GOODING v. UNITED STATES
No. 72-6902
Supreme Court of the United States
Argued February 25, 1974—Decided April 29, 1974
416 U.S. 430
Herbert A. Rosenthal, by appointment of the Court, 414 U. S. 998, argued the cause and filed briefs for petitioner.
Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Edward R. Korman, and Jerome M. Feit.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner in this case presents a claim that evidence offered against him at his trial should have been suppressed because it was seized at nighttime in violation of governing statutory provisions. The search which led to the seizure was conducted by officers of the District of Columbia Metropolitan Police Department at approximately 9:30 p. m. within the District of Columbia.
The Court of Appeals agreed with the District Court‘s description of this congeries of statutes as a “bramblebush of uncertainties and contradictions,”2 and a mere summary of the statutes attests to the accuracy of that observation:
District of Columbia Statutes: The older of the two conceivably relevant District of Columbia statutes,
Our Brother, MARSHALL in his dissenting opinion stresses Congress’ continuing concern for individual privacy, as demonstrated by the limitations on nighttime searches contained in the Espionage Act, supra, and later,
The Magistrate then issued a warrant directing the Chief of Police or “any member of MPDC” to search petitioner‘s apartment.14 The warrant specifically noted
The search warrant was executed on February 12, 1971, at 9:30 p. m.16 The officers engaged in the search were
Several grounds were asserted in support of the motion, particularly that “[t]he search warrant was executed at night but the application for the warrant did not comply with the D. C. Code provisions for nighttime search
“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.”20
Having decided that District of Columbia law applied, the District Court admitted to some uncertainty about the status of
Concededly the warrant issued in this case did not comply with the requirements of Title 23.
The Court of Appeals for the District of Columbia Circuit reversed the District Court,23 although none of the three judges who composed the panel completely agreed with any other on the proper rationale. All three agreed, however, that
Petitioner urges that we reverse the Court of Appeals on either or both of two alternative grounds. First, petitioner repeats his assertion, sustained by the District Court, that Title 23 of the D. C. Code is the statute applicable to the search in this case and that, as the Government has conceded, the requirements of that title have not been satisfied. Second, petitioner argues that, if
I
The unique situation of the District of Columbia, for which Congress legislates both specially and as a part
Petitioner contends, however, that Title 23 of the D. C. Code should apply to this case because the executing officers, as well as the officer swearing to the affidavit presented to the Magistrate, were not federal officers but officers of the District of Columbia Metropolitan Police Department. He argues that the provisions of
Although petitioner‘s arguments cannot be dismissed lightly, we find them ultimately unpersuasive. Concededly there are hints in the statutory framework and legislative history of the Controlled Substances Act, 84 Stat. 1242, that indicate the policing function under those provisions would be the primary responsibility of the Bureau of Narcotics and Dangerous Drugs.29 But this focus on the Bureau‘s role seems entirely natural in view of one of the Act‘s stated purposes to “collect the diverse drug
The failure of Congress to include a special provision authorizing District of Columbia police officers to obtain search warrants for investigating federal offenses cannot be taken as a deliberate exclusion in view of the overall statutory framework. The provision included in the previous federal statute may well have seemed unnecessary, both in light of the history of cooperation between the District of Columbia police and federal officers and in view of the provisions of
Finally, the interpretation urged by petitioner would leave District of Columbia officers able to execute general federal search warrants under amended
There is little indication that Title 23 of the D. C. Code was intended to serve the sweeping purpose which petitioner attributes to it.34 The search warrant provisions upon which petitioner relies were part of the Court Reform and Criminal Procedure Act, which substantially reorganized the District of Columbia court system, providing for a new local court of general jurisdiction and relieving the United States District Court for the District of Columbia of much of its local burden.35 Prior to that time all local felonies had been tried in the United States District Court, and the Federal Rules of Criminal Procedure by their terms had applied. The creation of the new Superior Court created the need for a new set of pro
This conclusion is reinforced by the fact that
We therefore conclude, as did all the judges of the Court of Appeals, that the statute applicable to this case is
II
“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 issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.”
