OPINION AND ORDER (March 1, 1972)
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.
At first blush, it would appear that any attack on the validity of the execution of the warrant because of the manner of entry, especially one involving the breaking of a door, would have to be governed in some way by 18 U.S.C. § 3109, which deals with the authority to break doors and windows as follows:
"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."