United States v. Lonnie Gooding, United States of America v. Leon F. Barnett

Judge, FAHY, Circuit Senior Before WILKEY, Circuit and ROBINSON Judges.

Judge: WILKEY, Circuit appeal on arise cases

These the Dis- orders of from United States evidence suppressing certain Court trict for viola- indictments at trial on for use laws.1 of the federal tions August charged (1964), ch. Gooding Act of and Barnett were Both repealed violating Stat. former 26 U.S.C. § V, (Supp. The orders of the District rested Court 23 D.C.Code 1972)4 provides view that evidence was sei- di- a warrant night pursuant zed at warrants which rect execution of the search at statutory prerequi- failed to specified meet certain showings sites for need, execution.2 admittedly which were 41(c) made this case.5 Rule Applicable 1. The Statute the Federal Rules of Criminal Procedure anytime authorization allowed of service requirements Just which statute’s positive “if the applicable affidavits are that the has a matter property place . in . . is the to be sympathize some We can with debate. magistrates searched.”' the found Judge feeling Since U. District that S. Gesell’s only probable “posi- cause, requisite the possi- search warrant statutes of “[t]he tivity” admittedly lacking in the application was ble narcotics searches cases jurisdiction at bar. are a bramblebush uncertainties and contradictions.” Un- provisions night Two other deal with fortunately, clarity, in its search for the time search in more the limited area of District Court wandered into the briar “involving offenses controlled sub patch result, and came to both cas- stances.” Title 33 of the D.C.Code § es, agree. with which we cannot 414(h) (Supp. V, as amended 1972) provides that, when offenses such applicable potentially There are four involved, judge “the or commissioner showing standards which relate to the may necessary shall insert a direction may that it be before any night.” day at served time of the or be authorized. Two of these 414(c) arguably imposes However, general deal with § search as requirement additional com that the matter. The District of Columbia Court plainant ex be witnesses must Reform and Criminal Procedure Act of Gooding Pub.L.No.91-513, III, The at 1101(b)(3) warrant was executed Title § p. February 1971, day (A), (1970). Gooding 9 :30 m. on 12 the 84 Stat. 1292 charged violating after its The warrant in Bar- issuance. also with former 21 p. nett (1964), July 1956, was executed at 8:08 on 11 m. § Act of 18 February 1971, day I, it was issued. ch. Title § 70 Stat. repealed by Pub.L.No.91-513, III, Title Gooding, F.Supp. 3. United States v. 1101(a)(2), Stat. 1291 (D.D.C.1971). 2. Both warrants recited facts which were 4. These sections became as of 1 effective characterized as “in violation of Title 26 February 1971, prior to the issuance Both U.S.Code.” these warrants. warrants further stated: 521(f) (5) provides 5. Section that the war- issuing magistrate] [A]s [the am sat- rant shall contain a direction isfied that there is cause to during day be executed the hours of property believe so described light judicial or, where officer has being (premises) is concealed on therefor, including found cause one of foregoing above described and that grounds set forth in section 23-522 grounds application for issuance of (c)(1), an authorization execution the search warrant exist. or night. day at time of hereby . . . . . You are commanded to search (place) forthwith the named for forth in set Section 23-522 property specified, serving this warrant (c) (1) for execution of the warrant making (at any any time are day night i) or . . i. that there is cause to The Federal Rules of Criminal (A) it believe that cannot be executed provide: Procedure “The warrant during daylight, (B) the hours of shall direct it be served sought property likely is to be removed daytime, posi- but if the affidavits are destroyed forthwith, if not seized or property tive that the is onllie (O) sought likely is not searched, or in the except may at certain found times or warrant direct that it be served (Rule 41(c) time.” certain circumstances .... ently ground a statute is based the warrant on oath before amined specific recent is more this which more There issued. govern cases, appears so be- when met in these should conflict requirement was assumption that proceed on tween such statute an older we will agree general war more law.8 we not validate the search While 414 would general disagree principle, challenged here.6 we rants application in this case. Finally, the federal Although, noted, provision, the District Court U.S.C. § warrant provides are more 23 D.C.Code Sections 521-523 specific apply in the sense that relating to offenses A search geographical to the limited area involving substances controlled Columbia, District of 21 U.S.C. § served “special” clearly specific or the more magis- judge or United States if subject provision as to matter —search there ... satisfied trate Although 879(a) in narcotics cases. § cause to believe 521-523, went into effect before §§ § and for grounds for the warrant exist 879(a) passed was considered and after time. at such service Thus, 521-523.9 the federal narcotics §§ statutory stand the other Since none of in fact § —is statute — met, warrants these search ards were specific both more the more re- and only 879(a), held if can valid § provision.10 cent applicable specific statute, is the federal provision. light, appar in Viewed Judge Gooding inconsistency general in held that ent Gesell between lo general nighttime provisions in spe cal search statute and the spe- govern require D.C.Code and cial federal narcotics showing night disappears.11 cial need to search statute Sections 521-523 even in Barnett narcotics of Title cases. were enacted D.C.Code Judge agreed. (1) general Corcoran The District because there was no D.C. holding Gooding appar- provision relating Court’s was exeeu argument July 6. There is D.C. was enacted on 29 also not 1970 but did 414(h) repealed impliedly February was Code become § effective until 1 including Act, in since 23 D.C.Code 521-523 were The Controlled §§ Substances comprehensive to be en tended and were 21 U.S.C. was enacted on § 27 Octo- assump (albeit incorrect) effective, ber 1970 and acted under became at least as provisions “[t]he District of Columbia to the immediate- § ly. provision presently Code contains governing all the time of a for execution Ap 10. The District of Columbia Court of No.91-907, Rep. search warrant. H.R. peals came to the same conclusion (1970).” 91st Sess. at 109 Thomas, States v. 294 A.2d concerning Since our conclusions these (D.C.C.A.), U. application warrants do not rest on the S. 34 L.Ed.2d 258 414(h), of 33 need not § we (1972) : However, reach this issue. we should harmony We think it more with the firmly note re Court Congress give spec- obvious intent jected argument implied repeal ial treatment law enforce- narcotics Green, F.Supp. 44 United States provisions ment to view [as such § (D.D.C.1971). (a) “special” as the ] ones subject qualification by gen- opinion Part II See for a discus- eral search warrant application sion of the § U.S. .' . The D.C.Codes these warrants. “special” legislation area of is narcotics F.Supp. 1005, 8. 328 enforcement, law Colum- not District of bia law enforcement. 