Petitioner, charged with illegal possession of drugs, made a
motion to suppress the physical evidence seized in petitioner's
apartment on February 12, 1971, at 9:30 p.m. by District of
Columbia police officers pursuant to a magistrate's search warrant.
Although no provisions of the D.C.Code were explicitly referred to,
petitioner apparently contended,
inter alia, that the
warrant was executed in the night-time in violation of D.C.Code §
23-521(f)(5), which specifically requires that search warrants be
served in the daytime unless certain statutory conditions are met,
none of which was satisfied here. The District Court granted
petitioner's motion, rejecting the Government's contention that the
warrant was issued under 21 U.S.C. § 879(a), which relates only to
searches for "controlled substances" and provides that a warrant
may be served "at any time of the day or night" as long as the
issuing authority is satisfied that probable cause exists to
believe that there are grounds for the warrant "and for its service
at such time." The Court of Appeals reversed on the ground that 21
U.S.C. § 879(a) was the applicable statute, and that its terms had
been satisfied.
Held:
1. Title 21 U.S.C. § 879(a), which is part of a comprehensive
federal scheme for the control of drug abuse, applies to this case.
Pp.
416 U. S.
446-454.
(a) The standards for issuance of the warrant should be governed
by nationwide federal legislation, rather than by local D.C. laws.
An Assistant United States Attorney filed the application for the
warrant with a Federal Magistrate, alleging violations of the
United States Code for which petitioner was indicted. P.
416 U. S.
447.
(b) Though the affiant officer and the officers executing the
warrant were D.C. police, rather than federal officers, and the
legislative history of § 879(a) stressed federal enforcement,
Congress manifested no purpose to dispense with the aid of other
enforcement personnel in dealing with the narcotics problem. Pp.
416 U. S.
447-450.
Page 416 U. S. 431
(c) If petitioner's contention were to prevail, the general
search warrant statute applicable to the District of Columbia would
govern D.C. police officers when investigating federal drug
violations but not other federal crimes, despite the fact that D.C.
police officers historically played a prominent role in federal
drug enforcement under 18 U.S.C. § 1405 (194 ed.), the predecessor
statute of 21 U.S.C. § 879(a). Pp.
416 U. S.
450-454.
2. Title 21 U.S.C. § 879(a), as was true of its predecessor
statute, requires no special showing for a night-time search, other
than a showing, such as was made here, that the contraband is
likely to be on the property or person to be searched at that time.
Pp.
416 U. S.
454-458.
155 U.S.App.D.C. 259, 477 F.2d 428, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ.,
joined. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN
and MARSHALL, JJ., joined,
post, p.
416 U. S. 459.
MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and
BRENNAN, JJ., joined,
post, p.
416 U. S.
461.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner in this case presents a claim that evidence offered
against him at his trial should have been suppressed because it was
seized at night-time in violation of governing statutory
provisions. The search which led to the seizure was conducted by
officers of the District of Columbia Metropolitan Police Department
at approximately 9:30 p.m. within the District of Columbia.
Page 416 U. S. 432
Armed with a search warrant, the officers entered petitioner's
apartment for the purpose of discovering violations of a federal
narcotics statute, and seized a substantial amount of contraband
narcotics. The parties urge upon us differing theories concerning
which federal or District of Columbia statute bears on the legality
of this search, and we must therefore interpret and reconcile
several recent congressional enactments dealing with night-time
searches which seem to embody somewhat inconsistent views.
[
Footnote 1]
The Court of Appeals agreed with the District Court's
description of this congeries of statutes as a "
bramblebush of
uncertainties and contradictions,'" [Footnote 2] and a mere summary of the statutes attests to
the accuracy of that observation:
District of Columbia Statutes: The older of the two
conceivably relevant District of Columbia statutes, D.C.Code §
33-414 (1973), [
Footnote 3] was
enacted in 1956, and authorizes
Page 416 U. S. 433
search warrants for violations of the District of Columbia
narcotics laws. This section does not limit the time during which
searches may be made, stating plainly that "[t]he judge or
commissioner shall insert a direction in the warrant that it may be
served at any time in the day or night." This liberal time
provision is in direct contrast to the more restrictive provisions
of the second
Page 416 U. S. 434
District of Columbia statute to be considered, D.C.Code
23-521(f)(5), [
Footnote 4]
which specifically requires that search warrants be served in the
daytime unless certain conditions
Page 416 U. S. 435
set forth in § 23-522(c)(1) are met. These conditions
essentially require a showing of special need to search at night,
and concededly have not been satisfied in this case.
Page 416 U. S. 436
Federal Statutes and Rules: The general provision
governing federal search warrants is found in Fed.Rule Crim.Proc.
41. [
Footnote 5] At the time
the search in this case
Page 416 U. S. 437
took place, Rule 41(c) provided that warrants must be served in
the daytime except where "the affidavits are positive that the
property is on the person or in the place to be searched."
[
Footnote 6] In such event, the
warrant
Page 416 U. S. 438
could direct "that it be served at any time." This provision was
incorporated in the Rules in 1948 as a replacement for language
previously contained in the Espionage Act of 1917. [
Footnote 7] A second federal statute relating
only to searches for "controlled substances" is found in 21 U.S.C.
§ 879(a), [
Footnote 8] which
was enacted in
Page 416 U. S. 439
1970. That section provides that a warrant may be served "at any
time of the day or night" so long as the issuing authority "is
satisfied that there is probable cause to believe that grounds
exist for the warrant and for its service at such time." This
provision, in turn, is the successor to a provision in 18 U.S.C. §
1405 (1964 ed.), [
Footnote 9]
enacted in 1956 to relax the "positivity" test of Rule 41 in cases
involving certain narcotic drugs. [
Footnote 10] Congress had passed this statute in response
to the complaints of law enforcement officers that the positivity
requirement gave commercial narcotics dealers a definite advantage
over federal agents. Rule 41 is therefore not applicable to
searches governed by the more specific narcotic search statutes.
[
Footnote 11]
Page 416 U. S. 440
The facts of this case must be understood in the context of
these statutes. On February 11, 1971, an Assistant United States
Attorney applied to a United States Magistrate sitting in the
District of Columbia for a warrant authorizing a search of
petitioner's apartment for evidence of illegal narcotics. The
application included the brief notation: "Violation: U.S.C.; Title
26. Sections: 4704a." In connection with the application, an
officer of the Metropolitan Police Department vice squad appeared
before the Magistrate and swore that he had reason to believe
petitioner was concealing property held in violation of that same
code provision. [
Footnote
12]
Page 416 U. S. 4441
The officer supplemented his personal testimony with a written
affidavit, outlining the basis for the application in more detail
and alleging specifically that "illegal drugs are sold and
possessed in violation of the United States Code, Title 26, Section
4704a." [
Footnote 13] The
affidavit concluded with the language: "I am positive that Lonnie
Gooding is secreting narcotics inside his apartment at 1419 Chapin
Street NW in violation of the US Code."
The Magistrate then issued a warrant directing the Chief of
Police or "any member of MPDC" to search petitioner's apartment.
[
Footnote 14] The warrant
specifically noted
Page 416 U. S. 442
that facts had been set forth in an affidavit alleging a
violation of 26 U.S.C. § 4704(a) (1964 ed.) and that those facts
established probable cause to make the search. The warrant also
stated that the search could be made "at any time in the day or
night." This phrase was accompanied by a footnote reference to
Fed.Rule Crim.Proc. 41(c), presumably because the police officer
had asserted he was "positive" the drugs were in petitioner's
apartment. One of the briefs filed in this case suggests that the
warrant form was preprinted, and contemplated application of Rule
41 standards. [
Footnote
15]
The search warrant was executed on February 12, 1971, at 9:30
p.m. [
Footnote 16] The
officers engaged in the search were
Page 416 U. S. 443
all members of the District of Columbia Metropolitan Police
Department, and the search uncovered a substantial quantity of
contraband narcotic materials. They were seized and formed the
basis for charging petitioner with violations of 26 U.S.C. §
4704(a) (1964 ed.) [
Footnote
17] and 21 U.S.C. § 174 (1964 ed.). [
Footnote 18] Following his indictment in the United
States District Court for the District of Columbia on April 6,
1971, petitioner filed a motion to suppress the evidence discovered
in the February 12 search.
