*1 Amon, 1351, (10th Cir..l981); posing prostitutes 669 F.2d ficers as customers and Popejoy, United v. 1346, States 578 F.2d in the was limited de- working parlors, to denied, cert. (10th Cir.), 439 U.S. scribing services the women had offered (1978). After they charge what would for those serv- examining say the record we cannot ices. The was offered to testimony prejudice the defendants suffered sufficient place. show the encounters took justify to reversal. Nor does the admission AFFIRMED. testimony appear of the to have compro ability mised the to defendants’ receive See United v.
fair States any way. trial in
Chaney, (5th 662 F.2d 1153-54 Cir.
1981). Other evidence in the case over
whelmingly supported conspiracy con Furthermore, strong
victions. there are in
dications that the trial court did rely on testimony question. its oral find America, UNITED STATES of ings at the conclusion of the case the court Plaintiff-Appellee, stated, “There is no one witness whom fact, I rely; I believe it is largely a documentary case. I believe that the ex CUARON, Frank Armando hibits speak louder than the witnesses in Defendant-Appellant. terms of their persuasive R.Supp. effect.” I, 8. court also said it viewed No. 81-1970. testimony of immunized witnesses such as Appeals, Court of Kristina “with Montgomery great caution Tenth Circuit. scepticaipy].” Id. Admission of ... [and] this testimony, when the defendants raised Feb. objection it, no plain to was not error re quiring reversal.4
The defendants complain also about
testimony given by two police undercover
men, Wells, Robert Kaluthkiewicz and Scott which did make timely objections as
being hearsay. We believe the trial court
properly objections, overruled their how
ever, because the testimony was not hear
say meaning within the of Fed.R.Evid.
801(c) or the common testimony, law. The
which described encounters between the of- Harbin, cally requests Thus, findings. (5th Cir.), States v. the defend hearsay objection triggers application ant’s cert. However, Andrews and Petersen. Thus, if the while we continue potential hearsay court is not procedures alerted to the admonish trial courts to follow the quality testimony by objec set forth in Andrews and Petersen and to make a defendant’s tion, findings record, required findings clearly it need not make that would seem on the we any specific testimony. to be Ra judge plain unrelated to hold that trial did not commit deker makes the procedures enunciated in An error in this case when the defendants failed to drews easily Petersen present opportunity available to defend him to rule on the entirely potential hearsay testimony. ants. But does not relieve them obligation object potential
the normal hearsay when it is first offered. If the defend analysis applies 4. The same to statements timely object proffered ant fails to testi Close, by government made witness Patricia mony, plain the offer falls under the error rule again object which the defendants failed to than the Radeker rather See United rule. the time were made. *2 841(a)(1). appeal, argues On Cuaron §§ that evidence found officers both in the initial warrantless search of his residence to a pursuant and in the search subsequent suppressed. should have been We warrant disagree with and affirm the con- Cuaron *3 victions.
I.
BACKGROUND Cuaron’s arrest stemmed from the com- investigative Drug bined activities of En- (DEA) agents forcement Administration and police officers from the cities of Boul- Greeley, der and The indictment Colorado. charged co-conspirators Cuaron and Jon and William Neet and David Van Omen. Cuar- Olom, Jonathan L. Olom of Marks & Den- right jury on elected to waive his to a trial ver, Colo., defendant-appellant. for and submitted his case to the district court McConaty, Sp. Brian G. Asst. Atty., U.S. suppression hearing, on the record of the a Denver, Miller, (Robert Colo. N. Atty., exhibits, stipulated set of facts and and Denver, Colo., brief), plain- with him on for Neet, testimony pre- additional of Jon who tiff-appellee. viously pled guilty to one count’ of cocaine distribution. SEYMOUR, Before and HOLLOWAY agreed negotiations As in earlier for the Judges, KELLY,* Circuit District cocaine, purchase of two undercover DEA Judge. agents met Jon and William Neet at the SEYMOUR, Judge. Circuit Boulder Inn at 11:45 a.m. on October 1980. The approximately Neets delivered Frank Cuaron was on convicted two agents four ounces of cocaine to the DEA knowingly counts of and intentionally dis- $8,000 and received