United States v. Rafael Soriano

Fla., FBI, agency Negretti, Miami, formant P. Gino put her touch with narcotics Colon. agents concerning particular infor- Gross, Krause, A. Gross & Manará p. January m. on mation. About 2:00 Miami, Fla., for Betancourt. Sierra and agent reported to Cook a narcotics COLEMAN, Before GOLDBERG and of de- she had been to the house Judges. GODBOLD, Circuit Betancourt, fendant Ana Rose had asked Betancourt whether the narcotics Judge: GODBOLD, Circuit in, Betancourt had said “the stuff and government pre- appeals The from a on this occa- was in.” Cook related that suppressing two trial order the fruits of sion she defendants Alfredo Aviles saw searches, search of three (“Alfredo”) a warrantless in Betan- and Marta Sierra the the entrance to Mi- outside court’s house. Airport ami a search International and Agents placed promptly the Betan- Presumably under warrant aof house. surveillance, court residence under government right appeal to its bases approximately p. m. of the same 4:00 on 14 of Title III of the Omnibus § day they observed Alfredo Sierra Crime Control Act of 18 U.S.C. § carrying leave the house brown trash a 3731. We have considerable doubt bag bag, car, place enter a order, whether we should review' the seat. Alfredo drove the car a few we do so with the aim that our caveat away point blocks to where Sierra de- give guidance for below1 some fu- bag posited receptacle. a trash cases, any ture and without commitment agent An retrieved it. Inside clear part pretrial on our to review future bags plastic wrap- and torn Christmas suppression posture. orders in a like containing ping paper, each traces We conclude that the District Court cor- powder which, test, white on field rectly found the searches the suitcas- opium to contain disclosed derivative. illegal sup- es to be it but that erred in agents Later in the afternoon Cook told pressing fruits of the house search. just she had left the Betancourt resi- 17, 1971, dence; On December Betancourt, federal narcot- inside were agents Angel Sierra, ics (“Angel”), received word from Sarah Aviles Rafael persons Soriano, Arroyo; Cook that whom she as knew Edward that she Freddie, Rafael, Argentine pack- had were ex- seen suitcases and Christmas pecting large ages shipment there; parties of narcotics. and that had previously whispering Cook been a reliable in- to other. each pretrial hearing appellees, 1. At a the District Court are Also there nine some of initially suppressed appear standing whom to have one fruits house as to ground search, other, some as to as some upheld government was defective but to neither. The indis- has without, criminately passed standing search of the suitcases. 18 U.S.C. Under over right recognizing ques- § 3731 the even to the existence appeal pretrial suppressing Appellees eager order fruits tion. as one would ex- — appeal pect might aof if not taken for manna that fall in their purposes delay sup willy- and if the evidence direction —have briefed searches pressed government’s nilly separate briefs, is material re- six without government gard respective relationships case. The informed the Dis to their to right premises trict its Court it would exercise searched. appeal suppressing right appeal to order The to fruits pretrial suppression house search. District orders changed ruling suppression up then on the suitcase- bundle all the issues ship appellate search issue so that this court re case and them to the could suppression questions prior hopefully view both court which will out all the sort everyone tangled trial. benefit of effect the District Court has skeins question certified the suitcase-search concerned. us, and asked review without ' adequate findings below. agents met the for warrant- their cab’s trunk criteria continued surveil- in Cool- At less vehicular searches set residence. lance Betancourt idge Hampshire, January p. m. on v. New observed 10:00 Domingo Angel, Colon,' defendants the circumstances exit residence Under Soriano the Betancourt legitimately large They these carrying en- seize three suitcases. were not followed a taxicab which tered suitcases — leave the sidewalk International cab or on the entrance of the Miami them away disappear. Airport. Acting to be War- without ramp temporary agents stopped of con- on the out- rantless detentions the cab Airport entrance, officials tainers side the arrested contraband, opened trunk, passengers, cause contain such the cab’s to believe parcels transit, approved have been After cab removed suitcases. by Supreme the Court demanded and the had been removed when arrestees See, exigencies agents opened by of ramp the the the situation. from the the g., Leeuwen, suitcases, them, e. United States v. Van and seized searched 1029, bags plastic powder U.S. 90 S.Ct. white that are of (1970). question subject us part The crucial before pretrial motion the of the having agents, the