9. The District of Columbia Court Reform and Criminal ap- Procedure Act of 11. And the “bramblebush” statutes which included pears 23 D.C.Code forbidding. less They argue (2) that the must Con tion of search warrants12 gress of “need” satisfied that there desired to insert criteria “positiv superior believe-that exist both “for to the which were felt Rules. warrant” and such ity” “for its service at found in the Federal test (at night). time” that nar to believe is no reason There spe- be Government that no affected contends cotics searches were already showing required cause, contrast, cial and ad- (1) need is there was that, showing relating is, specific provision to mit if no such federal (18 invalid.15 made and the warrants “positivity” 1405(1)), re appellees’ interpretation If regard quirement needed no revision only possi- words of the statute were the it had to narcotics searches because agree reading, ble have to we would applied context.13 When in that However, position. re- with their specific to the turned later quirement to search at governing problem is of standards spe- night necessarily for a does not call magistrates U.S. suance of nighttime as cial need for re cases, in narcotics sponse was its Rather, opposed daytime search. problem to this narrower interpretation would least as natural an govern in these section must clause, imply “for its this added cases.14 time,” requires service at such grounds in the sense service at Application the Statute sought probably will that the narcotics present at be named 879(a) pro- Since we conclude that § night.16 by vides the relevant tests judge validity the of these search war- ambiguity, Confronted with this we rants, inquiry next is wheth- gain guidance legislative obvious can from the Appellees er those con- tests were met. 879(a) history. de is a direct Section special requires tend that a 1405(1).17 § In of 18 scendant U.S.C. § night. showing of a need to search at deed, Report notes that House thought possibility 12. The that Drugs” narcotic “Narcotic local —the provision dealing there at laws). requirements was no D.C. all 414 Thus the of § nighttime search warrants is dis- (c), not which were demonstrated might cases, relate by cussed note 6. That fact in these been met warrants continuing validity to doubts about simply apply these do here because although 414(h), of 33 § D.C.Code violations were issued for in issue need this does not decided federal law. However, congressional case. even intent p. Reply 2, Appellant’s Brief at n. 5. 15. comprehensive nighttime to enact a reading passed given statute when it 23 D.C.Code this §§ Section was negate by 521-523 would not serve to Court of the District of Columbia Thomas, subsequent specific Appeals decision to reaffirm a magistrates denied, (D.C.C.A.), 409 and different rule for cert. U. S. 294 A.2d 164 regarding 341, 992, 34 L.Ed.2d 258 93 S.Ct. U.S. by passing regard (1972). to federal violations — 879(a). § 21 U.S.C. II, July 1956, Title Act of 18 ch. Stallings, 573, repealed F.2d Pub.L.No. See United States v. 413 70 Stat. § (7th 1969), 91-513, III, 1101(b)(1)(A), 84 Cir. Title § (1970). provided, section L.Ed.2d This Stat. U.S. pertinent part, “search warrant See footnote that a infra. may [relating offenses] to narcotics that, special have noted if the local We day night if time of the served at valid, (33 414) is still § statute judge Commissioner United States these warrants not have met its re- issuing the warrant satisfied there is quirement of examination under oath. probable to believe However, Title concerned 33 is § only application exist.” for the “violations of chapter” (i. e., Chapter 4, entitled (a) of accepted [21 Subsection U. If appellees’ argument we incorporates S.C. 18 U.S.C. 879] requirements § § federal statute’s authorizes service a search in narcotics cases day precisely search warrant at are coterminous with those of if cause has been es- the local applies statute which in all types cases, tablished to the satisfaction of the judge then whatever distinction Magistrate issuing Congress sought or U.S. enacting establish separate special warrant.18 regarding statute federal narcotics offenses would be com- 1405(1) uniformly inter- was pletely obliterated. And since we are preted require showing construing statute, a federal that con- cause to search order for struction would be of uniform national relating to narcotics to be exe- application. hand, ap- On the other if night.19 cuted at pellees up concede that does set Despite legislative history the clear standard, its own federal and if the reflecting congressional intent not showing required less than that set change prior area,20 ap- law this out in 23 D.C.Code but more pellees argue change wording that the than mere cause to believe that significant. must be viewed can- We drugs time,” will be found “at such agree. “grounds necessary If the applicable then no source stand- . in- service such time” appears. ard volve more than a nar- Appellees essentially arguing present premises cotics any will be great significance given should be to one pre- night, then possible reading language of new when sumably showing required the additional ambiguity present, even when the night. would concern a need search at legislative history suggests no intent to Appellees argue by suggesting as much change meaning of the section. Our 879(a) incorporates the standards reasoning refusal to follow is forti- general forth in set D.C. very fied the fact that the am- same provision. However, the exact potentially biguity present wording proposed of was § previous provided statute. 1405 Department. the Justice It is inconceiv- that a warrant could be served at that, able confronted with a creseendo- any time if “there is cause to ing drug problem, nationwide abuse grounds application believe for that the read, Department recommend would to Con- possible It is to exist.” stat- gress making obtaining a statute of require showing of need to ute to just search warrants diffi- as “application” night, at since seeking cult for interpreted (1) narcotics offenses as in oth- both could as (2) permis- er issuance warrant and ease.21 change (Part I), H.R.Rep.No.91-1444 879(a) from the 18. 91st indicates that no ] prior (emphasis Cong., (1970) F.Supp. law 328 2d 54 intended.” Sess. add- ed). Cong.Adm.News, 91st See U.S.Code Cong., Sess., pp. (1970). 2d 4621-22 part Con- 21. 21 § U.S.C. Exactly language tlie same is contained “legislation Act, de- trolled Substances Report. S.Rep.No.91-613, the Senate (cid:127) signed comprehensive fashion to deal in a Cong., 91st 1st 30-31 Sess. growing drug abuse menace of with through pro- Stallings, . States . . United United States 413 F.2d v. (7th viding 1969), en- means for law more effective Cir. 207 drug preven- aspects ; (1969) abuse forcement 24 L.Ed.2d 440 Castle, ” H.R.Rep. F.Supp. . . . and . United 52 control 213 (Part I), (D.D.C.1962) Tucker, ; 91st No. States v. Cong. F.Supp. (S.D.N.Y.1966). & Admin. U.S.Code 262 305 1 Sess. p. News, Judge Gooding, Gesell conceded that legislative history “the [of § ports especially in the context of a sion to search — statutory which had overall night, “probable to believe scheme just as stringent grounds purpose ef- 879(a)) much more and (§ has exist” that showings suppression argued by appellees require traffick- fective narcotics language ing. “grounds” “probable Since the new cited both cause” and present appellees a novel does even and “for its service “for the warrant” ambiguity, we must conclude that time.” such previous meaning “incor- courts, course, to read refused porated” intact. remained § They only way. required § greater argued that a showing It has been to believe showing Judges to search at would be found.22 narcotics applies in a thoroughly intended because legislators § conversant was and comprehensive in- prob- fashion all offenses special, unique, almost volving In con- “controlled substances.” lems of law enforcement applied trast, certain long recognized that effective searches § specified Appellees reasonably narcotics offenses. require differ- for narcotics (without, pointing timing. suggest however, ent This is basi- methods congres- such cally concrete evidence the reason that both the U.S.Code tougher intent) standard sional contain distinct the D.C.Code two provisions, general searches, for search was established one for legislative pro compro- Deferring quid quo in a other narcotics searches. night- availability legislative extending judgment