cash in return. Jon tributing cocaine in violation of 21 U.S.C. Neet testified at trial he had obtained 841(a)(1) (1976)1 and 18 § U.S.C. 2§ agreed this cocaine from and had Cuaron (1976),2 on a third count conspiracy sell it for him. distribute cocaine in violation of 21 U.S.C. 841(a)(1), (1976),3 §§ and on a fourth Jon agents Neet told the at the Boulder possession count of of cocaine with intent to Inn meeting drug that he would be with his distribute in violation of 21 supplier shortly U.S.C. thereafter. He also said * Kelly, Judge, commands, procures Honorable Patrick F. District Dis- induces or its commis- Kansas, sitting by designation. sion, punishable principal. trict of as a “(b) willfully Whoever causes an act to be 841(a)(1) provides: directly performed by 1. 21 U.S.C. done which if him or § against another would be an offense the Unit- “(a) Except subchap- as authorized States, punishable principal.” ed as a ter, any person it shall be unlawful for know- ingly intentionally— or provides: 3. 21 § U.S.C. (1) manufacture, distribute, dispense or “Any possess manufacture, person attempts conspires who or or with intent dis- tribute, dispense, any subchap- or a controlled substance commit offense defined in this punishable by imprisonment ter is or fine or may both which not exceed the maximum provides: 2§ 2. 18 U.S.C. offense, punishment prescribed for the “(a) against object Whoever commits an offense commission of which was the aids, abets, counsels, conspiracy.” attempt the United States or or that his source had obtained pound three kilo- agents cocaine to the DEA at the (about grams six pounds) and one-half Inn. Jon and William Neet were promptly before, night arrested, cocaine the agents and that one kilo- and the immediately began gram had already been sold. The efforts to a obtain warrant from state court negotiated with Jon to search purchase for the the residence from which the co- delivery of two caine had come. pounds additional of co- Surveillance of Cuaron’s caine. Jon residence explained that he was continued. About proba- forty could min- bly get arrested, utes after the pound one Neets were a cocaine at a time deci- sion from was made to secure the supplier, his but if residence with- he returned to out waiting for a search warrant. supplier with the At 2:55 money he could obtain p.m., two DEA agents and a Boulder pound second to sell. The Neets and the officer went to the front DEA door of the house. agents agreed that William Neet and ajar. door was An pushed officer agents would wait in their separate *4 open, wide identified himself as a en- rooms at the Inn law while Jon went his officer, forcement and entered the supplier to resi- acquire the cocaine. Jon ex- dence. Other plained officers then followed. agents that he would take a circuitous route to supplier’s his location to Upon entry, one of the DEA agents ensure he was not followed. Jon also told up looked the stairway to the second floor them it was vitally important that he not and noticed Van Omen at the top of the reveal supplier’s his identity because the stairs. Van Omen nodded or turned his supplier was a “family man” with reputa- head toward a room on the second floor protect. tion to with its door slightly open. The door was immediately. shut Inn, agent
Before Jon The DEA drew left the officers attached handgun, his up an ran the stairway, electronic and en- tracking device to his car. tered the He The room. found Cuaron agents trying surveillance followed Jon to a flush a substantial shopping amount of white powder center where they lost contact down the toilet. This substance was with him for later ten approximately minutes. identified as Thereafter, agent cocaine. The seized ad- using electronic tracking, ditional cocaine which he found lying in agents traced Jon’s car to a single-family plain view top on of a dresser. residence at 6968 Sweetwater Court Boulder County, later identified as Cuaron’s Cuaron and others in the house were de- house. tained in the living room. The officers secured the house and waited for a search At approximately p.m., 12:30 shortly af- warrant, which arrived four hours later at agents ter the observed Jon’s car at Cuar- about 7:00 p.m. During subsequent residence, on’s William Neet told the DEA search, more cocaine para- and narcotics agents at the Boulder Inn just that he had phernalia were in the found house. received a telephone call from Jon who said he was at the supplier’s house. Cuaron’s II. house was then placed under surveillance. p.m.
