LAW.coLAW.co

UNITED STATES of America, Plaintiff-Appellant, v. Ronald WILSON, Defendant-Appellee

United States Court of Appeals for the Sixth Circuit1974-02-14No. No. 73-1869
491 F.2d 724

Summary

Holding. The court reversed the district court's suppression order, holding that protection of an informant's identity constituted reasonable grounds for the six-day delay in executing the search warrant within the ten-day period allowed by Rule 41.

The government appealed a district court order suppressing evidence obtained through a search warrant that was executed six days after issuance. At the time, Federal Rules of Criminal Procedure Rule 41 required warrants to be served "forthwith" but allowed execution within ten days. The defendant argued the delayed service violated the rule, but the court examined prior appellate decisions that had permitted reasonable delays within the ten-day window when justified by legitimate reasons.

The government explained the six-day delay was necessary to protect an informant who had made a controlled purchase the same day the warrant issued. Executing the warrant immediately after the purchase would have risked exposing the informant's identity. The court found this rationale constituted reasonable grounds for the delay and determined the district judge's contrary finding was clearly erroneous. The court also confirmed that probable cause remained valid on the date of the actual search.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether delayed execution of a search warrant within ten days violates the "forthwith" requirement when justified by informant protection
  • What constitutes reasonable grounds for delaying warrant service
  • Continuing validity of probable cause after a delayed warrant execution

Procedural posture

The United States appealed from a district court order granting the defendant's motion to suppress evidence seized under a search warrant executed six days after issuance.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM.

In this case the government appeals from an order by the United States District Court for the Eastern District of Michigan, Southern Division, granting defendant’s suppression motion pertaining to evidence seized under a search warrant. It was defendant’s contention (and the District Judge agreed) that the execution of the search warrant was faulty in that it was served six days after it was issued.

At the time involved in this case, the applicable rule, Federal Rules of Criminal Procedure 41(c) and (d), contained a ten-day limit in relation to service, but also provided that the search warrant should be executed “forthwith.” On October 1, 1972, after the events with which we are concerned here, Rule 41 was amended so as to omit the word “forthwith.”

Various Courts of Appeals had previously interpreted the rule as allowing for somewhat delayed service within ten days. See, e. g., United States v. Rael, 467 F.2d 333 (10th Cir. 1972) (five-day delay caused by lack of sufficient per sonnel); United States v. Harper, 450 F.2d 1032 (5th Cir. 1971) (nine-day delay resulting from a desire to arrest accomplices) ; United States v. Dunnings, 425 F.2d 836 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970) (nine-day delay resulting from a desire to arrest defendant); United States v. Nepstead, 424 F.2d 269 (9th Cir.), cert. denied, 400 U.S. 848, 91 S.Ct. 50, 27 L.Ed.2d 86 (1970) (six-day delay caused by desire to wait until illicit drugs were actually manufactured); United States v. McClard, 333 F.Supp. 158 (E.D.Ark.1971), aff’d, 462 F.2d 488 (8th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 345, 34 L.Ed.2d 255 (1972) (delay of six days caused by weather and dispersal of force). The better reasoned of these cases appear to us to have allowed some delay where the cause or causes of the delay could appropriately be held to be “reasonable.” United States v. Harper, 450 F.2d 1032 (5th Cir. 1971); United States v. Dunnings, 425 F.2d 836 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970).

In our instant case the government’s rationale for the delayed service was that the informant who had made the purchase would have been endangered by service of the search warrant immediately on the heels of the purchase, that the agent wanted to wait until he had reason to know that a larger amount of heroin was likely to be present, and that in any event, he had ten days in which he could do it at his discretion. The appellee argues that the word “forthwith” means immediately or at least as soon as physically possible. This reasoning, however, does not take into account the fact that the rule does contain a ten-day limit and, as noted above, has been interpreted as allowing for some delay where good reason for it is shown.

Since the rule has been changed so as to give the Magistrate who issues the warrant the responsibility for designating the time for service “within a specified period of time not to exceed 10 days,” Fed.R.Crim.P. 41(c), this case has little precedential value. As to this cáse we follow what we have described as the. better reasoned of the cases above.

Evidence showed that the informant in this case had made a buy on the same day when the warrant was issued. The agent in charge of the case testified that in such a circumstance, he delayed the service of the warrant to conceal the identity of the informant, unless the government was going to take special measures to protect the informant.

We believe that protection of the informant did constitute reasonable grounds for the delay in this case, and that the finding to the contrary was clearly erroneous. We also believe that there was continuing probable cause on the date of the search and that the motion to suppress should have been denied.

The judgment of the District Court is reversed.