United States v. Louis Luk

POOLE, Circuit Judge,

dissenting:

I do not accept the majority’s rationale and therefore dissent from the court’s holding.

There was a time in the history of this country when judges — and especially judges of the United States courts — understood and were anxious to honor the epochal history out of which developed jealous strictures on the issuance of search warrants. There was a time, too, when judges did not feel the urge to weaken those dearly bought protections to which every citizen is entitled as against abuse by the government in both the issuance and execution of search warrants. Today’s decision is one more effort by which our personal freedoms are undermined and we are less secure. The majority opinion pushes off in that direction by the employment of such easy verbalisms as “fundamental/non-fundamental,” slip op. at 11, and pseudo aphoristic quotes lifted from a decision out of another circuit and involved with quite asymmetric fact mixes.

As to the historical facts of this case (distinguished from the inferences which the majority opinion has drawn from them), we are in substantial agreement. But in my view the treatment of that factual con *679 text should have resulted in a judgment reversing the district court and ordering suppressed the fruit of what is clearly an illegally issued warrant; illegally issued, and not at all saved by the so-called “good faith exception” spawned by United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984). The warrant was requested by Agent Doris Koplik who was neither a law enforcement agent nor a person authorized by the Attorney General to apply for search warrants, as required by Rule 41(a) and (h) of the Federal Rules of Civil Procedure. The majority has decided that it makes very little difference who requests the warrant and to that extent, has effectively nullified the clear directives of that provision.

Rule 41(a) mandates that a request for a search warrant be made only by a federal law enforcement officer or by an attorney for the government. When this warrant was issued in October 1984, Koplik, an agent of the Office of Export Enforcement, was not, for purposes of the Rule, a federal law enforcement officer. United States v. Whiting, 781 F.2d 692 , 694 & n. 6, 698 (9th Cir.1986). At the same time, Assistant United States Attorney Rossbacher was an attorney for the government and was authorized to request a federal search warrant. See Johnson, 641 F.2d at 656. The question before us is whether the request for the warrant was made by Agent Kop-lik, who was not authorized to request it, or by Assistant United States Attorney Ross-bacher, who was.

The outer boundary for compliance with Rule 41(a) is marked by our holding in United States v. Johnson, 641 F.2d 652 (9th Cir.1980). There, a police officer not authorized under Rule 41(a) telephoned an Assistant United States Attorney and explained his immediate need for a search warrant. The attorney personally contacted a magistrate to request a telephone search warrant. The attorney supplied the magistrate with the name of the police officer and the phone number where the officer could be reached. Pursuant to this request, the magistrate then called the officer who recited the facts which established probable cause. The magistrate administered the oath to the officer and directed him to fill out the duplicate papers bearing the magistrate’s name. A divided panel of this court held that the request for the warrant was literally made by the government attorney, not the officer, because the attorney had actually called the magistrate and actually requested that the warrant issue. Id. at 656 . See also United States v. Massey, 687 F.2d 1348, 1356 (10th Cir.1982) (warrant issued upon affidavit of state narcotics agent satisfied Rule 41(a) where Assistant United States Attorney telephoned judge in advance and accompanied state agent when supporting affidavit was presented to judge).

In contrast, by no possible stretch of imagination can the record in the present case be said to show that any request for the warrant came from the Assistant United States Attorney. It merely shows that he was involved in the preparation of the affidavit and warrant, that he found out what magistrate was available and then (presumably because he had other more important things to do) instructed Agent Koplik to present the application. The record contains no evidence that Rossbacher asked the magistrate to issue a warrant. There is not even any evidence that he ever spoke to the magistrate. Koplik was sent alone to the magistrate to obtain a warrant; she presented the affidavit and the warrant to the magistrate; and she, rather than Rossbacher, had signed both documents. On these facts it ought to be a matter of law, that the request came not from Rossbacher, but from Koplik and that Rule 41(a) was violated. 1