Several grounds were asserted in support of the motion,
particularly that
"[t]he search warrant was executed at night, but the application
for the warrant did not comply with the D.C.Code provisions for
night-time search
Page 416 U. S. 444
warrants. . . . [
Footnote
19]"
Although no provisions of the D.C.Code were explicitly referred
to, petitioner's argument apparently was that Title 23 of the
D.C.Code, requiring that a special showing of need be made to
justify a search at night, governed this search, and that its
requirements had not been met. The District Court found this
reasoning persuasive and granted the motion to suppress. Rejecting
the Government's argument that the warrant was not issued under
Title 23, but rather under 21 U.S.C. § 879(a), the court
stated:
"Whatever be the standards generally for issuance of a
night-time search warrant in federal narcotics cases in other parts
of the country, however, the Court finds that the existence of 21
U.S.C. § 879(a) does not remove such cases from the explicit
requirements for search warrants in the District of Columbia under
the newly enacted Title 23, D.C.Code. [
Footnote 20]"
Having decided that District of Columbia law applied, the
District Court admitted to some uncertainty about the status of
D.C.Code § 33-414, the provision dealing specifically with
violations of local drug laws. The court noted with some puzzlement
that no mention of this provision was found in the legislative
history of Title 23, and that some language in the legislative
history suggested that the provision had simply been overlooked.
[
Footnote 21] Nevertheless,
the court determined that
"[p]ending prompt review of this determination
Page 416 U. S. 445
or congressional action, and pending interpretation of 33
D.C.Code § 414(h) in light of the new Title 23 provisions, search
warrants which are to be executed in the night-time should comply
in all respects with 23 D.C.Code § 523(b). [
Footnote 22]"
Concededly the warrant issued in this case did not comply with
the requirements of Title 23.
The Court of Appeals for the District of Columbia Circuit
reversed the District Court, [
Footnote 23] although none of the three judges who
composed the panel completely agreed with any other on the proper
rationale. All three agreed, however, that 21 U.S.C. § 879(a),
rather than any provision of the District of Columbia Code, was the
provision which determined the legality of this search. All three
likewise agreed that the affidavit submitted by the District of
Columbia police officer satisfied the requirements of that section.
Judge Wilkey and Judge Fahy found that no greater showing for a
night-time search was required by § 879(a) than was required by its
predecessor statute governing federal narcotics searches, 18 U.S.C.
§ 1405 (1964 ed.), and that the affidavit need establish only
probable cause to believe that the property would be on the
premises at the time of the search. [
Footnote 24] Judge Robinson believed that § 879(a)
Page 416 U. S. 446
did require an additional showing for a night-time search, but
concluded that such a showing had been made in this case. [
Footnote 25]
Petitioner urges that we reverse the Court of Appeals on either
or both of two alternative grounds. First, petitioner repeats his
assertion, sustained by the District Court, that Title 23 of the
D.C.Code is the statute applicable to the search in this case and
that, as the Government has conceded, the requirements of that
title have not been satisfied. Second, petitioner argues that, if
21 U.S.C. § 879(a) is considered to be the applicable provision, a
special showing for night-time searches must be made. We agree with
the Court of Appeals that 21 U.S.C. § 879(a) is the statute
applicable to this case, and that its provisions have been
satisfied here. [
Footnote
26]
I
The unique situation of the District of Columbia, for which
Congress legislates both specially and as a part
Page 416 U. S. 447
of the Nation, gives rise to the principal difficulties in this
case. For we deal here not with statutory schemes enacted by
independent legislative bodies, but with possibly overlapping
schemes enacted by a single body. Despite the potential overlap,
however, we think that the operative facts surrounding this search
strongly indicate that the standards for issuance of a warrant
should be governed by the nationwide federal legislation enacted by
Congress -- that is, 21 U.S.C. § 879(a) [
Footnote 27] -- rather than by the local D.C. laws. To
begin with, an Assistant United States Attorney, who had discretion
to proceed either under federal or under local law, filed the
application for the search warrant alleging a violation of the
United States Code. Application was made to a United States
Magistrate located in the United States District Court building,
and neither the application nor the supporting affidavits contained
any mention of the local narcotics laws. After the materials were
seized, petitioner was indicted for violations of federal law.
Petitioner contends, however, that Title 23 of the D.C.Code
should apply to this case because the executing officers, as well
as the officer swearing to the affidavit presented to the
Magistrate, were not federal officers, but officers of the District
of Columbia Metropolitan Police Department. He argues that the
provisions of 21 U.S.C. § 879(a) were intended to apply solely to
agents of the Bureau of Narcotics and Dangerous Drugs, none of whom
were involved here, whereas Title 23 of the D.C.Code was intended
to provide comprehensive regulation of District of Columbia police
officers investigating both local and federal offenses. Petitioner
reinforces his argument by noting that the former federal
statute
Page 416 U. S. 448
regulating drug searches specifically provided that
"a search warrant may be directed to any officer of the
Metropolitan Police of the District of Columbia authorized to
enforce or assist in enforcing a violation of any of such
provisions, [
Footnote
28]"
while no such section appears in 21 U.S.C. § 879. Therefore,
says petitioner, the District of Columbia police were no longer to
be considered federal agents for the purpose of enforcing federal
drug laws.
Although petitioner's arguments cannot be dismissed lightly, we
find them ultimately unpersuasive. Concededly there are hints in
the statutory framework and legislative history of the Controlled
Substances Act, 84 Stat. 1242, that indicate the policing function
under those provisions would be the primary responsibility of the
Bureau of Narcotics and Dangerous Drugs. [
Footnote 29] But this focus on the Bureau's role seems
entirely natural in view of one of the Act's stated purposes to
"collect the diverse drug
Page 416 U. S. 449
control and enforcement laws under one piece of legislation to
facilitate law enforcement, drug research, educational and related
control facilities. [
Footnote
30]"
In providing a comprehensive federal scheme for the control of
drug abuse, Congress could be expected to pay special attention to
the federal agency set up to enforce the laws. But this attention
does not mean that Congress at the same time wished to dispense
with the aid of other enforcement personnel who had previously
given assistance.
The failure of Congress to include a special provision
authorizing District of Columbia police officers to obtain search
warrants for investigating federal offenses cannot be taken as a
deliberate exclusion in view of the overall statutory framework.
The provision included in the previous federal statute may well
have seemed unnecessary, both in light of the history of
cooperation between the District of Columbia police and federal
officers and in view of the provisions of D.C.Code § 138, providing
that
"[a]ny warrant for search or arrest, issued by any magistrate of
the District, may be executed in any part of the District by any
member of the police force. . . . [
Footnote 31]"
Thus, both custom and statute already assured the availability
of District of Columbia police. Furthermore, the legislative
history relating to § 879(a) stresses the need for stronger
enforcement of the federal narcotics laws, a goal hardly advanced
by reducing the forces available to execute those laws. In fact,
the provision
Page 416 U. S. 450
which is now § 879(b), permitting "no-knock" searches under
certain conditions, was one of the most controversial sections of
the entire bill, and was defended primarily by the pressing need
for added enforcement weapons to combat the increased drug traffic.
[
Footnote 32]
Finally, the interpretation urged by petitioner would leave
District of Columbia officers able to execute general federal
search warrants under amended Fed.Rule Crim.Proc. 41, but would
deny them that authority under the federal drug search statute.
Rule 41 now provides that "a federal law enforcement officer" --
defined in the Rule to include "any category of officers authorized
by the Attorney General to request the issuance of a search
warrant" -- may make applications under the Rule. The Attorney
General has since listed the Metropolitan Police Department among
those agencies
Page 416 U. S. 451
which are so authorized. [
Footnote 33] If petitioner's contention were accepted, it
would seemingly mean that the general search warrant statute
applicable to the District of Columbia would govern District of
Columbia police officers investigating federal drug cases, but
would not govern them when investigating other federal crimes. This
result would obtain despite the fact that District of Columbia
police officers historically played a prominent role in the
enforcement of federal drug laws under 18 U.S.C. § 1405 (1964
ed.).
There is little indication that Title 23 of the D.C.Code was
intended to serve the sweeping purpose which petitioner attributes
to it. [
Footnote 34] The
search warrant provisions upon which petitioner relies were part of
the Court Reform and Criminal Procedure Act, which substantially
reorganized the District of Columbia court system, providing for a
new local court of general jurisdiction and relieving the United
States District Court for the District of Columbia of much of its
local burden. [
Footnote 35]
Prior to that time, all local felonies had been tried in the United
States District Court, and the Federal Rules of Criminal Procedure,
by their terms, had applied. The creation of the new Superior Court
created the need for a new set of procedural
Page 416 U. S. 452
rules, and, though some important changes were made, the new
rules quite closely tracked the Federal Rules. It does not seem
unreasonable, therefore, to suggest that the general provision
relating to search warrants, found in D.C.Code § 2521
et
seq. and then incorporated in similar form into the rules
[
Footnote 36]
promulgated
Page 416 U. S. 453
Feb. 1, 1971, for the new Superior Court, was intended to be a
counterpart to Fed.Rule Crim.Proc. 41. The Federal Rule, as
discussed
infra did not apply to narcotics cases in the
federal courts, since more specific provisions, first those of 18
U.S.C. § 1405 (1964 ed.) and then those of 21 U.S.C. § 879(a)
controlled. [
Footnote
37]
This conclusion is reinforced by the fact that Federal Rule 41
has been subsequently modified to more closely resemble the
District of Columbia statute and rule. The new Federal Rule, though
less specific than the local rule, provides that a search warrant
must be served in the daytime,
"unless the issuing authority, by appropriate provision in the
warrant, and for reasonable cause shown, authorizes its execution
at times other than daytime,"
and abandons the old, cumbersome positivity standard. The
concern for individual privacy revealed in the provisions of the
District of Columbia search statute may thus be found in the new
Federal Rule as well, but Congress, as it had in the earlier
version of the Rule,
Page 416 U. S. 454
nevertheless showed its clear intention to leave intact other
special search warrant provisions, including, of course, the
provisions relating to searches for controlled substances.
