STEPHEN NEWMAN, PETITIONER V. UNITED STATES OF AMERICA No. 90-5917 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals en banc (Pet. App. 1b-5b) is reported at 905 F.2d 829. The opinion of the court of appeals sitting as a panel (Pet. App. 1a-7a) is reported at 894 F.2d 712. JURISDICTION The judgment of the court of appeals en banc was entered on June 27, 1990. The petition for a writ of certiorari was filed on October 1, 1990 and is therefore out of time under Rule 13.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the "state court of record" requirement of Federal Rule of Criminal Procedure 41(a) applied to a state search warrant that was requested by, and issued to, state officers without any participation by federal officers. STATEMENT Petitioner pleaded guilty in the United States District Court for the Northern District of Texas to one count of conspiracy to manufacture phenylacetone and amphetamine, in violation of 18 U.S.C. 846. He was sentenced to 130 months' imprisonment, to be followed by a five-year term of supervised release. A panel of the court of appeals reversed (Pet. App. 1a-7a). The court of appeals en banc reversed the panel's decision (Pet. App. 1b-5b). 1. On April 14, 1988, Sheriff Robert Harris learned from one of his deputies that earlier that day two men smelling of amphetamine had purchased a large quantity of ice from a grocery store and been followed to a secluded house within the sheriff's jurisdiction. Sheriff Harris and other officers went to the secluded house, where they noticed the smell of cooking amphetamine. Later that day, Harris telephoned Drug Enforcement Administration (DEA) Special Agent William J. Bryant. Harris asked Agent Bryant to assist in a search of the suspect house. Bryant agreed to help but said that the search would have to wait until the next day. Bryant also told Harris that if the DEA were to participate in the search, under federal law Harris would have to obtain a search warrant from a court of record. Harris agreed to this requirement. Pet. App. 2a. Harris then returned to stake out the house. Upon noticing that the smell of cooking amphetamine from the house had grown stronger, Harris decided to obtain a search warrant immediately. He presented an affidavit of probable cause to Judge Barbara McBurney, a local municipal judge who was not a judge of a court of record. McBurney signed the warrant, and Harris executed it. He discovered a working amphetamine factory in the garage and in the utility room of the house, and chemicals and laboratory glassware scattered throughout the house. Harris and his deputies arrested petitioner and two other persons at the house. Pet. App. 3a. Harris then advised Agent Bryant that the search had been executed. Bryant and other DEA agents went to the house, where they dismantled the laboratory and identified the chemicals found in the search. Pet. App. 3a. 2. Petitioner moved to suppress the evidence seized from the house, arguing the search warrant violated Federal Rule of Criminal Procedure 41(a) /1/ because it was not issued by a "state court of record." /2/ The district court denied the motion. Petitioner then pleaded guilty to a violation of 21 U.S.C. 846. 3. A panel of the court of appeals reversed. Pet. App. 1a-7a. The court believed that Rule 41(a) governed only warrants requested by federal law enforcement officers and was therefore inapplicable here, where it was undisputed that the challenged warrant was requested by state officers. Id. at 4a-5a. The court nonetheless found that prior precedent required it to hold that Rule 41(a) applied to state warrants, and that the warrant in this case violated Rule 41(a) because it was not issued by a "state court of record." Id. at 6a-7a. 4. The court of appeals en banc reversed the panel decision. The court held that Rule 41(a) applies only to warrants issued at the request of federal law enforcement officers and therefore did not apply to the warrant issued in this case. Pet. App. 1b-5b. The court reasoned that the language of Rule 41(a), as amended in 1972, "limits the application of Rule 41(a) to warrants requested by federal officers." Id. at 4b. This interpretation, the court found, was supported by the Advisory Committee Note on the 1972 amendment, see supra note 1, and was "compatible with (Rule) 41(c) which requires that a 'warrant shall be directed to a civil officer of the United States.'" Ibid. The court rejected an interpretation of Rule 41(a) that would render it applicable whenever federal agents participated in a search, reasoning that so broad an interpretation would discourage cooperation between federal and state agents. Id. at 5b. The court concluded by emphasizing that "(n)o issue of collusion between state and federal officers in procuring the warrant to avoid Rule 41 is implicated in this case," and that the court therefore "intimate(d) no opinion in this regard." Ibid. /3/ ARGUMENT Petitioner renews his contention (Pet. 4) that the seized evidence was obtained under a warrant that violated Fed. R. Crim. P. 41(a) because it was not issued by a "state court of record." The court of appeals correctly rejected that contention, and its decision does not conflict with the decision of any other court of appeals. Further review is therefore unwarranted. Rule 41(a) applies only