21 U. S. C. § 879 (a) .
Only the last seven words of the statute are really in controversy here. Petitioner contends that this language, not found in the predecessor statute,
The language of the statute by itself is not crystal clear on this issue. Petitioner insists that the last phrase requires with unmistakable clarity a separate finding of probable cause to justify a nighttime search. Thus, according to petitioner, the issuing magistrate would have to satisfy himself that there was not only probable cause for the search, but also probable cause for believing that the search should be conducted at nighttime rather than during the daytime. While this is a possible meaning, it is by no means the only possible meaning attributable to the words.
Petitioner‘s interpretation really assumes that the statute reads: “There is probable cause to believe that grounds exist for the warrant and, if served at night, for its service at such time.” But the statute does not include the italicized four words; it makes no distinction whatever between day and night, and literally read would apparently require that a special showing be made for a daytime search as well. The idea that a particularized showing must be made for searches in the daytime is completely novel and lacks even a single counterpart in other search statutes enacted by Congress.
Petitioner suggests that since Congress was concerned about the greater intrusion resulting from nighttime searches, it would be logical to apply the language, “probable cause . . . for its service at such time,” only to nighttime searches. But even this interpretation, which is by no means a literal reading of the language, is not wholly convincing. The traditional limitation placed on nighttime searches, as evident from the earlier
This roundabout way of limiting nighttime searches, if that were in fact the statute‘s intent, would sharply contrast with the manner in which Congress has required special showings for nighttime searches in other statutes. For example, Title 23 of the D. C. Code, discussed supra, specifies that the warrant “be executed during the hours of daylight” (emphasis added) unless certain itemized conditions are met.
The legislative history lends no support to petitioner‘s interpretation, but in fact cuts the other way. Both the House and the Senate Committee Reports on the bill incorporated a summary prepared by the Department of Justice, where much of the bill‘s drafting had taken place, which stated:
“Section 702 (a) [now
§ 879 (a) ] incorporates18 U. S. C. [§] 1405 and authorizes service of a searchwarrant at any time of the day or night if probable cause has been established to the satisfaction of the judge or U. S. magistrate issuing the warrant.”39
As previously noted,
There is no suggestion in any of the hearings or debates before Congress that a change from the prior law in this area was intended. The provision itself went unmentioned in the debates and hearings on the bill, a surprising omission if the bill effected the cutback petitioner says it did. Of like import is the fact that in the long and heated discussions over § 702 (b), the so-called “no-knock” provision of the bill, no defender of the bill saw fit to argue that any greater intrusion caused by the no-knock provision would be partially offset by the greater difficulty in obtaining warrants executable at night.41 While congressional silence as to a particular provision of a bill during debates which give extensive consideration to neighboring provisions is not easy to interpret, it would be unusual for such a significant
Finally, it is important to note that the Department of Justice itself submitted this bill to Congress for enactment, including
We therefore conclude that
We believe that the showing was met in this case. The affidavit submitted by the District of Columbia police officer suggested that there was a continuing traffic of drugs from petitioner‘s apartment, and a prior purchase through an informer had confirmed that drugs were available. This was sufficient to satisfy
The judgment of the Court of Appeals for the District of Columbia Circuit is
Affirmed.
The petitioner is charged with possession of heroin and narcotics paraphernalia in violation of
“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. . . .”
D. C. Code § 23-522 (c) (1) .1
Though the warrant here directed a search “at any time in the day or night,” none of the grounds set forth in
The Court holds, however, that the D. C. Code provisions are inapplicable and that the search is governed by
Approximately 60% of the search warrants issued in the District of Columbia relate to narcotics violations. Congress was aware of this, and, if it had intended to except federal narcotics search warrants from the protections against unnecessary nighttime “police state” searches, one would expect an expression of such intent. I agree with Judge Gesell that no such intent is indicated.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.