At 1:00 Van Omen entered the Cuaron CONCURRENT SENTENCE DOCTRINE house carrying a briefcase. Jon testified Cuaron was sentenced to concurrent four- house, that while at Cuaron’s he and Cuar- and-a-half-year imprisonment terms of un- on discussed making an additional cocaine der each of the four counts. The Govern- sale to the purchaser. same They agreed ment argues that the evidence obtained that Jon would sell a pound of cocaine for from searching the residence relates only $32,000 and immediately return the money Count IV and that we should therefore Cuaron completion of the sale. affirm, applying the concurrent sentence followed Jon when he left doctrine. We apply decline to the doctrine Cuaron’s house at 1:35 p.m. and by returned and will suppression address the issues on a circuitous route to the Boulder Inn. the merits. See United v. Montoya, Shortly before p.m., 2:00 Jon delivered the (10th Cir.1982). 431-33 Erb, 596 F.2d
III. tious and trained officers.” Brown, (citing States v. AND EXIGENT CIRCUMSTANCES 1048,1055 (10th Cir.1976), cert. F.2d ENTRY WARRANTLESS court Cuaron contends the trial should (1977)). granted suppress have his motion to be- cause the warrantless search of the resi- to be When officers have reason dence seizure of certain items therein may lieve that criminal evidence be de violated the Fourth Amendment. The crux removed, 417-18, or stroyed, id. at McEach police of this assertion is that officers in, 1144-45, 670 F.2d at before by “exigent were not circumstanc- justified obtained, can are con circumstances foregoing es" in warrant re- normal permit sufficiently sidered critical to offi quirement. private cers residence order to to enter a secure while a warrant is the evidence principle “It a ‘basic of Fourth however, sought.4 argues, that no Cuaron law’ Amendment that searches and seizures objective present in this case for basis pre inside without a are a home warrant police criminal evidence was believe Payton v. sumptively unreasonable.” New destroyed about to be or removed. He also York, 573, 586,100 1371,1380, police in any contends that event the Nevertheless, a war sufficient time to obtain a federal search entry purposes rantless for some limited telephone. warrant permissible if officers have *5 cause exigent to search the residence and police At the time the and the DEA present. circumstances are United States the secure made decision to the Erb, 412, 417, (10th v. 419 Cir.), 596 F.2d warrant, house prior obtaining to a search denied, cert. 444 following 1) they were aware facts: (1979). not Cuaron does contend delivering after the sample four-ounce of lacking cause was this case. agents, cocaine had imme- to the Jon Neet Consequently, appeal on issue diately supplier returned to his to deliver exigent whether circumstances existed to $8,000 pick up pound and an additional permit premises and individuals to be cocaine; 2) Jon called his brother from pending secured a search receipt of war supplier’s house to his report arrival rant. there; 3) travel necessary the time to round The Government the burden trip supplier’s has between residence and Inn, establishing exigent driving circuitously, circumstances the Boulder was hour; made entry 4) the warrantless less necessary. than an after Jon delivered Baca, United v. $32,000 States 106 the cocaine pound of and received (10th Cir.1969), it, cert. 92 for was for him plan to return to the In supplier pound assess to an additional obtain ing met, whether the burden was we are cocaine to purchaser. sell same “guided ‘by addition, realities of the situation the officers knew that three kilo- ” presented by the grams record.’ suppli- States of cocaine had arrived at the McEachin, v. (D.C.Cir. previous evening, F.2d er’s house the that one 1981) Robinson, sold, (quoting United kilogram already had been and that (D.C.Cir.1976) (en banc)). F.2d as supplier wanted to sell it all soon as We possible. During should “evaluate the circumstances as the hour between Jon’s appeared house, would have prudent, cau arrest officers’ entry and the formulation, thing expectation 4. The dissent takes issue near a realistic that evi- asserting “implies any possi- sought it dence if mere will be lost bility, suspicion required.” should be Id. articulable or hunch that at 593. contrast might By sharp. evidence be lost before warrant arrives between the tests is not “reason two just suffices excuse a warrantless search.” Post to believe” mean that: reason to be- we proposes guesswork at 592. Instead the dissent “that will not some- lieve. Mere or whim do. two vehicles arrived at the residence did not return to the residence in a and rea- two individuals left in other vehicles. The drugs sonable amount of time the would officers were also aware that the supplier destroyed or removed. operating was out of his house “Q cocaine, the nature of Given how therefore