APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before ADAMS, ROSENN and WEIS, Circuit Judges
We are confronted in this case with the issue of the admissibility in a federal prosecution of evidence seized under the authority of a state search warrant, executed by city and federal law enforcement officers eight days after its issuance, despite the warrent's provision to search defendant's residence "forthwith."
The district court held the warrant was stale when executed and accordingly granted a motion to suppress evidence with respect to narcotics seized in the search of defendant's own apartment. However, the court also held that the three ounces of heroin found in a trash area located on the ground floor of the apartment house were abandoned, and thus denied the motion in this respect. The jury found the defendant guilty of possession, based upon the evidence seized from the trash area, and this appeal followed.
The challenged search warrant was issued, by a police magistrate, to Detective Joseph Joiner of the Pittsburgh Police Bureau on August 27, 1973. Predicated on a probable violation of state narcotics laws, the warrant authorized the search of "1723 Fifth Avenue. Residence of Myrel [sic] Bedford and Mary Bedford (Mary Hughes)," and, in pre-printed form, commanded Detective Joiner to conduct the search of the premises "forthwith."
Eight days later, on September 4, 1973, Detective Joiner executed the warrant. He attributed the delay to his having been off duty for a few days during the intervening 3-day Labor Day weekend and for another day or so as a result of illness. After these periods of absence, he decided to wait for additional information as to when "the bulk of the narcotics" would be in defendant's apartment. On the day of the search, the same informant whose earlier information had been used in establishing probable cause for issuance of the warrant, notified the police that the defendant was still in possession of narcotics. Soon thereafter, Joiner executed the warrant. He was accompanied by seven other city police officers and four special agents of the Federal Drug Enforcement Administration. The special agents had been asked by Joiner, on the day of the search, to assist the local police officers in the execution of the warrant.
The Bedford residence was one of two apartments located on the top floor of a three-story, four-unit apartment house. Prior to searching the premises the officers executing the warrant established a surveillance of the immediate surrounding area and observed Bedford leave the building and drive away. Bedford was followed and stopped by some of the officers and taken back to the apartment house.
Upon arrival, Joiner notified Mary Hughes, who had been looking out of a third-floor window, that they had a warrant to search her apartment and asked her to open the outer door of the apartment building which was secured by a buzzer/lock system. She agreed, and about five minutes later appeared at the door and admitted the officers into the building. Most of the officers proceeded upstairs to search the Bedford-Hughes apartment, where a large quantity of heroin was seized.
One of the federal agents, Special Agent Maffett, remained on the ground floor to secure the entranceway. While there, Maffett was approached by a tenant of the building and asked to place a trash bag in the trash area located in the common hallway behind the stairwell on the ground floor. With the tenant's permission, Maffett inspected this bag and found it contained trash. He then deposited the bag in the trash area, where he examined other bags already left there. Search of the area and the bags resulted in the discovery by Maffett of three ounces of heroin and narcotics packaging paraphernalia.
The seized items were taken by the Pittsburgh police officers to be examined by local authorities for the purpose of establishing their contraband nature. Bedford was subsequently indicted by a state grand jury, but a pretrial motion to suppress was granted, and, inasmuch as the Commonwealth had no further evidence to present, an order was entered adjudicating him not guilty. Indictment by a federal grand jury followed, charging Bedford with a violation of the federal narcotics laws. See 21 U.S.C. § 841(a)(1).
When a warrant's validity is being examined for federal prosecutory purposes and the resulting search is "state" in character, the warrant need only satisfy federal constitutional requirements*fn1 rather than those of state law, which may involve stricter standards. Thus, even if the warrant did not comply with state law, evidence obtained from a subsequent search and seizure would not necessarily be inadmissible ...