to special . . . mise “a larger to a time search authorizations facts existed searches con- argument violations,” This number proves cerned with federal narcotics offenses. Although “proba- “eonclusory too much. one court noted that required speed ble to be shown cause” about the § statements surprise need conceivably be characterized statutory could ambiguous [a construction potentially sought read in- parallel by appellees to the one spe- appear clude cause to believe . would cause to here] night, cial need exists to search warrants would be affidavits thing pointless.” clearest about one that is apply the same stand- that it meant absolutely There is ard for search authorizations “legislative judgment” changed respect every type controlled respect during the enactment of § substance. replace leg- 879(a) to 1405.24 All the § is to the history contrary. islative reading It is true 879 to incor- Surely significant departure such a showing previously required porate the prior policy from would have drawn obtaining nightime make 1405 does § Re- comment the Senate and House regard to search warrants easier 1405(1) provide 22. Section was to intended Castle, F.Supp. States United v. exception to the inflexible and archaic (D.D.C.1962). 53-54 requirement “positivity” 41(c). of in Rule Gooding 24. The District Court stated S.Rep.No.1997, Sess., See 84th suggestion that “[t]here is no that 41(c)’s required Rule test any nighttime the need for [is] “positive” the affidavits to be about greater where narcotics offenses in- are fact that “the is on the volved rather crimes.” other or in the to be searched.” The new F.Supp. 1005, simp- 1008. That comment provision, 1405(1), merely changed § ly ignores background pur- the whole and degree certainty required of 1405(1) pose of both 18 U.S.C. and Ignoring potential ambiguity, a foot. 879(a). See U.S.C. wisely congressional the courts consulted Castle, supra. found, here, intent and as we do no de- required sire to establish an additional showing of need when narcotics was involved. drugs. despite categories However, possible the fact of that the earliest some espoused by appel- may reading, moment alternative be after dark. If showing suggests easy cases, lees, in- would statute was be heroin why we can searches more see no it tended to make reason would not just any be cases. in hard As routine in other in- narcotics ease difficult noted volving earlier, Department Speed Justice controlled substances. language surprise equally proposed necessary and exact § coverage any gener- argument expanded type drug seize which it This from ally illegal possess. necessarily suggests Depart- Since all con- subject trolled ment desired retreat from the substances be the a test of can abuse and be to search in hard have to ferreted out mere “underground” markets, cases, Department that the and there nothing drug accomplished about no comment in the nature of the this with sought legislative history, speed which the need for context renders surprise any increasing likely any or a measure aimed at less less effec- easily regard expanded shown. tiveness law Therefore the enforcement applicability larger drugs. Department’s variety 879 to a § Justice proposals controlled does been the sub- substances not neces- sometimes sarily imply ject interpretation departure a from the stand- inaccurate previous suggestion “incorporated” speculation, ards of the but sec- tion. Department meant to make Justice heroin more searches for dif- worst, requiring showing special At patently ficult is indeed novel and off of need to search “at time of the the mark. night” day would make search for narcotics more difficult. At suggest attempt Another best, probably, acceptance and more general legislative compatible intent was appellees’ arguments gener- here would greater required showing with a pointless eonclusory ate statements grounds implies applications in future for warrants. showing quite easy that such would comport Neither result would with the in heroin and would cases thus legislative sound and clear intent which impede argu- law That enforcement. expressed when was enact- § proves ment too little. Since the show- ed. ing required reading by the appellees showing seek is a applicable We hold that the stat grounds time,” to search “at such ute, requires only requirement must be noted that the is of cause to believe grounds “at time of the the narcotics will be found on the day night.” quite That different premises requirement from a there be night. Since both search warrants grounds night.” to search “at clearly standard,25 met this grant suppress Court’s of the motions to phrasing implies The statute’s actual in these cases must reversed and the required the real interest proceed cases are remanded for further speed demonstrated is the interest ings opinion. surprise consistent with this search as — soon as tactical considerations warrant So ordered. probable Both search warrants found would be that could be found on cause to premises believe that the narcotics were any day the of the time or being prem- night. “concealed” the requirement on relevant context, any In this incorporated ises. Both specific finding by affidavits which magis- a more the alleged drugs being that the linguistic “se- trate be an absurd arti- would any creted.” In ficiality the absence of indica- which the does statute re- quire. that such concealment was other continuous, the natural inference governing the is- Judge, ed that the FAHY, concur- restrictions Circuit Senior night are search warrants ring: suance respect specified to thus liberalized by reached result concur relating drugs narcotic and mar- laws generally Judge Wilkey. I also concur may ijuana, warrant “so that a search reaching opinion. the In same in his any any time such case at be issued however, I followed the have conclusion, night judge the day if the or or of the stated, which is similar now course satisfied is United States Commissioner adopt- from that different but somewhat to believe there is that Judge Wilkey. by ed grounds application the ex- the F.R.Crim.P., 41(c) of the when Rule Rep.No.2546, 84th ist.” Conference the warrants in these cas- each (1956), Sess., U.S.Code Cong., 2d issued, provided follows with es Admin.News, Cong. p. The & respect and contents: to issuance requirement of Rule “positiveness” shall it be The warrant direct 41(c) inflexible and to as was referred daytime, if the affi- served the but archaic, giving peddler a distinct ad- grounds [establishing davits vantage forces and over enforcement law issuing positive warrant] hampering deal efforts property or in the is racketeering. S.Rep.No.1997, 84th searched, place may to be warrant Report Sess., The may direct be served at ‘positiveness’ “the continues: element time .... longer required and Rule is 41] [of Subparagraph (g) provided: of the Rule enough ob- ‘probable is cause’ alone modify any night act, in narcotics rule in warrant This does tain a it, regulating search, Id. consistent with . . .” at 9. cases seizure and the issuance and execution required “positiveness” previously The of search warrants in circumstances 41(c) was that Rule of the affidavits special provision for which is made. . . . person or in the “the on is which, searched,” under as to judge issuing 1405(1), or section Special provision was made former only “probable commissioner need section 1405 of Title 18 of the United to believe. cause” involving States Code1 for ease specified violations of federal nar supersede 879(a), has now § Stallings, laws.2 cotics United States v. 1405(1). provides ed It fol- section (7th Cir.), 413 F.2d 200 lows: 972, 460, 24 L.Ed.2d relating of- search warrant A (1969); Tucker, United States v. involving substances fenses controlled (S.D.N.Y.1966). F.Supp. day may of the be served at time 1405(1) provided: such cases section night judge or States or if the magistrate issuing sat-

