United States ex rel. Xxxxxxx x. Xxxxxxxx, 477 F.2d 516 (3d Cir. 1973); Xxxxxxx x. Xxxxxx, 472 F.2d 871 (6th Cir. 1972); Xxxxxxx x. Xxxxxxx, 441 F.2d 1224 (8th Cir. 1971). Thus, the procedure authorized under subdivision (c)(2) is not ob- jectionable on the ground that the oral statement is not transcribed in advance of the issuance of the war- rant. People x. Xxxx, 38 Cal.App.3d 993, 113 Cal.Rptr. 806 (1974). Although it has been questioned whether oral testimony will suffice under the Fourth Amendment if some kind of contemporaneous record is not made of that testimony, see dissent from denial of certiorari in Xxxxxxxxxxxxxx x. Xxxxxxxxxx, 393 U.S. 1090 (1969), this problem is not present under the procedure set out in subdivision (c)(2). The Fourth Amendment requires that warrants issue ‘‘upon probable cause, supported by Xxxx or affirma- tion.’’ The significance of the oath requirement is ‘‘that someone must take the responsibility for the facts alleged, giving rise to the probable cause for the issuance of a warrant.’’ United States ex rel. Xxxx x. Xxxx, 401 F.2d 6 (7th Cir. 1968); See also Xxxxxxx x. Rob- erts, 441 F.2d 1224 (8th Cir. 1971). This is accomplished under the procedure required by subdivision (c)(2); the need for an oath under the Fourth Amendment does not ‘‘require a face to face confrontation between the mag- istrate and the affiant.’’ People x. Xxxxxx, 27 Cal.App.3d 883, 104 Cal.Rptr. 247 (1972). See also People x. Xxxxxxx, 26 Cal.App.3d 7, 103 Cal.Rptr. 153 (1972), noting it is unnec- xxxxxx that ‘‘oral statements [be] taken in the physical presence of the magistrate.’’ Page 155 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 41 The availability of the procedure authorized by sub- division (c)(2) will minimize the necessity of federal law enforcement officers engaging in other practices which, at least on occasion, might threaten to a great- er extent those values protected by the Fourth Amend- ment. Although it is permissible for an officer in the field to relay his information by radio or telephone to another officer who has more ready access to a mag- istrate and who will thus act as the affiant, Xxxxx v. United States, 370 F.2d 8 (5th Cir. 1966); State x. Xxxxx, 250 N.C. 728, 110 S.E.2d 322 (1959), that procedure is less desirable than that permitted under subdivision (c)(2), for it deprives ‘‘the magistrate of the opportunity to examine the officer at the scene, who is in a much bet- ter position to answer questions relating to probable cause and the requisite scope of the search.’’ Israel, Legislative Regulation of Searches and Seizures: The Michigan Proposals, 73 Mich.L.Rev. 221, 260 (1975). Or, in the absence of the subdivision (c)(2) procedure, offi- cers might take ‘‘protective custody’’ of the premises and occupants for a significant period of time while a search warrant was sought by traditional means. The extent to which the ‘‘protective custody’’ procedure may be employed consistent with the Fourth Amend- ment is uncertain at best; see Xxxxxxxx, Criminal Pro- cedure, 1969—Is It a Means or an End?, 29 Md.L.Rev. 307, 317 (1969). The unavailability of the subdivision (c)(2) procedure also makes more tempting an immediate re- sort to a warrantless search in the hope that the cir- cumstances will later be found to have been suffi- ciently ‘‘exigent’’ to justify such a step. See Xxxxxx, Telephonic Search Warrants: The San Diego Experi- ence, 9 The Prosecutor 385, 386 (1974), noting a dramatic increase in police utilization of the warrant process fol- lowing enactment of a telephonic warrant statute. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE RE- PORT NO. 95–354; 1977 AMENDMENTS PROPOSED BY THE SUPREME COURT The committee agrees with the Supreme Court that it is desirable to encourage Federal law enforcement of- ficers to seek search warrants in situations where they might otherwise conduct warrantless searches by pro- viding for a telephone search warrant procedure with the basic characteristics suggested in the proposed Rule 41(c)(2). As the Supreme Court has observed, ‘‘It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search war- rants whenever reasonably practicable.’’ After consid- eration of the Supreme Court version and a proposal set forth in H.R. 7888, the committee decided to use the language of the House bill as the vehicle, with certain modifications. A new provision, as indicated in subparagraph