I agree with my Brother DOUGLAS that the provisions of the District of Columbia Code requiring a showing of need for execution of a search warrant at night govern the search involved in this case, and, accordingly, I join in his dissenting opinion. A majority of the Court, however, rejects this argument and goes on to discuss the standards imposed by
The opinion of the Court, it seems to me, analyzes the
Fundamentally at issue in this case is the extent of the protection which we will all enjoy from police intrusion into the privacy of our homes during the middle of the night. The
This Court has consistently recognized that the intrusion upon privacy engendered by a search of a residence at night is of an order of magnitude greater than that produced by an ordinary search. Mr. Justice Harlan observed in holding a nighttime search unconstitutional in Jones v. United States, 357 U. S. 493, 498 (1958): “[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home.” In Coolidge v. New Hampshire, 403 U. S. 443, 477 (1971), the Court again recognized that a midnight entry into a home was an “extremely serious intrusion.” And our decision in Griswold v. Connecticut, 381 U. S. 479 (1965), was in large part based upon our revulsion at the thought of nighttime searches of the marital bedroom to discover evidence of illegal contraceptive use. See id., at 485-486.
It is small wonder, then, that Congress has consistently required more stringent justification for nighttime searches than that needed to authorize a search during the day. The first congressional enactment setting out comprehensive search warrant procedures, § 10 of Tit. XI of the Espionage Act of 1917, 40 Stat. 217, 229,
The strong policy underlying these congressional enactments is clear. As even the Government in this case concedes, “searches conducted in the middle of the night . . . involve a greater intrusion than ordinary searches and therefore require a greater justification.” Brief for United States 14. In my view, this principle may well be a constitutional imperative. It is by now established
Of course, this constitutional question is not presented in this case and need not be resolved here. But the long history of congressional authorization of nighttime searches only upon a showing of additional justification, the strong constitutionally based policy which these statutes implement, and the substantial constitutional question posed by the majority‘s interpretation of
Section 879 (a) provides that search warrants may be executed at night only if “there is probable cause to believe that grounds exist for the warrant and for its service at such time.” It seems to me quite clear that the statute, on its face, imposes two distinct requirements: that there be probable cause for the issuance of the warrant, and that there be cause “for its service at such time.” While the Court relies on legislative history which suggests that
The Court, while conceding this to be a “possible” meaning of the statute‘s final clause, argues that “it is by no means the only possible meaning attributable to the words.” Ante, at 455. Unfortunately, the Court then fails to come forward with any alternative interpretation of these final words of
The Court bases its holding upon the meager recorded legislative history of
In any event, even if resort to examination of the legislative history were appropriate here, I do not find it nearly so conclusive as does the majority of the Court. The Court relies on a single brief statement on
I would presume the contrary. Congress’ consistent protection of nighttime privacy by imposing restrictions upon the availability of warrants for nighttime searches reinforces the unambiguous statutory language. Both lead me to the conclusion that the final clause of
Notes
In an effort to conjure up ambiguity in the statutory language, the Court argues that the statute could have been drawn with more precision, and specifically points out that read literally, the statutory requirement of cause “for its service at such time” would seem to apply to daytime searches as well as those conducted at night. Ante, at 455-456. I readily agree that the statute could have been more artfully drafted, but the fact that it could have been stated in different words hardly justifies disregarding the plain meaning of the statutory language with which we must deal. It ill suits the Court to suggest that this language is ambiguous when the Court is unable to come forward with any plausible alternative construction.
The Court‘s suggestion that the statute is ambiguous because it could be literally applied to daytime searches as well as those during the night is wholly insubstantial. As the Court well knows, no one has ever proposed that an additional burden of justification for daytime searches is necessary or appropriate; in sharp contrast, the Congress has consistently acted to protect nighttime privacy through such an additional burden on nighttime searches. The Court‘s confusion arises only because the words “at such time” in the statute logically refer back to its authorization of service “at any time of the day or night.” But this latter phrase has consistently been used in congressional enactments as a shorthand expression for a warrant whose service at night is authorized, see, e. g.,
As for the Court‘s complaint that a requirement of cause for nighttime service of a warrant is not the “traditional limitation” imposed upon nighttime searches, it should suffice to point out that Congress became aware in its consideration of the District of Columbia Court Reform and Criminal Procedure Act in 1969 that a requirement of cause would provide greater protection for nighttime privacy than the old posi
“(a) A search warrant may be issued by any judge of the Superior Court of the District of Columbia or by a United States commissioner for the District of Columbia when any narcotic drugs are manufactured, possessed, controlled, sold, prescribed, administered, dispensed, or compounded, in violation of the provisions of this chapter, and any such narcotic drug and any other property designed for use in connection with such unlawful manufacturing, possession, controlling, selling, prescribing, administering, dispensing, or compounding, may be seized thereunder, and shall be subject to such disposition as the court may make thereof and such narcotic drugs may be taken on the warrant from any house or other place in which they are concealed.