very being nervous about discov- easily destroyed is it and in what ways ered. destroyed? can it be following In the exchange suppres- at the very easily destroyed, “A It can be it hearing, sion explained Officer Diezi his toilet, can be down a flushed it can be decision to enter the house without a war- sink, flushed down a it can be thrown out rant: window, of a it can be carried out of the “Q Now, an hour already elapsed, had residence, just ways numerous in which it what you made believe that there were destroyed.” could be exigent circumstances to make you hit Rec., Ill, 71-72, vol. 77 (emphasis added). the house before waiting for the warrant The officers also suppres- testified at the which you expected to approxi- arrive hours, mately hearing began two sion that they proceedings three hours later? obtain a state court search warrant as soon “A We received information from However, as Jon was arrested. knew Agent people Barter that starting were normally would take two three house, hours residence, leave the leave the there were some to obtain such a warrant comings goings They Boulder. there. The Neets already been ar- testified that it was ordinarily prac- house, rested and had not returned to the tice of Boulder officers to apply to federal there was another pound transaction that magistrates for warrants. was to take place. If everything had investigation joint Because this was a
gone planned as they would have obvious- effort of state and federal DEA ly returning been to that residence to Moren, agents, Robert the federal agent in complete the transactions which had been charge, why was asked a federal warrant *6 originally time, set up. So before their was not obtained. He replied that a federal knowledge something wrong, was warrant would have longer taken to obtain was quickly going by. they because would have had to drive to “Q knew, not, And you you did get Denver to it. He did consider a people the in were the residence? telephone option. warrant an Yes, sir, “A that, we knew at least facts, Based on these the district court subject one was in the residence. Mr. found that: Van Omen entered and not exited that residence. warrant, delays obtaining “Given the a together with the experience
ti officers’ transactions, these types of it was reason- “Q Diezi, Lieutenant if I can recall prudent able and for them to enter and question the last that was asked of I you, secure the house when did. Where believe it went that what were rea- your exist, circumstances such as these officers believing sons in that you get had to required are not forego actions which the house realizing an hour had already their experience teaches them are reason- elapsed, narcotics, and thinking that cetera, et ably necessary preserving inside the for house warranted this fruits exigency your breaking of crime, into the house? or instrumentalities of a or for the Therefore, apprehension participants. of
“A The fact that there was a future justified the officers were in entering, sale of drugs that was to take place, that here, under the subject presented circumstances would return and —to the res- purpose idence to for the money, pick securing return the and to limited up cocaine, another package that if he house until a warrant could be obtained.” Neet, original States v. face of the warrant the exact 1225(D.Colo.1981).5 determining wheth- time when the warrant ordered to be exigent er circumstances existed to excuse finding probable issued. The cause for warrant, however, the failure to obtain a upon oral testimony may be judge trial did not possibility assess the based on the same kind of evidence as is of obtaining by a federal warrant tele- sufficient for a warrant upon affidavit. phone. “(D) Recording and Certification of Testimony. When a caller informs the
Under the Federal Rules of Criminal magistrate purpose Federal Procedure, federal magistrates are autho warrant, request call is to a the Fed- rized to issue warrants based on telephone magistrate eral shall immediately place 41(c) communications. Rule provides: under oath each person testimony whose “(2) upon Warrant Testimony. Oral forms a basis of the application and each “(A) General Rule. If the circum- person applying for that warrant. If a stances make it reasonable to dispense available, recording voice device is affidavit, with a written magis- a Federal magistrate Federal shall by record means trate may issue a warrant based of such device all of the call after the sworn oral testimony communicated caller magistrate informs the Federal telephone or other appropriate means. purpose of the call to request a “(B) Application. person The who is warrant. Otherwise a stenographic or requesting the warrant shall prepare'a longhand verbatim record shall be made. document to be known duplicate as a If recording a voice device is used or a original warrant and shall read such