Appears in 1 contract
Samples: Title
United States ex rel. Xxxxxxx x. Xxxxxxxx, 477 F.2d 516 (3d Cir. 1973); Xxxxxxx x. Xxxxxx, 472 F.2d 871 (6th Cir. 1972); Xxxxxxx x. Xxxxxxx, 441 F.2d 1224 (8th Cir. 1971). Thus, the procedure authorized under subdivision (c)(2) is not ob- jectionable on the ground that the oral statement is not transcribed in advance of the issuance of the war- rant. People x. Xxxx, 38 Cal.App.3d 993, 113 Cal.Rptr. 806 (1974). Although it has been questioned whether oral testimony will suffice under the Fourth Amendment if some kind of contemporaneous record is not made of that testimony, see dissent from denial of certiorari in Xxxxxxxxxxxxxx x. Xxxxxxxxxx, 393 U.S. 1090 (1969), this problem is not present under the procedure set out in subdivision (c)(2). The Fourth Amendment requires that warrants issue ‘‘upon probable cause, supported by Xxxx or affirma- tion.’’ The significance of the oath requirement is ‘‘that someone must take the responsibility for the facts alleged, giving rise to the probable cause for the issuance of a warrant.’’ United States ex rel. Xxxx x. Xxxx, 401 F.2d 6 (7th Cir. 1968); See also Xxxxxxx x. Rob- erts, 441 F.2d 1224 (8th Cir. 1971). This is accomplished under the procedure required by subdivision (c)(2); the need for an oath under the Fourth Amendment does not ‘‘require a face to face confrontation between the mag- istrate and the affiant.’’ People x. Xxxxxx, 27 Cal.App.3d 883, 104 Cal.Rptr. 247 (1972). See also People x. Xxxxxxx, 26 Cal.App.3d 7, 103 Cal.Rptr. 153 (1972), noting it is unnec- xxxxxx that ‘‘oral statements [be] taken in the physical presence of the magistrate.’’ Page 155 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 41 The availability of the procedure authorized by sub- division (c)(2) will minimize the necessity of federal law enforcement officers engaging in other practices which, at least on occasion, might threaten to a great- er extent those values protected by the Fourth Amend- ment. Although it is permissible for an officer in the field to relay his information by radio or telephone to another officer who has more ready access to a mag- istrate and who will thus act as the affiant, Xxxxx v. United States, 370 F.2d 8 (5th Cir. 1966); State x. Xxxxx, 250 N.C. 728, 110 S.E.2d 322 (1959), that procedure is less desirable than that permitted under subdivision (c)(2), for it deprives ‘‘the magistrate of the opportunity to examine the officer at the scene, who is in a much bet- ter position to answer questions relating to probable cause and the requisite scope of the search.’’ Israel, Legislative Regulation of Searches and Seizures: The Michigan Proposals, 73 Mich.L.Rev. 221, 260 (1975). Or, in the absence of the subdivision (c)(2) procedure, offi- cers might take ‘‘protective custody’’ of the premises and occupants for a significant period of time while a search warrant was sought by traditional means. The extent to which the ‘‘protective custody’’ procedure may be employed consistent with the Fourth Amend- ment is uncertain at best; see Xxxxxxxx, Criminal Pro- cedure, 1969—Is It a Means or an End?, 29 Md.L.Rev. 307, 317 (1969). The unavailability of the subdivision (c)(2) procedure also makes more tempting an immediate re- sort to a warrantless search in the hope that the cir- cumstances will later be found to have been suffi- ciently ‘‘exigent’’ to justify such a step. See Xxxxxx, Telephonic Search Warrants: The San Diego Experi- ence, 9 The Prosecutor 385, 386 (1974), noting a dramatic increase in police utilization of the warrant process fol- lowing enactment of a telephonic warrant statute. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE RE- PORT NO. 95–354; 1977 AMENDMENTS PROPOSED BY THE SUPREME COURT The committee agrees with the Supreme Court that it is desirable to encourage Federal law enforcement of- ficers to seek search warrants in situations where they might otherwise conduct warrantless searches by pro- viding for a telephone search warrant procedure with the basic characteristics suggested in the proposed Rule 41(c)(2). As the Supreme Court has observed, ‘‘It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search war- rants whenever reasonably practicable.’’ After consid- eration of the Supreme Court version and a proposal set forth in H.R. 7888, the committee decided to use the language of the House bill as the vehicle, with certain modifications. A new provision, as indicated in subparagraphsubparagraph (c)(2)(A), is added to establish a procedure for the issu- ance of a search warrant where the circumstances make it reasonable to dispense with a written affidavit to be presented in person to a magistrate. At least two States have adopted a similar procedure—Arizona and California—and comparable amendments are under consideration in other jurisdictions. Such a procedure has been strongly recommended by the National Advi- sory Commission on Criminal Justice Standards and Goals and State experience with the procedure has been favorable. The telephone search warrant process has been upheld as constitutional by the courts and has consistently been so viewed by commentators. In recommending a telephone search warrant proce- dure, the Advisory Committee note on the Supreme Court proposal points out that the preferred method of conducting a search is with a search warrant. The note indicates that the rationale for the proposed change is to encourage Federal law enforcement officers to seek search warrants in situations when they might other- wise conduct warrantless searches. ‘‘Federal law en- forcement officers are not infrequently confronted with situations in which the circumstances are not suffi- ciently ‘exigent’ to justify the serious step of conduct- ing a warrantless search of private premises, but yet there exists a significant possibility that critical xxx- xxxxx would be lost in the time it would take to obtain a search warrant by traditional means.’’ Subparagraph (c)(2)(B) provides that the person re- questing the warrant shall prepare a ‘‘duplicate origi- nal warrant’’ which will be read and recorded verbatim by the magistrate on an ‘‘original warrant.’’ The mag- istrate may direct that the warrant be modified. Page 153 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 41 Subparagraph (c)(2)(C) provides that, if the mag- istrate is satisfied that the circumstances are such as to make it reasonable to dispense with a written affida- vit and that grounds for the application exist or there is probable cause to believe that they exist, he shall order the issuance of the warrant by directing the re- questor to sign the magistrate’s name on the duplicate original warrant. The magistrate is required to sign the original warrant and enter the time of issuance there- on. The finding of probable cause may be based on the same type of evidence appropriate for a warrant upon affidavit. Subparagraph (c)(2)(D) requires the magistrate to place the requestor and any witness under oath and, if a voice recording device is available, to record the pro- ceeding. If a voice recording is not available, the pro- ceeding must be recorded verbatim stenographically or in longhand. Verified copies must be filed with the court as specified. Subparagraph (c)(2)(E) provides that the contents of the warrant upon oral testimony shall be the same as the contents of a warrant upon affidavit. Subparagraph (c)(2)(F) provides that the person who executes the warrant shall enter the exact time of exe- cution on the face of the duplicate original warrant. Unlike H.R. 7888, this subparagraph does not require the person who executes the warrant to have physical possession of the duplicate original warrant at the time of the execution of the warrant. The committee be- lieves this would make an unwise and unnecessary dis- tinction between execution of regular warrants issued on written affidavits and warrants issued by telephone that would limit the flexibility and utility of this pro- cedure for no useful purpose. Finally, subparagraph (c)(2)(G) makes it clear that, absent a finding of bad faith by the government, the magistrate’s judgment that the circumstances made it reasonable to dispense with a written affidavit—a deci- sion that does not go to the core question of whether there was probable cause to issue a warrant—is not a ground for granting a motion to suppress evidence. CONGRESSIONAL MODIFICATION OF PROPOSED 1977 AMENDMENT Section 2(e) of Pub. L. 