“(b) A search warrant cannot be issued but upon probable cause supported by affidavit particularly describing the property and the place to be searched.
“(c) The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witnesses he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them.
“(d) The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.
“(e) If the judge or commissioner is thereupon satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence, he must issue a search warrant, signed by him, to the major and superintendent of police of the District of Columbia or any member of the Metropolitan police department, stating the particular grounds or probable cause for its issue and the names of the persons whose affidavits have been taken in support thereof, and commanding him forthwith to search the place named for the property specified and to bring it before the judge or commissioner.
“(f) A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.
“(g) The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.
“(h) The judge or commissioner shall insert a direction in the warrant that it may be served at any time in the day or night.”
Hearings on Crime in the National Capital before the Senate Committee on the District of Columbia, 91st Cong., 1st Sess., pt. 4, p. 1404 (1969).“(a) Under circumstances described in this subchapter, a judicial officer may issue a search warrant upon application of a law enforcement officer or prosecutor. A warrant may authorize a search to be conducted anywhere in the District of Columbia and may be executed pursuant to its terms.
“(b) A search warrant may direct a search of any or all of the following:
“(1) one or more designated or described places or premises;
“(2) one or more designated or described vehicles;
“(3) one or more designated or described physical objects; or
“(4) designated persons.
“(c) A search warrant may direct the seizure of designated property or kinds of property, and the seizure may include, to such extent as is reasonable under all the circumstances, taking physical or other impressions, or performing chemical, scientific, or other tests or experiments of, from, or upon designated premises, vehicles, or objects.
“(d) Property is subject to seizure pursuant to a search warrant if there is probable cause to believe that it—
“(1) is stolen or embezzled;
“(2) is contraband or otherwise illegally possessed;
“(3) has been used or is possessed for the purpose of being used, or is designed or intended to be used, to commit or conceal the commission of a criminal offense; or
“(4) constitutes evidence of or tends to demonstrate the commission of an offense or the identity of a person participating in the commission of an offense.
“(e) A search warrant may be addressed to a specific law enforcement officer or to any classification of officers of the Metropolitan Police Department of the District of Columbia or other agency authorized to make arrests or execute process in the District of Columbia.
“(f) A search warrant shall contain—
“(1) the name of the issuing court, the name and signature of the issuing judicial officer, and the date of issuance;
“(2) if the warrant is addressed to a specific officer, the name of that officer, otherwise, the classifications of officers to whom the warrant is addressed;
“(3) a designation of the premises, vehicles, objects, or persons to be searched, sufficient for certainty of identification;
“(4) a description of the property whose seizure is the object of the warrant;
“(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;
“(6) where the judicial officer has found cause therefor, including one of the grounds set forth in subparagraph (A), (B), or (D) of section 23-591 (c)(2), an authorization that the executing officer may break and enter the dwelling house or other building or vehicles to be searched without giving notice of his identity and purpose; and
“(7) a direction that the warrant and an inventory of any property seized pursuant thereto be returned to the court on the next court day after its execution.
Ҥ 23-522. Applications for search warrants
“(a) Each application for a search warrant shall be made in writing upon oath or affirmation to a judicial officer.
“(b) Each application shall include—
“(1) the name and title of the applicant;
“(2) a statement that there is probable cause to believe that property of a kind or character described in section 23-521 (d) is likely to be found in a designated premise, in a designated vehicle or subject, or upon designated persons;
“(3) allegations of fact supporting such statement; and
“(4) a request that the judicial officer issue a search warrant directing a search for and seizure of the property in question.
“The applicant may also submit depositions or affidavits of other persons containing allegations of fact supporting or tending to support those contained in the application.
“(c) 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; and
“(2) a request that the search warrant authorize the executing officer to break and enter dwelling houses or other buildings or vehicles to be searched without giving notice of his identity and purpose, upon probable cause to believe that one of the conditions set forth in subparagraph (A), (B), or (D) of section 23-591 (c)(2) is likely to exist at the time and place at which such warrant is to be executed.