a search warrant warrant be served at cause to if the isfied there judge grounds for the war- exist believe United States Commis- issuing time. at such sioner rant and its service is satisfied that there believe to be a re- I construe This enactment application for the interpretation section statement exist. meaning 1405(1). It clarifies Managers section, part had relieved search positivity referring House, for narcotics of stat- warrants July 18, II, included former sections Act ch. Title Such repealed Title 21 of the United 70 Stat. P.L. Code, III, 1101(b)(1)(A), related Title violations (1970). Internal Stat. Revenue Code. substituting warrant, 41(c), which of Eule authorized the search at requirement day night, requirement for a probable cause or was “satis- a giving probable any time, the there thus fied that is cause to be- grounds sought Congress by “flexibility” in nar- lieve that for the exist e., time,” does to me and for its service i. It not seem at such cotics cases. by property the interpretation precluded person is the is or in “that on the place cov- substances to be In the the controlled the searched.” Good- fact enlarged referring 879(a) ing magistrate, be- the to case the ered section scope accompa- yond previously the in within set forth the affidavit those facts part warrant, nying made a of section “I is am satisfied there states: foregoing history I conclude From the prop- probable to the cause believe that requirement of section the being erty described concealed so is magistrate issuing “satisfied the be (premises) described the above probable believe cause to there is supports .” The affidavit exist . magistrate. statement the such means, time” con- at such when service in is true of the situation The same read, 41(c) Eule it then sidered Barnett. probable believe there cause to is “prop- that, narcotics, accordingly in case of the the These warrants place erty person requirements to on the or met the section is searched,” 879(a).4 question the war- then which event arises be could direct that it be served nevertheless rant whether searches were narcotics, Thus, in the case of failure to standards time. invalid for meet the 1405(1) previously in ei- under section for a search contained judge 879(a), under section if the of the District later ther 23 or Title Title “that is satisfied there of Columbia Code. “if the af- rather to believe” cause first Title in its relation I consider “property positive” that fidavits are provi- Title The search warrant to or in is (Supp. 521-525 sions searched,” permit exe- the warrant could 1972) specifically V, to con- not refer do manner time. It in this cution at is generally They apply trolled substances. Eeport, interpret relied the House jurisdiction. in this to search Government, upon states: us fail the cases before The warrants (a) of U. this section [21 meet these standards Subsection namely, incorporates search, 18 U.S.C. 879] S.C. § of a 1405 and authorizes service is That there warrant at time of (A) it cannot believe that es- if has during daylight, executed hours tablished the satisfaction sought likely (B) property to be magistrate issuing judge or U.S. destroyed if not seized removed warrant.3 (C) sought forthwith, then, question except under section likely cer Our found the factual one whether or in circumstances . . . . times certain tain issuing each case , H.R.Rep.No.91-1444, Cong. specifically 91st failed include had Sess., (hereinafter, special provision applicability Pt. 1 at 54 Act a Cong. H.R.Rep.No.91-1444b & it had U.S.Code District of Columbia as to the Admin.News, p. 4621, language 1405(2). respect like section done with Report, S.Rep.No.91-613, applicability Senate think the of sec- I do not Sess., Cong., 1st 91st jurisdiction turns special upon upon provision, but such question Some be raised about subsequently considerations advanced applicability opinion. in this of Columbia in that 438 414(h), V, 33, 522(c)(1) (Supp. section for narcotics Title D.C.Code §