95–78 provided in part that the amendment by the Supreme Court [in its order of Apr. 26, 1976] to subdivision (c) of rule 41 of the Federal Rules of Criminal Procedure [subd. (c) of this rule] is approved in a modified form. NOTES OF ADVISORY COMMITTEE ON RULES—1979 AMENDMENT This amendment to Rule 41 is intended to make it possible for a search warrant to issue to search for a person under two circumstances: (i) when there is prob- able cause to arrest that person; or (ii) when that per- son is being unlawfully restrained. There may be in- stances in which a search warrant would be required to conduct a search in either of these circumstances. Even when a search warrant would not be required to enter a place to search for a person, a procedure for obtaining a warrant should be available so that law enforcement officers will be encouraged to resort to the preferred al- ternative of acquiring ‘‘an objective predetermination of probable cause’’ Xxxx v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), in this instance, that the person sought is at the place to be searched. That part of the amendment which authorizes issu- ance of a search warrant to search for a person unlaw- fully restrained is consistent with ALI Model Code of Pre-Arraignment Procedure § SS 210.3(1)(d) (Proposed Official Draft, 1975), which specifies that a search war- rant may issue to search for ‘‘an individual * * * who is unlawfully held in confinement or other restraint.’’ As noted in the Commentary thereto, id. at p. 507: Ordinarily such persons will be held against their will and in that case the persons are, of course, not sub- ject to ‘‘seizure.’’ But they are, in a sense, ‘‘evidence’’ of crime, and the use of search warrants for these purposes presents no conceptual difficulties. Some state search warrant provisions also provide for issuance of a warrant in these circumstances. See, e. g., Ill.Rev.Stat. ch. 38, § 108–3 (‘‘Any person who has been kidnapped in violation of the laws of this State, or who has been kidnapped in another jurisdiction and is now concealed within this State’’). It may be that very often exigent circumstances, es- pecially the need to act very promptly to protect the life or well-being of the kidnap victim, would justify an immediate warrantless search for the person re- strained. But this is not inevitably the case. Moreover, as noted above there should be available a process whereby law enforcement agents may acquire in ad- xxxxx a judicial determination that they have cause to intrude upon the privacy of those at the place where the victim is thought to be located. That part of the amendment which authorizes issu- ance of a search warrant to search for a person to be ar- rested is also consistent with ALI Model Code of Pre- Arraignment Procedure § SS 210.3(1)(d) (Proposed Offi- cial Draft, 1975), which states that a search warrant may issue to search for ‘‘an individual for whose arrest there is reasonable cause.’’ As noted in the Com- mentary thereto, id. at p. 507, it is desirable that there be ‘‘explicit statutory authority for such searches.’’ Some state search warrant provisions also expressly provide for the issuance of a search warrant to search for a person to be arrested. See, e. g., Del.Code Xxx. tit. 11, § 2305 (‘‘Persons for whom a warrant of arrest has been issued’’). This part of the amendment to Rule 41 covers a defendant or witness for whom an arrest war- rant has theretofore issued, or a defendant for whom grounds to arrest exist even though no arrest warrant has theretofore issued. It also covers the arrest of a de- portable alien under 8 U.S.C. § 1252, whose presence at a certain place might be important evidence of xxxxx- nal conduct by another person, such as the harboring of undocumented aliens under 8 U.S.C. § 1324(a)(3). In United States x. Xxxxxx, 423 U.S. 411, 96 S.Ct. 820, 46
Appears in 1 contract
Samples: Title
