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United States v. Gervato

decided: January 26, 1973.


(D.C. Criminal No. 71-434) Appeal from the United States District Court for the Eastern District of Pennsylvania.

Aldisert, Gibbons and Hunter, Circuit Judges.

Author: Hunter


HUNTER, Circuit Judge.

We review in this case the validity of a district court decision that a warrant to search a private dwelling cannot constitutionally be executed in the known absence of the occupant unless exigent circumstances exist. As far as we know, this question has not been decided by either the Supreme Court or any federal court of appeals.

On March 24, 1971, agent Glanz of the Federal Bureau of Narcotics and Dangerous Drugs (BNDD) obtained a warrant authorizing him to search appellee Frank Gervato's apartment in the daytime for Dimethyltryptamine, a controlled dangerous drug, and chemicals and equipment used in its manufacture. About 5:30 p.m., Glanz and two BNDD chemists drove to appellee's apartment which had been under surveillance by BNDD agents since approximately 12:30 p.m. that day. These agents had seen Gervato leave the premises sometime after 1:00 p.m. and not return, and Glanz was so informed by radio when he arrived around 6:00 p.m. Glanz then proceeded to appellee's door, knocked, and announced his official identity and his reason for wanting to enter the apartment. When he received no reply he knocked again and then forced open the door. Once inside the apartment, Glanz and the other agents were met by the owner of the building and two young men, who had entered through a door connecting the apartment with a delicatessen. Glanz showed the owner a copy of the search warrant and agreed to the owner's request to be present while the apartment was searched. The warrant was then executed with 78 items being seized. The agents departed about 9:00 p.m., leaving behind a copy of the search warrant and a list of the items seized. Gervato, who apparently knew nothing about the search, returned home a few minutes later.

On July 15, 1971, a two count indictment was returned charging appellee with illegally manufacturing and possessing lysergic acid amide, in violation of the Federal Food and Drug Act. On November 29, 1971, appellee filed a pretrial motion to suppress the evidence uncovered by the March 24 search. This motion was sustained by the district court on March 1, 1972 on the ground that the known absence of appellee made the search unreasonable and therefore in violation of the Fourth Amendment. United States v. Gervato, 340 F. Supp. 454 (E.D. Pa. 1972). Specifically, the district court said that "[a] man's home should not be forcibly entered in his absence to serve a search warrant, absent some exigent circumstance which it is up to the Government to show, especially in a case such as this where the house was under surveillance and the agents knew before going to the door that no one was home." Id. at 463. The government has appealed this decision pursuant to 18 U.S.C. ยง 3731. We reverse because we do not believe that the Fourth Amendment requires the occupant to be present before his home can be searched under a valid search warrant and because we do not think that the present search was unreasonable.

The Supreme Court has examined on many occasions the history and purposes of the Fourth Amendment. E.g., Warden v. Hayden, 387 U.S. 294, 301, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); Stanford v. Texas, 379 U.S. 476, 481-485, 13 L. Ed. 2d 431, 85 S. Ct. 506 (1965); Marcus v. Search Warrant, 367 U.S. 717, 724-729, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961); Frank v. Maryland, 359 U.S. 360, 363-366, 3 L. Ed. 2d 877, 79 S. Ct. 804 (1959); Boyd v. United States, 116 U.S. 616, 624-629, 29 L. Ed. 746, 6 S. Ct. 524 (1874). This history shows that the primary purpose of the Amendment was to put an end to the general warrants and writs of assistance under which officers of the Crown had been empowered to conduct general searches and seizures. James Otis denounced these writs as "'the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book' since they placed 'the liberty of every man in the hands of every petty officer.'" The historic occasion of that denunciation, at a famous 1761 debate in Boston, has been characterized as "perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. 'Then and there,' said John Adams, 'then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.'" Boyd v. United States, supra at 625.

In order to understand the Founding Fathers' perspective on writs of assistance, it is instructive to consider the history of the controversial general warrant in England. As Stanford v. Texas, supra at 482-483, points out:

"What is significant to note is that the history is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eighteenth centuries. . . . In later years warrants were sometimes more specific in content, but they typically authorized the arrest and search of the premises of all persons connected with the publication of a particular libel, or the arrest and seizure of all the papers of a named person thought to be connected with a libel."

In the Colonies, the hated writs of assistance were also frequently used to search for evidence of crime or of illegally imported goods.

A few years prior to the outbreak of the American Revolution, the use of general warrants to aid in prosecutions for seditious libel was judicially condemned in England in two landmark cases, Wilkes v. Wood, 19 How. St. Tr. 1153 (1763) and Entick v. Carrington, 19 How. St. Tr. 1029 (1765). In the former case, John Wilkes had boldly denounced the English government in issue No. 45 of the North Briton. By authority of a warrant issued by the Secretary of State, Wilkes was carried away, and his house was then searched and his papers indiscriminately seized. Wilkes sued and obtained a verdict of one thousand pounds against one of the perpetrators of the search and four thousand pounds against the Secretary of State. In his opinion, Lord Camden condemned the "general warrant, where no inventory is made of the things thus taken away, and where no offenders' names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall." 19 How. St. Tr. at 1167. However, while Lord Camden was obviously distraught at what he viewed as a "ridiculous warrant against the whole English nation," there is no indication that he believed the warrant could not be executed in Wilkes' absence.

In Entick v. Carrington, supra, a warrant based on a charge of seditious libel issued for the arrest of Entick, the author of a publication called Monitor or British Freeholder, and for the seizure of all his papers. The King's messengers executing the warrant ransacked Entick's home for four hours and carted away great quantities of books and papers. In an opinion which the Supreme Court has recognized as a wellspring of the rights now protected by the Fourth Amendment,*fn1 Lord Camden declared the general warrant for the seizure of papers contrary to the common law, despite its long history. "This power," he said, "so assumed by the secretary of state is an execution upon all the party's papers, in the first instance. His house is rifled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper." 19 How. St. Tr. at 1064.

The district court in the present case placed great emphasis on one passage in Entick from which it concluded that the common law prohibited the execution of a search warrant if no one was on the premises.*fn2 Upon examination of that passage in the context of the entire opinion, however, we do not believe that such a conclusion is justified. Lord Camden's concern in both Wilkes and Entick was with the unrestricted discretion of those who executed the warrants and not with the presence or absence of either plaintiff. Consequently, after reviewing these two cases along with the other authorities cited ...

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