U.S. v. Searp

• Decision Date: 06 November 1978
• Docket Number: Nos. 77-5330,77-5331,s. 77-5330
• Citation: 586 F.2d 1117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Wayne SEARP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1117

586 F.2d 1117

58 A.L.R.Fed. 743

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Wayne SEARP, Defendant-Appellant.

Nos. 77-5330, 77-5331.

United States Court of Appeals Sixth Circuit.

Argued April 21, 1978.

Decided Nov. 6, 1978.

Ron Parry, Jolly, Johnson, Blau & Parry, Newport, Ky., for defendant-appellant in both cases.

Patrick H. Molloy, U. S. Atty., James E. Arehart, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee in both cases.

Before PHILLIPS, Chief Judge, MERRITT, Circuit Judge, and PECK, Senior Circuit Judge.

PECK, Senior Circuit Judge.

Jerry Searp has been convicted in federal court of participating in two bank robberies in Covington and Newport, Kentucky. The robberies, committed about two weeks apart, were both carried out by three persons wearing ski masks. Evidence tending to link the defendant to the robberies was discovered during a search of the home of defendant's mother, Goldie Sellers, and was introduced at both trials. Searp was found guilty of the two robberies, and on appeal challenges those convictions, arguing in part that the evidence seized during the search was inadmissible.

The day of the second robbery, Ronald Ploeger was arrested. He had approximately.$19,000 of the stolen money in his possession. The next day, during questioning, he implicated Searp and a codefendant, Robert Bell. Working together on the investigation, state police and FBI officers obtained arrest warrants and went to Searp's mother's house, where he frequently stayed, to make the arrest. Searp was not there (he had already fled the state), and Mrs. Sellers (his mother) refused to consent to a search of the house for evidence of the crime.

The police left, but immediately made application for a search warrant. A warrant was issued at 11:27 p. m., by a Kentucky county judge. The preprinted form commanded an "immediate" search by "any policeman of the Commonwealth" of Mrs. Sellers' residence, and was based upon probable cause to believe Searp had committed two violations of state law burglary of a bank and armed robbery and that evidence of those crimes would be found in Mrs. Sellers' home. The warrant was supported by an affidavit submitted by an FBI agent. It was promptly executed, the search beginning shortly before midnight and continuing into the early hours of the next morning. A small quantity of the stolen money, three ski masks, and a plastic sack similar to the one containing the money carried by Ploeger were seized.

Searp objected to the admission of the evidence found at his mother's home on the grounds that the police had violated Rule 41(c), Fed.R.Crim.P., which provides that a search warrant "shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime." The government argued that this was a state warrant and that the federal rules were inapplicable. There are no Kentucky statutes which mandate a particular procedure in issuing a warrant for a night search, so long as the search is reasonable within the meaning of the fourth amendment.

Assuming that the federal rules applied, the district court ruled that "under all the circumstances," the warrant complied with the federal rule requiring explicit authorization for a night search, since it ordered an "immediate search," and was issued late at night. The district court also ruled that Searp had standing to raise the issue of the legality of the search because he regularly stayed at his mother's house. The government has not challenged that ruling here.

I.

Our federal system has created many interesting legal problems, such as the one raised by this case, where State and federal law overlap. It is to the benefit of both sovereigns to permit and encourage cooperative law enforcement efforts between state police and federal agents. At the same time, the rules governing police conduct, beyond the requirements of the fourth amendment, are not always identical, giving rise to the problem here. Under what circumstances is evidence seized in conformity with state law, but in violation of federal statutory procedures, admissible in federal court?

An analogous situation existed until 1960 with regard to state searches conducted in violation of the fourth amendment. At common law, the admissibility of evidence was not affected by any illegality through which the evidence was obtained. 8 Wigmore, Evidence § 2183. In 1914, however, the Supreme Court ruled that evidence seized by federal officers in violation of the fourth amendment was not admissible in a federal criminal prosecution. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). At the time, the fourth amendment was not considered to be applicable to the states; thus, a search which would have been illegal under federal law could be legally conducted by state officers, and any evidence seized could be handed over "on a silver platter" for use in a federal criminal prosecution. Id. at 398, 34 S.Ct. 341.

The obvious practical difficulties engendered by such a rule soon became a problem, and limitations on the doctrine were developed. The temptation to federal officers to use state police to evade the limitations of the fourth amendment was eliminated by the "participation doctrine." If federal agents had participated in an ostensibly state search or if state officers had acted on behalf of the United States, the legality of the search was tested by federal standards, and if the evidence had been seized in violation of the fourth amendment, it was inadmissible in a federal criminal prosecution.

For example, in Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927), a search warrant was issued by a state judge for state offenses and directed to state officers. While legal under the state law at that time, the warrant was inadequate under the fourth amendment because there was no allegation of the factual foundation supporting a finding of probable cause. After the state officer obtained the warrant, he requested that a federal officer accompany him, and evidence of a federal crime was discovered during the search. The Supreme Court ruled that the evidence was inadmissible in a federal prosecution, because of federal participation in the search:

(T)he federal prohibition agent was not invited to join the state squad as a private person might have been, but was asked to participate and did participate as a federal enforcement officer, upon the chance, which was subsequently realized, that something would be disclosed of official interest to him as such agent.

Id. at 32, 47 S.Ct. at 249. The participation doctrine was extended in Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293 (1927), to searches conducted solely by state officers, but on behalf of the federal government, in the sense that the search was solely for evidence of a federal crime. In Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949), the Court ruled that when a federal agent joined a state search in progress, even though he acted in good faith (i. e., without intent to avoid the limitations of the fourth amendment), and was not the moving force behind the search, the search was still to be judged by federal standards in determining the admissibility of evidence in a federal prosecution:

The decisive factor . . . is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it. . . . Evidence secured through such federal participation is inadmissible.

Id. at 79, 69 S.Ct. at 1374.

With the decisions in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), holding that the fourth amendment, through the fourteenth amendment, prohibits unreasonable searches and seizures by state officers, and Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), rejecting the silver platter doctrine and holding that evidence seized by state officers in violation of the fourth amendment is inadmissible in a federal criminal trial, all of this would have become merely an interesting historical footnote, were it not for the fact that the Federal Rules of Criminal Procedure had come into existence, and the exclusionary rule had been applied to their violation by federal officers. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) (violation of Rule 5(a) requiring prompt arraignment). Rule 41 is of particular significance, because it governs the standards and procedures to be observed in conducting federal searches. Although the purpose of Rule 41 is the implementation of the fourth amendment, the particular procedures it mandates are not necessarily part of the fourth amendment. The states are not "precluded from developing workable rules governing arrests, searches and seizures to meet 'the practical demands of effective criminal investigation and law enforcement' in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures." Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963).

Thus the temptation to federal officers to take advantage of more lenient or more flexible state procedures in the course of conducting a federal investigation is still a reality. While it is important not to stifle cooperation between federal and state officers, we think it clear that federal officers, investigating a federal crime, must comply with the federal rules governing their conduct. The participation doctrine cases provide guidance here; when a federal officer has...