[
Footnote 38] In those
limited cases, Congress has considered the need for privacy to be
counterbalanced by the public need for more effective law
enforcement. We do not believe that Congress, by enacting a general
search warrant provision for the District of Columbia, has struck a
different balance in federal drug cases simply because District of
Columbia police officers are involved.
We therefore conclude, as did all the judges of the Court of
Appeals, that the statute applicable to this case is 21 U.S.C. §
879(a). Our remaining task is to determine whether the requirements
of that section have been met.
II
"A search warrant relating to offenses involving controlled
substances may be served at any time of the day or night if the
judge or United States magistrate issuing the warrant is satisfied
that there is probable cause to believe that grounds exist for the
warrant and for its service at such time."
21 U.S.C. § 879(a).
Only the last seven words of the statute are really in
controversy here. Petitioner contends that this language, not found
in the predecessor statute, 18 U.S.C. § 1405 (1964 ed.), was
intended to require some special showing of need for searches
conducted at night, rather than during the day. His contention was
adopted, at least in part, by Judge Robinson in the Court of
Appeals. The Government, on the other hand, contends that it must
show only probable cause to believe that the
Page 416 U. S. 455
sought-after property will be on the premises at the time of the
search, and that, if there is probable cause to believe the
property will be on the premises at night, such a showing
sufficiently meets the requirement imposed by the last seven words
of § 879(a).
The language of the statute by itself is not crystal clear on
this issue. Petitioner insists that the last phrase requires with
unmistakable clarity a separate finding of probable cause to
justify a night-time search. Thus, according to petitioner, the
issuing magistrate would have to satisfy himself that there was not
only probable cause for the search, but also probable cause for
believing that the search should be conducted at night-time, rather
than during the daytime. While this is a possible meaning, it is by
no means the only possible meaning attributable to the words.
Petitioner's interpretation really assumes that the statute
reads: "There is probable cause to believe that grounds exist for
the warrant and,
if served at night, for its service at
such time." But the statute does not include the italicized four
words; it makes no distinction whatever between day and night, and,
literally read, would apparently require that a special showing be
made for a daytime search as well. The idea that a particularized
showing must be made for searches in the daytime is completely
novel, and lacks even a single counterpart in other search statutes
enacted by Congress.
Petitioner suggests that, since Congress was concerned about the
greater intrusion resulting from night-time searches, it would be
logical to apply the language, "probable cause . . . for its
service at such time," only to night-time searches. But even this
interpretation, which is by no means a literal reading of the
language, is not wholly convincing. The traditional limitation
placed on night-time searches, as evident from the earlier
Page 416 U. S. 456
language of Rule 41, is to require not that there be probable
cause for searching at night, but that the affiant be positive that
the property is, in fact, located on the property to be searched.
Thus, Congress' very choice of the words "probable cause" would
indicate that the earlier limitation of "positivity" was not to
apply, while offering no other immediately ascertainable standard
for what should constitute "probable cause" for executing a search
warrant during the night.
This roundabout way of limiting night-time searches, if that
were, in fact, the statute's intent, would sharply contrast with
the manner in which Congress has required special showings for
night-time searches in other statutes. For example, Title 23 of the
D.C.Code, discussed
supra, specifies that the warrant "be
executed
during the hours of daylight" (emphasis added)
unless certain itemized conditions are met. Federal Rule Crim.Proc.
41, as amended in 1972, states:
"The warrant
shall be served in the daytime unless the
issuing authority, by appropriate provision in the warrant, and for
reasonable cause shown, authorizes its execution at times other
than daytime."
(Emphasis added.) The fact that Congress, when it has intended
to require such special showings for night-time searches, has done
so in language largely free from ambiguity militates against
petitioner's assertion that the language of § 879(a), on its face,
supports his position.
The legislative history lends no support to petitioner's
interpretation, but, in fact, cuts the other way. Both the House
and the Senate Committee Reports on the bill incorporated a summary
prepared by the Department of Justice, where much of the bill's
drafting had taken place, which stated:
"Section 702(a) [now § 879(a)] incorporates 18 U.S.C. [§] 1405
and authorizes service of a search
Page 416 U. S. 457
warrant at any time of the day or night if probable cause has
been established to the satisfaction of the judge or U.S.
magistrate issuing the warrant. [
Footnote 39]"
As previously noted, § 1405 provided that a search warrant could
be served at any time of the day or night so long as the issuing
officer was "satisfied that there is probable cause to believe that
the grounds for the application exist. . . ." Case law had
uniformly interpreted the language to mean that probable cause for
the warrant itself was all that was necessary for a night-time
search. [
Footnote 40] The
officers or agents simply had to establish probable cause for
believing that the sought-after property would be found in the
place to be searched.
There is no suggestion in any of the hearings or debates before
Congress that a change from the prior law in this area was
intended. The provision itself went unmentioned in the debates and
hearings on the bill, a surprising omission if the bill effected
the cutback petitioner says it did. Of like import is the fact
that, in the long and heated discussions over § 702(b), the
so-called "no-knock" provision of the bill, no defender of the bill
saw fit to argue that any greater intrusion caused by the no-knock
provision would be partially offset by the greater difficulty in
obtaining warrants executable at night. [
Footnote 41] While congressional silence as to a
particular provision of a bill during debates which give extensive
consideration to neighboring provisions is not easy to interpret,
it would be unusual for such a significant
Page 416 U. S. 458
change as that proposed by petitioner to have entirely escaped
notice.
Finally, it is important to note that the Department of Justice
itself submitted this bill to Congress for enactment, including §
879(a) in its present form. Since the hearings and debates stress
that a major purpose of the bill was to supply more effective
enforcement tools to combat the increasing use of narcotic drugs,
it seems totally illogical to suggest that the Department of
Justice would submit a bill making it substantially more difficult
to control the traffic in hard drugs. Petitioner suggests that this
surrender was necessary to convince Congress to bring additional
drugs within the Controlled Substances Act, but that theory rests
entirely on speculation. There is absolutely no indication in the
legislative history that any price had to be paid for what was
thought to be a much-desired reorganization and expansion of the
drug laws, much less the substantial price that petitioner argues
had to be paid here.
We therefore conclude that 21 U.S.C. § 879(a) requires no
special showing for a night-time search, other than a showing that
the contraband is likely to be on the property or person to be
searched at that time. [
Footnote
42] We believe that the showing was met in this case. The
affidavit submitted by the District of Columbia police officer
suggested that there was a continuing traffic of drugs from
petitioner's apartment, and a prior purchase through an informer
had confirmed that drugs were available. This was sufficient to
satisfy 21 U.S.C. § 879(a). The judgment of the Court of Appeals
for the District of Columbia Circuit is
Affirmed.
Page 416 U. S. 459
[
Footnote 1]
The Government contends that, even though we were to determine
that the applicable statutory provision was violated in this case,
the evidence should nonetheless not be suppressed. Since we
conclude that the seizure was consistent with the governing
statute, we have no occasion to reach this alternative
argument.
[
Footnote 2]
See 155 U.S.App.D.C. 259, 261, 477 F.2d 428, 430
(1973), quoting from 328 F. Supp. 1005, 1008 (DC 1971).
[
Footnote 3]
"§ 3314. Search warrants -- Requirements -- Form -- Contents --
Return -- Penalty for interfering with service."
"(a) A search warrant may be issued by any judge of the Superior
Court of the District of Columbia or by a United States
commissioner for the District of Columbia when any narcotic drugs
are manufactured, possessed, controlled, sold, prescribed,
administered, dispensed, or compounded, in violation of the
provisions of this chapter, and any such narcotic drugs and any
other property designed for use in connection with such unlawful
manufacturing, possession, controlling, selling, prescribing,
administering, dispensing, or compounding, may be seized
thereunder, and shall be subject to such disposition as the court
may make thereof and such narcotic drugs may be taken on the
warrant from any house or other place in which they are
concealed."
"(b) A search warrant cannot be issued but upon probable cause
supported by affidavit particularly describing the property and the
place to be searched."
"(c) The judge or commissioner must, before issuing the warrant,
examine on oath the complainant and any witnesses he may produce,
and require their affidavits or take their depositions in writing
and cause them to be subscribed by the parties making them."
"(d) The affidavits or depositions must set forth the facts
tending to establish the grounds of the application or probable
cause for believing that they exist."
