistrate certified to the accuracy of the transcript.
The agents executed the search warrant, seized the subject articles, and arrested the defendants, who were later indicted for offenses under the controlled substance law, 21 U.S.C. §§ 841(a)(1) and 846.
The defendants moved to suppress the evidence on the ground that the procedure by which the warrant was obtained had not complied with Rule 41(c), Fed.R.Crim.P., 3 and in particular the first sentence of that rule, which provides as follows:
A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant.
The asserted defect was that the sworn statement of probable cause was not set out in the affidavit itself. The District Court suppressed the evidence on that ground. 4 This appeal followed.
We believe the District Court's reading of the rule was unduly narrow, and that the recording of the sworn statement made before the magistrate was properly incorporated by reference into the affidavit and made a part of it. Whatever the situation before the 1972 amendment to Rule 41(c), 5 that amendment evidences an intention that a recorded sworn oral statement by the affiant made in the presence of the magistrate should be considered as a part of the affidavit. The fourth sentence of Rule 41(c)(1), added by the 1972 amendment, states as follows:
Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witness he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit.
Thus the magistrate may consider sworn oral testimony in determining whether the grounds for issuing a warrant exist. The only reason that the procedure employed in the case at bar arguably was not expressly authorized by the sentence just quoted is that the text of the affidavit itself, although it described the place to be searched, the articles to be seized, and the crime suspected, did not state any of the facts showing probable cause, except by reference to the tape, and left all those facts to be supplied by the oral statement. The rule's first sentence, which says the "affidavit" must establish "the grounds for issuing the warrant," is heavily relied upon. Yet if some but not all of those facts had appeared in the text of the affidavit and the others only on the tape, there would be no doubt that the rule was complied with; for otherwise the procedure authorized by the fourth sentence would be superfluous. We think the rule contemplates that in either case the recording, when incorporated by reference, is to be considered a part of the affidavit. 6
The words "such proceeding shall be taken down by . . . recording equipment and made part of the affidavit" cannot reasonably be interpreted to require that a transcript of the proceeding be physically incorporated into the body of the affidavit before the instrument is subscribed and sworn to. That procedure would require that the issuance of the warrant await the preparation of a transcript of the proceeding and the revision, retyping, resubscribing, and reverification of the affidavit. It is inconceivable that such a time-consuming, cumbersome, and pointless procedure was intended, especially in view of the likelihood that time will be of the essence when a search warrant is being sought.
The defendants, reasoning from the premise that the warrant was issued without an affidavit that showed grounds for probable cause, argue that such a practice was not authorized at all until the 1977 addition of paragraph (2) to Rule 41(c), and then only if based on a telephonic sworn statement. 7 We do not accept the premise, for the reasons we have already stated. We find nothing that alters our interpretation of Rule 41(c) in the 1977 amendment itself or in the House hearings leading to that amendment, to which the defendants also refer us, Proposed Amendments to the Federal Rules of Criminal Procedure, Hearings before Subcommittee on Criminal Justice of the Committee on Judiciary, House of Representatives, 95th Cong., 1st Sess. (1977) and Hearings Before Subcommittee on Criminal Justice of the Committee on the Judiciary, House of Representatives on H.R. 5865, 95th Cong., 1st Sess. (1977).
It is also argued that requiring the text of the written affidavit to include a written recital of the grounds for belief of probable cause is somehow more likely to assure a carefully considered decision by the magistrate. We disagree. The law generally prefers spontaneous oral testimony to a written affidavit. An affidavit, which can be and often is prepared by someone other than the affiant, is less likely to reflect fairly and accurately the affiant's own recollection or perception than is spontaneous oral testimony. Moreover, oral presentation makes it possible for the magistrate to explore any points not adequately covered or left ambiguous by the witness' statement. 8 We recognized in United States v. Brown, 548 F.2d 204, 208 (7th Cir. 1977), the value of the oral sworn statement provided for in the 1972 amendment. And in United States v. Noreikis, 481 F.2d 1177, 1178 (7th Cir.), cert. denied 415 U.S. 904, 94 S.Ct. 1398, 39 L.Ed.2d 461 (1974) (), the court said,
The magistrate must be given the facts so that he can make an independent judgment and not rely on the mere conclusions of the officer.
Oral testimony before the magistrate will often be more likely than an affidavit to assure that the...
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