*680 While a Rule 41 violation does not automatically require suppression, United States v. Vasser, 648 F.2d 507, 510 (9th Cir.1980), cert. denied, 450 U.S. 928 , 101 S.Ct. 1385 , 67 L.Ed.2d 360 (1981), the evidence seized at Luk’s residence ought to be suppressed in this case. The government does not contest the district court’s conclusion that the warrant was unduly broad in its description of the items to be seized. 2 The district court held that despite the warrant’s overbreadth the property seized was admissible as evidence under the so-called “good faith exception” to the exclusionary rule established by the Supreme Court in Leon . The Leon exception, however, is inapplicable in the case of a warrant obtained wholly without authority. See United States v. Whiting, 781 F.2d 692, 698 (9th Cir.1986) {“Leon does not apply to search warrants issued to people who are not permitted to obtain such warrants”). Thus, the warrant could not be saved on the basis of good faith reliance. 3

In disregarding the provisions of Rule 41, the majority seems simply to have ignored the important principle which is inl-plicit in that rule that the government is not entitled to have a search warrant issued unless the request is made by one who is strictly authorized- by law to do so. Rule 41(a) limits the category of those who may make such a request to (1) an attorney for the government, or (2) a “federal law enforcement officer.” 4 It is conceded that Koplik was not in the category of a “law enforcement officer” and was not so designated.

There is a very strong policy basis for limitations upon the authority to request a search warrant. It is unnecessary herein to revisit the foundations of our rules on search warrants or to attempt to set forth how deep run the feelings and passions which brought them forth. Giving the authority to intrude upon a citizen’s home is a solemn and serious act. Where the power of the government is to be marshaled to command entry into a private home — to command, and, if not obeyed, to break, and enter the close — is a heavy exercise of public process; it ought to require, as the writers of the Fourth Amendment intended, strict compliance with the Constitution, *681 with governing statutes and with rules of implementation. This goes for issuance no less than execution. Our rules aim to assure us not only that there is a public need to invade, but that execution of that duty is entrusted only to those special government officers who are seasoned, informed about the business of entry, search and seizure, and who have been explicitly designated by the Attorney General of the United States. The administration of public justice is not to be handed lightly to whomsoever is handy.

Today’s majority decision breaks one more strand of protection, opens wider the door to insecurity, and invites still other takings of our immunities. I would reverse the judgment of the district court.

. Subsequent to oral argument counsel for the government moved for a limited remand to enable Mr. Rossbacher to testify that he spoke directly to Magistrate Penne and requested that a search warrant be issued to Agent Koplik. We deny this motion as untimely. The government had every opportunity to present this testimony to the district court. In fact, the district court suggested that the government do so on at least two occasions:

THE COURT: If you want to bring yourself in the four corners of that Johnson case ... you better find out whether this witness knows whether Rossbacher called Magistrate Penne *680 and asked him to consider the application for a search warrant to be presented by Agent Koplik. We don't know that at this point. If this witness just doesn’t know the facts on that one way or another, then maybe we better get Rossbacher down here. (Emphasis supplied.)

Furthermore, the government’s attorney told the court that Koplik was not present when the phone call was made, the Court said: “All right. In that case I suppose it’s hearsay and maybe you would need Mr. Rossbacher." (Emphasis supplied.)

Despite these strong suggestions by the trial court, the government made a tactical decision not to produce Rossbacher. We are not now disposed, at this tardy hour, to reopen this issue for the consideration of a newly tendered government position. The government not only did not contend at oral argument that the Assistant United States Attorney had in fact made the request, but has not even furnished this court with any declaration or affidavit by Rossbacher that he would testify to having done so.

.The district court found the following: "The warrant is overbroad. But the execution of it, the search under it[,] is saved by Leon , good faith, reasonable belief in its validity." In its brief the government acknowledges that it "is not appealing the district court’s finding that the warrant is overbroad.”

Although we do not therefore have the over-breadth issue before us, we note that this particular warrant is extremely broad and that one reason for Rule 41(a) is to guard against the issuance of overly broad warrants.

. Even if Leon were to apply, the members of Koplik's search team could not be said to have acted in good faith because Koplik must be presumed to have known that she lacked authority to personally request a search warrant. 'Whiting, 781 F.2d at 699 n. 16. The fact that the warrant was technically executed by Agent Bammer does not diminish the point, since the record clearly shows that Agent Bammer was acting under the direction of Koplik.

. This is defined in Fed.R.Crim.P. 41(h) in the following language:

The phrase "federal law enforcement officer" is used in this rule to mean any government agent, other than an attorney for the government as defined in Rule 54(c), who is engaged in the enforcement of the criminal laws and is within any category of officers authorized by the Attorney General to request the issuance of a search warrant.

Rule 54(c) defines "attorney for the government."