UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: May 15, 1975; As Amended June 11, 1975.
UNITED STATES OF AMERICA, APPELLEE,
MARTIN F. BURKE, APPELLANT
Appeal from a conviction in the District Court for Connecticut, T. Emmet Clarie, Chief Judge, on a plea of guilty, for unlawful possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d) and 5871, on the ground that the court erroneously denied a suppression motion without an evidentiary hearing.
Friendly and Feinberg, Circuit Judges, and Lasker, District Judge.*fn*
FRIENDLY, Circuit Judge:
Martin Burke appeals from a judgment of the District Court for Connecticut convicting him, on a plea of guilty, of unlawful possession of an unregistered, sawed-off shotgun in violation of 26 U.S.C. §§ 5861 (d) and 5871.*fn1 The basis for appeal is an alleged error of Chief Judge Clarie in denying, without an evidentiary hearing, a motion to suppress the shotgun because of the asserted invalidity of the search warrant under which the gun was seized from Burke's home in Hartford.
We deal preliminarily with the question whether the issue is properly before us. We said in United States v. Doyle, 348 F.2d 715, 718 (2 Cir.), cert. denied, 382 U.S. 843, 15 L. Ed. 2d 84, 86 S. Ct. 89 (1965), with citation of abundant supporting authority, that
the cases are legion that "[a] plea of guilty to an indictment is an admission of guilt and a waiver of all non-jurisdictional defects."
However, we recognized, as the Supreme Court apparently had done without discussion in Jaben v. United States, 381 U.S. 214, 14 L. Ed. 2d 345, 85 S. Ct. 1365 (1965), that an appeal would lie in such a case on an issue not going to guilt when there had been "[a] plea expressly reserving the point accepted by the court with the Government's consent." 348 F.2d at 719 (footnote omitted). In a number of later decisions this court has recognized the exception stated in Doyle -- in some cases finding that the conditions spelled out in that opinion had not been met, United States v. Mann, 451 F.2d 346 (2nd Cir. 1971); United States v. Selby, 476 F.2d 965 (2nd Cir. 1973), in another finding that they had been, United States v. Rothberg, 480 F.2d 534 (2nd Cir. 1973). See, accord, United States v. D'Amato, 436 F.2d 52 (3 Cir. 1970). Here Burke expressly reserved his right to appeal the denial of his suppression motion and the trial judge approved. The prosecutor said nothing. While arguably the lack of express consent by the prosecutor would be fatal under the language of United States v. Mann, supra, 451 F.2d at 347, in that case there was no approval by the judge, who indeed said, "I make no judgment at this time whether there is an appealable motion or whether any relief can be granted." We think that when a defendant has expressed a desire to plead guilty on condition that he be permitted to preserve the right to appeal on an issue not going to guilt and the judge tentatively indicates willingness to approve this, it is up to the prosecutor to object if he wishes; otherwise silence on his part is sufficient assent. Indeed the Government does not argue otherwise. We therefore proceed to the merits.
The search warrant, issued in Hartford by Judge J. Robert Lacey of the Circuit Court of Connecticut, authorized the search of Burke's apartment for a sawed-off shotgun therein described. Both the warrant and the Affidavit and Application for it were on Connecticut state forms. The Affidavit and Application was signed and sworn to by two members of the Connecticut State Police and a member of the United States Treasury Department, Alcohol, Tobacco and Firearms Division. In the portion of the Affidavit and Application following the description of the property to be seized, the name of the person said to possess it, and the identification of the place to be searched, there was a printed legend which says, in reference to the property, that it "is or has been or may be used as the means of committing the crime of". This statement had been completed with the following: "To receive or Possess a Firearm, which is not Registered to Him in the National Firearms Registration and Transfer Record. Title 26, USC Sec. 58-61d." The allegations of probable cause were
4. That, on 8-21-73, at 0755 hrs., Lonnie C. Thompson, of 104 Kensington St., Htfd., Conn., was interviewed and submitted a written statement and will testify to the fact that on 8-20-73, at 1645 hrs., he was in Apt. #3, on 279 Westland St., Htfd., Conn., resided in by Martin Burke, and had seen a sawed-off shotgun in the apartment's bedroom.
5. That, Thompson further states, that he has been told by Burke that the shotgun was stolen in a burglary.
6. That, as a result of the receipt of the information a check was conducted to search the National Firearms Register and Transfer Record, in Washington D.C. Special Agent Hampp was informed that no record could be found of any firearm registered to Martin Burke, of 279 Westland St., Htfd., Conn., this being a violation of Title 26, USC Sec. 58-61d.