United States ex rel. Xxxxxxx x. Xxxxxxxx, 477 F.2d 516 (3d Cir. 1973); Xxxxxxx x. Xxxxxx, 472 F.2d 871 (6th Cir. 1972); Xxxxxxx x. Xxxxxxx, 441 F.2d 1224 (8th Cir. 1971). Thus, the procedure authorized under subdivision (c)(2) is not ob- jectionable on the ground that the oral statement is not transcribed in advance of the issuance of the war- rant. People x. Xxxx, 38 Cal.App.3d 993, 113 Cal.Rptr. 806 (1974). Although it has been questioned whether oral testimony will suffice under the Fourth Amendment if some kind of contemporaneous record is not made of that testimony, see dissent from denial of certiorari in Xxxxxxxxxxxxxx x. Xxxxxxxxxx, 393 U.S. 1090 (1969), this problem is not present under the procedure set out in subdivision (c)(2). The Fourth Amendment requires that warrants issue ‘‘upon probable cause, supported by Xxxx or affirma- tion.’’ The significance of the oath requirement is ‘‘that someone must take the responsibility for the facts alleged, giving rise to the probable cause for the issuance of a warrant.’’ United States ex rel. Xxxx x. Xxxx, 401 F.2d 6 (7th Cir. 1968); See also Xxxxxxx x. Rob- erts, 441 F.2d 1224 (8th Cir. 1971). This is accomplished under the procedure required by subdivision (c)(2); the need for an oath under the Fourth Amendment does not ‘‘require a face to face confrontation between the mag- istrate and the affiant.’’ People x. Xxxxxx, 27 Cal.App.3d 883, 104 Cal.Rptr. 247 (1972). See also People x. Xxxxxxx, 26 Cal.App.3d 7, 103 Cal.Rptr. 153 (1972), noting it is unnec- xxxxxx that ‘‘oral statements [be] taken in the physical presence of the magistrate.’’ Page 155 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 41 The availability of the procedure authorized by sub- division (c)(2) will minimize the necessity of federal law enforcement officers engaging in other practices which, at least on occasion, might threaten to a great- er extent those values protected by the Fourth Amend- ment. Although it is permissible for an officer in the field to relay his information by radio or telephone to another officer who has more ready access to a mag- istrate and who will thus act as the affiant, Xxxxx v. United States, 370 F.2d 8 (5th Cir. 1966); State x. Xxxxx, 250 N.C. 728, 110 S.E.2d 322 (1959), that procedure is less desirable than that permitted under subdivision (c)(2), for it deprives ‘‘the magistrate of the opportunity to examine the officer at the scene, who is in a much bet- ter position to answer questions relating to probable cause and the requisite scope of the search.’’ Israel, Legislative Regulation of Searches and Seizures: The Michigan Proposals, 73 Mich.L.Rev. 221, 260 (1975). Or, in the absence of the subdivision (c)(2) procedure, offi- cers might take ‘‘protective custody’’ of the premises and occupants for a significant period of time while a search warrant was sought by traditional means. The Rule 41 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 152 extent to which the ‘‘protective custody’’ procedure may be employed consistent with the Fourth Amend- ment is uncertain at best; see Xxxxxxxx, Criminal Pro- cedure, 1969—Is It a Means or an End?, 29 Md.L.Rev. 307, 317 (1969). The unavailability of the subdivision (c)(2) procedure also makes more tempting an immediate re- sort to a warrantless search in the hope that the cir- cumstances will later be found to have been suffi- ciently ‘‘exigent’’ to justify such a step. See Xxxxxx, Telephonic Search Warrants: The San Diego Experi- ence, 9 The Prosecutor 385, 386 (1974), noting a dramatic increase in police utilization of the warrant process fol- lowing enactment of a telephonic warrant statute. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE RE- PORT NO. 95–354; 1977 AMENDMENTS PROPOSED BY THE SUPREME COURT The committee agrees with the Supreme Court that it is desirable to encourage Federal law enforcement of- ficers to seek search warrants in situations where they might otherwise conduct warrantless searches by pro- viding for a telephone search warrant procedure with the basic characteristics suggested in the proposed Rule 41(c)(2). As the Supreme Court has observed, ‘‘It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search war- rants whenever reasonably practicable.’’ After consid- eration of the Supreme Court version and a proposal set forth in H.R. 7888, the committee decided to use the language of the House bill as the vehicle, with certain modifications. A new provision, as indicated in subparagraph
Appears in 1 contract
Samples: Title