“Any request made pursuant to this subsection must be accompanied and supported by allegations of fact supporting such request.”
S. Rep. No. 91-538, p. 12 (1969).“Search and Seizure
“(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a judge of the United States or of a state, commonwealth or territorial court of record or by a United States commissioner within the district wherein the property sought is located.
“(b) Grounds for Issuance. A warrant may be issued under this rule to search for and seize any property
“(1) Stolen or embezzled in violation of the laws of the United States; or
“(2) Designed or intended for use or which is or has been used as the means of committing a criminal offense; or
“(3) Possessed, controlled, or designed or intended for use or which is or has been used in violation of Title 18, U. S. C., § 957.
“(c) Issuance and contents. A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. 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. It shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. It shall command the officer to search forthwith the person or place named for the property specified. The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time. It shall designate the district judge or the commissioner to whom it shall be returned.
“(g) Scope and Definition. This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term ‘property’ is used in this rule to include documents, books, papers and any other tangible objects.”
“(a) Authority to issue warrant. A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state within the district wherein the property sought is located, upon request of a federal law enforcement officer or an attorney for the government.
“(b) Property which may be seized with a warrant. A warrant may be issued under this rule to search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense.
“(c) Issuance and contents. A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. 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. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified. The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It shall designate a federal magistrate to whom it shall be returned.
“(h) Scope and definition. This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term ‘property’ is used in this rule to include documents, books, papers and any other tangible objects. The term ‘daytime’ is used in this rule to mean the hours from 6:00 a. m. to 10:00 p. m. according to local time. The phrase ‘federal law enforcement officer’ is used in this rule to mean any government agent, other than an attorney for the government as defined in Rule 54 (c), who is engaged in the enforcement of the criminal laws and is within any category of officers authorized by the Attorney General to request the issuance of a search warrant.”
“(a) 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 issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.”
“In any case involving a violation of any provision of part I or part II of subchapter A of chapter 39 of the Internal Revenue Code of 1954 the penalty for which is provided in subsection (a) or (b) of section 7237 of such Code, a violation of subsection (c), (h), or (i) of section 2 of the Narcotic Drugs Import and Export Act, as amended (21 U. S. C., sec. 174), or a violation of the Act of July 11, 1941, as amended (21 U. S. C., sec. 184a)—
“(1) a search warrant may be served at any time of the day or night if the judge or the United States Commissioner issuing the warrant is satisfied that there is probable cause to believe that the grounds for the application exist, and
“(2) a search warrant may be directed to any officer of the Metropolitan Police of the District of Columbia authorized to enforce or assist in enforcing a violation of any of such provisions.”
“BEFORE Lawrence S. Margolis, Wash., D. C. The undersigned being duly sworn deposes and says:
“That he (has reason to believe) that (on the premises known as) 1419 Chapin Street, N. W., as you enter the building last apartment on the right next to the elevator on the first floor Washington in the District of Columbia there is now being concealed certain property, namely heroin, syringes, tourniquets, cookers and paraphernalia used in the preparation of heroin for retail and any other paraphernalia used in the preparation and dispensation of heroin and any other narcotic drugs illegally held, which are in violation of Title 26 U. S Code Section 4704 (a).
“And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: See the facts set forth in the affidavit attached hereto and made a part hereof.
/s/ Marion L. Green
MARION L. GREEN
MPD”
“I, the undersigned officer who is assigned to the Third District Vice Squad, Metropolitan Police Department, and working in the City of Washington, D. C. in an undercover capacity where illegal drugs are sold and possessed in violation of the United States Code, Title 26, Section 4704a. Had the occasion to investigate the following offense.”
“To Chief of Police or any Member of MPDC
“Affidavit having been made before me by Plc. Marrion [sic] L. Green, Jr. Third District Vice Squad that he (has reason to believe) that (on the premises known as) 1419 Chapin Street, N. W., as you enter the building last apartment on the right next to the elevator on the first floor, Washington in the District of Columbia, there is now being concealed certain property, namely heroin, capsules, envelopes, syringes, tourniquets, cookers and paraphernalia used in the preparation of heroin for distribution or use and any other instrumentalities or evidence of illegal possession or dispensation of heroin or of any other narcotic drugs illegally held. See the facts set forth in the affidavit attached hereto and made a part hereof which are in violation of Title 26 Section 4704 (a) of the U. S. Code, and as I am satisfied that there is probable cause to believe that the property so described is being concealed on the (premises) above described and that the foregoing grounds for application for issuance of the search warrant exist.