Burke contends that the warrant was bad on its face because of the inadequacy of its showing of probable cause and because of the failure of the warrant to comply with certain requirements of F.R.Crim.P. 41(c).
The contention of an inadequate showing of probable cause is bottomed on the absence from the affidavit of a recital that Thompson was known to the affiants to be a reliable informant, as Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), and Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), are claimed to require. Apart from the question of the precise standing of Spinelli after United States v. Harris, 403 U.S. 573, 581-83, 585-86, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971) (qualification of Spinelli by Chief Justice Burger in portion of opinion joined by Justices Black and Blackmun), (Justice Black would overrule both Aguilar and Spinelli ; Justice Blackmun would overrule Spinelli), see United States v. Unger, 469 F.2d 1283, 1286 (7 Cir. 1972), cert. denied, 411 U.S. 920, 36 L. Ed. 2d 313, 93 S. Ct. 1546 (1973), there has been a growing recognition that the language in Aguilar and Spinelli was addressed to the particular problem of professional informers and should not be applied in a wooden fashion to cases where the information comes from an alleged victim of or witness to a crime. Indeed any other view would mean that, despite the 1972 amendment to F.R.Crim.P. 41(c) to the effect that "the finding of probable cause may be based upon hearsay evidence in whole or in part," it would generally be impossible to use hearsay statements of victims or witnesses since ordinarily they would not be previously known to the police.
A pioneering case in this development was McCreary v. Sigler, 406 F.2d 1264, 1269 (8 Cir.), cert. denied, 395 U.S. 984, 23 L. Ed. 2d 773, 89 S. Ct. 2149 (1969), decided within a few weeks after Spinelli. Judge Clark's opinion in United States v. Bell, 457 F.2d 1231, 1238-39 (5 Cir. 1972), dealing with an arrest warrant, contains a particularly good exposition, which we quote in the margin.*fn2 To the same effect are United States v. Mahler, 442 F.2d 1172, 1174-75 (9 Cir.), cert. denied, 404 U.S. 993, 30 L. Ed. 2d 545, 92 S. Ct. 541 (1971); United States v. Unger, supra, 469 F.2d at 1287 n.4 -- an opinion we prefer to the later decision of a divided Seventh Circuit panel in United States ex rel. Saiken v. Bensinger, 489 F.2d 865 (7 Cir. 1973); United States v. McCoy, 478 F.2d 176, 179 (10 Cir.), cert. denied, 414 U.S. 828, 38 L. Ed. 2d 62, 94 S. Ct. 53 (1973); and Cundiff v. United States, 501 F.2d 188, 189-90 (8 Cir. 1974). Our own cases are in accord. In United States v. Sultan, 463 F.2d 1066, 1068-69 (2 Cir. 1972), we upheld the sufficiency of an affidavit in a bankruptcy fraud case where the showing of probable cause consisted primarily of a hearsay statement by a cousin of the defendant that the latter had told him that assets of the bankrupt were being concealed from the trustee in the premises proposed to be searched. More recently we have upheld a district court in finding probable cause to arrest on the basis, inter alia, of hearsay statements of a participant in the crime despite the absence of evidence that he had been a reliable informant, saying:
To require a showing of previous reliability by such a person would, as in the case of a victim or a witness, see Wisconsin v. Paszek, 50 Wis.2d 619, 184 N.W.2d 836 (1971), make his information totally unavailable, despite the peculiar likelihood of its accuracy. Such information is toto coelo removed from a "meager report" that "could easily have been obtained from an offhand remark heard at a neighborhood bar", as to which prior history of providing accurate information is required, Spinelli v. United States, 393 U.S. 410, 417, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969).
United States v. Miley, 513 F.2d 1191, 1204 (2nd Cir. 1975).
