Appeal by the United States from a decision of the United States District Court for the District of Connecticut, Robert C. Zampano, Judge, suppressing the fruits of a search of the appellee's residence. Reversed and remanded.
Feinberg, Gurfein and Meskill, Circuit Judges.
The United States appeals, pursuant to 18 U.S.C. § 3731, from a decision of the United States District Court for the District of Connecticut, Robert C. Zampano, Judge, suppressing the fruits of a search of the appellee's residence. We hold that suppression was unwarranted and remand the case for further proceedings.
The indictment in this case charges appellee, William D. Turner, with two counts of introducing amygdalin purissimum into commerce by means of a false invoice, 18 U.S.C. § 542, and with one count of conspiracy to commit that offense, 18 U.S.C. § 371. Amygdalin, sometimes called laetrile, and popularly known as vitamin B-17, is claimed by some to be a cancer cure, although its manufacture, distribution and importation in this country has not been approved by the Food and Drug Administration. Venue was laid in the District of Connecticut because the amygdalin arrived in this country at Connecticut's Bradley International Airport.
On June 11, 1974, Turner was arrested in California, by California authorities, for violating § 1707.1 of the California Health and Safety Code, which prohibits the distribution of unapproved substances intended for cancer treatment. While he was in custody, state and federal authorities - anxious about the possibility that he would soon be released on bail - obtained a warrant for the search of his residence in Chula Vista, California. The issues raised on this appeal relate to the legality of the procedures followed in obtaining the warrant.
At approximately 9:00 p.m. on June 11, 1976, Judge Kenneth Johns of the San Diego Municipal Court was telephoned at home and asked to issue a search warrant. A conference telephone call was set up with Judge Johns, Charles Bell, a Deputy District Attorney with the San Diego County District Attorney's Office, Seth Nadel, a Special Agent with the United States Customs Service, and Sharon Dalton, a Special Operative of the California Health Department. Bell, Nadel and Dalton were all at the Chula Vista Police Station. The telephone call was recorded, and a transcript of the call is a part of the record.
Judge Johns placed Nadel and Dalton under oath, and they were questioned by Bell with respect to the search warrant application. Dalton testified, in substance, that she had bought a brown paper bag full of vitamin B-17 from Turner. Nadel testified, in substance, that he had maintained surveillance on Turner's residence, and the brown paper bag given to Dalton had come from there.
Judge Johns then told Nadel to fill in the blanks in a search warrant form and to sign the Judge's name. Nadel was also instructed to sign his own name, department and badge number.
Pursuant to this search warrant, Turner's residence was searched by local police, sheriff's deputies, Customs agents and Dalton. Numerous items were seized - some of which are evidence of the instant charges. The return of the search warrant, along with the inventory of items seized, was made by a Chula Vista police officer on June 12. It was sworn to before Judge Johns on June 14. On June 19, Judge Johns certified that he had filed, in San Diego Municipal Court, a tape recording of the telephonic search warrant application, a transcript of that conversation, the "original" of the search warrant (signed by him a day or two after the search) and a "duplicate original" of the search warrant (the copy signed by Nadel on the Judge's behalf).
With one exception, the procedures followed in this case complied with the requirements of a California statute authorizing oral search warrants. California Penal Code §§ 1526(b), 1528(b).*fn1 It is agreed that the statute was violated as a result of Agent Nadel's signing of the duplicate original warrant. Under the California statute, only a "peace officer" can perform this task, and a federal Customs agent is not a "peace officer" under California law. The district court held that the California courts would require strict compliance with the statutory procedures and would grant suppression on the basis of the violation in question here. Accordingly, the district court granted Turner's motion to suppress.
At the outset we must determine what standards to apply in deciding the motion to suppress. The search warrant was issued by a state judge, acting under authority of state law, as a result of violations of the state penal code, at the request of state law enforcement personnel. Nevertheless, a violation of the state telephonic search warrant procedures, even if such a violation would result in suppression in the California court, as the district court predicted, would not necessarily require suppression in federal court. This is a federal prosecution, and federal law determines whether suppression is appropriate. United States v. Magda, 547 F.2d 756, 757 n.2 (2d Cir. 1976); United States v. Castillo, 449 F.2d 1300, 1301 n.2 (5th Cir. 1971); United States v. Scolnick, 392 F.2d 320, 325 (3d Cir.), cert. denied, 392 U.S. 931, 88 S. Ct. 2283, 20 L. Ed. 2d 1389 (1968); see Cady v. Dombrowski, 413 U.S. 433, 449, 37 L. Ed. 2d 706, 93 S. Ct. 2523 (1973); Preston v. United States, 376 U.S. 364, 366, 11 L. Ed. 2d 777, 84 S. Ct. 881 (1964); Rios v. United States, 364 U.S. 253, 260-61, 4 L. Ed. 2d 1688, 80 S. Ct. 1431 (1960); Elkins v. United States, 364 U.S. 206, 224, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960); On Lee v. United States, 343 U.S. 747, 754-55, 96 L. Ed. 1270, 72 S. Ct. 967 (1952); Olmstead v. United States, 277 U.S. 438, 468, 72 L. Ed. 944, 48 S. Ct. 564 (1928); United States v. Mejias, 552 F.2d 435, 444, slip op. 2269, 2287 (2d Cir. 1977); United States v. Dudek, 530 F.2d 684, 691 (6th Cir. 1976); United States v. Burke, 517 F.2d 377, 382 (2d Cir. 1975). Because Customs Agent Nadel was involved in the warrant application process, and because Customs Agents participated in the search of Turner's residence, this search was federal in the sense that federal officers "had a hand in it." Lustig v. United States, 338 U.S. 74, 78, 93 L. Ed. 1819, 69 S. Ct. 1372 (1949) (Frankfurter, J.); see United States v. Hanson, 469 F.2d 1375 (5th Cir. 1972); Navarro v. United States, 400 F.2d 315 (5th Cir. 1968). Accordingly, it must be considered in light of both Fed. R. Crim. P. 41 and the Fourth Amendment. If there is a violation of Rule 41, such a violation will
not lead to exclusion unless (1) there was "prejudice" in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of ...