du- made, stenographic record the Federal plicate original warrant, verbatim, to the magistrate shall have the record tran- magistrate. Federal The Federal magis- scribed, shall certify accuracy enter, verbatim, trate shall what is so transcription, and shall file a copy of the read magistrate to such on a document to original record and the transcription with be known as the original warrant. The the court. If a longhand verbatim record magistrate Federal may direct that the made, magistrate Federal shall file warrant be modified. signed copy with the court. “(C) Issuance. If the magis- Federal “(E) Contents. The contents of a war- trate is satisfied that the circumstances rant upon oral testimony shall be the are such as to make it reasonable to dis- same as the contents of a warrant upon pense with a written affidavit and that affidavit.” grounds application for the exist or that 41(c)(2) (emphasis added). Fed.R.Crim.P. there is cause to believe that exist, the Federal magistrate shall legislative rule’s history demon- *7 order the issuance of by direct- strates that Congress intended to encourage ing person the requesting the police warrant to procure telephone warrants where sign the Federal magistrate’s name on “the exigent existence of circumstances is a the duplicate original warrant. The Fed- close question and the might other- magistrate eral shall immediately sign wise conduct a warrantless search.” original the warrant and enter McEachin, 1146; on the 670 F.2d at see also Fed.R. expresses 5. “vague, The dissent transported destroyed. concern very or The fact that speculative testimony given by of the sort testimony Offi- we and the dissent view Diezi’s so quoted length by majori- cer Diezi —and at the differently serves as a reminder that we as ty given greater weight much appellate than it judges poor position in are a for eval- —will deserves.” Post at 592. We do not see uating Diezi’s testimony. witnesses’ It is for the trial testimony “vague” “speculative.” as and judge The in the first instance to decide how much officers knew that another sale had been ar- weight give testimony. quote We Diezi’s ranged, that the Neets —who had been in con- testimony support because it shows in the rec- supplier arrested, tact with the been finding exigent ord for the —had trial court’s cir- people some had entered and left the cumstances. They also knew that cocaine was easily house.
589 house and ar- agents suspect’s entered the 41(c)(2), Advisory Commit- *8 to sufficiently exigent in this case were not at 1148. available. Id. a war- excuse the officers’ failure to obtain Hackett, at 638 F.2d Baker, agents DEA The defendant in by telephone. rant 1184, there was sufficient also asserted that arranged purchase drugs suspect’s to at a telephone war- house, to obtain a decided to send his time for officers suspect but However, only the court noted rant. girlfriend drugs to deliver at another .the elapsed between minutes twenty thirty to person’s agents house. The arrested Hackett sus- following agents the time the girlfriend brought drugs, when she heading for his residence he was suspect’s pected then went house. The 590 ” judicial one in the district . ... the false-bottomed crate that had been time Rec., Ill, clearly has opened garage. Congress was in his vol. at 182.
contained cocaine
telephone
recognized
magistrates
The court
this was insufficient
authorized
issue
warrant
in com-
procure
telephone
they
time to
and it intended that
do so.
warrants
pliance
41(c)(2).
Rule
telephone
merely
with
seek a
warrant
Failure to
really
upon
because
looked
favor-
“[i]t’s
41(c)(2)
from
apparent
It is
Rule
will not be excused. Were the situa-
ably”
simple telephone
more than a
call is
exigent, we would not hesi-
tion here less
in
a warrant based
required
order
obtain
tate to hold the
search Cuar-
warrantless
that the
testimony.
oral
We conclude
on’s house invalid.
justified
time constraints in this case
proceeding
officers in
without a warrant.6
The fact that the officers eventual
agents
grounds
had reasonable
to be
p.m.
until 2:55
to enter and
ly chose to wait
might
lieve
become alarmed and
Cuaron
secure the house does not affect our conclu
either
cocaine or
destroy the additional
regarding
exigent
sion
circumstances.
$8,000
leave with the cocaine and the
if Jon
probable
exigent
Where
cause and
circum
necessary
did not return in the time
exist, waiting
stances
to search does not
Inn,
travel to the Boulder
make the trans
necessarily
exigent
remove the
circumstanc
action, and return to
house with
Cuaron’s
long
have waited
may
es even if the officers
Baker,
the money.
See
520
enough to obtain a warrant.
McEach
See
1083;
Williams,
see
People
also
200 Colo.
1145;
in, 670 F.2d at
v. John
187,
879,
(1980) (en banc).
613 P.2d
882
son,
832, 842,
(D.C.Cir.) (en
561 F.2d
844
Baker, however,
Contrary to
the circum
denied,
907,
banc), cert.