suppress. the seized suitcases, open of and them search agents pre- had Meanwhile other retaining whether, in their them while securing paring affidavits and a .war- control, they re- dominion were and pursuant planned to rant to which magistrate quired appear before a search the Betancourt residence. Be- them. seek a warrant examine agent p. m. tween 11:00 11:30 magistrate appeared who Indubitably were the suitcases signed search “effects” within fourth amendment’s house searched when officer ar- protection right people “[t]he rived with the warrant. search The houses, pa persons, to be in their secure produced that seek evidence defendants pers, justify effects.” a war To suppress. government fit must rantless search exception. it within established 1. The suitcase search judi conducted outside “[S]earches by process, prior approval cial agents without The cause judge magistrate, per se unrea or are the taxi believe carrying sonable under the Amendment— Fourth in their cab narcotics subject only specifically suitcases, seriously to a few estab appellees do not exceptions,” lished and well-delineated contend otherwise. seeking is on justified opening “the burden the trunk re exemption moving it.” show the need under v. Chambers Hampshire, Coolidge supra, 403 Maroney, v. New U.S. 454-455, 91 29 L. progeny U.S. at S.Ct. at (1970), L.Ed.2d 419 and its Ed.2d As ex- at 576.3 Justice Jackson circuit.2 The intrusion into the Certainly g., Chapman, amendment the fourth ard. 2. E. United States v. 474 F.2d (CA5, 1973) ; Beto, and seiz- v. F. bans unreasonable searches Gomez interpretive 1973) ; (CA5, caselaw ures. But 2d United States beyond argument that, (CA5, 1972) ; Henderson, as set established F.2d 1074 by language Supreme Gulledge, Coolidge opinion (after (CA5, 1972) ; Miles, full precedents), are cer- there review of F.2d 974 912, as matter of law L.Ed.2d 185 tain 92 S.Ct. searches which reasonable, “searches are not judicial process, Judge dissenting opinion conducted outside 3. In his Coleman magis- approval by prior judge urges or without that “reasonableness” is the test and carry government trate,” can met stand- unless suitcase 13-14, plained 92 L.Ed. at Id. Johnson analyze 440. therefore must 92 L.Ed. 436 We 68 S.Ct. government by (1948), clarity: reasons advanced to with characteristic fulfilling ward and determine burden point Amend- Fourth if the search of suitcas warrantless ment, grasped by often is not es fits within one of the well-defined ex officers, is not zealous denies ceptions to the fourth war amendment’s support law enforcement requirement rant men usual reasonable inferences which put At the threshold we aside protection draw Its from evidence. inapplicable as several theories some requiring those infer- consists in justify times advanced to by a de- ences be drawn neutral and personal effects as such searches being tached instead handbags, suitcases, billfolds, brief engaged judged officer argue cases. The does not competitive enterprise often of ferret- legitimately the search was incident ing out crime. . When to a arrest under Chimel v. Cali lawful right privacy yield must fornia, is, rule, de- (1969).4 gov L.Ed.2d 685 Nor does judicial officer, cided claim valid ernment the search was policeman or Government enforcement plain under the view or under doctrine agent. abandonment,6 and, appro- theory showing subject the burden of that the search falls to limited well-defined ex ceptions ”). within one the “few ex well-delineated . . . . also United ceptions.” joined, 974, (CA5, Davis, This circuit has as in v. States 423 F.2d 978 must, principle Gewin, Dyer), Judges in deed it & reiterated Coleman Coolidge. See, g., denied, 836, 74, e. v. United States 400 91 27 L. U.S. Garay, (CA5 (“The 1973, (1970) 477 F.2d 1306 No. Ed.2d 69 reasonableness 72-3537, Judges Tuttle, Thornberry something & a is which can be search Dyer) (“Subject only specifically abstractly.”). to a determined ‘few exceptions,’ established well-delineated fact, exchange 4. In court between prior searches conducted without issu government hearing counsel at per ance of a able.”) ; are warrant se unreason suppress, government dis motion Ragsdale, United States v. 470 upon to ar an incident claimed reliance 24, (CA 1972, Judges F.2d 5 27 Brown & basis, apparently recognizing that rest Clark, Judge specially concurring) Rives possibility the arrestees there no (“[A]ll warrantless searches in [are] get suit into either car trunk or herently unreasonable unless fall weapons cases obtain destructible narrowly exceptions.”) ; within defined ap Consequently of no materials. direct Scheffer, 567, United v. States 463 F.2d plicability such Abel v. cases as (CA5 1972, Judges Ainsworth, 574 God 217, 80 S.Ct. United Morgan) (“[T]he &bold burden is on the ; 683, (1960) Draper v. L.Ed.2d prosecution exception to come within some 329, United 358 U.S. 79 S.Ct. requirement.”) ; to