23 522(c)(1). 23, prevails 1972). Title section over 414(h), 33, Finally, strong Title section argument does is available A 879(a)? so, the by over If control section provisions were intended Con these inadequate, jurisdiction for section gress to warrants were apply in this 414(c) complied general was not Title 33 as well as controlled substances persuaded 414, in a notwithstanding But with. I am ly, 33 D.C.Code § involved V, 1972), applies (Supp. search warrant narcotics amended as alleged federal nar- violation specifically for nar to search here, laws, (h) con- section cotics, 414 cotics as of section and subsection trols, by Appeals of as the Court of provides direct held warrant shall I in Thomas. District of Columbia it be served conclusion, however, upon Thomas, night. this reach v. In United States reasoning. 992, It 164, somewhat different U.S. A.2d 409 294 Code, Chapter 4 of Title 33 of our 341, L.Ed.2d 93 34 258 S.Ct. 414(h) part, enti- Appeals of which section is a the Court of Drugs,” upon spoke concerned matter tled “Narcotic this of Columbia our local narcotics with violation follows: states, laws, is, as section harmony think it more in We chap- provisions this of the “violation give obvious intent Code of Columbia ter” —the District special en- law treatment narcotics de- chapter with narcotics concerned provisions forcement to view such [re- fining related local crimes. lating to controlled substances] By foregoing, (including “special” reason of since ones warrants, 1967, subject present explicitly 33-414(h)) issued not alleged general qualification connection with violation laws, complied provisions D. the federal narcotic U.S. (Rule val 41(c), I conclude Rules of C.Codes Federal Procedure, id and that seized thereun 23- evidence Criminal 522(c)(1)). “special” suppressed. I der should not have The area reluctantly. legislation this Con enforce- reach conclusion law gress providing ment, recently, 23 in Title en- District of Columbia law generally our the standards forcement local Code .... applicable in this for a A.2d at 294 166-167. jurisdiction, clearly be differentiated inquire need daytime We or not whether search. tween a and a ruling; for, legislative history provi we are bound of those aside, give precedence give strong am I unable to an inten sions evidence sections 521 to over sec- Title 23 for controlled include 33, night, especial tion 414 of Title as the insofar Searches substances. great ly present potentially search warrants now considered are con- home, of a appears privacy. cerned. upon True it is that Title Jones er intrusion See legislative to have States, been overlooked S. history Appendix Title see the And L.Ed.2d Ct. opinion, significant imposed but I think court can- would be burden or other officials not overlook the fact that Title requiring special search at reasons for a ses- nevertheless reenacted at the same narcotics, particularly up-to-date general even sion that enacted private considerations home. These search warrant of Title expression it accordingly in Rule have now found conclude as between effective October as amended self two standards for a you know; the of of the rant. As District 1972, subsequently to the issuance presently no Code contains Columbia Gooding search warrants. and Barnett governing provision subpara at time for all the provides its Rule now The graph of execution a .... (c) as follows: in the shall served The warrant * * * * * * authority, positivity issuing the found that daytime, We unless test, inadequate. rule, positivity In is appropriate provision in the war- shown, fact, relatively it is unfair of rant, because and for reasonable greater potential on times other the privacy intrusion execution at authorizes nighttime persons of from a daytime .... than justifi- There should be some search. helped provision not have would This search; merely cation for that in effect when appellees had it been you positive that the evidence issued, is for present warrants were there. provision, in sub- coupled with another present under tive nett warrants statutory sued, did search warrants Gooding tion of mains paragraph to local hours defines I p. m. local time. accordingly date. The result a from for consideration with salutary subparagraph (c) the term cases situation go beyond time.” The and Barnett warrants Fourth Amendment. situation (h) 6 m. a. I think follows from were each served concur of the new effect “daytime” issued after which in what existing Gooding p.10 of the I reach reversal. m. to mean Rule, my opinion permissible when the respect to according its effec- modifica- Rule re- in the before which Bar- “the is- notwithstanding umbia, id. at 1416. under U. S. Hearings at 1389 521-525, thus Before Statement The District of Columbia Code ently erties The new This Columbia, ^[*] positivity. Attorney is for the contains no on ^[*] Senate mistaken provisions governing warrants, S.2869, S.2602, 91st greater improvement Mr. Thomas seem to ^[*] Title 33 (Hearings). protection Cong., Comm, provision have been enacted ^[*] assumption 23 D.C.Code §§ 1st A. ^[*] the District Sess., at Flannery, See civil lib- all S.2980, night- ^[*] Code, pres- Pt. that, also, over gov- Col- erning the time for execution of APPENDIX search warrant. legis- strong There indication in the Cong., H.R.Rep. 91-907, No. 91st history lative of 23 D.C.Code (1970) (H.R.Rep.). More at 109 Sess. Congress apply intended these over, provisions the new were intended provisions in this to narcotics searches S.Rep. comprehensive, No. jurisdiction. (1969), 1st at 38-39 91st Sess. revising governing encompassing nighttime and no-knock Criminal Procedure for the District H.R.Rep., See narcotics. Columbia advised 109, including supra, at a statement “inadequate” positivity other Duncan, Corporation Charles T. Mr. 41(c), F.R.Crim.P., rule of then ex- Columbia, for the District Counsel isting provision deal- D.C.Code had type narcotics were a of contra ing Mr. Don- searches. 