"(e) If the judge or commissioner is thereupon satisfied of the
existence of the grounds of the application or that there is
probable cause to believe their existence, he must issue a search
warrant, signed by him, to the major and superintendent of police
of the District of Columbia or any member of the Metropolitan
police department, stating the particular grounds or probable cause
for its issue and the names of the persons whose affidavits have
been taken in support thereof, and commanding him forthwith to
search the place named for the property specified and to bring it
before the judge or commissioner."
"(f) A search warrant may in all cases be served by any of the
officers mentioned in its direction, but by no other person, except
in aid of the officer on his requiring it, he being present and
acting in its execution."
"(g) The officer may break open any outer or inner door or
window of a house, or any part of a house, or anything therein, to
execute the warrant, if, after notice of his authority and purpose,
he is refused admittance."
"(h) The judge or commissioner shall insert a direction in the
warrant that it may be served at any time in the day or night."
[
Footnote 4]
"§ 23-521. Nature and issuance of search warrants"
"(a) Under circumstances described in this subchapter, a
judicial officer may issue a search warrant upon application of a
law enforcement officer or prosecutor. A warrant may authorize a
search to be conducted anywhere in the District of Columbia and may
be executed pursuant to its terms."
"(b) A search warrant may direct a search of any or all of the
following:"
"(1) one or more designated or described places or
premises;"
"(2) one or more designated or described vehicles;"
"(3) one or more designated or described physical objects;
or"
"(4) designated persons."
"(c) A search warrant may direct the seizure of designated
property or kinds of property, and the seizure may include, to such
extent as is reasonable under all the circumstances, taking
physical or other impressions, or performing chemical, scientific,
or other tests or experiments of, from, or upon designated
premises, vehicles, or objects."
"(d) Property is subject to seizure pursuant to a search warrant
if there is probable cause to believe that it -- "
"(1) is stolen or embezzled;"
"(2) is contraband or otherwise illegally possessed;"
"(3) has been used or is possessed for the purpose of being
used, or is designed or intended to be used, to commit or conceal
the commission of a criminal offense; or"
"(4) constitutes evidence of or tends to demonstrate the
commission of an offense or the identity of a person participating
in the commission of an offense."
"(e) A search warrant may be addressed to a specific law
enforcement officer or to any classification of officers of the
Metropolitan Police Department of the District of Columbia or other
agency authorized to make arrests or execute process in the
District of Columbia."
"(f) A search warrant shall contain -- "
"(1) the name of the issuing court, the name and signature of
the issuing judicial officer, and the date of issuance;"
"(2) if the warrant is addressed to a specific officer, the name
of that officer, otherwise, the classifications of officers to whom
the warrant is addressed;"
"(3) a designation of the premises, vehicles, objects, or
persons to be searched, sufficient for certainty of
identification;"
"(4) a description of the property whose seizure is the object
of the warrant;"
"(5) a direction that the warrant be executed during the hours
of daylight or, where the judicial officer has found cause
therefor, including one of the grounds set forth in section
2522(c)(1), an authorization for execution at any time of day or
night;"
"(6) where the judicial officer has found cause therefor,
including one of the grounds set forth in subparagraph (A), (B), or
(D) of section 23-591(c)(2), an authorization that the executing
officer may break and enter the dwelling house or other building or
vehicles to be searched without giving notice of his identity and
purpose; and"
"(7) a direction that the warrant and an inventory of any
property seized pursuant thereto be returned to the court on the
next court day after its execution."
"§ 23-522. Applications for search warrants"
"(a) Each application for a search warrant shall be made in
writing upon oath or affirmation to a judicial officer."
"(b) Each application shall include -- "
"(1) the name and title of the applicant;"
"(2) a statement that there is probable cause to believe that
property of a kind or character described in section 23-521(d) is
likely to be found in a designated premise, in a designated vehicle
or subject, or upon designated persons;"
"(3) allegations of fact supporting such statement; and"
"(4) a request that the judicial officer issue a search warrant
directing a search for and seizure of the property in
question."
"The applicant may also submit depositions or affidavits of
other persons containing allegations of fact supporting or tending
to support those contained in the application."
"(c) The application may also contain -- "
"(1) a request that the search warrant be made executable at any
hour of the day or night, upon the ground that there is probable
cause to believe that (A) it cannot be executed during the hours of
daylight, (B) the property sought is likely to be removed or
destroyed if not seized forthwith, or (C) the property sought is
not likely to be found except at certain times or in certain
circumstances; and"
"(2) a request that the search warrant authorize the executing
officer to break and enter dwelling houses or other buildings or
vehicles to be searched without giving notice of his identity and
purpose, upon probable cause to believe that one of the conditions
set forth in subparagraph (A), (B), or (D) of section 23-591(c)(2)
is likely to exist at the time and place at which such warrant is
to be executed."
"Any request made pursuant to this subsection must be
accompanied and supported by allegations of fact supporting such
request."
[
Footnote 5]
At the time of the search in this case, Rule 41 read, in part,
as follows:
"Search and Seizure"
"(a) Authority to Issue Warrant. A search warrant authorized by
this rule may be issued by a judge of the United States or of a
state, commonwealth or territorial court of record or by a United
States commissioner within the district wherein the property sought
is located."
"(b) Grounds for Issuance. A warrant may be issued under this
rule to search for and seize any property"
"(1) Stolen or embezzled in violation of the laws of the United
States; or"
"(2) Designed or intended for use or which is or has been used
as the means of committing a criminal offense; or"
"(3) Possessed, controlled, or designed or intended for use or
which is or has been used in violation of Title 18, U.S.C. §
957."
"(c) Issuance and contents. A warrant shall issue only on
affidavit sworn to before the judge or commissioner and
establishing the grounds for issuing the warrant. If the judge or
commissioner is satisfied that grounds for the application exist or
that there is probable cause to believe that they exist, he shall
issue a warrant identifying the property and naming or describing
the person or place to be searched. The warrant shall be directed
to a civil officer of the United States authorized to enforce or
assist in enforcing any law thereof or to a person so authorized by
the President of the United States. It shall state the grounds or
probable cause for its issuance and the names of the persons whose
affidavits have been taken in support thereof. It shall command the
officer to search forthwith the person or place named for the
property specified. The warrant shall direct that it be served in
the daytime, but if the affidavits are positive that the property
is on the person or in the place to be searched, the warrant may
direct that it be served at any time. It shall designate the
district judge or the commissioner to whom it shall be
returned."
"
* * * *"
"(g) Scope and Definition. This rule does not modify any act,
inconsistent with it, regulating search, seizure and the issuance
and execution of search warrants in circumstances for which special
provision is made. The term 'property' is used in this rule to
include documents, books, papers and any other tangible
objects."
[
Footnote 6]
Rule 41 has since been amended to read, in part:
"(a) Authority to issue warrant. A search warrant authorized by
this rule may be issued by a federal magistrate or a judge of a
state within the district wherein the property sought is located,
upon request of a federal law enforcement officer or an attorney
for the government."
"(b) Property which may be seized with a warrant. A warrant may
be issued under this rule to search for and seize any (1) property
that constitutes evidence of the commission of a criminal offense;
or (2) contraband, the fruits of crime, or things otherwise
criminally possessed; or (3) property designed or intended for use
or which is or has been used as the means of committing a criminal
offense."
"(c) Issuance and contents. A warrant shall issue only on an
affidavit or affidavits sworn to before the federal magistrate or
state judge and establishing the grounds for issuing the warrant.
If the federal magistrate or state judge is satisfied that grounds
for the application exist or that there is probable cause to
believe that they exist, he shall issue a warrant identifying the
property and naming or describing the person or place to be
searched. The finding of probable cause may be based upon hearsay
evidence in whole or in part. Before ruling on a request for a
warrant the federal magistrate or state judge may require the
affiant to appear personally and may examine under oath the affiant
and any witnesses he may produce, provided that such proceeding
shall be taken down by a court reporter or recording equipment and
made part of the affidavit. The warrant shall be directed to a
civil officer of the United States authorized to enforce or assist
in enforcing any law thereof or to a person so authorized by the
President of the United States. It shall command the officer to
search, within a specified period of time not to exceed 10 days,
the person or place named for the property specified. The warrant
shall be served in the daytime, unless the issuing authority, by
appropriate provision in the warrant, and for reasonable cause
shown, authorizes its execution at times other than daytime. It
shall designate a federal magistrate to whom it shall be
returned."
"
* * * *"
"(h) Scope and definition. This rule does not modify any act,
inconsistent with it, regulating search, seizure and the issuance
and execution of search warrants in circumstances for which special
provision is made. The term 'property' is used in this rule to
include documents, books, papers and any other tangible objects.
The term 'daytime' is used in this rule to mean the hours from 6:00
a.m. to 10:00 p.m. according to local time. The phrase 'federal law
enforcement officer' is used in this rule to mean any government
agent, other than an attorney for the government as defined in Rule
54(c), who is engaged in the enforcement of the criminal laws and
is within any category of officers authorized by the Attorney
General to request the issuance of a search warrant."