“You are hereby commanded to search forthwith the (place) named for the property specified, serving this warrant and making the search (at any time in the day or night[*]) and if the property be found there to seize it, leaving a copy of this warrant and a receipt for the property taken, and prepare a written inventory of the property seized and return this warrant and bring the property before me within ten days of this date, as required by law.
“Dated this day of Feb. 11, 1971
/s/ Lawrence S. Margolis
U. S. Commissioner”
“[*]The Federal Rules of Criminal Procedure provide: ‘The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time.’ (Rule 41C).”
“(a) General requirement.
“It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.”
“Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. For a second or subsequent offense (as determined under section 7237 (c) of the Internal Revenue Code of 1954), the offender shall be imprisoned not less than ten or more than forty years and, in addition, may be fined not more than $20,000.”
“Any warrant for search or arrest, issued by any magistrate of the District, may be executed in any part of the District by any member of the police force, without any backing or indorsement of the warrant, and according to the terms thereof; and all provisions of law in relation to bail in the District shall apply to this chapter.”
See Thomas v. United States, 409 U. S. 992, 993 (1973) (DOUGLAS, J., dissenting).
Ҥ 879. Search warrants.
“(b) Any officer authorized to execute a search warrant relating to offenses involving controlled substances the penalty for which is imprisonment for more than one year may, without notice of his authority and purpose, break open an outer or inner door or window of a building, or any part of the building, or anything therein, if the judge or United States magistrate issuing the warrant (1) is satisfied that there is probable cause to believe that (A) the property sought may and, if such notice is given, will be easily and quickly destroyed or disposed of, or (B) the giving of such notice will immediately endanger the life or safety of the executing officer or another person, and (2) has included in the warrant a direction that the officer executing it shall not be required to give such notice. Any officer acting under such warrant, shall, as soon as practicable after entering the premises, identify himself and give the reasons and authority for his entrance upon the premises.”
See H. R. Rep. No. 91-1444, p. 25 (1970), which stated:
“The purpose of this provision [the no-knock provision], as explained in the hearings, is to provide law enforcement officials with a tool to aid in combatting the illicit traffic in drugs which has proved helpful in all of the 29 States where this authority exists either by statute or common law.”
The effect of Title 23 on other statutes was debated in some detail below. Judge Wilkey in his opinion noted that the provisions of
“Rule 41. Search and Seizure.
“(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a judge of the Superior Court.
“(b) Grounds for Issuance. A warrant may be issued under this rule to search for and seize property. Property is subject to seizure pursuant to a search warrant if there is probable cause to believe that it (1) is stolen or embezzled; or (2) is contraband or otherwise illegally possessed; or (3) has been used or is possessed for the purpose of being used, or is designed or intended to be used, to commit or conceal the commission of an offense; or (4) constitutes evidence of or tends to demonstrate the commission of an offense or the identity of a person participating in the commission of an offense.
“(c) Application for Search Warrants. Each application for a search warrant shall be made in writing upon oath to a judge of the Superior Court. Each application shall include the name and title of the applicant; a statement that there is probable cause to believe that property described in paragraph (b) as subject to seizure is likely to be found in a designated premise, in a designated vehicle or object, or upon designated persons; allegations of fact supporting such statement; and a request that the judge issue a search warrant directing a search for and seizure of the property in question. The applicant may also submit depositions or affidavits of other persons containing allegations of fact supporting or tending to support those contained in the application.
“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 (i) there is probable cause to believe that it cannot be executed during the hours of daylight, or (ii) the property sought is likely to be removed or destroyed if not seized forthwith, or (iii) the property sought is not likely to be found except at certain times or in certain circumstances; and (2) a request approved by an appropriate prosecutor that the search warrant authorize the executing officer to break and enter dwelling houses or other buildings or vehicles to be searched without giving notice of his identity and purpose, upon probable cause to believe that one of the conditions listed in subparagraphs (a), (b), or (d) of