521(d)(2), band, 23 D.C.Code § Santarelli, Deputy E. ald At- Associate “may destroyed if not be removed or torney General found forthwith seized stated: nighttime.” Hearings, supra, only at Santarelli, Chairman, proposed of Mr. at 1404. Mr. we have also Statement change Santarelli, [41(c), testimony Mr. F.R. standard See also id., 1389-1390; of Mr. the statement war- Crim.P.] supporting Flannery, id., 1417; in much their reason- and the state- ing. however, differ, with their con- Wald ment of Mrs. Patricia Neighborhood Legal Services, id., clusion that 21 authoriz- U.S.C. § war- of search es execution merely on narcotic eases rants federal It would seem from the above believe cause to Congress may have intended new is then a controlled substance that present nighttime provisions to search warrant premises to be apply in- in This the case narcotics. believe, too, I the affida- searched. terpretation supported by the is further underpinning in issued vits warrants District Court reason stated Gooding: credited with the cases at bar should be larger and crucial role the res- more Roughly sixty percent of the search yet they have olution of these cases warrants in the District of isued [sic] assigned. these To accommodate are to violations Columbia related considerations, sepa- two I record Congress If had the narcotics laws. position. rate except intended to federal narcotics require- from the search warrants I one 523(b), ments of 23 D.C.Code § certainly expect the would intention acknowledge agree- outset, At the I expressed in the statute or at least my colleagues ment with that Section legislative history, possibly by 879(a) set the standard for' special reference narcotic execution before us. applicable in the search then thorough statute analysis The careful and treat- offenses. The Gov- given District for local aspect ment which litigation ernment not directed the Court’s certainly has of the needs no ef- attention to such indication fort toward further elaboration. The (Footnote found none. Court has simply task left for me is to summarize omitted.) major propositions per- which have suaded me. F.Supp. at 1007-1008. Yet are faced with the reenact- we Act,1 While Controlled Substances ment of Title with its 879(a) part, of which Section is a is not 414(h), authorizing search warrants expressly operative made in the District narcotics, night, executed at without Columbia, it is clear that in compliance with such standards Title as tended the new law to have nationwide generally requires searches effect, encompass and thus to federal night. narcotic offenses which occur District.2 I see no conflict between Sec III, ROBINSON, SPOTTSWOOD W. 879(a) 33-414, tion and D.C.Code § concurring Judge, Circuit in the result: which also is limited to execution of thoughtful excellently cases, crafted warrants in narcotics since colleagues opinions my demonstrate local extend convincingly transgres appealed suspected the orders based drug from cannot-stand. concur reversal sions of the District’s own laws. II, (a) provides : Pub.L. No. 84 Stat. Section 33-414 tit. seq. (1970), § 801 et A warrant U.S.C. be issued any judge Superior Court of the of Columbia or a United scope apparent 2. The national of the Act is States commissioner for the District of (1970), drugs from 21 in which Columbia when are narcotics congressional findings manufactured, possessed, controlled, as to interstate aspects sold, prescribed, administered, dispensed, intrastate traffic compounded pro- are enunciated. in violation read specific law that the two cannot be consist- Moreover, are which statutes regulation normally ently, prevail controls subject over federal matter field.8 that such a conflict particularized in I believe less those 879(a) Nothing exists between and the suffi- concern.4 their area of provisions,9 appear- District hence that ef- principle override cient to given former as fect must be to the Con- ing here, nar- it follows that federal gress has procedures mandated. of Sec- cotic search warrant precedence over take must general provisions of II and, 23-523 colleagues agreement my up well, general set service criteria point, to this I now arrive at 41(c).5 Rule forth in Federal Criminal diverge. They paths our hold where conclusion re- Our unanimous change that Section works spect applicability to the of Section predecessor statute, 18 U.S.C. present cases further to the 1405(1), permitted search war- which more the canon the buttressed investigations in rants federal narcotic the recent6 recent dominates less statute any of the or served be for, Judge Wilkey notes,7 Section as authorizing magis- night long so as the passed 879(a) and was considered after judge as the ex- trate was satisfied of and its enactment Section 23-521 probable of for the cause search. istence sup- companion provisions. Additional language of the the Section On basis of port derived for our construction very requirement 879(a), from of the Controlled which I consider the its Act where one of accept Substances plain, I inter- am unable to specifications so conflicts with a state pretation. chapter, such visions 65, States, v. 195 U.S. 6. Schick United drugs property narcotic other (1904) ; 68-69, 826, 99 49 L.Ed. S.Ct. designed in for use connection with such Hosmer, (9 76 U.S. States v. manufacturing, possession, unlawful controlling, (1869). Wall.) 435, 432, 19 L.Ed. 662 selling, prescribing, ad- p. 7. Ante ministering, dispensing, compounding, thereunder, be seized provides: and shall be 8. Section 903 of the Act disposition subject to such provision subchapter the court No shall may make thereof and such indicating any narcotic intent be construed as on drugs may on be taken the part Congress occupy warrant from of the place house or other which provision operates, field including are concealed. penalties, to the ex- criminal (emphasis supplied). law on the same clusion of State subject matter which would otherwise Ginsberg Popkin, 4. D. & Sons v. 285 U.S. authority State, within the 204, 208, 52 S.Ct. 76 L.Ed. 704 positive unless there is a conflict be- (1932) ; Kepner States, v. United provision subchapter tween that of this 100, 125, U.S. 24 S.Ct. 49 L.Ed. 114 that the two can- State law so (1904). Compare Fourco v. Glass Co. together. consistently stand Corp., Transmirra Prods. (1970). The District § falls within the Act’s 228-229, 1 L.Ed.2d 786 defini- Columbia (1957). 802(24) tion of U.S.C. § “State”. 41(c). 5. Fed.R.Crim.P. At the time the controversy warrants executed, were issued and point out, 9. As I later text at notes infra 41(c) Rule authorized a direc- nighttime the local tion for service where the execution siderably are con- of search warrants supporting posi- affidavit the warrant was stringent more than of § tive that to be seized was on thereby with the conflict dis- inor to be searched. position Congress to make federal positivity requirement has since been less searches at rather deleted, 41(c) permits and Rule now such types more other than difficult than a direction for reasonable cause shown. searches. See note infra. Report ambiguity “in- that Section perceive word- states I corporates” 1405 and au- re- former Section ing (a) which would of Section “probable history. anytime-service legislative thorizes quire probe into its report intimates But with- cause.”13 comparison that section As a reveals, nothing probable readily 1405(1) as to whether former Section nearly says cause which it must be established provisions are not the two to the satisfaction did not reenact identical.10 “any signifi- judge for time” sim- service at without in the later the earlier rather, or, language