U.S. v. Strother

• Decision Date: 09 May 1978
• Docket Number: No. 77-1432,77-1432
• Citation: 578 F.2d 397
• Parties: , 188 U.S.App.D.C. 155 UNITED STATES of America v. Paul K. STROTHER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 397

578 F.2d 397

53 A.L.R.Fed. 905, 188 U.S.App.D.C. 155

UNITED STATES of America v. Paul K. STROTHER, Appellant.

No. 77-1432.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 6, 1977.

Decided April 13, 1978.

Rehearing Denied May 9, 1978.

Michael S. Helfer, Washington, D. C. (appointed by this Court) for appellant.

E. Thomas Roberts, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, and Joseph F. McSorley, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before WRIGHT, Chief Judge, and McGOWAN and WILKEY, Circuit Judges.

Opinion for the Court filed by McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

Appellant was convicted in the District Court, after a trial to the court on stipulated facts, of possession of an unregistered firearm. 26 U.S.C. § 5861(d) (1970). On appeal he asserts errors successively involving (1) the issuance of the search warrant leading to his arrest and indictment; (2) the process observed in initiating the trial by the judge on a stipulated record; and (3) the imposition of sentence. For the reasons hereinafter appearing, the judgment appealed from is affirmed.

I

Appellant's principal contention relates to the search warrant. It is that the warrant was invalid because it was issued by a United States Magistrate, appointed for the District Court for the District of Columbia, at her home in Virginia. We turn first to the circumstances culminating in this action.

Late in the evening of December 22, 1976, Detective David Cassidy of the Metropolitan Police Narcotics Squad made a telephone call to Assistant United States Attorney Joseph McSorley. Cassidy related that he had just obtained from an informant information about a heroin distribution operation currently being carried on in Apartment 219 at 1444 Rhode Island Avenue, N.W., in the District of Columbia. Because the informant had reported that the heroin was to be divided up that evening, Cassidy said he needed a search warrant as soon as possible on an emergency basis. McSorley then called United States Magistrate Jean F. Dwyer, who had been designated at the time in question as the magistrate to handle emergency matters. McSorley, since time was of the essence, said that he would bring an affidavit by Cassidy supporting the application for a warrant to Magistrate Dwyer's home in Virginia for review by her. This was done, and equipped with the warrant authorized by Magistrate Dwyer, the police presented themselves at 1:00 A.M. at the apartment in question, and effected an entry under the authority of the warrant, finding appellant and two other persons therein. A search revealed a 12 gauge sawed-off shotgun, 15 rounds of 12 gauge shotgun shells, and various narcotics paraphernalia. Arrested and advised of his rights, appellant told the police that the gun was his.

After indictment, appellant moved to suppress the gun on the ground that Magistrate Dwyer was without authority to issue the warrant while physically outside the District of Columbia. The District Court ruled to the contrary and denied the motion.

Appellant's claim of error in this regard rests heavily upon language contained in the Federal Magistrates Act, his principal focus being upon the words (for which we supply emphasis) appearing in 28 U.S.C. § 636 (1970) as set forth below:

(a) Each United States magistrate serving under this chapter shall have within the territorial jurisdiction prescribed by his appointment

(1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts;

In the case of search warrants, the foregoing congressional grant has been implemented by Rule 41(a) of the Federal Rules of Criminal Procedure:

Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property sought is located, upon request of a federal law enforcement officer or an attorney for the government. (Emphasis supplied).

We think the language of the Rule, with its explicit reference to the location of the property in question, is significant for purposes of the problem before us. That language, in our view, is intended to make clear that the search warrant can only be operative in the territory in respect of which the issuing officer is clothed with judicial authority. ¹ It is not intended, we believe, to require that under all circumstances the physical acts involved in the issuance of a warrant be performed in that territory. The general principle that a judicial officer's writ cannot run outside her territorial jurisdiction is a far different thing from saying that in no circumstances can a judicial officer sign outside her jurisdiction a writ which runs within it.

