Appeal from the United States District Court for the Western District of Pennsylvania. (District Court Criminal Action No. 73-325).
Aldisert, Adams and Rosenn, Circuit Judges.
This appeal requires us to decide whether a government agent's failure to promptly make a search warrant return, in violation of Rule 41(d), F.R. Cr. P.,*fn1 necessitates suppression of the seized items and their fruits. The district court conducted a two-part suppression hearing and held that the Rule 41(d) violation infected the otherwise valid search, rendering the seized items and their fruits inadmissible in evidence. The government appealed pursuant to 18 U.S.C. § 3731. We vacate the judgment of the district court.
Appellee is under indictment for possession of an illegal still in violation of 26 U.S.C. § 5601(a)(1) and for possession of non tax-paid distilled spirits in violation of 26 U.S.C. § 5604(a)(1). On July 20, 1973, Special Agent O'Connell of the Bureau of Alcohol, Tobacco and Firearms sought and received a warrant to search appellee's premises, situated near Connellsville, Pennsylvania, for illicit distilling equipment, mash and distilled spirits. Several agents accompanied O'Connell during the July 23, 1973, execution of the warrant, seizing, among other things, a "copper pot type still" and "illicit distilled spirits." Agents also took photographs of the site during their search and allegedly witnessed incriminating statements by the appellee. Chemical analysis of the seized liquid was later made.
Upon completion of the search, the original return and a copy were filled out. O'Connell signed the copy, swearing to the accuracy of the inventory, and handed it to appellee.*fn2 It is undisputed that the copy of the return received by appellee was complete.*fn3 However, the original return has never been signed by any agent; nor has it been returned before the issuing magistrate.*fn4 Indeed, it was not filed in the office of the Clerk of the District Court until January 17, 1974. Although the district court made no finding as to the reason for this failure to adhere to the proper return procedures, it did receive testimony, which, if credited, explained the reason for this irregularity. Agent Wallington, a participant in the search, testified that O'Connell gave him the unsigned original to take to Pittsburgh, and that he, Wallington, delivered the return, along with others, to the magistrate's office on or before July 27, 1973. Because the magistrate was not in his office at the time Wallington arrived, and because Wallington was needed at Uniontown, Pennsylvania, he left the original return with the magistrate's secretary.
Appellant does not dispute the district court's conclusion that Rule 41(d) was violated in this case. Instead, it mounts an attack on the district court's imposition of the suppression remedy. Specifically, it argues that a Rule 41(d) violation is not a deprivation of appellee's Fourth Amendment rights and that the Federal Rules of Criminal Procedure do not mandate suppression if appellee receives a complete copy of the return and has failed to demonstrate prejudice from the violation.
Appellee does not seriously dispute appellant's Fourth Amendment contention. He concedes that certain failures in the return procedure do not warrant this draconian sanction; but contends that where, as here, there is an utter failure to make the return before the magistrate, both the Federal Rules of Criminal Procedure and the due process clause of the Fifth Amendment require suppression. Otherwise, argues appellee, a serious potential for abuse exists, presaging a breakdown of the rules and the protections they afford.
Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), squarely addressed appellant's Fourth Amendment contention. There, the Wisconsin police had failed to recite on the search warrant return that a sock and a floor mat had been seized pursuant to a search warrant. At a subsequent hearing the sheriff who had executed the warrant did not state that these two items had been seized. The Court rejected the argument that the defective return rendered the underlying search invalid under the Fourth Amendment:
The seizures of the sock and the floor mat occurred while a valid warrant was outstanding, and thus could not be considered unconstitutional . . . . As these items were constitutionally seized, we do not deem it constitutionally significant that they were not listed in the return of the warrant.
Here, the district court specifically found that there was probable cause to search appellee's premises.*fn5 At the time of this seizure, appellee's rights under the Fourth Amendment were not being infringed. The irregularity occurred only after a valid search and seizure. We hold that, under the facts of this case, such irregularity is not "constitutionally significant" under the Fourth Amendment.*fn6 Therefore, the ramification of this procedural violation is a matter of federal law governed, in this case, by the Federal Rules of Criminal Procedure.
The procedural requirements of Rule 41(d) are essentially ministerial in nature. United States v. Harrington, 504 F.2d 130 (7th Cir., 1974); United States v. Kennedy, 457 F.2d 63, 67 (10th Cir.), cert. denied, 409 U.S. 864, 93 S. Ct. 157, 34 L. Ed. 2d 112 (1972); United States v. Wilson, 451 F.2d 209, 214 (5th Cir. 1971), cert. denied, 405 U.S. 1032, 92 S. Ct. 1298, 31 L. Ed. 2d 490 (1972); United States v. McKenzie, 446 F.2d 949, 954 (6th Cir. 1971). The rule commands the officer to perform specific acts -- to leave a copy of the warrant, to issue a receipt for property taken, to make a return and to prepare a written inventory in the presence of certain persons. While the rule outlines detailed procedures, it does not expressly address the remedies, if any, which flow from a failure to adhere to those procedures. Therefore, we turn to Rule 2, F.R.Cr.P. as our interpretive polestar. Rule 2 expresses values sought to be achieved by the Federal Rules of Criminal Procedure. We are commanded ...