[
Footnote 7]
§ 10, 40 Stat. 229.
[
Footnote 8]
"21 U.S.C. § 879. Search warrants."
"(a) A search warrant relating to offenses involving controlled
substances may be served at any time of the day or night if the
judge or United States magistrate issuing the warrant is satisfied
that there is probable cause to believe that grounds exist for the
warrant and for its service at such time."
[
Footnote 9]
"§ 1405. Issuance of search warrants -- procedure."
"In any case involving a violation of any provision of part I or
part II of subchapter A of chapter 39 of the Internal Revenue Code
of 1954 the penalty for which is provided in subsection (a) or (b)
of section 7237 of such Code, a violation of subsection (e), (h),
or(i) of section 2 of the Narcotic Drugs Import and Export Act, as
amended (21 U.S.C. sec. 174), or a violation of the Act of July 11,
1941, as amended (21 U.S.C. sec. 184a) -- "
"(1) a search warrant may be served at any time of the day or
night if the judge or the United States Commissioner issuing the
warrant is satisfied that there is probable cause to believe that
the grounds for the application exist, and"
"(2) a search warrant may be directed to any officer of the
Metropolitan Police of the District of Columbia authorized to
enforce or assist in enforcing a violation of any of such
provisions."
[
Footnote 10]
See, e.g., H.R.Rep. No. 2546, 84th Cong., 2d Sess., 16
(1956).
[
Footnote 11]
See, e.g., United States v. Stallings, 413 F.2d 200
(CA7),
cert. denied, 396 U.S. 972 (1969);
United
States v. Castle, 213 F. Supp.
52 (DC 1962).
Our Brother MARSHALL, in his dissenting opinion, stresses
Congress continuing concern for individual privacy, as demonstrated
by the limitations on night-time searches contained in the
Espionage Act,
supra, and, later, Fed.Rule Crim. Proc 41.
The implication seems to be that this concern must be read into the
provisions of 21 U.S.C. § 879(a) to reach the interpretation for
which he argues. But this argument totally ignores the fact that
Congress, in 1956, enacted a statute governing searches for
dangerous drugs which deliberately removed the stricter limitations
on night searches found in Rule 41. Our construction of the
principal statute considered in this case, 21 U.S.C. § 879(a),
therefore, represents no novel departure from previous
congressional policy in this area, but is, on the contrary,
consistent with the conceded meaning of the statute which governed
federal drug searches for almost 15 years.
[
Footnote 12]
The affidavit read in full:
"BEFORE Lawrence S. Margolis, Wash., D.C. The undersigned, being
duly sworn, deposes and says:"
"That he (has reason to believe) that (on the premises known as)
1419 Chapin Street, N.W., as you enter the building last apartment
on the right next to the elevator on the first floor Washington in
the District of Columbia there is now being concealed certain
property, namely heroin, syringes, tourniquets, cookers and
paraphernalia used in the preparation of heroin for retail and any
other paraphernalia used in the preparation and dispensation of
heroin and any other narcotic drugs illegally held, which are in
violation of Title 26 U.S.Code Section 4704(a)."
"And that the facts tending to establish the foregoing grounds
for issuance of a Search Warrant are as follows: see the facts set
forth in the affidavit attached hereto and made a part hereof."
/s/ Marion L. Green
MARION L. GREEN
MPD
[
Footnote 13]
The affidavit states specifically:
"I, the undersigned officer who is assigned to the Third
District Vice Squad, Metropolitan Police Department, and working in
the City of Washington, D.C., in an undercover capacity where
illegal drugs are sold and possessed in violation of the United
States Code, Title 26, Section 4704a, had the occasion to
investigate the following offense."
[
Footnote 14]
The warrant read in its entirety:
"To Chief of Police or any Member of MPDC"
"Affidavit having been made before me by Plc. Marrion
[
sic] L. Green, Jr., Third District Vice Squad, that he
(has reason to believe) that (on the premises known as) 1419 Chapin
Street, N.W., as you enter the building, last apartment on the
right next to the elevator on the first floor, Washington in the
District of Columbia, there is now being concealed certain
property, namely heroin, capsules, envelopes, syringes,
tourniquets, cookers and paraphernalia used in the preparation of
heroin for distribution or use and any other instrumentalities or
evidence of illegal possession or dispensation of heroin or of any
other narcotic drugs illegally held. See the facts set forth in the
affidavit attached hereto and made a part hereof which are in
violation of Title 26 Section 4704(a) of the U.S.Code, and as I am
satisfied that there is probable cause to believe that the property
so described is being concealed on the (premises) above-described,
and that the foregoing grounds for application for issuance of the
search warrant exist."
"
You are hereby commanded to search forthwith the
(place) named for the property specified, serving this warrant and
making the search (at any time in the day or night[*]) and if the
property be found there to seize it, leaving a copy of this warrant
and a receipt for the property taken, and prepare a written
inventory of the property seized and return this warrant and bring
the property before me within ten days of this date, as required by
law."
"Dated this day of Feb. 11, 1971"
/s/ Lawrence S. Margolis
U.S. Commissioner
"[*] The Federal Rules of Criminal Procedure provide:"
" The warrant shall direct that it be served in the daytime, but
if the affidavits are positive that the property is on the person
or in the place to be searched, the warrant may direct that it be
served at any time."
"(Rule 41C)."
[
Footnote 15]
Reply Brief for Petitioner 8.
[
Footnote 16]
The Government contends in its brief, apparently for the first
time in the course of this litigation, that the search was not, in
fact, a night-time search. The primary basis for this argument is
revised Fed.Rule Crim.Proc. 41, which states that "[t]he term
daytime' is used in this rule to mean the hours from 6:00 a.m.
to 10:00 p.m. according to local time." See n 6, supra. In view of our
conclusion that the standards for a night-time as well as a daytime
search under 21 U.S.C. § 879(a) were met in this case, we do not
need to resolve this issue.
[
Footnote 17]
"§ 4704. Packages."
"(a) General requirement."
"It shall be unlawful for any person to purchase, sell,
dispense, or distribute narcotic drugs except in the original
stamped package or from the original stamped package; and the
absence of appropriate tax-paid stamps from narcotic drugs shall be
prima facie evidence of a violation of this subsection by the
person in whose possession the same may be found."
[
Footnote 18]
"§ 174. Same; penalty; evidence."
"Whoever fraudulently or knowingly imports or brings any
narcotic drug into the United States or any territory under its
control or jurisdiction, contrary to law, or receives, conceals,
buys, sells, or in any manner facilitates the transportation,
concealment, or sale of any such narcotic drug after being imported
or brought in, knowing the same to have been imported or brought
into the United States contrary to law, or conspires to commit any
of such acts in violation of the laws of the United States, shall
be imprisoned not less than five or more than twenty years and, in
addition, may be fined not more than $20,000. For a second or
subsequent offense (as determined under section 7237(c) of the
Internal Revenue Code of 1954), the offender shall be imprisoned
not less than ten or more than forty years and, in addition, may be
fined not more than $20,000."
[
Footnote 19]
Petitioner also contended that the officer entered the apartment
without knocking and without having a "no-knock" warrant, and that
the police had no probable cause to search him. Neither court below
passed upon the sufficiency of these contentions, and they are not
before us here.
[
Footnote 20]
328 F. Supp. at 1007.
[
Footnote 21]
Id. at 1008 n. 1.
[
Footnote 22]
Id. at 1008.
[
Footnote 23]
155 U.S.App.D.C. 259, 477 F.2d 428 (1973).
[
Footnote 24]
Judge Wilkey stated in his opinion:
"We hold that the applicable statute, 21 U.S.C. § 879(a),
requires only a showing of probable cause to believe that the
narcotics will he found on the premises at any time of the day or
night."
Id. at 266, 477 F.2d at 435. Judge Fahy in his opinion
stated:
"Thus, in the case of narcotics, previously under Section
1405(1) and later under Section 879(a), if the judge was satisfied
'that there is probable cause to believe,' rather than 'if the
affidavits are positive' that the 'property is on the person or in
the place to be searched,' the warrant could permit execution at
any time."
Id. at 268, 477 F.2d at 437.
[
Footnote 25]
Judge Robinson concluded:
"The test of reasonable cause for night-time execution does not
demand a demonstration that drugs are positively on the premises at
night, or that they could be found on the premises only at night,
or that, for some reason, a search would be impossible in the
daytime. It does summon some factual basis for a prudent conclusion
that the greater intrusiveness of night-time execution of the
warrant is justified by the exigencies of the situation."
Id. at 274, 477 F.2d at 443. Judge Robinson then went
on to find that a proper showing had been made in this case. He
stated:
"Where, as here, it appears that a search is calculated not only
to garner evidence of past crime, but also to terminate a serious
species of ongoing criminality, reasonable cause for a nocturnal
intrusion is demonstrated."