Although the foregoing would appear to obtain in the case of judicial officers generally, it is apt in this context to remark that appellant's contention does not comprehend any claim that Magistrate Dwyer should not have been living outside the geographical limits of the District of Columbia. The District has long been unique in that its federal judicial officers are not required to reside within its boundaries. 28 U.S.C. §§ 44(c), 134(b). ² Thus the only question going to the validity of the warrant authorized by Magistrate Dwyer in her suburban home across the Potomac in Virginia is whether that act was an appropriate one for performance by her at that location.

We deal here only with the obtaining of a search warrant; and we decide nothing beyond that particular process. It is an ex parte proceeding in which the applicant is authorized to communicate directly with the judicial officer, and in which the judicial officer is authorized to act solely on the basis of the representations made by the applicant. It is perhaps foremost in the kinds of matters necessitating a system in which one of the three federal magistrates in this jurisdiction is always under designation for around-the-clock availability. Needs for warrant authorization arise at all hours of the day and night, and there is nothing about the process that precludes its performance in the judicial officer's home. Indeed, Congress's recent enactment amending Rule 41 of the Federal Rules of Criminal Procedure to authorize telephonic application for, and receipt of, warrant authorization makes sense only if it be thought to embrace such application to the judicial officer at his home as well as his office. ³ Had that Rule been in effect when the warrant challenged here was issued, even the potentially critical lapse of time involved in going to Magistrate Dwyer's home could have been avoided.

Judges have proverbially signed papers or done other acts outside their territorial jurisdiction which have effect and can only have effect within those respective jurisdictions; and Congress may reasonably be thought to have enacted the Federal Magistrates Act against this background of accepted practice. Whatever may be the case with respect to the conduct of adversary proceedings and there surely are obvious limitations on the judge's power to hold these wherever he pleases the wholly ex parte process of warrant authorization presents no such problems and is not, we hold, to be comprehended within the excessively literal reading of the Federal Magistrates Act which appellant presses upon us. A Congress which has signified its interest in swift and efficient law enforcement by authorizing the telephone warrant cannot, absent a clearer purpose to do so than is visible from the language it used, be taken to have forbidden what the magistrate did in this instance.

This court en banc has heretofore contemplated, with seeming approval when it is remembered that our federal magistrates do not have to live in the District, the very thing that was done here. In Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970), after referring to our frustrations and those of the law enforcement officers seeking warrants caused by the lack of easy and certain access to magistrates at all hours and on weekends and holidays, we noted with satisfaction (140 U.S.App.D.C. at 323, 435 F.2d at 395):

The magistrates have set up a systematic schedule for availability at home, where a duplicate set of seals is maintained. . . . The procedure contemplates screening by Assistant United States Attorneys before law enforcement officials make such application to the magistrate at home . . . (emphasis supplied).

Subsequently we expressed wonderment as to why the process could not, even in the absence of explicit statutory authorization, be speeded up even further by means of telephonic communication between the applicant and the magistrate at home. See United States v. Johnson, 182 U.S.App.D.C. 383, 561 F.2d 832 (1977), cert. denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080 (1977); United States v. Robinson, 174 U.S.App.D.C. 351, 358, 533 F.2d 578, 585 (en banc ), cert. denied, 424 U.S. 956, 96 S.Ct. 1432, 47 L.Ed.2d 362 (1976). Congress has now made it plain, if indeed it was not before, that that approach is proper; and we contemplate with satisfaction an end to the long procession of cases in which the prosecutor has been before us pleading exigent circumstances as the justification for failure to seek a warrant.

Appellant has seized upon a matter appearing in the record in Johnson as in substance an admission by the Government that the magistrate must be physically within the boundaries of the District in order validly to issue a warrant. There was testimony in that case that, at the time in question, the prosecutor was adhering to a practice of meeting or bringing the magistrate at or to some public place at a point just inside the District line where the warrant was issued a practice which has apparently been abandoned in favor of going to the...