the warrant United (1959) ; 3 L.Ed.2d 327 United States v. Resnick, States v. 455 F.2d (CA5 ; Harrison, 1972) (CA5 1972, Judges Godbold, Simpson & Wysocki, States F.2d 1155 v. Clark) (quoting above-quoted lan (CA5 1972) ; Nooks, United States v. guage ; Coolidge) from 446 F.2d cert Drew, (CA5 1971, 451 F.2d Judges Gewin, Goldberg Dyer) & ; Stamps, (1971) States v. (“[T]he government burden of the is al- (CA5 1970). F.2d 33 ways heavy urges any exception when it 5. The ex- exteriors of suitcases were large, general requirement that searches posed con- world but the predicated upon and seizures must search, tents, target were the warrant issued cause. from were concealed view. ;”) Sokolow, . . . United States v. (CA5 1971, Judges recently applied 6. This court the .abandon- Gewin, Goldberg (“A Dyer) uphold & ment a warrantless doctrine judicial process conducted outside search of briefcases. See United per 1973) (en Colbert, . se unreasonable capture suggestion partici of others have led that con- priately, there is no operation.7B vary pating analysis narcotics should because stitutional agents constitutional hindsight does not stand discov- we know proves govern- too scrutiny.8 ered contraband.7 Instead accept as were to principal much. If this court ar- case on ment stakes two loosely legitimate government’s de guments: exigent (1) circumstances circumstances, concept exigent warrant; fined justified failure to secure personal scarcely a case would remain ef- a warrant to search would search for narcotics fects after justified. always legitimately not be There is almost seized.7A newly evidence a chance that discovered Exigent circumstances a. accomplices. will ensnare unknown Also, readily available Exigent requir circumstances contempora in the Miami area —one was ing operate in an immediate search signing neously warrant time-consuming re some cases to excuse the officers Betancourt residence —so judicial processes for issuance sort detaining time in would have lost little g., Ohio, Terry 392 U. E. a warrant. suitcases until warrant 1, 20, 1868, 20 L.Ed.2d S. 88 S.Ct. Additionally, (1968); far as the secured.9 so McDonald United discloses, the officers 455-456, record none of exigent tempo a notion that a even entertained L.Ed. searching rary delay govern suitcases advanced circumstance prejudiced opening manner the would have ment case is that might planned immediately their raid on the Betancourt have dis And, finally, possibly ac- residence. closed information which only exigency banc). evidence, is the claimed ease. The hope no this case there is might of the suitcases that contents nor does the contend persons, any, the arrest other lead to is that defendants disavowed there ownership substance even that claim is without of the suitcases. acknowledged that because officers n accu 7. On-the-scene confirmation of the searching they for what were racy not information which could drugs they expected find. to upon may relied contribute otherwise be probable arrest, Draper v. cause to unlike United States case is 8. This 307, 79 S.Ct. 1972), Johnson, in 329, (1959), the valid upheld the warrantless the court which ity may of a search not incident to arrest lawfully a seized suitcase search of supplied not is found in the be what police had cause to believe contained search. explain shotgun. court a sawed-off ed : equates 7A. Our Brother Coleman they in transient [a] stood “As custody to right in arrested hold with area, safety high their own crime short to search their suitcases. The they safety required that of others probable answer this is holding they a know justify war- cause to arrest does not weapon they dangerous over present there one rantless search unless no control.” per- or more of the circumstances which Id. at 639. mit warrantless searches —such as search weapons arrest, incident precise 9. While distances between item be likelihood the seized residence, magistrate, Betancourt away, possibility moved or taken or the Airport in the rec- are not disclosed escape. that those arrested will ord, pattern from the of the we know they agents’ relatively Judge possibility 7B. activities Coleman refers to the Also, might maintain- flee small. officers were car among ing sought radio contact themselves so while the a warrant proper In have assisted each other search the suitcases. case securing exigent to search the suit- this a warrant circumstance to be present It is not in this cases. considered. good knowledged prohibition sense all fourth amendment. what Since searching days purpose- in know—their warrantless searches of motorized upheld to confirm that vehicles have been “where it is practicable tained the which the narcotics secure a warrant be suspected they Compare quickly contained. Si cause the vehicle can be moved York, 40, locality jurisdiction bron v. S.Ct. New 1889, (1968). sought.” which the L.Ed.2d 917 warrant must be

