The opinion of the court was delivered by: PENN
The underlying facts are as follows: Agents of the Federal Bureau of Investigation (FBI) and officers of the Metropolitan Police Department for the District of Columbia, undertook an investigation to determine whether the defendant is transporting females, including juveniles, in interstate commerce for purposes of prostitution. On or about December 7, 1984, Detective Joseph Haggerty of the Metropolitan Police Department, who was the officer in charge of the investigation, spoke with several women who advised him that the defendant had transported them across state lines for the purpose of prostitution. They further advised Haggerty that the defendant owned at least one condominium in Atlantic City, New Jersey, where he kept bank books, diaries of travel and other evidence of travel, receipts, photograph albums, and photographs of women involved in prostitution for the defendant. The above property was said to be located at 535 East Harding Highway, Apartment 5F, Mays Landing, New Jersey. Based upon this information Detective Haggerty and other officers secured a search warrant, from the United States District Court for the District of New Jersey, to search the above-described property. The warrant was signed by a federal judge on December 7, 1984, and when the officers went to execute the warrant they were advised that the defendant had moved his household goods to Las Vegas, Nevada one week before. The warrant was not served.
Upon returning to the office of the Atlantic City Police, the officers were advised by a reliable source that the defendant had moved to the Village Motel, Room 224, approximately one week before. The source also advised the officers that the defendant had moved numerous photo albums, clothes and a large amount of personal property into the motel room. Based upon this information, the officers went to a judge of the Superior Court for the State of New Jersey and sought a search warrant for Room 224 of the Village Motel located at 168 S. Kentucky Ave., Atlantic City, New Jersey.
The affidavit used in support of the application for the search warrant was a form affidavit, apparently similar to those regularly used in support of applications for search warrants in the State of New Jersey. The officers typed in the description and location of the motel. The warrant form contains a space for the description of the premises to be searched, but apparently has no space to insert a description of the property which is the subject of the search. The form merely states that, "there has been and now is located certain property obtained in violation of the penal laws of this state or any other state ; or . . . which has been used in connection with the violations of the penal laws of this state or any other state ; or constituting evidence of or tending to show any such violation, in violation of New Jersey statutes of" (emphasis this Court's). At this point, the officers inserted, "2 C: 34-1(b)5 Purposely and knowingly transporting (a) person(s) (into) (within) this state for the purpose of engaging in sexual activities for hire" (emphasis this Court's). The form affidavit then provides "the facts tending to establish the grounds for this application and the probable cause of my belief that such grounds exist are as follows:". Here, the affiant noted that he had participated along with a Metropolitan Police Detective from Washington, D.C. and Special Agents from the FBI, Atlantic City Office, in an attempt to serve a federal search warrant on the premises located at 535 East Harding Highway, Mays Landing, New Jersey. He further states that "subsequent to serving the warrant it was determined that the occupants of the apartment had moved out approximately a week previous. The warrant was not served." The affiant then went on to state that upon returning to the Special Operations Office of the Atlantic City Police, he learned from a reliable source that the target of the "federal grand jury investigation" (the defendant) had moved into the Village Motel "approximately a week ago". "The source stated it saw the subject Eddie Lee Anderson, a/k/a Fast Eddie moving numerous photo albums, clothes and a large amount of personal property into Room 224." The affiant then included in the affidavit a statement that, "the Federal Search Warrant was seeking bank books, diaries of travel and other evidence of travel, receipts, photograph albums and photographs of women involved in interstate prostitution, and proceeds of interstate prostitution including Atlantic City, New Jersey". The affiant then went on to make a reference to the federal search warrant and the officers' prior conversations with women who had been involved in prostitution for the defendant. The affiant described himself as Detective John Imfeld who has been a member of the Atlantic City Police Department for the past six years and who has been assigned to special operations for the past six months. He then states "during the last nine months I have been involved in conducting prostitution investigations and arrests which led me to interview several informants and defendants all of whom have been personally involved in prostitution activities". Although the affidavit in support of the state search warrant makes reference to the federal search warrant, it does not explicitly incorporate that warrant and it does not incorporate the affidavit made in support of that federal warrant. However, Officer Haggerty testified that he was present when the warrant was presented to the Superior Court Judge and that at that time the officers also presented to the judge the affidavit which had been presented to the federal court in support of the federal search warrant executed on the same date.