97 S.Ct.
U.S.
provide enough
stances here did not
time to
(1977).
course we
for a Perhaps new trial. in the course of can be more generally quickly obtained that proceeding my kind, basis for reserva- than can the traditional United States Baker, 1080, tions could succinctly (S.D.Iowa be more addressed 1083 v. 520 and clarified. 1981).
In
clarity,
I
interest of
will first ad
necessarily pertinent
my
While not
dress that
agree.
reversal,
with which I
In this
giving
reason for
the factual basis
regard, I
majori
find little fault with the
decision-making process
rise to the
to “first
which,
ty’s factual summary
for the most
premises”
secure the
also bothers me.
part, parallels
findings
of the trial
regard,
purported exigency
when the
court;1
quibble
nor do I
with most of the
arises from a mere threat that evidence will
majority’s
lost,3
exposition
applicable
agree
of the
law.
I cannot
be
that
the relevant
I agree
government
that the
has the burden
test
is whether “officers have reason to
of proving that exigent circumstances made
that
may
believe
criminal evidence
be de-
entry “imperative,”
warrantless
Cool
stroyed ... or removed ... before a war-
idge
443, 455,
v.
403
Hampshire,
obtained,”
New
U.S.
rant can be
such a “test”
because
2022, 2032,
91
29
(1971),
S.Ct.
L.Ed.2d 564
or
implies
any
possibility,
mere
articula-
“necessary,”
Baca,
United States v.
417 ble suspicion or hunch that
the evidence
103,
F.2d
(10th Cir.1969),
denied,
106
might
cert.
be lost before a warrant arrives suf-
92
search,
S.Ct.
I
trate’s
a
disinterested determination to is-
evaluating
pur-
ported
requires
sue a
exigency
objective
justify
an
com-
search warrant will
the offi-
parison
likelihood,
time,
between the
over
making
cers in
a search without a war-
that evidence will be lost and the likelihood
rant would reduce the Amendment
to a
that a warrant
timely
could not be
obtain-
nullity and leave the
homes se-
people’s
ed,
sought.
if
I
suggest
do not
only
cure
in the discretion
of
offi-
comparison can be made with mathematical
Crime,
cers.
even in
privacy
of one’s
and,
course,
precision,
of
the level of tolera-
is,
quarters,
course,
own
grave
con-
ble risk of lost evidence will
vary
a
society,
cern to
and the law allows such
factors,
outlined,
number of
as
example,
for
proper
crime to be reached on
showing.
States,
Dorman v. United
right
The
of officers to thrust themselves
(D.C.Cir.1970),
392-93
and in United States
concern,
into
grave
a home is also a
not
Rubin,
But
supra.
where the crime in-
society
the individual but
to a
violent,
volved is not
suspected
where the
which chooses to dwell in reasonable se-
criminals are not believed dangerous,5 and
curity and freedom from surveillance.
pursuit
where the doctrine of hot
is not at When
right
must reason-
privacy
issue,
my
it is
view that something near a
is,
ably yield
right
to the
of search
as a
expectation
realistic
that evidence will be
rule,
by
judicial officer,
to be decided
a
lost if
sought
a warrant
should be re-
by
a policeman or Government en-
quired.
Comment,
generally,
See
Residen-
agent.
forcement
tial Searches to Prevent Destruction of Evi-
Here, even if this record’s indication of a
Standards,
dence: A Need for Strict
70
risk of lost evidence went
the rank-
beyond
J.Crim.L. & Crim. 255
speculation,
est form of
it would be insuffi-
As relates to the entire
I
process,
dearly
cient,
because
trial court and all wit-
that,
believe
at all times material
oddly
supposed
by
nesses
measured the
risk
course of the law enforcement officers’ ac-
comparison with the
hours normally
several
diligent
tivities —however
they may be—
required to
from a state
obtain
however rank the offense —these officers
judge,
all
gave
no consideration at
must also
equally
rights
mindful of the
required
telephone
the time
to obtain a
stated,
the citizen. Simply
they must
The
on the rec-
only explanation
warrant.