Carroll United 267 U.S. 280, 285, 45 S.Ct. L.Ed. theory b. Post-seizure (1925). Also, during prohibition pointed out, previously the officers As era “the itself car was treat fourth would have acted within the ed somewhat as an offender became detaining seizing amendment Re, contraband.” Di United States v. judicial pending request suitcases authority 222, 225, 332 U.S. for a search warrant. L.Ed. no in There is justifiable theorizes that the Supreme dication in cases Court immediate, seizure rantless, authorized or of circuit this that the Carroll doc opening on-the-scene personality applicability trine has theory search of the suitcases. other than vehicles mobile because of language built on Maro- Chambers v. Against powers.11 their locomotive case, supra, ney, an automobile search language background, historical Supreme which the intimated Chambers tailored for the law auto there was no constitutional difference mobile search is not to out of be lifted seizing “between on one hand applied globally context and the whole holding presenting car personalty world of down. bolted magistrate and issue to a cause carrying on the other imme- hand out an practice government’s diate search We without warrant.” theory justification person to seize disagreement are in fundamental with ipso justification al effects is facto government’s theory. search them would transform fourth excep Chambers amendment from automobile search the rule to the case, tion, traditionally and, and automobiles have thousands items of enjoyed special personalty the movable status under routine which are Mehciz, (1949) (automobile); 10. In United Scher 305 U.S. (automobile); Husty (1971), L.Ed.2d 139 L.Ed. 151 “logic 694, the court adverted to the v. 51 of Cham 282 S.Ct. United U.S. upholding 240, (1931) (automobile). bers” in the warrantless search L.Ed. 629 75 overnight holding Hampshire, Coolidge of an suitcase. v. New 403 See also based, however, theory 2022, 443, on the 91 564 U.S. S.Ct. 29 L.Ed.2d legitimately (1971) (automobile). the search incident It has follow been Draper a lawful under arrest In v. ed in this circuit numerous times. United 307, 329, 358 L. 2 U.S. 79 S.Ct. 3 to the cases in note addition cited (1959). see, gov supra, g., Ramey, Ed.2d In 327 this case the e. v. United States (CA5 ; 1972) (automobile) ernment concedes search was 464 1240 F.2d Birdsong, incident to arrest. To the extent v. F.2d 325 United States 446 application (CA5 1971) (automobile) ; Mehciz rests broad United States above-quoted language 1971) Rodgers, (CA5 v. Chambers out 442 F.2d 902 context, disagree (camper-equipped pickup ; truck) side of its factual United Hill, (CA5 1971) with it for reasons discussed States v. 442 F.2d 259 infra. (automobile). only this cases tenuously resembling 11. The Carroll doctrine has circuit exten been followed even Supreme applying Court on sions Carroll four occasions: Maroney, uphold 42, Chambers v. trailers doctrine searches of U.S. 1975, g., (1970) (auto S.Ct. 26 L.Ed.2d 419 hitched to motorized E. vehicles. mobile) ; Brinegar Gulledge, v. v. United United States (CA5 160, 1302, 1972). U.S. 93 L.Ed. York, New day day individual case.” Sibron Americans’ appurtenances of 1889, 1901, 59, 88. S.Ct. 392 U.S. fourth life, read would for The task