Id. at 275, 477 F.2d at 444.
[
Footnote 26]
We are therefore not required to reach the Government's argument
that, despite the fact that the application for the search warrant
alleged a violation of the United States Code, the search could be
justified under D.C.Code § 33-414 as a search for violations of
local drug laws.
[
Footnote 27]
The provisions of 21 U.S.C. § 879(a) prevail over the provisions
of Fed.Rule Crim.Proc. 41 when controlled substances are involved.
See nn.
10 and |
10 and S. 430fn11|>11,
supra.
[
Footnote 28]
See n 9,
supra.
[
Footnote 29]
For example, John Ingersoll, Director of the Bureau of Narcotics
and Dangerous Drugs, stated at the Hearings on Drug Abuse Control
Amendments -- 1970 before the Subcommittee on Public Health and
Welfare of the House Committee on Interstate and Foreign Commerce,
91st Cong., 2d Sess., ser. 91-45, pt. 1, p. 86 (1970), that the
no-knock provision, incorporated in § 702(b) of the proposed bill,
see n 32,
infra, would grant authority "restricted to special agents
of the Bureau of Narcotics and Dangerous Drugs." In addition, the
preceding provision of the bill set forth expanded powers for the
agents of the BNDD. However, although these excerpts would argue
for petitioner's position here, we believe that the Government's
position ultimately proves to be stronger. We believe for the
reasons stated in the text that the emphasis on the powers of the
BNDD agents was not intended to remove powers from other federal
agents who had previously assisted in the enforcement of federal
drug laws.
See also 18 U.S.C. §§ 3052, 3053, and 3056,
setting forth arrest powers for agents of the Federal Bureau of
Investigation, United States marshals, and Secret Service
agents.
[
Footnote 30]
S.Rep. No. 91-613, p. 3 (1969).
[
Footnote 31]
D.C.Code § 4-138 provides:
"Any warrant for search or arrest, issued by any magistrate of
the District, may be executed in any part of the District by any
member of the police force, without any backing or indorsement of
the warrant, and according to the terms thereof; and all provisions
of law in relation to bail in the District shall apply to this
chapter."
See Thomas v. United States, 409 U.S. 992, 993 (1973)
(DOUGLAS, J., dissenting).
[
Footnote 32]
"§ 879. Search warrants."
"
* * * *"
"(b) Any officer authorized to execute a search warrant relating
to offenses involving controlled substances the penalty for which
is imprisonment for more than one year may, without notice of his
authority and purpose, break open an outer or inner door or window
of a building, or any part of the building, or anything therein, if
the judge or United States magistrate issuing the warrant (1) is
satisfied that there is probable cause to believe that (A) the
property sought may and, if such notice is given, will be easily
and quickly destroyed or disposed of, or (B) the giving of such
notice will immediately endanger the life or safety of the
executing officer or another person, and (2) has included in the
warrant a direction that the officer executing it shall not be
required to give such notice. Any officer acting under such
warrant, shall, as soon as practicable after entering the premises,
identify himself and give the reasons and authority for his
entrance upon the premises."
See H.R.Rep. No. 91-1444, p. 25 (1970), which
stated:
"The purpose of this provision [the no-knock provision], as
explained in the hearings, is to provide law enforcement officials
with a tool to aid in combatting the illicit traffic in drugs which
has proved helpful in all of the 29 States where this authority
exists either by statute or common law."
[
Footnote 33]
See Atty.Gen.Order 510-73, 38 Fed.Reg. 7244-7245.
[
Footnote 34]
The effect of Title 23 on other statutes was debated in some
detail below. Judge Wilkey, in his opinion, noted that the
provisions of 21 U.S.C. § 879(a) were not only enacted after the
provisions of Title 23 (although they took effect sooner), but also
are more specific in terms of subject matter,
i.e., drug
control. 155 U.S.App.D.C. at 262, 477 F.2d at 431. Thus, as a
matter of statutory construction, it is somewhat difficult to see
how Title 23 was intended to modify any later, more specific
statute. Petitioner no longer suggests that Title 23 must be read
into the provisions of 21 U.S.C. § 879(a). He contends either that
Title 23 is applicable in its entirety or that § 879(a), by its own
terms, requires a special showing for searches at night.
[
Footnote 35]
D.C.Code § 11-901.
[
Footnote 36]
"Rule 41. Search and Seizure."
"(a) Authority to Issue Warrant. A search warrant authorized by
this rule may be issued by a judge of the Superior Court."
"(b) Grounds for Issuance. A warrant may be issued under this
rule to search for and seize property. Property is subject to
seizure pursuant to a search warrant if there is probable cause to
believe that it (1) is stolen or embezzled; or (2) is contraband or
otherwise illegally possessed; or (3) has been used or is possessed
for the purpose of being used, or is designed or intended to be
used, to commit or conceal the commission of an offense; or (4)
constitutes evidence of or tends to demonstrate the commission of
an offense or the identity of a person participating in the
commission of an offense."
"(c) Application for Search Warrants. Each application for a
search warrant shall be made in writing upon oath to a judge of the
Superior Court. Each application shall include the name and title
of the applicant; a statement that there is probable cause to
believe that property described in paragraph (b) as subject to
seizure is likely to be found in a designated premise, in a
designated vehicle or object, or upon designated persons;
allegations of fact supporting such statement; and a request that
the judge issue a search warrant directing a search for and seizure
of the property in question. The applicant may also submit
depositions or affidavits of other persons containing allegations
of fact supporting or tending to support those contained in the
application."
"The application may also contain (1) a request that the search
warrant be made executable at any hour of the day or night, upon
the ground that (i) there is probable cause to believe that it
cannot be executed during the hours of daylight, or (ii) the
property sought is likely to be removed or destroyed if not seized
forthwith, or (iii) the property sought is not likely to be found
except at certain times or in certain circumstances; and (2) a
request approved by an appropriate prosecutor that the search
warrant authorize the executing officer to break and enter dwelling
houses or other buildings or vehicles to be searched without giving
notice of his identity and purpose, upon probable cause to believe
that one of the conditions listed in subparagraphs (a), (b), or (d)
of D.C.Code § 23-591(c)(2) is likely to exist at the time and place
at which such warrant is to be executed whereby the applicant may
dispense with such requirement. Any request that a search warrant
be executable at any time of the day or night or that a search
warrant authorize the executing officer to break and enter without
a prior announcement of his identity and purpose must be
accompanied and supported by allegations of fact supporting such
request."
Effective Oct. 25, 1973, paragraph (b) of this rule was amended.
Paragraphs (a) and (c) were unchanged.
[
Footnote 37]
We note that the District of Columbia Court of Appeals has
indicated that the specific provisions of Title 33 are not
qualified by the more general provisions of Title 23 in searches
for violations of the local drug laws in the District of Columbia.
See United States v. Thomas, 294
A.2d 164, 167-168,
cert. denied, 409 U.S. 992
(1973).
[
Footnote 38]
See Fed.Rule Crim.Proc. 41(h),
supra, n 6.
See also subsection (g)
of prior Rule 41,
n 5,
supra.
[
Footnote 39]
S.Rep. No. 91-613, pp. 30-31 (1969).
See also H.R.Rep.
No. 91-1444, pt. 1, p. 54 (1970).
[
Footnote 40]
See n 11,
supra.
[
Footnote 41]
The debates on this controversial proposal may be found
generally in volume 116 of the Congressional Record.
See,
e.g., 116 Cong.Rec. 1159-1162, 1164-1177, 33639-33645.
[
Footnote 42]
We note that the Court of Appeals for the Fifth Circuit has
recently reached the same conclusion.
See United States v.
Thomas, 489 F.2d 664 (1973).
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL concur, dissenting.
The petitioner is charged with possession of heroin and
narcotics paraphernalia in violation of 21 U.S.C. § 174 (1964 ed.)
and 26 U.S.C. § 4704(a) (1964 ed.). He moved the District Court to
suppress certain evidence seized from his home pursuant to a search
warrant secured by and directed to the Metropolitan Police
Department of the District of Columbia. The District Court granted
the suppression motion on the ground that the search was conducted
at night in violation of D.C.Code §§ 23-521523 (1973) which limit
search warrant execution to daylight hours absent specific contrary
authorization founded upon the judicial officer's determination
"that (A) it cannot be executed during the hours of daylight,
(B) the property sought is likely to be removed or destroyed if not
seized forthwith, or (C) the property sought is not likely to be
found except at certain times or in certain circumstances. . .
."
D.C.Code § 23-522(c)(1). [
Footnote
2/1]
Though the warrant here directed a search "at any time in the
day or night," none of the grounds set forth in § 23-522(c)(1) were
contained in either the application or the warrant itself. The
police obtained the warrant on February 11, 1971, but they failed
to execute it during the day of February 12, waiting instead until
9:30 p.m. on that date. Since they delayed execution until well
after the daylight hours had ended,
Page 416 U. S. 460
the seizure was invalid if governed by D.C.Code §§ 23-521 to
23-523.
