U.S. v. Rome

• Decision Date: 15 January 1987
• Docket Number: No. 86-1359,86-1359
• Citation: 809 F.2d 665
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen Marvin ROME, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 665

809 F.2d 665

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Marvin ROME, Defendant-Appellant.

No. 86-1359.

United States Court of Appeals, Tenth Circuit.

Jan. 15, 1987.

Robin D. Fowler (Benjamin L. Burgess, Jr., U.S. Atty., with him on the brief), Asst. U.S. Atty., Wichita, Kan., for plaintiff-appellee.

Charles A. O'Hara, of O'Hara, O'Hara & Tousley, Wichita, Kan., for defendant-appellant.

Before BARRETT, LOGAN and BALDOCK, Circuit Judges.

BARRETT, Circuit Judge.

This is an appeal from a contingency plea of guilty entered by Stephen M. Rome (Rome) to one count charging a violation of 21 U.S.C. Sec. 841(a)(1), possession of cocaine with intent to distribute. Rome reserved the right to appeal the trial court's denial of his motion to suppress the search of his residence and the seizure of money, drug paraphernalia and cocaine.

The search in question was conducted by F.B.I. Special Agent Larry Guggisberg (S.A. Guggisberg) pursuant to a warrant authorized via telephone by U.S. Magistrate John B. Wooley (Magistrate Wooley) on April 25, 1985. At the time of the call, S.A. Guggisberg was conducting an investigation from a motel in Hays, Kansas, and Magistrate Wooley was at his home in Wichita, Kansas, a distance of more than 100 miles from Hays.

There were several telephone conversations that afternoon and evening between S.A. Guggisberg and Magistrate Wooley, and between S.A. Guggisberg's supervisor and Magistrate Wooley, culminating in the recorded telephone conversation in which Magistrate Wooley authorized a search of Rome's residence. For some reason, the telephone conversations preceding the one in which the warrant was authorized were not recorded or were later erased.

When Magistrate Wooley authorized the search of Rome's residence, he did not immediately fill out the original search warrant in his possession, but had the telephone conversation transcribed and the warrant filled out one or two days later. S.A. Guggisberg did not have access to a proper warrant form at the time of the telephone call, which Magistrate Wooley knew, and was waiting for his supervisor to teletype a form to the Hays, Kansas, Police Department. When S.A. Guggisberg read his affidavit in support of the search warrant to Magistrate Wooley over the telephone, he read from a rough draft, which he later reorganized but did not change substantively.

During the recorded telephone conversation, Magistrate Wooley gave S.A. Guggisberg detailed instructions on how to fill in the warrant form when he obtained it. Magistrate Wooley then authorized the search of Rome's residence at "Victoria, Kansas," once the warrant was obtained and filled out. At one point in the conversation, Magistrate Wooley authorized S.A. Guggisberg to seize cocaine and paraphernalia, and at another point seemed to authorize S.A. Guggisberg to seize scales, bags, and money. The written search warrant was more specific both as to the address of Rome's house and as to the items to be seized. The "money," authorized orally, for example, was shown on the warrant as sixty-five $100.00 bills. The money was discussed in some detail in the recorded telephone conversation, however. This conversation makes it clear that there had been some preliminary discussion of the same subject matter between Magistrate Wooley and S.A. Guggisberg (or between Magistrate Wooley and someone else).

After Magistrate Wooley found that reasonable grounds existed to dispense with a written affidavit and that probable cause existed for the search and seizure, the search was duly conducted, the items described in the warrant were seized, and the warrant was returned to Magistrate Wooley. Rome was arrested and charged with violations of 21 U.S.C. Sec. 841(a)(1), possession of cocaine with intent to distribute. On December 17, 1985, Rome pleaded guilty to one count of the superseding indictment and reserved his right to appeal the denial of his motion to suppress the search of his home.

On appeal, Rome contends that the search violated various provisions of Fed.R.Crim.P. 41(c)(2), 18 U.S.C., which governs searches and seizures executed pursuant to a telephone affidavit. The net effect of these violations, Rome argues, is to render the search warrant null and void, inasmuch as the warrant fails to describe the place to be searched or the things to be seized with particularity and the oral affidavit fails to provide probable cause for the search of Rome's residence at 701 Grant, Victoria, Kansas. Rome argues that cumulatively, these procedural errors violated his Fourth Amendment rights.