L.Ed.2d requirement. amendment the search whether us is significantly determine justified, inas police are Often the invasion of added suspected of seizing article an case, in seizure, privacy initial occasioned contraband, containing or evidence so, was never- the search and if crime, pending issuance fruits of justifi- “scope of the theless within the example, in For warrant. intrusion.” cation initial for the Leeuwen, v. Van (CA5 Green, F.2d 1385 (1970), States 1973). the Su L.Ed.2d Ohio, Terry v. upheld temporary preme detention Court S.Ct; 20 L.Ed.2d suspicious officials customs scope of the search class, [“The pending exe package, first mailed justified by’ ‘strictly must be tied its search of a warrant cution its in- rendered the circumstances which Garay, also tents. See permissible.”] 72-3537). itiation 1973) (No. by way legitimate intrusions significantly These the search this case topple all like dominoes privacy. seizure do not increased interference with per remaining privacy interests markedly As a it differed factual matter Supreme ex As the effect. seizure, sonal after which the from the initial California, plained in Chimel un- contents of the remained 2034, 23 L.Ed.2d 685 752, 89 S.Ct. Moreover, disclosed com- world. why, simply (1969), “no reason there is mon sense teaches that the citizen whose indi interference an with because some luggage lawfully prefers been seized move privacy and freedom of vidual’s interposition judgment of im- an lawfully further place, ment has partial law enforce- automatically al be should may rummage through intrusions ment officers despite the absence of a warrant lowed Also, contents. the search exceeded the oth Amendment the Fourth scope justification initial 12, 89 require.” exigent Id. at 767 n. erwise intrusion. While circumstances n. 12.12 seizure of the suitcases de- pending tention issuance of a legitimate of a seizure The fact require immediate, did not not, then, personal of matically justify does auto effects rantless search of the contents. subsequent search. Thus the was unlawful because By measure, there cas the same be protected by interest intruded which, depending es in on the facts at the fourth amendment and because hand, subsequent intrusion will readily warrant could ob- significantly pre-existing, increase a le prejudicing tained without need gitimate protected interference with a effective enforcement. law princi interest.13 To recite familiar ple, validity “The constitutional of a cases c. Automobile pre-eminently question As sort of which can decid argument, additional ed in the concrete factual of the government context up- cites a line of cases each F.Supp. (D. Small, v. 582 response States Mass.1969). 297 12. statement made was to Justice White’s in dissent that a search full-scale incident to arrest example, 13. For the successive intrusions significantly did not add to the invasion practically time, come close be privacy by jus of occasioned initial the analytically nature, and be identical premises. tified on intrusion the arrestee’s only factually separable because States, also Brett v. 412 See United F.2d sovereigns. made different two (CA5 ; 1969) Green, 401 Bir United States v. 474 1385 F.2d United v. States (CA5 1973). rell, (CA2 1972) ; 470 F.2d 113 United

