United States v. Robinson

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Citation287 F. Supp. 245
Docket NumberCrim. No. 3919.
PartiesUNITED STATES of America v. B. Ellis ROBINSON and J. L. Hull.
Decision Date10 July 1968

287 F. Supp. 245

B. Ellis ROBINSON and J. L. Hull.

Crim. No. 3919.

United States District Court N. D. Indiana, Hammond Division.

July 10, 1968.

287 F. Supp. 246
287 F. Supp. 247
Victor C. Woerheide, David Quinn, Atty., Dept. of Justice, Washington, D. C., for plaintiff

W. Henry Walker, East Chicago, Ind., Dennis Stanton, Gary, Ind., for defendant, Robinson.

Martin Kinney, B. K. Delph, Gary, Ind., for defendant, Hull.

287 F. Supp. 248


BEAMER, District Judge.

The defendant B. Ellis Robinson is charged jointly with J. L. Hull with murdering a Federal Narcotics agent. Robinson filed a motion to suppress and return certain items seized in a search of his residence pursuant to a search warrant, and subsequent to his arrest in the residence on an arrest warrant. A hearing was had and based upon the evidence at the hearing the motion was granted. The basis of the ruling was that the search warrant, standing alone, did not meet either Federal or Indiana requirements.

After the Court announced its decision, the Government asked time to file additional authorities in support of its position. Later, pursuant to additional time granted by the Court, the Government filed a motion to reconsider the previous decision and offered to produce additional evidence bearing upon the search and search warrant in question. The Court has heard this evidence.

The defendant Robinson claims that the Federal Rules of Criminal Procedure provide no means of reopening a decision on any question of fact or law and that the Court's previous decision must stand. While it is true that there is no provision in the Federal Rules of Criminal Procedure equivalent to Rule 60 of the Federal Rules of Civil Procedure, an examination of the authorities indicates that the Court does have power to reopen such a question. See, 6 Orfield, Criminal Procedure under the Federal Rules, § 47.10 at pp. 319, 320 (1967). While no case cited dealt with motions to suppress, cases pertaining to other motions indicate that the Court might reconsider where its original decision was a surprise to one of the parties. In United States v. Hoornbeek, 164 F. Supp. 657 (S.D.N.Y.1954) the Court reconsidered and reaffirmed its previous decision on a motion for a bill of particulars where it felt that its original decision might have taken a form unexpected by the parties. United States v. Froehlich, 166 F.2d 84 (2d Cir.1948) indicates that the Court may, in its discretion, reconsider its original denial of a motion for new trial. The Supreme Court, however, has held that a trial court might not grant a new trial on its own motion after the Court of Appeals has affirmed its original denial of the motion. United States v. Smith, 331 U. S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). If the Court has power to reconsider any decision prior to the final judgment in the case, it should have power to reconsider the granting of a motion to suppress. Aside from narcotic cases, (see 18 U.S.C. § 1404) there is no right to appeal from an order granting or denying a motion to suppress evidence in a pending criminal case. See 5 Orfield, op cit., § 41.59. If the motion is denied and the defendant is convicted, he may appeal from the final decision. If the motion is granted, however, and the defendant is acquitted, the Government cannot appeal.1 Thus, the granting of a motion to suppress is hardly ever subject to appellate review. In a case such as this, where the evidence suppressed might be critical, a ruling on the motion to suppress may amount to a final decision in the case. Unless the trial court has the inherent power to review such a decision, there would be great inequity in the criminal process, and the rights of the public would be greatly impaired. Therefore, it is held that the trial court does have inherent power to reconsider a motion to suppress under appropriate circumstances.

