The opinion of the court was delivered by: NEWCOMER
NEWCOMER, District Judge.
This case is before the Court on defendant's Motion to Suppress Evidence.
There is some conflict of testimony as to certain of the facts in this case, which the Court has resolved in its best judgment in the following statement of facts.
On March 23, 1971, agents of the Federal Bureau of Narcotics and Dangerous Drugs (BNDD) obtained a search warrant to search the home of Frank Gervato, for Dimethyltryptamine, a controlled dangerous drug, and chemicals and equipment used in the manufacture thereof. Gervato had been under intensive investigation in the two to three week period immediately preceding the issuance of the warrant, which investigation had involved rather lengthy surveillance of Gervato on at least two occasions and probably more, as well as an investigation into the scope and nature of his employment as a supervisor of various processes at Famous United Meat Products Co. of Philadelphia.
The premises to be searched were placed under surveillance on the day in question, March 23rd, around 12:30 p.m. Gervato left the premises sometime after 1:00 p.m. After the agent in charge of the investigation procured the warrant, at 2:00 p.m., he proceeded to his office to await the arrival of BNDD chemists to assist in executing the warrant. The chemists arrived at 4:30 p.m. and the party left at 5:30 p.m. and arrived at the premises to be searched around 6:00 p.m. When they got to the scene the agent bearing the warrant was informed by his surveillance party by radio that Gervato probably was not home. The record is silent concerning previous radio contact between the surveillance party and the bearer of the warrant, but it is fair to assume that this is likely, since the agent who got the warrant was the head of the investigation. The surrounding facts are such as to charge the Agent with reasonably certain knowledge that the premises were unoccupied. The bearer of the warrant, together with other persons in the search party, then proceeded to Gervato's door, knocked, and announced his purpose and authority. Expecting no reply, and receiving none, the agent then broke in the door.
An examination of the direct testimony of the agent who made the entry and the testimony of defense witness Sokol leads to the conclusion that Sokol was in his delicatessen when the door was broken, and responding to the noise of the entry, came through the door connecting the delicatessen to defendant's dwelling and met the agents after they had entered. The warrant was then executed and the agents left approximately one-half hour before defendant returned home at about 9:30 p.m.
Defendant has urged several grounds for the suppression of the evidence procured in this search. First, that there was not probable cause to issue the warrant; second, that the warrant was overly broad; third, that the search was overly broad; fourth, that the warrant was a daytime warrant executed in the night; and fifth, that the entry of the officers was in violation of the rights of defendant and rendered the search unreasonable. Because we dispose of the entire matter on the fifth issue, we need not consider the others. We will assume for purposes of this opinion that the warrant was valid and was validly executed as regards the time of day and the scope of the items seized.
"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 a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.".
However, for reasons which will be explained at length below, we find that § 3109 has no bearing on the case at bar, either as an authorization justifying the agent's conduct or as an authority forbidding the conduct.
The Espionage Act of 1917 included a section codifying the procedures to be followed in the execution of search warrants, the first such section in a Federal statute, which included, inter alia, the two paragraphs which were later codified as 18 U.S.C. § 618 and § 619 and afterwards, in the words of the historical note in U.S.C.A., "consolidated with minor changes in phraseology but without change in substance" and finally codified in 1948 as 18 U.S.C. § 3109. The interpretation of these provisions and their effect was first addressed in United States v. Maresca, 266 F. 713 (S.D.N.Y. 1920) and United States v. Yuck Kee, 281 F. 228 (D. Minn. 1922). The following passage from Yuck Kee is most instructive:
"The question is raised whether the procedural provisions in Title 11 of the Espionage Act are general in nature, applying to all search warrants, or were intended to be confined to proceedings under the Espionage Act, leaving other search warrants to be governed by the common law."
"On the one hand, attention is called to the fact that when the National Prohibition Act (41 Stat. 305) was passed it was specially provided therein that issuance of search warrants thereunder should be governed by Title 11 of the Espionage Act, and Section 23 of Title 11 (Section 10496 1/4v) is also referred to as tending to show that the provisions of Title 11 were not intended to have application to search warrants generally. On the other hand, it is pointed out, in the case of United States v. Maresca (D.C.) 266 F. 713, 725, that Title 11 of the Espionage Act was taken almost bodily from the Code of Criminal Procedure of New York (§§ 791-810), and this is quite apparent from a comparison of the two statutes. It is further pointed out, in the same case, that those sections of the New York Code of Criminal Procedure were simply declaratory of the historic common law, citing People ex rel. Robert Simpson Co. v. Kempner, 208 N.Y. 16, 101 N.E. 794, 46 L.R.A., N.S., 970, Ann. Cas. 1914D, 169 . . . . In view of the foregoing, it would seem unnecessary to determine whether the issuance, service, and execution of the search warrant in the case at bar were governed by Title 11 of the Espionage Act, or by the common law. The requirements of both are the same." United States v. Yuck Kee, supra, at 230.
This view has been substantially affirmed by every opinion we have found that has considered the matter. Giles v. United States, 284 F. 208 (1st Cir., 1922); United States v. Lai Chew, 298 F. 652 (N.D. Cal., 1924); Pappas v. Lufkin, 17 F.2d 988 (D. Mass., 1927). See also Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958).
The Court has concluded, for reasons to be given shortly, that § 3109 is a codification of common law principles that developed without contemplation the kind of situation before the Court. As we will show below, the common law antecedents of § 3109 were never applied or intended to apply to situations where the executing officer served a search warrant at a person's regular abode with actual knowledge that the person was absent therefrom. It follows from this that § 3109 has no bearing on the case and that we cannot rely on a strained definition of the word "refused" to justify such an entry.
We must look to the common law and the historical context of the Fourth Amendment guarantee against unreasonable searches and seizures, in order to judge if the agent's conduct on the facts before us rendered the search "unreasonable".
We will start our discussion of the common law regarding the right of an officer executing a search warrant to go to a man's home knowing it to be unoccupied and then to break the door to serve the warrant, by observing that passages startlingly parallel to 18 U.S.C. § 3109 in both content and language may be found in Burn's Justice of the Peace and Parish Officer (first published in 1754) applying, not to the execution of search warrants, but to the execution of arrest warrants (30th Ed., at p. 303). This is not surprising, for the authorization to search premises grew up as an authority ancillary to the power to arrest. The authority to break a door to execute an arrest warrant was first recognized in the 13th Yearbook of Edward the IV at folio 9 (See Judge Prettyman's opinion in Accarino v. United States, 85 U.S. App. D.C. 394, 179 F.2d 456, at 460 ). The right of a justice of the peace to issue a warrant including the power to search the premises must have been novel in Coke's time, even restricted as it was to stolen goods, however, for we are told by Lord Camden in 1765 "No less a person than my Lord Coke denied its legality. 4 Inst. 176.". Entick v. Carrington, 95 Eng. Rep. R. 807, (1765) quoted in Boyd v. United States, 116 U.S. 616 at 628, 6 S. Ct. 524, 29 L. Ed. 746 (1885).
The next great statement of the common law applicable to this area after Coke is Sir Matthew Hale's History of the Pleas of the Crown written sometime between 1660 and his death in 1676. Hale disagrees with Coke concerning the propriety of warrants granting the power to search, and ...