Viewed in the light of these decisions, the affidavit was sufficient; it made evident that Thompson had been in the bedroom of Burke's apartment and had talked with Burke about the gun, or at least that he had said so. See United States v. Sultan, supra, 463 F.2d at 1068. To be sure, it would have been better if the affidavit had recited how Thompson had come to see and hear what he did and still better if there had been an affidavit by Thompson himself, as in Ignacio v. People of Territory of Guam, 413 F.2d 513 (9 Cir. 1969), cert. denied, 397 U.S. 943, 25 L. Ed. 2d 124, 90 S. Ct. 959 (1970), and United States v. Rajewich, 470 F.2d 666, 668 (8 Cir. 1972), but it is clear to us that the magistrate had "a '"substantial basis" for crediting the hearsay.' United States v. Harris, supra, 403 U.S. at 581 ... (plurality opinion)." United States v. Sultan, supra, 463 F.2d at 1069. It is true also that Thompson could have been lying to the affiants, that the affiants could have been lying to the judge, or both. But such risks are inherent in any system allowing, as it must, that search warrants may be issued on something less than a full trial of the existence of probable cause. As explained by Judge Clark, see fn.2, the affidavit gave the "neutral and detached magistrate" something he could permissibly determine to constitute probable cause. And as Mr. Justice Frankfurter noted in Jones v. United States, 362 U.S. 257, 271, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), he "need not have been convinced of the presence of narcotics [here the unregistered weapon] in the apartment"; it is sufficient if "there was substantial basis for him to conclude that narcotics were [here the weapon was] probably present in the apartment."
The search warrant, which, as stated, was on a Connecticut form, did not conform with the requirements of F.R.Crim.P.41(c) in three respects:
(1) Whereas the Rule requires that "the warrant shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States," the warrant was directed to "any Police Officer of a regularly organized police department or any State Policeman to whom these presents shall come";
(2) Whereas the Rule requires that the warrant shall command the officer to make the search "within a specified period of time not to exceed 10 days," the warrant commanded the officers to make the search "within a reasonable time"; and
(3) Whereas the Rule requires the warrant to "designate a federal magistrate to whom it shall be returned," the warrant contemplated that the return be made to the issuing judge.
Any contention that Rule 41(c) never applies when the warrant is issued by a state judge would be clearly unsound. Rule 41(a) permits "a search warrant authorized by this rule" to "be issued by a federal magistrate or a judge of a state court of record within the district wherein the property is located, upon request of a federal law enforcement officer or an attorney for the government." The obvious reason for including judges of state courts of record was that they are far more plentiful than the small corps of federal magistrates. Nothing in the language or policy of Rule 41 suggests, however, that warrants issued by them at the request of a federal law enforcement officer are exempt from the Rule's content requirements.
On the other hand, the mere fact that property seized pursuant to the warrant of a state judge at the request of state law enforcement officers for violation of state law is offered in a federal prosecution does not implicate the requirements of the Rule; in such cases it is sufficient if the warrant meets the requirements of the Fourth Amendment. See United States v. Bowling, 351 F.2d 236 (6 Cir. 1965), cert. denied, 383 U.S. 908, 15 L. Ed. 2d 663, 86 S. Ct. 888 (1966); Gillespie v. United States, 368 F.2d 1, 4 (8 Cir. 1968);*fn3 United States v. Scolnick, 392 F.2d 320, 323 (3 Cir.), cert. denied sub nom. Brooks v. United States, 392 U.S. 931, 20 L. Ed. 2d 1389, 88 S. Ct. 2283 (1968) (even when state law had been violated since " the test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed," quoting Elkins v. United States, 364 U.S. 206, 224, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960)); United States v. Coronna, 420 F.2d 1091 (5 Cir. 1970).
The cases that have caused difficulty are those where warrants have been issued by state judges as the result of a mingling of state and federal law enforcement. A leading decision for applying Rule 41 requirements is Navarro v. United States, supra, 400 F.2d 315. This applied the requirement of Rule 41(a) that warrants issued by state judges must be issued by "a judge of a state court of record" to a warrant issued by a judge of a Texas state court not of record on the request of a San Antonio narcotics officer who then sought the aid of Federal Bureau of Narcotics officers. The federal officers joined in the search, received the narcotics, made the arrest, and brought the only charges that had yet been lodged against the defendant.*fn4 In Judge Wisdom's view, this was a "federal search" under Byars v. United States, 273 U.S. 28, 71 L. Ed. 520, 47 S. Ct. 248 (1927), and Lustig v. United States, 338 U.S. 74, 93 L. Ed. 1819, 69 S. Ct. 1372 (1949):
The crux of the doctrine is that a search is a search by a federal official if he had a hand in it * * *. 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.
400 F.2d at 317 (quoting Mr. Justice Frankfurter's opinion in Lustig, supra, 338 U.S. at 78-79). While federal officers had not attempted to avoid the requirements of Rule 41 by seeking the assistance of city officers and while federal and local officers ought, of course, to be encouraged to cooperate, "such cooperation should comply with the rules," since "permitting the continuance of the practice herein might well lead to a limited revival of the 'silver platter' practice." 400 F.2d at 319-20.
