United States v. Harold Loyd Vasser

648 F.2d 507 UNITED STATES of America, Plaintiff-Appellee, v. Harold Loyd VASSER, Defendant-Appellant. No. 79-1525. United States Court of Appeals, Ninth Circuit. July 14, 1980. Rehearing Denied Oct. 7, 1980. As Amended on Denial of Rehearing and Rehearing Denied En Banc Jan. 7, 1981. Michael L. Piccarreta, Phoenix, Ariz., for defendant-appellant. Kenneth L. Fields, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee. On Appeal from the United States District Court for the District of Arizona. Before CHOY, ANDERSON, and PREGERSON, Circuit Judges. J. BLAINE ANDERSON, Circuit Judge: 1 Vasser appeals his conviction for the manufacture of Phencyclidine in violation of 21 U.S.C. § 841 . Vasser's sole contention on appeal is that the court erred in dismissing his motion to suppress certain physical evidence on the ground of deficiency in the issuance of a search warrant. We affirm. I. BACKGROUND 2 On March 7, 1979, Special Agents Charles R. Henderson and Clifford Rabourn of the Drug Enforcement Administration began a surveillance of Vasser's apartment. Agents Henderson and Rabourn suspected that Vasser was using the apartment to manufacture illegally the drug Phencyclidine.…

Vasser appeals his conviction for the manufacture of Phencyclidine in violation of 21 U.S.C. § 841 . Vasser’s sole contention on appeal is that the court erred in dismissing his motion to suppress certain physical evidence on the ground of deficiency in the issuance of a search warrant. We affirm.

I. BACKGROUND

On March 7,1979, Special Agents Charles R. Henderson and Clifford Rabourn of the Drug Enforcement Administration began a surveillance of Vasser’s apartment. Agents Henderson and Rabourn suspected that Vasser was using the apartment to manufacture illegally the drug Phencyclidine. Based upon observations whose validity is not at issue in this appeal, the agents concluded that Vasser was in the process of manufacturing the drug and that the apartment should be searched. At 10:30 p. m. on March 7, Agent Henderson contacted an Assistant U.S. Attorney who, after hearing Henderson’s description of Vasser’s activities, agreed that the agents had probable cause to search the apartment. Henderson thereupon instructed Agent Rabourn to prepare an affidavit of probable cause in order to obtain a search warrant.

The agents were observing Vasser’s apartment from an empty townhouse…

dissenting.

I agree with the majority that the procedure followed by Agent Rabourn did not conform to the requirements of F.R.Crim.P. 41(c). I do not agree, however, that substantial departures from the directives of Rule 41(c) are nonfundamental noncompliances with the rule which, absent prejudice or bad faith, ought to be excused.

The majority defines a nonfundamental violation of the rule as one that does not rise to constitutional dimensions. Conversely, a violation is fundamental only if it renders the search unconstitutional under traditional Fourth Amendment standards. This distinction makes Rule 41(c) superfluous, except to the extent that it signifies approval of the use of telephones and recording devices to communicate and memorialize information needed to satisfy the oath or affirmation, probable cause, and particularity requirements of the Fourth Amendment. Moreover, the majority’s fundamental/nonfundamental dichotomy raises other problems. The Federal Rules of Criminal Procedure blend constitutional limitations on police activity, procedural limitations designed to avoid constitutional violations, and purely administrative “housekeeping” regulations. United States…