United States v. Gooding

• Decision Date: 11 June 1971
• Docket Number: Crim. No. 667-71.
• Citation: 328 F. Supp. 1005
• Parties: UNITED STATES of America v. Lonnie GOODING.
• Court: U.S. District Court — District of Columbia

328 F. Supp. 1005

UNITED STATES of America v. Lonnie GOODING.

Crim. No. 667-71.

United States District Court, District of Columbia.

June 11, 1971.

Gregory Brady, Asst. U. S. Atty., for the United States.

H. A. Rosenthal, Jr., Washington, D. C., for defendant.

MEMORANDUM AND ORDER

GESELL, District Judge.

Defendant is charged with possession of heroin and narcotics paraphernalia in violation of 21 U.S.C. § 174 and 26 U.S. C. § 4704 (a). He has moved to suppress the physical evidence seized pursuant to Magistrate's Search Warrant No. D11-448-71CR, on the grounds that the warrant was executed in the nighttime in violation of 23 D.C.Code § 523(b), which reads as follows:

A search warrant may be executed on any day of the week and, in the absence of express authorization in the warrant pursuant to section 23-521(f) (5), shall be executed only during the hours of daylight.

Section 23-521(f) (5) provides as follows:

A search warrant shall contain—

* * * * * *

(5) a direction that the warrant be executed during the hours of daylight or, where the judicial officer has found cause therefor, including one of the grounds set forth in section 23-522(c) (1), an authorization for execution at any time of day or night * * *.

Section 23-522(c) (1) sets forth the grounds for permitting execution of a warrant during the nighttime:

The application may also contain—

(1) a request that the search warrant be made executable at any hour of the day or night, upon the ground that there is probable cause to believe that (A) it cannot be executed during the hours of daylight, (B) the property sought is likely to be removed or destroyed if not seized forthwith, or (C) the property sought is not likely to be found except at certain times or in certain circumstances * * *.

The above provisions were added to the D.C.Code by the District of Columbia Court Reform and Criminal Procedure Act of 1970, and became effective February 1, 1971. The warrant was issued by a United States Magistrate on February 11, 1971, and executed by the Metropolitan Police at 9:30 P.M. on the following day. The daylight hours ended well before 9:30 P.M. on that date. None of the grounds set forth in section 23-522(c) (1) were contained either in the application or in the warrant itself. Thus, if section 523(b) is applicable under these circumstances, the seizure was unlawful.

The Government takes the position that the provisions cited are inapplicable to warrants issued in connection with violations of federal narcotics laws. The application for the search warrant was captioned "Affidavit in Support of a Request for a United States Magistrate's Search Warrant for Violation of the Narcotics Laws of the United States Code, Title 26, Section 4704a." The warrant also stated as grounds for issuance that the property was "in violation of Title 26 Section 4704(a) of the U.S. Code."

21 U.S.C. § 879(a) provides:

A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge or United States magistrate is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.

This section, which took effect October 27, 1970, as part of the Comprehensive Drug Abuse Prevention and Control Act, replaces former 18 U.S.C. § 1405, which required the judicial officer to be satisfied only "that there is probable cause to believe that the grounds for the application exist." That earlier provision had been interpreted to allow nighttime search warrants simply upon a finding of probable cause for issuance of the warrant itself, without even the additional element of "positivity" required by Rule 41(d) of the Federal Rules of Criminal Procedure. United States v. Stallings, 413 F.2d 200 (7th Cir. 1969); United States v. Tucker, 262 F.Supp. 305 (S.D.N.Y.1966).

Though the language of 21 U.S.C. § 879(a) suggests that Congress attempted to establish different standards for daytime and nighttime warrants, no precise requirements were spelled out in the Act, and the legislative history indicates that no change from the prior law was intended. See U.S.Code Cong. Adm. News, 91st Cong., 2d Sess., at pp. 4621-22 (1970). Whatever be the standards generally for issuance of a nighttime search warrant in federal narcotics cases in other parts of the country, however, the Court finds that the existence of 21 U.S.C. § 879(a) does not remove such cases from the explicit requirements for search warrants in the District of Columbia under the newly enacted Title 23, D.C.Code.

Roughly sixty percent of the search warrants isued in the District of Columbia are related to violations of the narcotics laws. If Congress had intended to except federal narcotics search warrants from the requirements of 23 D.C.Code § 523(b), one would certainly expect the intention to be expressed in the statute or at least in the legislative history, possibly by reference to the special narcotic search statute then applicable in the District for local offenses.¹ The Government has not directed the Court's attention to any such indication and the Court has found none.

The criminal procedure amendments which were part of the Court Reform Act for the District of Columbia were enacted in an atmosphere of heated debate focusing on possible threats to civil liberties, and there is indication that Congress intended the special nighttime warrant provisions to be a check against unreasonable intrusions of privacy. See D.C.Code Leg. & Adm.Service, 91st Cong. 2d Sess., at 502 ...