probable changed ply alteration; search cant particular at a importantly addi- 1405(1) of Section legisla- amphibology time. This tion the final clause—“and Reading history tive offers no clarification time.” at such service already part to me from Sec- what obvious preceding clause with itself. applying rules normal section and English grammar, I can construe (a) I ex am convinced that thing: for serv- one mean but whole to more for acts night, proba- ice a search merely cause for a search. for the search must be shown ble cause argu cannot, however, appellees’ accept shown cause must itself and ment that Section embraces “at such the warrant service criteria for searches which Judge Indeed, Kelly stated time.” general contained in war Thomas,11to in United dissent provisions of rant to render hold otherwise would be require compliance to 23-523.14 To meaningless. added words those to standards order activate Sec unambiguous stat- In face of an 879(a) would be its to strain word history ute, legislative serves to resort beyond ing any perceptible of intent although Here, purpose.12 no useful enacting special measures legisla- colleagues my to resort both of drug to control the traffic. Whatever sup- 879(a) to tive on comment Section may selecting purpose have section, interpretation port of that their language could Section it intro- comment to me that the seems hardly sought nighttime to limit uncertainty present in the sec- duces drugs strictly searches controlled as House alone. The tion when examined (a) 879(a) 13. “Subsection incor 10. reads: Section porates relating 18 1405 and authorizes A search warrant to offenses any involving service of a search warrant at time be controlled substances night probable day any night day if or cause has at or served judge been established to the satisfaction of the if the or United States judge magistrate issuing issuing or the warrant.” U.S. satisfied (pt. .Rep. I), probable H.R No. 91-1444 to there is cause believe Cong., 91st and for Sess. 54 U.S.Code exist for the warrant p. Cong.News, language & at Identical its service such time. S.Rep. Report, is used in the Senate No. (D.C.App.), 164 294 A.2d (1969). 1st 91st Sess. 409 93 S.Ct. 34 L.Ed.2d U.S. 23-522(c)(1) (Supp. (1972). majority Thomas, V In a 258 1972) permits my 879(a) colleagues search warrants to be court as construed any executed at or at do here. Id. upon probable cause believe that to 12. United States v. Public Util. Comm’n (A) during be it cannot executed California, 295, 315, 345 U.S. daylight, (B) property hours (1953) ; parte L.Ed. Ex Col sought likely removed or be de- lett, 55, 61, S.Ct. stroyed forthwith, (C) if seized (1949) ; L.Ed. See also United property sought likely is not Rice, 742, 752-753, States v. U.S. except at found certain times S.Ct. 90 L.Ed. 982 certain circumstances. nighttime non-drug degree require justification a out- weighing cases.15 potentially more serious privacy intrusion on inherent colleagues’ persuaded my Nor am I nighttime Not search. all searches for 879(a) view of counte- Section possess controlled substances the same nighttime nances a direction for a degree urgency, applica- nor do all just probable search believe tions for search in- sought-after drugs are then duce the same conviction of need. Some present on the or the probable probable cause is more than subjected to the search. there Unless other, ultimately some and some turns probable a cause to believe out to be a false alarm. A standard of the matter be seized will reasonable cause which a enables realis- designated person found tic competing public evaluation place, a search warrant cannot issue private interests accommodates the colleagues’ my Consequently, at all.16 myriad magis- confronting situations 879(a)" construction of would de- Section judges trates and far better mand no more for a possibly inexorable rule And could. daytime; than one in the in other legisla- such a standard serves well the words, prerequisite no more than is objectives underlying tive Section If, search. the last think, maintaining appropriate while clause Section establishes sensitivity privacy to the concern for night- requirement large. citizenry shared time execution additional search,17 cause to their construction The test of reasonable cause for completely reads that clause out of the nighttime execution does not demand a section and would leave the door wide drugs positively demonstration that open execution war- premises night, or that licensing rant a search for controlled premises only could be found on the substances. night, or that for some reason impossible daytime. would be It my view, cause which does summon some factual basis for a exacts for searches at prudent greater in- conclusion that supplied only by can be circum- trusiveness execution of demonstrating stances reasonable cause justified by exigen- particular for a search at that time.18 remaining cies of the situation. The something Section calls for above then, question, jus- beyond is whether there was sup- and that would daytime port search, a and that tification that caliber these cases. would Report states, pur- Ramirez, 712, As the House v. 279 F.2d pose enacting (2d Cir.), 850, Con- 364 U.S. 95, (1960). trolled Substances Act was to deal S.Ct. L.Ed.2d 74 usage by narcotic more effective methods supra 17. See text at notes 10-11. H.R.Rep. of law enforcement. See No. (pt. I), The standard 91-1444 91st “reasonable Sess. replaced “positivity” shown” has re- quirement for searches under Sgro States, 206, v. United 287 U.S. 41(c). former Fed.R.Crim.P. The Rule 138, 53 S.Ct. 77 L.Ed. 260 pertinent part: as amended reads (1932) ; States, Schoeneman v. United day- The warrant shall be served in the U.S.App.D.C. 110, 113, 317 F.2d time, issuing authority, unless (1963) ; States, Rosencranz v. United appropriate provision warrant, in the (1st ; 1966) 356 F.2d 315-318 Cir. shown, reasonable States, Durham v. United 403 F.2d authorizes its execution at times other (9th 1968). Cir. See also Jones daytime. designate It shall a States, 257, 270-271, v. United magistrate federal to whom it shall be (1960) ; 4 L.Ed.2d returned. garner III is calculated not evidence past but also to terminate a ser crime question Consideration of this marks ongoing criminality, species rea ious rejoin point I at which am able to nocturnal intrusion sonable cause colleagues my disposition —in reason, For this I con is demonstrated. appeals. For while I do not sub- these cur in the conclusion that there was an to the cause standard scribe legal ample and factual basis for the they espouse for searches un- searches, of the orders reversal der I am satisfied that suppressing fruits. their supporting the warrants and affidavits ample in these cases afforded foundation under the allowance such searches