477 holding the . . search of a container which suitcases. . this case [I]n subject of has been found in a vehicle and which the search not was the vehi- itself, luggage liquor or cle contained other contraband. to be but known conveyed exception one immaterial the hold- the trunk. An With examina- ings on these eases are based the ra- tion of the of movement of the suitcases exigent tionale of Carroll United su- indicate circum- generally pra, which sanctions warrant- stances still existed for immediate stopped luggage less searches on of vehicles warrantless search of the at highways being suspected airport notwithstanding of used the immo- bilizing transport of The focus of oc- contraband. both the vehicle and the analysis cupants. in each of these cases government car itself.14 In this case the government having acknowledged The expressly acknowledged has subject the true of the search subject of search was the suitcases luggage, not, not, we could and will con and has disclaimed the automobile as the spurious struct validation of subject pressed of search. It upon search to search a mobile ruling on the search ef- subject vehicle which was not previously

fects removed from the vehi- Di all. United States v. Cf. rarely briefs, quote cle. from While 581, 585-587, Re, 332 U.S. we do so here to the force demonstrate 92 L.Ed. government presses with which the for a ruling on the suitcase-search issue with- 2. The house search regard full search legitimate. the vehicle would have been suppress The basis for the motion position fruits house search failure of Our is clear if the focus executing placed upon upon the warrant to name the offi- taxicab, not night subject search, cer and the On the true affiant.15 upheld government car 14. itself. The court cites : Carroll Unit grounds search as a on ed reasonable one 267 U.S. S.Ct. (1925) (bottles the car had been abandoned on L.Ed. illicit public right-of-way, liquor) ; Hill, motor run- with its United States v. F.2d ning lights on, by fleeing suspect (CA5 (plastic 1971) jugs 259 liquor) of illicit just police ; Roberts, who had led chase United States speeds per 1970) (sealed of 90-110 miles hour. Ed- F. 2d 1016 cartons of remotely merchandise) ; does resemble stolen wards Armada v. United case, luggage (CA5 1963), in which the was removed cert. denied, prior from car to the search and 84 S.Ct. government (1964) (suitcase containing which the L.Ed.2d insists subject cocaine) ; luggage, Garner, United States v. (CA6 1971) (briefcases car. F. 2d 167 taining guns, ammunition, and stolen pertinent part orders) money ; Chalk, 15. In read as denied, follows: cert. “To__ 30 L.Ed.2d 258 having (1971) (bag gunpowder alia) ; “Affidavit been made before me inter Sherman, United States v. - (CA9 1970), positive premises that he is dwelling known as One floor at 3520 27 L.Ed.2d 805 (camping pack Miami, St., containing 4th sacks SW Fla..... mari juana) being there is now concealed certain property case cited . which viola- [is] (Al) and not decided under tion of Title 21 § U.S.O. Carroll doc Edwards, I trine is am satisfied there is States v. (CA5 1971) property (5-gallon F.2d 749 cause to that the so de- believe contain prem- liquor). being Nevertheless, ers illicit scribed concealed on the Ed case, wards is ises going grounds also an above described and that fore- automobile search it, application by and in as in for issu- other cases cited government, analysis the focus of was Agent by serving January Richel, accompanied named in the war- officer be government attorneys, protect impor- appeared two be- rant come to several magistrate explained fore a and secured a warrant tant interests. As the court Gannon, F.Supp. Ri- search the Betancourt residence. States agents surveilling (D.Mass.1961), chel then of its functions is radioed one responsibility residence he to fix in the event that had secured Also, it en- warrant was en route serve it. is not executed.17 warrant magistrate pre- surveilling Before he arrived the ables the to make a house, appropri- knocked on the door search determination that an placed It when Betancourt ate officer will serve warrant. answered person premises her and the other ar- assists the whose under alleg- ensuring yielded rest. The edly the search search that be searched by officer tainted evidence not made until will made an authorized by pro- imposter. Richel’s And it arrival with the warrant. necessary, that, vides a record so if 41(c), Fed.R.Crim.P., provides Rule post- judicial processes can make a part: “The warrant shall be directed to the search search determination that a civil officer of the United au- by officer. conducted authorized enforcing thorized to enforce or assist in any person law thereof or to so autho- sup- testimony the motion to Oral by rized the President of the United light hearing press shows that Appellees’ appears States.”16 magistrate’s failure these interests the to be that because the violated warrant pertinent mis- to fill in the was a blank provision, which has the force only take of form and not of substance. statute, see Bacon v. United Agent appeared When Richel (CA9 1971), 937 n. 3 evidence govern- magistrate accompanied by two during execution of the warrant Richel, attorneys he, ment he stated illegally suppressi- seized thus the war- the officer to serve would be 41(e). ble under Rule do not under- We Also, identifi- Richel his rant. showed stand the basis for the motion to be that he arrived cation the warrant when contravened the fourth residence, told and he at the Betancourt by itself, amendment its terms Agent Special occupants that he was require does not di- warrant be Richel from the Bureau Narcotics specific rected to a officer. by exe- ordered historically by