I.

Fed.R.Crim.P. 41(c)(2) provides the procedure for obtaining a search warrant when it is not reasonable for a federal law enforcement officer or attorney for the Government to appear personally before a federal magistrate with a written affidavit. The pertinent parts of Rule 41(c)(2) are as follows:

(2) Warrant upon Oral Testimony.

(A) General Rule. If the circumstances make it reasonable to dispense with a written affidavit, a Federal magistrate may issue a warrant based upon sworn oral testimony communicated by telephone or other appropriate means.

(B) Application. The person who is requesting the warrant shall prepare a document to be known as a duplicate original warrant and shall read such duplicate original warrant, verbatim, to the Federal magistrate. The Federal magistrate shall enter, verbatim, what is so read to such magistrate on a document to be known as the original warrant. The Federal magistrate may direct that the warrant be modified.

(C) Issuance. If the Federal magistrate is satisfied that the circumstances are such as to make it reasonable to dispense with a written affidavit and that grounds for the application exist or that there is probable cause to believe that they exist, the Federal magistrate shall order the issuance of a warrant by directing the person requesting the warrant to sign the Federal magistrate's name on the duplicate original warrant. The Federal magistrate shall immediately sign the original warrant and enter on the face of the original warrant the exact time when the warrant was ordered to be issued. The finding of probable cause for a warrant upon oral testimony may be based on the same kind of evidence as is sufficient for a warrant upon affidavit.

(D) Recording and Certification of Testimony. When a caller informs the Federal magistrate that the purpose of the call is to request a warrant, the Federal magistrate shall immediately place under oath each person whose testimony forms a basis of the application and each person applying for that warrant. If a voice recording device is available, the Federal magistrate shall record by means of such device all of the call after the caller informs the Federal magistrate that the purpose of the call is to request a warrant. Otherwise a stenographic or longhand verbatim record shall be made. If a voice recording device is used or a stenographic record made, the Federal magistrate shall have the record transcribed, shall certify the accuracy of the transcription, and shall file a copy of the original record and the transcription with the court. If a longhand verbatim record is made, the Federal magistrate shall file a signed copy with the court.

The rule's requirements are clear: The person requesting a warrant must prepare a duplicate original warrant and read it verbatim to the federal magistrate; the federal magistrate must enter what is read, verbatim, on the original warrant and "immediately" sign it; the caller must be under oath from the inception; a recorded or stenographic record of the call must be made and filed in the court record.

The record in the case before us shows that the Government failed to comply fully with the requirements of Rule 41(c)(2). Specifically, S.A. Guggisberg and his supervisor discussed the search with Magistrate Wooley in one or more unrecorded telephone conversations. When they recorded the conversation that forms the basis for the search warrant, some of the information which had already been given to Magistrate Wooley was not reiterated. S.A. Guggisberg read from a rough draft of an affidavit for search warrant, but the warrant itself is more specific in its description of Rome's address and the items to be seized. Moreover, S.A. Guggisberg testified that he later reorganized the affidavit. Thus, there is variation between the contents of the affidavit and the contents of the original and duplicate original search warrants. The requirement that the affidavit be read verbatim and the original warrant be a verbatim copy of the information in the affidavit, has not been met.

The issue before us is whether these violations of Rule 41(c)(2) are of a magnitude sufficient to invalidate the search conducted pursuant to the rule. We have not previously decided this issue in this circuit.

We begin by stating that search warrants issued pursuant to Rule 41(c)(2) are to be judged by the same standards as any other search warrant. These standards were articulated by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), wherein the Court held that because there is no basis to believe that the exclusion of evidence seized pursuant to a warrant will have a deterrent effect on the future conduct of the issuing judge or magistrate, evidence seized in good faith reliance upon a facially valid warrant will not normally be excluded. The Court held further that in the absence of an allegation that the magistrate abandoned his neutral and detached role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Id. at 926, 104 S.Ct. at 3423.

In the instant case, Rome does not allege that S.A. Guggisberg acted recklessly or dishonestly or could not have harbored an objectively reasonable belief...