NCJ Number
35306
Journal
St John's Law Review Volume: 50 Issue: 2 Dated: (WINTER 1975) Pages: 347-356
Date Published
1975
Length
10 pages
Annotation
RULE 41 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE SPECIFIES A NUMBER OF TECHNICAL REQUIREMENTS WITH WHICH A FEDERAL WARRANT MUST COMPLY BEFORE THE EVIDENCE PROCURED CAN BE INTRODUCED IN A PROSECUTION FOR A FEDERAL CRIME.
Abstract
IN UNITED STATES V. BURKE (1975), THE SECOND CIRCUIT HELD THAT WHEN NONCOMPLIANCE WITH RULE 41 IS NOT OF ITSELF OF CONSTITUTIONAL IMPORT, EXCLUSION OF THE EVIDENCE SEIZED, IS NOT REQUIRED UNLESS EITHER PREJUDICE TO THE DEFENDANT RESULTED FROM NONCOMPLIANCE OR THE RULE WAS INTENTIONALLY AND DELIBERATELY DISREGARDED. THIS DECISION IS COMPARED TO THAT OF THE FIFTH CIRCUIT IN UNITED STATES V. SELLERS (1974), WHICH INVOLVED THE EXTENT TO WHICH IN A FEDERAL CRIMINAL PROCEEDING A VALIDLY ISSUED STATE WARRANT MUST COMPLY WITH RULE 41 BECAUSE OF FEDERAL PARTICIPATION IN THE SEARCH. IN THIS CASE, THE COURT RULED THAT EVIDENCE OBTAINED PURSUANT TO SUCH STATE WARRANTS IS ADMISSIBLE IF THE WARRANT SATISFIES CONSTITUTIONAL REQUIREMENTS AND DOES NOT CONTRAVENE ANY RULE-EMBODIED POLICY DESIGNED TO PROTECT THE INTEGRITY OF THE FEDERAL COURTS OR TO GOVERN THE CONDUCT OF FEDERAL OFFICERS. THE PROPER TEST TO BE UTILIZED IN DETERMINING WHETHER A PROVISION OF RULE 41 DID IN FACT EMBODY SUCH FEDERAL POLICY IS WHETHER IT IS DESIGNED TO ASSURE REASONABLENESS ON THE PART OF FEDERAL OFFICERS, OR WHETHER THE PROVISION MERELY BLUEPRINTS PROCEDURE FOR THE ISSUANCE OF FEDERAL WARRANTS. THE AUTHOR POINTS OUT THAT THE TWO TESTS WOULD IN MOST CASES PRODUCE IDENTICAL RESULTS SINCE MOST VIOLATIONS OF RULE 41 PROVISIONS DEEMED TO EMBODY POLICIES THAT CANNOT BE IGNORED UNDER SELLERS WOULD PROBABLY, UNDER BURKE, BE CONSIDERED TECHNICAL INFIRMITIES RESULTING IN PREJUDICE. HOWEVER, IT IS SUGGESTED THAT THE TEST ESTABLISHED BY THE SECOND CIRCUIT IN BURKE APPEARS TO BE MORE FLEXIBLE SINCE IT CONFRONTS SQUARELY THE TWO MAJOR PROBLEMS FREQUENTLY ATTENDANT TO TECHNICALLY DEFECTIVE SEARCH WARRANTS - RESULTANT PREJUDICE AND DELIBERATE INTENT TO FLOUT THE LAW.