U.S. v. Shorter

• Decision Date: 21 June 1979
• Docket Number: No. 78-5248,78-5248
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel SHORTER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 585

600 F.2d 585

UNITED STATES of America, Plaintiff-Appellee, v. Samuel SHORTER, Jr., Defendant-Appellant.

No. 78-5248.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 7, 1979.

Decided June 21, 1979.

Richard J. Marco, Celebrezze & Marco, Cleveland, Ohio, for defendant-appellant.

James R. Williams, U. S. Atty., William J. Edwards, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff-appellee.

Before EDWARDS, Chief Judge, and ENGEL and MERRITT, Circuit Judges.

EDWARDS, Chief Judge.

This appeal requires the first interpretation in this circuit of the telephonic search warrant procedure adopted by Congress in 1977 on the recommendation of the United States Judicial Conference and the Supreme Court. Appellant claims that the terms of Fed.R.Crim.P. 41(c)(2) were not adhered to in three aspects in the issuance of the warrant here complained of, and that the failures were material and prejudicial.

Defendant Shorter was convicted by a jury for robbing a bank, in violation of Title 18 U.S.C. § 2113(a), (d) and § 2 (1976). The facts, as established in the trial, indicated that three masked men robbed a bank in Youngstown, Ohio, taking nearly $20,000 and a .38 calibre revolver. The money included 16 bait bills, bank tickets and money wrappers, and the three bandits were seen escaping in a 1976 silver Pontiac Grand Prix which proved to have been stolen.

As a result of information furnished the FBI, Agent Nix of the FBI went to an address at 328 Wirt Street where, having been admitted, he found appellant Shorter and saw the Youngstown police who were with him arrest Shorter and remove him. The FBI agent had asked Shorter for permission to search the premises and had been denied it. Thereupon he sought an oral search warrant by telephone, pursuant to Fed.R.Crim.P. 41(c)(2). As a result of the search warrant, money, bait bills and bank wrappers were discovered, which items were offered in evidence against Shorter. This appeal argues solely that these items were illegally admitted at the trial because the search warrant was invalid due to failure of the FBI agent properly to follow the requirements of Fed.R.Crim.P. 41(c)(2).

It is appellant's contention that the facts and circumstances confronting the FBI agent were not such as to justify the issuance of a telephonic warrant under Rule 41(c), and that even if they were, the agent violated subsections 2(B) and 2(D) of the Rule.

As to the first of these issues Fed.R.Crim.P. 41(c)(2)(G) provides:

(G) Motion to suppress precluded. Absent a finding of bad faith, evidence obtained pursuant to a warrant issued under this paragraph is not subject to a motion to suppress on the ground that the circumstances were not such as to make it reasonable to dispense with a written affidavit.

We are unanimously of the view that this record discloses no bad faith on the part of the agent.

It is clear however that in two respects the procedure spelled out by Rule 41(c) was not followed. Agent Nix did not, as the Rule requires, fill out a search warrant form in advance of his telephone communication with the United States Magistrate, and the United States Magistrate did not administer the oath to the agent in advance of receiving the information which justified the use of the telephonic warrant procedure and probable cause for the search.

As to the first issue concerning the justification for the employment of the telephonic search warrant procedure, it is clear that Congress intended to place this determination in the discretion of the issuing magistrate absent proof of a showing of bad faith on the part of the government agents. Notes of Committee on Judiciary, Senate Report No. 95-354, Amendments Proposed by the Supreme Court, says in part:

(S)ubparagraph (c)(2)(G) makes it clear that, absent a finding of bad faith by the government, the magistrate's judgment that the circumstances made it reasonable to dispense with a written affidavit a decision that does not go to the core question of whether there was probable cause to issue a warrant is not a ground for granting a motion to suppress evidence.

S.Rep. No. 95-354, 95th Cong., 1st Sess. 1, 11, reprinted in (1977) U.S.Code Cong. & Admin.News, pp. 527, 535.

Agent Nix was dealing with a violent crime involving three armed men, and as of the time of the search, three men had been arrested. Staking the apartment would, of course, have been possible while the preferred written application for a search warrant was made. At that point, however, it would have been impossible to know whether or not there were confederates in the vicinity who had a considerable motivation in relation to the contents of that apartment. Several hours of delay involved in the normal process of written application for the warrant might have produced a confrontation which both sound police practice and an interest in public order would suggest avoiding. We find no bad faith on the part of Agent Nix in employing the telephonic procedures of Fed.R.Crim.P. 41(c)(2).

We also find no occasion to reverse the district court's denial of the motion to suppress because of Agent Nix's failure to fill out the "duplicate original warrant" in advance of his call to the magistrate. No claim is made here that the warrant employed by Nix differed in any material respect from the "original warrant" in the possession of the magistrate. This court has frequently cited and followed the common sense language and approach to search warrants of United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). See United States v. Dudek, 530 F.2d 684 (6th Cir. 1976), Aff'd after remand 560 F.2d 1288 (6th Cir. 1977). In Ventresca, the Supreme Court said:

These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

Id. 380 U.S. at 109, 85 S.Ct. at 746.

In accordance with the principle cited, we find the procedural error in preparation of the warrant in this case to be harmless within the meaning of Fed.R.Crim.P. 52(a).

Our concern in this appeal, however, focuses primarily upon the provision contained in Fed.R.Crim.P. 41(c)(2)(D) which in its first sentence says:

(T)he Federal magistrate shall immediately place under oath each person whose testimony forms a basis of the application and each person applying for that warrant. (Emphasis added.)

Appellant contends (and the government agrees) that the oath was not administered by the magistrate "immediately" and thus in advance of the agent's testimony. It is, however, clear that the oath was given later in the telephonic proceeding so as to relate back to the testimony already supplied.

There is case law which has validated such subsequent oaths in the instance where oral testimony was used to supplement a written application for a search warrant. In Campbell v. Minnesota, 553 F.2d 40, 42 (7th Cir. 1977), the Seventh Circuit said:

Both detectives and Judge Anderson testified that the additional oral information to support the warrant was given under oath. The judge's deposition reflects uncertainty as to whether he administered the oath...