This case presents such circumstances. Throughout the argument on this motion, there was a great deal of confusion about which affidavit was used and what the Court and counsel meant by the insufficiency of the affidavit and the warrant. At the first evidentiary hearing, Agent Bottorff testified

287 F. Supp. 249
that he believed the affidavit and warrant were left together on the place searched, but he was not sure whether they were attached. Evidence on this point was not even presented by the Government, but was elicited by the Court. Not until the Court expressed its reasons for granting the motion to suppress did the Government counsel appear to understand the importance of this point—the incorporation of the affidavit into the warrant to satisfy federal and/or state requirements—rather they appeared to have assumed it throughout. They asked for additional time to file authorities, and then asked to present additional evidence. They stated, and subsequently proved, that the warrant and affidavit were at all pertinent times, attached. The original warrant and affidavit had been clipped together, and the copies had been either clipped or stapled. Under the circumstances, this is an appropriate occasion for exercising the Court's discretionary power to reconsider its ruling on the motion to reconsider


The Court originally suppressed all evidence seized under the warrant because the warrant failed to meet applicable requirements of federal or state law. Particularly important, in fact the only fatal defect, was the failure of the warrant to contain a statement of the probable cause for its issuance as required by Rule 41(c) of the Federal Rules of Criminal Procedure, or a copy of the affidavit, as required by the state statutes, Burns' Indiana Statutes Annotated § 9-603. Both of these requirements would be met by the physical incorporation or attachment of the affidavit to the warrant. The purpose of both the federal and state requirements is that the person whose premises are searched may be informed of the probable cause of the issuance of the warrant. (See Bedenarzik v. State, 204 Ind. 517, 185 N.E. 114 (1933), Rohlfing v. State, 227 Ind. 619, 88 N.E.2d 148 (1949).) This Court has always held that the physical attachment of the affidavit to the warrant would satisfy the federal requirements and the Indiana Supreme Court indicates that it satisfies the state requirements. Meno v. State, 197 Ind. 16, 25-26, 164 N.E. 93, 96 (1925). Therefore, if the affidavit were appended to the warrant, the warrant would have met both the state and federal requirements.

At the rehearing, the Government presented testimony that the affidavit was attached to the warrant. Judge Kaplan of the Gary City Court, who issued the warrant, testified by affidavit that he knew of the requirements that the warrant include a copy of the affidavit or that it be attached to the warrant and therefore attached the original copies of the warrant and affidavit. Richard James, the U. S. Attorney who aided in the preparation of the affidavit and warrant, testified that the remaining copies of the warrant and affidavit were attached by stapling or paper clips. Agent Bottorff, who served the warrant, stated that the affidavit and warrant left at the premises searched were attached and were left together on the coffee table in defendant's living room with the inventory of articles seized written on the back of the warrant.

The defendant, although he generally has the burden of proof, (see 5 Orfield, op cit. § 4154 at p. 743) presented no evidence to contradict this testimony. A copy of the warrant left at the premises was produced in court by defense counsel, but there was no evidence that the affidavit was not left with it. The Court finds that the warrant and affidavit were, at all pertinent times, treated as a unit and met the applicable requirements of state and federal law.

Other objections to the form of warrant were previously raised. First, the Court finds that the failure to direct to a specific officer was not fatal. It was directed to certain classes of state officers and to conservators of the

287 F. Supp. 250
peace. Although the return on the warrant was made by a federal officer, Gary City police were present at all times and assisted in its service. Further, the term "conservator of the peace" is sufficiently broad to include a federal narcotics agent, and although a federal warrant would have been more properly directed to him by name, the failure to do so was not fatal. See United States v. Clancy, 276 F.2d 617 (7th Cir.1960) rev'd on other grounds, 365 U.S. 312, 81 S.Ct 645, 5 L.Ed.2d 574 (1961). As previously stated in open Court, the affidavit executed by Agent Bottorff showed sufficient probable cause for issuance of the warrant. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The warrant was valid either as a state or federal warrant

The Government has cited numerous cases on the inapplicability of state standards to a warrant used in a federal search. Although these cases all indicate that state requirements are not pertinent if the search meets the federal constitutional requirements, they do not demand discussion here. As suggested earlier, the practice of attaching the affidavit to the warrant is sufficient to comply with both state and federal standards. The only purpose for raising state requirements at any time was as an alternative ground for upholding the warrant if it failed to meet the requirements of Federal Rule of Criminal Procedure 41, particularly as to the power of a city judge to issue a federal warrant. It is clear however, that the City Court of Gary, Indiana, is a court of record and that the judge thereof is authorized to issue a federal warrant under Rule 41, Federal Rules of Criminal Procedure and Burns' Indiana Statutes §§ 2-2401, 48-1201. As stated earlier, this warrant meets both the Fourth Amendment Constitutional requirements and the...

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