Based upon the affidavit presented in support of the application for a search warrant, a Superior Court judge for the State of New Jersey signed the warrant and authorized that "the premises known as 168 S. Kentucky Ave., Atlantic City, N.J., commonly referred to as the Village Motel, Room #224, occupied by a black male named Eddie Anderson" may be searched. The warrant notes that "there has been and now is located certain property used as a means of committing a misdemeanor in violation of the laws of the State of New Jersey to wit: Interstate transportation of persons for the purpose of prostitution, 2C:34-1(b)5.". The form warrant then provides that the officers are commanded to enter and search the above premises "for the above-described items and other associated paraphernalia". Nowhere in the warrant is there any description of the property to be seized. The warrant was signed on December 7, 1984 at 7:30 p.m. and provides that the warrant may be executed within 10 days "between the hours of 7:30 p.m. and 6:00 a.m.".
The defendant argues that the evidence seized pursuant to the warrant should be suppressed because the search warrant was executed at night and was authorized for execution between the hours of 7:30 p.m. and 6:00 a.m., that although the search warrant purports to be a state search warrant it was issued for the purpose of seizing evidence for use in connection with a federal prosecution and it was neither issued nor executed in conformity with federal law. See Fed. R. Crim. P. 41(a). Defendant argues that the application in support of the search warrant refers to the federal grand jury investigation and does not refer to violations of state law as being the object of the application. Defendant further argues that the search warrant is facially deficient in that it fails to particularize the things to be seized and that the executing officers could not reasonably presume that the warrant was valid and that what occurred in the case was that the seizure was conducted in such a manner that the discretion of the officer dictated what was to be seized since there are no guidelines in the search warrant itself.
Rule 41 (a) provides that a federal search warrant may be issued by a "federal magistrate or a judge of a state court of record . . . upon the request of a federal law enforcement officer or an attorney for the government". Regardless of whether the warrant was executed by a federal judge or magistrate or an appropriate state court judge, it must be executed in conformity with the requirements of the federal rule. In such cases, the warrant must set forth facts establishing that a federal crime is involved. See United States v. Krawiec, 627 F.2d 577, 580 (1st Cir. 1980); United States v. Brouillette, 478 F.2d 1171, 1177 (5th Cir. 1973).
Moreover, the warrant must provide that it is to be served in the daytime, "unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than day time". Fed. R. Crim. P. 41(c)(1). Neither the warrant nor the affidavit in support thereof sets forth any grounds for permitting the warrant to be executed other than in the daytime. Indeed, the federal warrant issued the same date authorizes only a daytime search, and nothing in the affidavit supporting the federal warrant suggests that there is reasonable cause to execute the warrant at night. The Court can only assume then that the officers requested the state judge to allow them to execute the warrant immediately upon his signing the warrant based upon the fact that the warrant was signed on December 7, 1984 at 7:30 p.m., that they were authorized to conduct a search only between the hours of 7.30 p.m. and 6:00 a.m., and, that the search took place that same evening. See Defendant's Motion to Suppress Evidence, Affidavit of Roger Young in support of search warrant, para. 2(j). It seems clear then that the warrant was not signed in conformity with Rule 41 and that, if this is a federal warrant, the motion to suppress must be granted. In fact, however, the warrant is not federal warrant. The affidavit in support of the state warrant reflects that the application was made for a search for evidence relating to a violation of state law, specifically, "2C-34-1(b)(5) purposely and knowingly transportating (a) person (s) (into) (within) [New Jersey] for the purpose of engaging in sexual activities for hire". If the warrant was issued pursuant to state law, it need only meet the requirements of the Constitution of the United States, and it is not necessary that it be in conformity with Rule 41. The fact that the property seized might be used in a federal prosecution, or that it is ultimately used only in a federal prosecution, is not dispositive of the issue. See United States v. Krawiec, supra; United States v. Sellers, 483 F.2d 37, (5th Cir. 1973).
Here, there is no basis for this Court to conclude that the New Jersey officers did not intend to prosecute the defendant in New Jersey for a violation of that state's law. In support of his application for a warrant, the affiant recited that a state law was purportedly violated. The affiant is a state officer assigned to conduct investigations of prostitution in Atlantic City, New Jersey. The Court concludes that the warrant in question is a state warrant and that there is no necessity that it comply with the requirements of Rule 41.
The defendant cites the Court to United States v. Massey, 687 F.2d 1348 (10th Cir. 1982). The facts in Massey differ from those in this case because the warrants there, while issued by a state judge, were issued on federal warrant forms. The affidavits supporting those warrants alleged that the property seized constituted evidence of violations of federal law. Moreover, ...