test endeavored to articulate. The affidavits in- the two eases are quite similar, they portray very sim- affiant, police ilar The of- situations. ficer, prov- was told an informant of reliability en that a named individual case, appellant —in each sell- —was of America UNITED STATES ing drugs specified premises. narcotic pur- informant advised of a recent Jr., Appellant. George GRAY, made, chase which he had and stated No. 72-1776. that he could transact another for the edification of the officer. The informa- Appeals, United States Court supplied by District Columbia Circuit. the informant then transaction, verified at the March person previously specified, and with the leaving under controlled conditions

doubt as to a sale of narcotics. bearing vitally In the recitals question hand, the search both cases were identical. Each stated

that the was “satisfied that there is cause to believe that” paraphernalia narcotics being narcotic “is prem- concealed on the” described proceeded ises. Each warrant direct that it be served and that the search be anytime night.”

made “at The service and search occurred in the within one in one in- stance, days and within three in the oth- instance,

er on-prem- after the verified drug purchase ises was made. Beyond cavil, the affidavit disclosed and the found reasonable cause for a search in each of these grounds beyond eases. went believing that kept premises searched; it ground believing extended to that a drug-peddling operation persisted there. Where, here, appears that a search

Case Details

Case Name: United States v. Lonnie Gooding, United States of America v. Leon F. Barnett

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 11, 1973

Citation: 477 F.2d 428

Docket Number: 71-1669, 71-1945

Court Abbreviation: D.C. Cir.