However, the Fifth Circuit has somewhat qualified Navarro in United States v. Sellers, 483 F.2d 37 (5 Cir. 1973). In this, a gambling case, the warrant had been issued by an Alabama judge, in this instance of a court of record, on a showing, as in Navarro, of probable cause that state but not federal law had been violated. In Sellers, as in Navarro, a federal official accompanied state officers in the search, and made use of the fruits for a federal prosecution; however, the defendants in Sellers, unlike those in Navarro, were also being prosecuted by state authorities based upon the evidence disclosed by the search. The claim was that the warrant was invalid under Rule 41 in light of the holding in United States v. Brouillette, 478 F.2d 1171 (5 Cir. 1973), that a United States Commissioner may issue a warrant to federal officers only upon a showing of probable cause to believe that a federal crime had been committed. Since the only showing of probable cause to justify the search was that state law had been violated, appellants argued, the fruits of the search were not admissible in the federal proceeding. It would have seemed a sufficient answer that Sellers could not have it both ways -- his argument on the score of Brouillette tended to show that warrant was not a "federal warrant" despite the federal officer's participation in the search -- and indeed this seems to be what the court ultimately held, 483 F.2d at 44.*fn5 But the court had earlier spoken a bit more expansively,*fn6 and the Government here relies on a passage just prior to the court's ultimate holding, 483 F.2d at 44:
The proper test to be applied is whether a particular Rule 41 standard is one designed to assure reasonableness on the part of federal officers, or whether the provision merely blueprints the procedure for issuance of federal warrants.*fn7
However all this may be, we have no difficulty in concluding that the warrant issued by Judge Lacey here was "a federal warrant" which, as the Sellers court conceded, must comply with the requirements of Rule 41. The only crime alleged in the Affidavit and Application was a federal crime, the violation of the National Firearms Registration Act. The Government argues that the affidavit disclosed a case within Connecticut General Statutes § 54-33a(b)(2), authorizing a search warrant where there is probable cause to believe that the property to be seized was stolen, and perhaps also § 54-33a(b)(1), authorizing a search warrant where there is probable cause to believe there is property "possessed . . . or intended for use or which is or has been used or which may be used as the means of committing any criminal offense," since a sawed-off shotgun is "inherently likely" to be so used. The argument continues that because "the instant warrant may just as easily . . . be viewed as a state warrant," the officers' hasty selection of a particular statute should not result in "an iron-clad characterization" of the warrant as a federal one. But Judge Lacey had not been asked to find probable cause under the Connecticut statute and might not have done so. The warrant, sought by a federal law enforcement officer, along with state officers, for a particular federal offense, is far more clearly a federal warrant than those in either Navarro or Sellers.
The Government argues that even if this be so, the provisions of Rule 41 that were violated were not ones "designed to assure reasonableness on the part of federal officers," but "merely blueprint the procedure for issuance of federal warrants", see United States v. Sellers, supra, 483 F.2d at 44, a phrase that has been picked up in a dictum in United States v. Sturgeon, 501 F.2d 1270, 1275 (8 Cir. 1974). However appropriate the quoted language was to the unusual contention made by Sellers, based, as it was, on a strained interpretation of Brouillette, where federal agents seeking a warrant from a federal magistrate to search for evidence of a federal crime in fact alleged facts which showed only commission of a state crime and thus gave the magistrate nothing upon which to base a finding of probable cause for purposes of exercising his authority to grant a federal warrant, we have some difficulty in applying it here. We must assume that the provisions of Rule 41 here in question were included by the Supreme Court for some policy reasons, although these clearly are not of anything like the same importance as the need for finding probable cause and for particularity of description. While the history indicates that the requirements that, even though the warrant was issued by a state judge, it should be directed to "a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States" (emphasis supplied) and that return should be made to a designated federal magistrate may have been rather accidental,*fn8 they can be taken to be of a piece with the requirement, added by the 1972 amendment to Rule 41 (a), that "a federal law enforcement officer or an attorney for the government" must request its issuance. The Supreme Court evidently wishes to limit state participation in "federal warrants" to issuance by a state judge and to see to it that the warrant is executed by a federal officer and return made to a federal magistrate. The requirement that the executing officer be named in the warrant serves other more important interests. See United States v. Soriano, 482 F.2d 469, 478 (5 Cir. 1973),*fn9 modified in respects not here material on rehearing en banc, 497 F.2d 147 (5 Cir. 1974). The requirement that the search be made within a specified period not to exceed ten days represents another 1972 change intended both to cure an inconsistency with a now-deleted time requirement of Rule 41(d) and to substitute a fixed period instead of the vague term "forthwith". See Advisory Committee Note quoted in 8A Moore, Federal Practice para. 41.01, at 41-8 to 41-9 (1975). Each of the three provisions here violated is thus a "Rule-embodied policy designed to protect the integrity of the federal courts or to govern the conduct of federal officers " (emphasis supplied), a test enunciated in another portion of the Sellers opinion, 483 F.2d at 43.