to warrants issued upon the request of federal law enforcement officers. That is clear from the language of the Rule, which provides that the warrants "authorized by this Rule" are those issued "upon request of a federal law enforcement officer or an attorney for the government." Fed. R. Crim. P. 41(a). It is also made clear in the Advisory Committee Note on the 1972 amendment of Rule 41(a), H.R. Doc. No. 92-285, 92d Cong., 2d Sess. 43 (1974), which describes the amended language as "provid(ing) that a search warrant may be issued only upon the request of a federal law enforcement officer" (emphasis added). This interpretation is confirmed by subsection (c) of Rule 41, which provides that warrants issued under the Rule "shall be directed to a civil officer of the United States * * *." Rule 41(a) therefore does not apply to the warrant issued in this case, because, as petitioner has admitted (Pet. App. 3b), "the warrant was requested by state officers, alleged violations of Texas law, was issued by a state judge, and is, therefore, a state rather than a federal warrant." Specifically, Sheriff Harris requested the warrant, and DEA Agent Bryant did not participate in this request, nor did any other federal officer. Pet. App. 2a-3a. Indeed, Agent Bryant told Harris that DEA could participate in the search only if a warrant was obtained from a court of record. Id. at 3a. For these reasons, the court of appeals en banc correctly held (id. at 4b-5b) that the "state court of record" provision in Rule 41(a) did not apply here. /4/ Contrary to petitioner's contention (Pet. 4), the court of appeals' holding does not conflict with United States v. Radlick, 581 F.2d 225 (9th Cir. 1978). In Radlick, the Ninth Circuit held that Rule 41 applied to a warrant issued by a state court because of pervasive federal participation in every stage of the process: Federal agents "permitted" state agents to obtain the warrant (id. at 227), and they "participated in all aspects of the investigation, they participated in the searches, and they made the arrests at the conclusion of the searches" (id. at 228). /5/ This case, in contrast, did not involve any such federal participation; instead, state officers acted alone in investigating the situation and in procuring and executing the warrant. /6/ For that reason, the court below expressly refused to intimate an opinion on joint participation situations. Pet. App. 5b. /7/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS E. BOOTH Attorney DECEMBER 1990 /1/ Fed. R. Crim. P. 41(a) provides: A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property or person sought is located, upon request of a federal law enforcement officer or an attorney for the government. The phrase "upon request of a federal law enforcement officer or an attorney for the government" was added to Rule 41(a) in 1972. The Notes of the Advisory Committee on Rules state that that phrase was added to provide that a search warrant may be issued "only upon the request of a federal law enforcement officer." /2/ Petitioner also argued that the judge who issued the warrant was not neutral and detached and that the affidavits in support of the warrant did not establish probable cause. Pet. App. 3a. Petitioner does not renew those arguments here. /3/ The court overruled three prior panel decisions to the extent that they were inconsistent with its holding: United States v. Navarro, 400 F.2d 315 (1968), which predated the 1972 amendment of Rule 41(a); and two later decisions, United States v. Sellers, 483 F.2d 37 (1973), cert. denied, 417 U.S. 908 (1974), and United States v. Martin, 600 F.2d 1175 (1979), neither of which considered the 1972 amendment. Pet. App. 5b. /4/ The conduct of the state officers in obtaining and executing the state warrant and of the federal officers after execution of the warrant are, of course, subject to the requirements of the Fourth Amendment. However, the petition presents no Fourth Amendment issues. /5/ In fact, the government in Radlick acknowledged on appeal that by virtue of extensive federal involvement in the search, the warrant had to be treated as a "federal warrant." 581 F.2d at 228. More recent decisions holding that a state warrant issued to state officers was nonetheless a "federal" warrant subject to Rule 41 have emphasized that federal agents participated in the decision to obtain the warrant from the state court. See, e.g., United States v. Anderson, 851 F.2d 384, 389-390 (D.C. Cir. 1988), cert. denied, 488 U.S. 1012 (1989); United States v. Rios, 611 F.2d 1335, 1347 n.22 (10th Cir. 1979). /6/ The fact that the federal agents dismantled the laboratory and identified the chemicals after the state search and seizure was completed does not, of course, affect the admissibility of the evidence seized pursuant to the state warrant. /7/ Petitioner's reliance (Pet. 4) on Rea v. United States, 350 U.S. 214 (1956), is misplaced. In Rea, the Court held that, after a federal court suppressed evidence obtained pursuant to an illegal federal warrant, a federal agent could not transfer the evidence to state authorities and thereafter testify against the defendant at a state trial. Id. at 214-218. There are no allegations here of any similar federal efforts to evade the impact of a suppression order issued in a federal prosecution.