Telephonic search: Failure of officers to have a duplicate warrant after USMJ authorized search was not a prejudicial failure

Telephonic warrant was “issued” at 11:37 pm by a USMJ authorizing a cocaine search because officers were concerned that they could not obtain a paper warrant without the cocaine being lost to conspirators. There was no dispute there was probable cause and an oral authorization over the phone to enter. The USMJ went back to bed. The officers, however, failed to prepare a duplicate warrant of their own. The district court erred in holding that the search was “warrantless” because the defendants were not prejudiced by the lack of a paper warrant. United States v. Cazares-Olivas, 515 F.3d 726 (7th Cir. 2008):

After they arrested Francisco Cazares-Olivas and Israel Aguilera for drug offenses, federal agents sought a warrant to search the house where, the agents believed, Cazares-Olivas and Aguilera kept their inventory. It was after 11 pm, and the agents feared that if they waited until morning someone else might beat them to the stash. One agent and an Assistant United States Attorney called a federal magistrate judge at 11:37 pm. During a recorded conversation the agent took an oath to tell the truth and laid out facts that, the judge found, established probable cause for a search. The judge questioned the agent, obtained additional information, and eventually wrapped up the conversation this way: “the bottom line is you’ve got judicial authorization. It is so ordered. You can send your team in right now.” The search, begun at 1:47 am and finished at 4:25 am, turned up more than 40 kilograms of cocaine. Cazares-Olivas and Aguilera pleaded guilty to possessing more than five kilograms of cocaine with intent to distribute; each was sentenced to 125 months’ imprisonment. Conditional pleas reserved the right to contest the denial of the motion to suppress the evidence found during the search. See Fed. R. Crim. P. 11(a)(2).

Telephonic warrants are authorized by Fed. R. Crim. P. 41. An agent is supposed to fill out a form (called a “proposed duplicate original warrant”) and must “read or otherwise transmit the contents of that document verbatim to the magistrate judge.” Rule 41(e)(3)(A). The judge transcribes the information into the “original warrant,” which he signs. The agents who proposed this search, however, must not have had a supply of blank warrants handy, and they (along with the Assistant United States Attorney and the magistrate judge) were unacquainted with the steps laid out in the rule. (At oral argument we were told that this was the only time within the last 15 years, if not longer, that a telephonic warrant had been requested in the Western District of Wisconsin.) The agents did not read a “proposed duplicate original warrant” to the judge, who in turn did not prepare an original warrant. He simply put the recording on file and went to bed. As he and the district judge later concluded, when addressing the motion to suppress, this means that no warrant ever issued authorizing the search. 2007 U.S. Dist. LEXIS 12823 (M.J. W.D. Wis. Feb. 22, 2007). The agents had judicial approval, based on probable cause, but they did not have a warrant.

. . .

Cazares-Olivas and Aguilera received the benefit of a magistrate judge’s impartial evaluation before the search occurred. The search was supported by probable cause–on a record fixed, and supported by an oath, in advance, to prevent hindsight from being invoked to justify the search. An agent particularly described the place to be searched and the things to be seized. The lack of a written document created a risk that agents would exceed their authority, but that is so whenever the warrant does not accompany the officers–and we know from Grubbs and earlier decisions such as United States v. Hepperle, 810 F.2d 836, 839 (8th Cir. 1987), that, whatever the most prudent course may be, the fourth amendment does not require officers to have a warrant in hand when searching. See also United States v. Shorter, 600 F.2d 585, 587 (6th Cir. 1979) (an agent’s failure to prepare a “proposed duplicate original warrant” until after the search had been conducted does not require suppression of the evidence).

What remains is the violation of Rule 41. The agents did not prepare and read to the judge a “proposed duplicate original warrant”. The judge did not prepare and sign an original warrant. But violations of federal rules do not justify the exclusion of evidence that has been seized on the basis of probable cause, and with advance judicial approval. So we held for Rule 41 in particular in United States v. Trost, 152 F.3d 715, 722 (7th Cir. 1998). Accord, United States v. Rome, 809 F.2d 665 (10th Cir. 1987). See also, e.g., United States v. Caceres, 440 U.S. 741, 99 S. Ct. 1465, 59 L. Ed. 2d 733 (1979) (violation of statutory requirements that go beyond the Constitution’s demands does not justify the suppression of evidence unless the statute itself specifies this remedy). The violation of Rule 41 is regrettable but unlikely to recur. Allowing these defendants to go free would be a remedy wildly out of proportion to the wrong, which caused them no injury.

Comment: This is classic Easterbrook: His opinions are always a pleasure to read, just because of his ability to turn a phrase.