However, this conclusion does not demand a decision in Burke's favor. The Government argues with more persuasiveness that the violations of Rule 41 here shown were not of sufficient consequence to justify use of the exclusionary rule.*fn10 It says in brief, although there is no proof of this in the record on appeal, that in fact the federal agent was one of those who set about to execute the warrant, see infra ; that this was done on the same day that the warrant issued; that a copy of the warrant and an inventory of the seized property were left at Burke's apartment; and that a return was made to the issuing court by a state officer on the following day.
There is relatively little case law on the question how far the failure of a warrant to conform to provisions of Rule 41 other than those concerned with the constitutional requirements of probable cause and particularity of description will trigger the exclusionary rule. While Navarro applied the exclusionary rule, the defect there was basic; since the issuing judge was not of "a state court of record", there was in effect no warrant at all for federal purposes. In United States v. Ravich, 421 F.2d 1196, 1201-02 (2 Cir.), cert. denied, 400 U.S. 834, 27 L. Ed. 2d 66, 91 S. Ct. 69 (1970), we declined to exclude evidence seized in a nighttime search of hotel rooms under a warrant from which the necessary authorization for nighttime searches, F.R.Crim.P. 41(c), had been omitted; we held the case to be within F.R.Crim.P. 52(a), directing that "any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded," since the omission was inadvertent and the searched premises were empty of people and were known to have been. And in United States v. Soriano, supra, 482 F.2d at 478-79, the court refused to exclude evidence when the warrant failed to state the name of the executing agent but there was testimony that the magistrate had been informed of this and that the agent had displayed his credentials in executing the warrant. The provisions of the American Law Institute's Model Code of Pre-Arraignment Procedure, Official Draft No. 1, July 15, 1972, are of interest. Although the Code requires that a search warrant shall be addressed to and authorize execution by a named officer, shall require that it be returned to the issuing authority within a specified period of time (not more than five days after execution of a warrant), and shall provide that the warrant shall be executed within five days, § SS220.2(1), (2)(g), and (3), deficiencies on the face of the warrant in these respects are not among the illustrative grounds for a motion to suppress listed in § SS290.2(1)(b).*fn11
In United States v. Dunnings, 425 F.2d 836, 840 (2 Cir. 1969), cert. denied, 397 U.S. 1002, 25 L. Ed. 2d 412, 90 S. Ct. 1149 (1970), we characterized the exclusionary rule, as applied in Fourth Amendment cases, as being "a blunt instrument, conferring an altogether disproportionate reward not so much in the interest of the defendant as in that of society at large." For that reason courts should be wary in extending the exclusionary rule in search and seizure cases to violations which are not of constitutional magnitude.*fn12 Without assuming to make a definitive formulation, we think that, except in a case like Navarro where, if the court was right in holding that Rule 41 applied, the defect made what was done in effect an unconstitutional warrantless search, violations of Rule 41 alone*fn13 should not lead to exclusion unless (1) there was "prejudice" in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed,*fn14 or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.*fn15 Here we can see no ground at all for thinking that Judge Lacey would not have been quite as willing to issue a warrant calling for execution by the federal agent and a return to a federal magistrate and within ten days rather than simply within a reasonable time. Similarly the use of the state rather than a federal form of warrant*fn16 seems to have been the result not of deliberate intent to flout Rule 41 but of understandable confusion of what it required. We have no reason to doubt that, now that federal law enforcement officers in Connecticut have been instructed what is demanded when they seek a "federal warrant," they will comply.
While it might have been better if the district court had offered to allow Burke to go into these matters at a hearing, counsel has made no claim that he could offer evidence that would bring the case within our formulation of circumstances making it appropriate to apply the exclusionary rule to the infractions of Rule 41 here at issue.*fn17 We see no purpose in remanding for a hearing when counsel has made no showing of reason to think that, under our view of the law, any purpose would be served thereby.