The Court holds, however, that the D.C.Code provisions are
inapplicable, and that the search is governed by 21 U.S.C. §
879(a). That section became effective October 27, 1970, as part of
the Controlled Substances Act, 84 Stat. 1242, 21 U.S.C. § 801
et seq.; it relates to search warrants issued in
connection with offenses involving controlled substances. The
D.C.Code provisions, however became effective February 11, 1971, as
part of the District of Columbia Court Reform and Criminal
Procedure Act. The latter Act did not distinguish between local and
federal prosecutions in its procedural innovations. [
Footnote 2/2] The purpose of the
restriction upon night-time searches was to limit such intrusions
to those instances where there is "some justification for it,"
[
Footnote 2/3] thus implementing
the
"policy generally disfavoring night-time executions, night-time
intrusions, more characteristic of a 'police state' lacking in the
respect for due process and the right of privacy dictated by the
U.S. Constitution and history. . . . [
Footnote 2/4]"
Approximately 60% of the search warrants issued in the District
of Columbia relate to narcotics violations. Congress was aware of
this, and, if it had intended to except federal narcotics search
warrants from the protections against unnecessary night-time
"police state" searches, one would expect an expression of such
intent. I agree with Judge Gesell that no such intent is
indicated.
Page 416 U. S. 461
Thus,
"[w]hatever be the standards generally for issuance of a
night-time search warrant in federal narcotics cases in other parts
of the country . . . , the existence of 21 U.S.C. § 879(a) does not
remove such cases from the explicit requirements for search
warrants in the District of Columbia under the newly enacted Title
23, D.C.Code."
328 F. Supp. 1005, 1007. I would reverse the Court of Appeals
and sustain the District Court's suppression order.
[
Footnote 2/1]
D.C.Code § 23-523(b) directs that all search warrants are to be
executed only during daylight hours, absent express authorization
pursuant to D.C.Code § 23-521(f). Section 23-521(f)(5) allows
authorization for night-time execution where the "judicial officer
has found cause therefor, including one of the grounds set forth in
section 23-522(C)(1). . . ."
[
Footnote 2/2]
Thus, various rules are applicable in the United States District
Court for the District of Columbia which are not applicable in
district courts elsewhere in the country.
See, e.g.,
D.C.Code § 23-1322, dealing with detention prior to trial.
[
Footnote 2/3]
Hearings on Crime in the National Capital before the Senate
Committee on the District of Columbia, 91st Cong., 1st Sess., pt.
4, p. 1404 (1969).
[
Footnote 2/4]
S.Rep. No. 91-538, p. 12 (1969).
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE BRENNAN join, dissenting.
I agree with my Brother DOUGLAS that the provisions of the
District of Columbia Code requiring a showing of need for execution
of a search warrant at night govern the search involved in this
case, and, accordingly, I join in his dissenting opinion. A
majority of the Court, however, rejects this argument, and goes on
to discuss the standards imposed by 21 U.S.C. § 879(a) upon
issuance of search warrants for night-time execution in federal
narcotics cases. Obviously, the Court's interpretation of § 879(a)
is of far greater significance, of national, rather than purely
local, concern. I cannot let the Court's construction of § 879(a)
pass without registering my dissent on this issue as well.
The opinion of the Court, it seems to me, analyzes the § 879(a)
issue in a vacuum, without any discussion of some of the important
policy considerations which underlie this question of statutory
interpretation. Perhaps a partial vacuum would be a more
appropriate description, since the Court is obviously fully
cognizant of the substantial governmental interest in enforcement
of the narcotics laws, an interest which its interpretation of §
879(a) so well serves. But plainly there are other concerns
implicated in our interpretation of this congressional
Page 416 U. S. 462
enactment restricting the issuance of search warrants -- the
protection of individual privacy which is the very purpose of the
statute's search warrant requirement and which of course is given
constitutional recognition in the Fourth Amendment. The Court seems
totally oblivious to these constitutional considerations. Taking
them into account, I find that the only acceptable interpretation
of the statute is one which requires some additional justification
for authorizing a night-time search over and above the ordinary
showing of probable cause to believe that a crime has been
committed and that evidence of the crime will be found upon the
search.
Fundamentally at issue in this case is the extent of the
protection which we will all enjoy from police intrusion into the
privacy of our homes during the middle of the night. The Fourth
Amendment was intended to protect our reasonable expectations of
privacy from unjustified governmental intrusion.
Katz v. United
States, 389 U. S. 347,
389 U. S.
360-362 (1967) (Harlan, J., concurring). In my view,
there is no expectation of privacy more reasonable and more
demanding of constitutional protection than our right to expect
that we will be let alone in the privacy of our homes during the
night. The idea of the police unnecessarily forcing their way into
the home in the middle of the night -- frequently, in narcotics
cases, without knocking and announcing their purpose -- rousing the
residents out of their beds and forcing them to stand by in
indignity in their night clothes while the police rummage through
their belongings, does indeed smack of a "
police state' lacking
in the respect for . . . the right of privacy dictated by the U.S.
Constitution." S.Rep. No. 91-538, p. 12 (1969). The public outrage
at the series of mistaken night-time raids by narcotics agents in
Collinsville, Illinois, last
Page 416 U. S.
463
April, see N.Y. Times, Apr. 29, 1973, p. 1, col. 5;
N.Y. Times, Apr. 30, 1973, p. 30, col. 1, serves to emphasize just
how inconsistent with our constitutional guarantees such night-time
searches are.
This Court has consistently recognized that the intrusion upon
privacy engendered by a search of a residence at night is of an
order of magnitude greater than that produced by an ordinary
search. Mr. Justice Harlan observed, in holding a night-time search
unconstitutional in
Jones v. United States, 357 U.
S. 493,
357 U. S. 498
(1958): "[I]t is difficult to imagine a more severe invasion of
privacy than the night-time intrusion into a private home." In
Coolidge v. New Hampshire, 403 U.
S. 443,
403 U. S. 477
(1971), the Court again recognized that a midnight entry into a
home was an "extremely serious intrusion." And our decision in
Griswold v. Connecticut, 381 U. S. 479
(1965), was in large part based upon our revulsion at the thought
of night-time searches of the marital bedroom to discover evidence
of illegal contraceptive use.
See id. at
381 U. S.
485-486.
It is small wonder, then, that Congress has consistently
required more stringent justification for night-time searches than
that needed to authorize a search during the day. The first
congressional enactment setting out comprehensive search warrant
procedures, § 10 of Tit. XI of the Espionage Act of 1917, 40 Stat.
217, 229, 18 U.S.C. § 620 (1940 ed.), required that the affiant
must be "positive" that the property to be seized was on the
premises to justify a night-time search. When the provisions of the
Espionage Act were replaced by the Federal Rules of Criminal
Procedure in 1946, this requirement of positivity was carried
forward in Rule 41. Despite the stringency of this requirement, it
remained with us until very recently, until the 1972 amendments to
Rule 41. And although the Rule was then modified to require
Page 416 U. S. 464
"reasonable cause" for night-time execution of a warrant,
significantly, the amended Rule retained the principle that
night-time searches require an additional showing of justification
over and above probable cause. Congress has also manifested its
concern for protection of individual privacy against night-time
searches in its legislation for the District of Columbia, as MR.
JUSTICE DOUGLAS' opinion amply demonstrates with respect to
enactment of the D.C. Court Reform and Criminal Procedure Act in
1970.
Ante at
416 U. S. 460.
[
Footnote 3/1]
The strong policy underlying these congressional enactments is
clear. As even the Government in this case concedes,
"searches conducted in the middle of the night . . . involve a
greater intrusion than ordinary searches and therefore require a
greater justification."
Brief for United States 14. In my view, this principle may well
be a constitutional imperative. It is by now established Fourth
Amendment doctrine that increasingly severe standards of probable
cause are necessary to justify increasingly intrusive searches. In
Camara v. Municipal Court, 387 U.
S. 523 (1967), after holding that search warrants were
required to authorize administrative inspections, we held that the
quantum of probable cause required for issuance of an inspection
warrant must be determined in part by the reasonableness of the
proposed search. As MR. JUSTICE WHITE stated,
"there can be no ready test for determining reasonableness other
than by balancing the need to search against the invasion which the
search entails."
Id. at
387 U. S.
536-537. The Court in
Camara thus approved the
issuance
Page 416 U. S. 465
of area inspection warrants in part because such searches
"involve a relatively limited invasion of the urban citizen's
privacy."
Id. at
387 U. S. 537.
See also Terry v. Ohio, 392 U. S. 1,
392 U. S. 20-21
(1968);
Couch v. United States, 409 U.