United States ex rel. Xxxxxxx x. Xxxxxxxx, 477 F.2d 516 (3d Cir. 1973); Xxxxxxx x. Xxxxxx, 472 F.2d 871 (6th Cir. 1972); Xxxxxxx x. Xxxxxxx, 441 F.2d 1224 (8th Cir. 1971). Thus, the procedure authorized under subdivision (c)(2) is not ob- jectionable on the ground that the oral statement is not transcribed in advance of the issuance of the war- rant. People x. Xxxx, 38 Cal.App.3d 993, 113 Cal.Rptr. 806 (1974). Although it has been questioned whether oral testimony will suffice under the Fourth Amendment if some kind of contemporaneous record is not made of that testimony, see dissent from denial of certiorari in Xxxxxxxxxxxxxx x. Xxxxxxxxxx, 393 U.S. 1090 (1969), this problem is not present under the procedure set out in subdivision (c)(2). The Fourth Amendment requires that warrants issue ‘‘upon probable cause, supported by Xxxx or affirma- tion.’’ The significance of the oath requirement is ‘‘that someone must take the responsibility for the facts alleged, giving rise to the probable cause for the issuance of a warrant.’’ United States ex rel. Xxxx x. Xxxx, 401 F.2d 6 (7th Cir. 1968); See also Xxxxxxx x. Rob- erts, 441 F.2d 1224 (8th Cir. 1971). This is accomplished under the procedure required by subdivision (c)(2); the need for an oath under the Fourth Amendment does not ‘‘require a face to face confrontation between the mag- istrate and the affiant.’’ People x. Xxxxxx, 27 Cal.App.3d 883, 104 Cal.Rptr. 247 (1972). See also People x. Xxxxxxx, 26 Cal.App.3d 7, 103 Cal.Rptr. 153 (1972), noting it is unnec- xxxxxx that ‘‘oral statements [be] taken in the physical presence of the magistrate.’’ Page 155 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 41 The availability of the procedure authorized by sub- division (c)(2) will minimize the necessity of federal law enforcement officers engaging in other practices which, at least on occasion, might threaten to a great- er extent those values protected by the Fourth Amend- ment. Although it is permissible for an officer in the field to relay his information by radio or telephone to another officer who has more ready access to a mag- istrate and who will thus act as the affiant, Xxxxx v. United States, 370 F.2d 8 (5th Cir. 1966); State x. Xxxxx, 250 N.C. 728, 110 S.E.2d 322 (1959), that procedure is less desirable than that permitted under subdivision (c)(2), for it deprives ‘‘the magistrate of the opportunity to examine the officer at the scene, who is in a much bet- ter position to answer questions relating to probable cause and the requisite scope of the search.’’ Israel, Legislative Regulation of Searches and Seizures: The Michigan Proposals, 73 Mich.L.Rev. 221, 260 (1975). Or, in the absence of the subdivision (c)(2) procedure, offi- cers might take ‘‘protective custody’’ of the premises and occupants for a significant period of time while a search warrant was sought by traditional means. The extent to which the ‘‘protective custody’’ procedure may be employed consistent with the Fourth Amend- ment is uncertain at best; see Xxxxxxxx, Criminal Pro- cedure, 1969—Is It a Means or an End?, 29 Md.L.Rev. 307, 317 (1969). The unavailability of the subdivision (c)(2) procedure also makes more tempting an immediate re- sort to a warrantless search in the hope that the cir- cumstances will later be found to have been suffi- ciently ‘‘exigent’’ to justify such a step. See Xxxxxx, Telephonic Search Warrants: The San Diego Experi- ence, 9 The Prosecutor 385, 386 (1974), noting a dramatic increase in police utilization of the warrant process fol- lowing enactment of a telephonic warrant statute. NOTES OF COMMITTEE ON THE JUDICIARY, SENATE RE- PORT NO. 95–354; 1977 AMENDMENTS PROPOSED BY THE SUPREME COURT The committee agrees with the Supreme Court that it is desirable to encourage Federal law enforcement of- ficers to seek search warrants in situations where they might otherwise conduct warrantless searches by pro- viding for a telephone search warrant procedure with the basic characteristics suggested in the proposed Rule 41(c)(2). As the Supreme Court has observed, ‘‘It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search war- rants whenever reasonably practicable.’’ After consid- eration of the Supreme Court version and a proposal set forth in H.R. 7888, the committee decided to use the language of the House bill as the vehicle, with certain modifications. A new provision, as indicated in subparagraph
Appears in 1 contract
Samples: Title