“think warrant!”
taught
Justice Jackson
why
telephone
ord as to
a
warrant was not
States,
us best in Johnson v. United
DEA
sought
given by
Special Agent
(1948),
timely obtain a warrant. I telephonic am BOARD, Petitioner, disturbed, as I judge believe the trial should been, have by the fact that these officers INDUSTRIES, INC., Respondent. DIXON were indeed aware of its availability but No. 81-1032. consciously ignored usage. its As “trained officers,” I am also convinced knew Appeals, States Court of better. With finding, turn, I find Tenth Circuit. the officers consciously ignored the Feb. Fourth Amendment. Regrettably, majority correctly
my colleague ignored has its erroneously
constitutional implications.
Lastly, it would be a different matter if
the only consequence of the majority’s dissi-
mulation were to make certain that
indisputably guilty defendant would be con-
victed of nonsense, his crimes.7 It is how-
ever, to suppose that federal law enforce-
ment impressed officers will be Su-
preme Court’s and Congress’s command the telephonic proce- search warrant
dure of Fed.R.Crim.P. be used situations this,
like Baker, United States v. (S.D.Iowa 1981), when
the majority’s tacit message is that
need not bother. Conversely, if these well-
trained officers would have simply followed rules, and had the trial court enforced
them, and this Court insisted upon compli- both,
ance by the Fourth Amendment and
the lessons in
are preserved.
Weeks
correctly
I believe that had the trial court
suppressed
through
the evidence obtained
home,
search of defendant’s
defendant would
counts,
still have been convicted on all four
Crim.P.
Notes
The court
Amendment,
in rested him without a warrant.
Rules,
reprinted
tee on
1977
not use
1980);
agents
held that
the DEA
could
S.Rep.
IV
No.
app. (Supp.
18 U.S.C.
to fore-
exigent
in
circumstances as an excuse
Cong.,
reprinted
1st
95th
Sess.
had “abundant
go
a warrant because
Cong.
1977
& Ad.News
U.S.Code
warrant. The
telephone
time” to obtain a
necessary
time
to obtain a warrant
The
explained:
court
cir
to a determination whether
relevant
few minutes there-
p.m.
“At 3:00
or a
Therefore, courts
exigent.
cumstances are
after,
had
cause to
agents
the
the amount of time re
should consider
Southard,
reasonable
arrest
had
telephone
obtain a
warrant
in
quired to
become
grounds
might
to believe that he
urgency
the situation.
assessing
in his home
destroy
alarmed and
evidence
McEachin,
Although
670
at 1146.
war
F.2d
to his
and flee if Baker did not return
by telephone generally
rants
take
obtained
p.m. Deducting
home
about 4:45
by
procure
less time to
than traditional war
to travel
required
25 to 30 minutes time
rants,
required
telephone
the time
for a
home,
from Wollner’s home to Southard’s
warrant varies from case to case. See
an hour and 15
agents
nearly
stili had
1146-48;
McEachin,
670 F.2d
seek and obtain a
minutes left in which to
Hackett,
1184-85
v.
States
inadequate
was
time to
warrant. This
(9th Cir.1980),
450
cert.
warrant,
get
travel
to Des Moines to
(1981);
Unit
68 L.Ed.2d
in which to
but
it was abundant
time
Baker,
F.Supp.
ed
v.
1083-
from a federal
seek and obtain a warrant
(S.D.Iowa 1981).
exigencies
of some
magistrate by telephone.
prevent
situations will
the officers from
U
warrant.
obtaining
telephone
even a
1146;
to ob-
McEachin,
Hackett,
try
did not
670 F.2d at
“Because
warrant,
which there
tain a
for
telephone
F.2d at 1184-85.
time,
has
government
was abundant
congressional
with the
In accordance
circumstanc-
exigent
failed to establish
41(c)(2),
intent
in Fed.R.Crim.P.
embodied
es.”
we conclude that trial courts must consider
added).
(emphasis
at 1083-84
Id.
telephone
of a
warrant
availability
Nevertheless,
recog-
Baker
the court in
determining
exigent
whether
circumstances
where
existed,
might
there
be circumstances
unless the critical nature of
nized
permit
ob-
effec
“time constraints
clearly prevented
circumstances
[would]
For
at all.
Id. at 1084.
procedure.
taining
tive
a warrant”
any
use of
warrant
involved
McEachin,
McEachin the officer
example,
Notes
notes that the trial court did not possi- assess the bility of obtaining phone. a warrant by stated, For the reasons I am also convinced