Whether or the oc- At this time cute the warrant. temporary usage, requirement company cupants of other in the anee search warrant exist in all cases “A search warrant by any officers men- be served hereby by “You are commanded to search or an officer tioned its direction place prop- forthwith the named for the law to serve such authorized erty specified, serving person, except rant, this warrant no other making requiring it, the search at in the time he aid of the officer on his ” day night acting being present . in its execu- tion.” requirement 16. This survived intact pro- together read He concluded that 1972 amendments Rules of Crim- classes of officers visions created two inal Procedure. “(1) authorized to execute the warrant: Judge and, Wyzanski warrant, 17. In Gannon inferred mentioned fixing responsibility additionally, for nonexecu- authorized those officers F.Supp naming tion was the sole reason for it].” execute [to law serving As our textual discussion reach In this case we do 71. question officer.. shows, agree we do not Rule this is the broadens § 3105 41(c) by allowing reason. non-named officers analysis Judge Wyzanski In his since hold con- execute the infra relationship 41(c) requirements sidered the sub- of Rule the Rule’s provides: stantively § U.S.C. satisfied. door, possibility on the who knocked another of of error orally identified themselves as federal sort. The search form warrant is on a agents, displayed prescribed by narcotics their and Office Administrative And, papers. Courts, identification before leav- the United States has a ing search, serving residence after blank for the name of the offi- Agent assisting officers Richel and two cer. signed him in their the search names Nor is failure of the warrant reverse side of the warrant specify the name affiant sufficient serving officers. ground suppression in this case. 41(c) despite provided Thus technical noncom Fed.R.Crim.P. pliance Rule, time the with the relevant inter made the war magistrate protected. ests were rant “shall state the names of persons in knew advance have who was serve whose affidavits been designated warrant, support provi- in in officer thereof.” it; deed sion has been served deleted with subject premises panoply of received a amendments to the Rules Criminal note identifications confirmations Procedure. As Committee’s identity serving explains: from the officer the amended Rule assisting him; record of the requirement serving name of the officer and those grounds itself state the for its issu- assisting signatures by him was made affiants, ance names warrant; on the reverse side of the unnecessary paper eliminated as work. responsibility for execution of the war comparable requirement There is no rant was fixed. that not We conclude for an arrest in 4. A warrant rule only did a full defendants receive mea person challenge who wishes to va- 41(c)’s protection, sure of Rule but that lidity of a search warrant has access possibilities compliance future upon to the affidavits which serving requirement with the rant issued. officer be named in the warrant would by not penalizing en be enhanced law In this case the affiant’s name was af who, forcement officers while not in affidavit, fixed defend precise required, form nevertheless ants have had access. The affidavit did everything substance do misrepresent identity his as had the regard Moreover, them.18 King as small affiant v. United 282 F. an, Appellees rely principal 18. by on three eases: in its author- direction or officer Perry by warrant, v. United ized law to serve such but 1926) ; person, except Leonard v. United 6 F.2d no other in aid of the (CA1 1925) ; being requiring it, officer on his he Smith, (SDFla.1927). present acting 16 F.2d in its execution.” helpful disposi These cases are (emphasis added). As the Stat.819 tion of language this case for shows, categories at least two reasons. italicized First, rely part persons all on § of7 authorized to execute war Espionage Title XI of the significantly Act of rant broadened provided pertinent part: opinions since rendition of the relied on may appellees. “A search Sigal, warrant all cases by any served of the officers men- direction, tioned in its no other 15 L.Ed.2d 60 person, except Second, in aid of the officer on none of the eases cited requiring it, being present his he discussed whether knew in acting in executing its execution.” advance who were to be the officers, serving Stat. 229. when the criminal officers ade quately laws of the United States were con- identified themselves single title, serving solidated under a this section or whether executing signed amended to read : side the reverse “A executing warrant all cases be of the warrant after it. by any served of the officers mentioned cause, of of the 1960), examination contents (CA4 not so we are 2d 398 I packages such vehicles. the taken from mask effort to a “willfull cerned with any reported in Id. at vain for have searched of the information.” true source judicial system which the federal case in ex rel. 400-401. also States law; 1968), I under- to the as Pate, declares be Pugh this it, majority none. the cites stand hearing At the L.Ed.2d 777 opinion Moreover, majority sets the suppress defendants motion to the journey it in in on this a ease which opportunity to cross- accorded an were are “without ade- that we is admitted permissi full that, the examine affiant to findings only the quate