S. 322,
409 U. S. 349
n. 6 (1973) (MARSHALL, J., dissenting). I do not regard this
principle as a one-way street, to be used only to water down the
requirement of probable cause when necessary to authorize
governmental intrusions. In some situations -- and the search of a
private home during night-time would seem to be a paradigm -- this
principle requires a showing of additional justification for a
search over and above the ordinary showing of probable cause.
Cf. Stanford v. Texas, 379 U. S. 476,
379 U. S.
485-486 (1965).
Of course, this constitutional question is not presented in this
case, and need not be resolved here. But the long history of
congressional authorization of night-time searches only upon a
showing of additional justification, the strong constitutionally
based policy which these statutes implement, and the substantial
constitutional question posed by the majority's interpretation of §
879(a) are surely relevant to the question of statutory
interpretation with which we are faced. Viewed against this
background, I think it is plain that the majority's interpretation
of the statute should be rejected.
Section 879(a) provides that search warrants may be executed at
night only if "there is probable cause to believe that grounds
exist for the warrant and for its service at such time." It seems
to me quite clear that the statute, on its face, imposes two
distinct requirements: that there be probable cause for the
issuance of the warrant and that there be cause "for its service at
such time." While the Court relies on legislative history which
suggests that 879(a) merely "incorporates" the provisions of its
predecessor, 18 U.S.C. § 1405 (1964 ed.), the plain
Page 416 U. S. 466
fact is that § 879(a) does far more than this: it also adds to
the language of § 1405 the final clause "and for its service at
such time" -- which is at the heart of the dispute in this case. I
can see no plausible interpretation of this final clause other than
that it imposes an additional requirement of justification for a
search at night over and above a showing of probable cause.
The Court, while conceding this to be a "possible" meaning of
the statute's final clause, argues that "it is by no means the only
possible meaning attributable to the words."
Ante at
416 U. S. 455.
Unfortunately, the Court then fails to come forward with any
alternative interpretation of these final words of § 879(a).
Instead, the Court simply reads the disputed language out of the
statute entirely, and decrees that the statute shall be interpreted
as if it were not there. The Court holds that the statute requires
only "a showing that the contraband is likely to be on the property
or person to be searched at that time" to justify night-time
execution of a search warrant.
Ante at
416 U. S. 458.
But the showing of probable cause required for issuance of any
warrant necessarily includes a showing that the objects to be
seized will probably be found on the premises at the time of the
search.
See Sgro v. United States, 287 U.
S. 206,
287 U. S.
210-211 (1932);
Schoeneman v. United States,
115 U.S.App.D.C. 110, 113, 317 F.2d 173, 176-177 (1963);
Rosencranz v. United States, 356 F.2d 310, 315-318 (CA1
1966). This requirement is clearly imposed by the Fourth Amendment
itself. It is also clearly mandated by the first part of the
statutory language, which merely incorporates the constitutional
requirement of probable cause for issuance of the warrant. The
majority's interpretation of the statute thus leaves the final
clause of § 879(a) -- the language in controversy here -- totally
without meaning.
See United States v.
Thomas, 294
A.2d 164, 170 (DC Ct.App.)
Page 416 U. S. 467
(Kelly, J., dissenting),
cert. denied, 409 U.S. 992
(1972);
United States v. Gooding, 155 U.S.App.D.C. 259,
273, 477 F.2d 428, 442 (1973) (Robinson, J., concurring in result).
I cannot subscribe to such an evisceration of the statute.
[
Footnote 3/2]
Page 416 U. S. 468
The Court bases its holding upon the meager recorded legislative
history of § 879(a). But when the language of a statute is as clear
and unambiguous as it is here, it is neither helpful nor
appropriate to look to its legislative history.
Ex parte
Collett, 337 U. S. 55,
337 U. S. 61
(1949);
United States v. Oregon, 366 U.
S. 643,
366 U. S. 648
(1961). While committee reports in particular are often a helpful
guide to the meaning of ambiguous statutory language, even they
must be disregarded if inconsistent with the plain language of the
statute.
Helvering v. City Bank Farmers Trust Co.,
296 U. S. 85,
296 U. S. 89
(1935);
George Van Camp & Sons Co. v. American Can
Co., 278 U. S. 245,
278 U. S.
253-254 (1929). It is the language of the statute, as
enacted by the Congress, that is the law of the land, not the
language of a committee report which may or may not represent
accurately the views of the hundreds of other legislators who voted
for the bill.
In any event, even if resort to examination of the legislative
history were appropriate here, I do not find it nearly so
conclusive as does the majority of the Court. The Court relies on a
single brief statement on § 879(a) in the committee report stating
that the statute merely incorporated the provisions of § 1405,
which had been construed not to impose any requirement for a
night-time search warrant over and above probable cause. Yet this
statement fails to provide any explanation for the language which
Congress added to § 1405, the language
Page 416 U. S. 469
in controversy here. As to the meaning -- or, as the Court would
have it, the lack of meaning -- of this language, the Court relies
basically upon the law enforcement goals of the Department of
Justice and the silence of Congress. But, as we have frequently
warned, "[i]t is, at best, treacherous to find in congressional
silence alone the adoption of a controlling rule of law."
Girouard v. United States, 328 U. S.
61,
328 U. S. 69
(1946);
see H. M. Hart & A. Sacks, The Legal
Process:Basic Problems in the Making and Application of Law
1395-1398 (tent.ed.1958), and cases there cited. The Court in
effect presumes from Congress' failure to explain the meaning of
the final clause of § 879(a) its acquiescence in the Justice
Department's apparent view that this language, in fact, serves no
purpose.
I would presume the contrary. Congress' consistent protection of
night-time privacy by imposing restrictions upon the availability
of warrants for night-time searches reinforces the unambiguous
statutory language. Both lead me to the conclusion that the final
clause of 879(a) must be viewed as another congressional
manifestation of its strong policy against night-time intrusions
into the home. I do not think that this interpretation is at all
inconsistent with the narcotics law enforcement objectives which
were the principal focus of this legislation. The requirement that
cause be shown for the necessity of a night-time search is still a
substantial easing of the requirement of positivity which was then
embodied in Rule 41, and which would otherwise have applied to many
of the searches now covered by § 879(a). I respectfully
dissent.
[
Footnote 3/1]
Similarly, most of the States' laws provide that search warrants
may only be served during the day unless express authorization for
a night-time search is obtained, and such authorization can
generally be obtained only by meeting special requirements for a
night-time search.
See L. Hall, Y. Kamisar, W. LaFave
& J. Israel, Modern Criminal Procedure 259 (3d ed.1969).
[
Footnote 3/2]
In an effort to conjure up ambiguity in the statutory language,
the Court argues that the statute could have been drawn with more
precision, and specifically points out that, read literally, the
statutory requirement of cause "for its service at such time" would
seem to apply to daytime searches as well as those conducted at
night.
Ante at
416 U. S.
455-456. I readily agree that the statute could have
been more artfully drafted, but the fact that it could have been
stated in different words hardly justifies disregarding the plain
meaning of the statutory language with which we must deal. It
ill-suits the Court to suggest that this language is ambiguous when
the Court is unable to come forward with any plausible alternative
construction.
The Court's suggestion that the statute is ambiguous because it
could be literally applied to daytime searches as well as those
during the night is wholly insubstantial. As the Court well knows,
no one has ever proposed that an additional burden of justification
for daytime searches is necessary or appropriate; in sharp
contrast, the Congress has consistently acted to protect night-time
privacy through such an additional burden on night-time searches.
The Court's confusion arises only because the words "at such time"
in the statute logically refer back to its authorization of service
"at any time of the day or night." But this latter phrase has
consistently been used in congressional enactments as a shorthand
expression for a warrant whose service at night is authorized,
see, e.g., D.C.Code § 33-414(h),
ante at
416 U. S. 433
n. 3; §§ 23-521(f)(5), 23-522(c)(1),
ante at
416 U. S.
435-436, n. 4;
cf. former Fed.Rule Crim.Proc.
41(c),
ante at
416 U. S.
436-437, n. 5, to distinguish such a warrant from any
other warrant, which may be served only in the day. Plainly the
statute's requirement of cause "for its service at such time" was
intended to apply only to night-time execution of search
warrants.
As for the Court's complaint that a requirement of cause for
night-time service of a warrant is not the "traditional limitation"
imposed upon night-time searches, it should suffice to point out
that Congress became aware in its consideration of the D.C. Court
Reform and Criminal Procedure Act in 1969 that a requirement of
cause would provide greater protection for night-time privacy than
the old positivity test, by eliminating unnecessary night-time
searches regardless of how sure police were of their basis for the
search.
See Hearings on Crime in the National Capital
before the Senate Committee on the District of Columbia, 91st
Cong., 1st Sess., pt. 4, p. 1404 (1969); Brief for United States
49-50. This change was therefore incorporated into the D.C.Code,
see D.C.Code §§ 23-521 to 23-523. It was also adopted in
the 1972 amendment to Rule 41. It would hardly be surprising for
the Congress to introduce a modification along the same lines into
§ 79(a).