Not below”. pos the in ble extent. With case this originally the the court below denied but uphold suppres ture decline the to suppress of the the contents motion to noncompliance ruling for order technical days sion later, suitcases. A few the paperwork requirement. making awith changed purpose for the of appealable the an- it when 3. Conclusion appealing the its intention of nounced part, part, in in Affirmed reversed ought suppression residential issue. We proceedings. for further remanded jurisdiction accept appellate un- not not is- der such circumstances. We do (concur- COLEMAN, Judge, Circuit majority advisory opinions. The sue ring dissenting part): part in in “considerable doubt” of confesses part opinion I concur in that the of duty to the matter. review validity the Court which sustains the the the But to return to issue which the residential search. agreed majority decide, I would respectfully I must dissent from that concurring opinion call attention to the part opinion which the invalidates Judges of in of six this Court opening of the exami- suitcases and the (alluded Colbert, nation of their contents. majority opin- in Footnote 6 the Page typewritten copy, At 4 of the Judges ion) these have would majority opinion concedes that cause, warrantless, upheld probable agents had to believe cause found, eases search of brief automobile, narcotics, that the suitcases contained city but on a sidewalk. justified open- that my opinion, have the suitcases could ing removing trunk and automobile they were been seized and searched as suitcases, the intrusion into and that leaving That house. trunk re- the automobile met the criteria airport they waited until reached the quired vehicular make difference. should no search. says majority The application In the until detained have been should reasonableness, more standard what obtained, this rant was required? could have been delay”. “temporary The only caused automobiles. could said for same be majority opinion concludes, how- just stopped easy detain as Once ever, although the suitcases were contents. to detain its automobile as they lawfully seized from an automobile not, say opinion could of a is to be the absence does not what opened. Under the facts be a vehicle done with certainly this ease an automobile taken. contents are from majority they May have been searched but detained while the warrant be holds these suitcases to be and the search consummat- is obtained seized if to search a If it is unreasonable .treated ed? upon probable vehicle, parcel from instance an cause from such a this top ramp air- at the entrance to an automobile an automobile port front of Eastern Airlines entrance office then it would unreasona- be liberty follows, airport. inescapably deprive I of their It ble to individuals think, majority On would take while warrant obtained. governing hand, possession of the well oter those in established law warrant- ought less, parcels probable cause, catch automo- not to be allowed searches of hamstrung op- diametrically plane officer biles and into while the convert posite warrantless, probable looks for a warrant. rule for the reality say this auto- It is ordered that the cause be It shall denies searched, reheard Court en banc oral with mobile was True, offi- a date hereafter suitcases cers knew where searched. briefing specify the suitcas- fixed. The will to look for Clerk es, open filing supplemental trunk of the schedule had to get them, so was a briefs. car to in the term, customary so sense of to mention. held in cases too numerous stopped, trunk was- The car was opened, the were seized. ENTERPRISES, INC., FRANCISCO majority say that declines to corporation, Plaintiff-Appellant, stop when on the automobile probable cause that it contains contra- KIRBY, Edward al., J. et Defendants- liquor they band must have a search Appellees. containing look in the warrant the Why boxes jugs in the trunk of hidden the car. No. 71-1813. should the law be different Appeals, United States Court of heroin ? Ninth Circuit. July 19, 1973. Reasonableness is test. If the ripe appellate Rehearing case Aug. decision I Denied 1973. would, upon presently the considerations us, available hold the search-of these requirement suitcases to of nary, met every an ordi- reasonableness. horn tin heroin In the case. over- picture, nearly pounds all four hundred deadly of that stuff was involved. Since, however, judgment suppressing District the contents clearly

of the suitcases was entered thought, opinion after not as its real in the matter and since it was done sole- ly engender appeal not otherwise available, I adequate would remand for findings judgment and for a thereon not prompted expressed desire ob- judgment”. declaratory tain “a kind of respectfully

I dissent.

ON PETITION FOR REHEARING

AND PETITION FOR REHEAR- EN

ING BANC Before BROWN, JOHN R. Chief Judge, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLD-

BERG, AINSWORTH, GODBOLD, DY-

ER, SIMPSON, MORGAN, CLARK, GEE, Judges.

RONEY and Circuit

BY THE COURT: A member of the Court in active serv- having ice requested poll appli- on the rehearing cation for en banc and a ma- jority judges in active service

having voted granting favor of rehearing banc, en

Case Details

Case Name: United States v. Rafael Soriano

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 3, 1973

Citation: 482 F.2d 469

Docket Number: 72-1520

Court Abbreviation: 5th Cir.