Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 CR 621 -- Susan Getzendanner, Judge.
Posner and Flaum, Circuit Judges, and Grant, Senior District Judge. Flaum, Circuit Judge, concurring in the result.*fn*
Mitchell Janik appeals from his conviction for possessing two unregistered guns (a submachine gun and a sawed-off shotgun), in violation of 26 U.S.C. § 5861(d). The principal questions on appeal are whether the proceeding against him exceeded the time limits in the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., and whether the seizure of the guns in Janik's home violated the Fourth Amendment.
Janik was a deputy sheriff in Cook County, Illinois, assigned as a bailiff in the court division. He told his friend Heidemann, a Chicago policeman, that he had bought a submachine gun from a man he knew to have been a burglar, and asked Heidemann not to tell anybody about this. Later Janik invited Heidemann to see the gun in his apartment, and on March 26, 1981, they drove there together in Heidemann's police car. Heidemann meanwhile had gotten in touch with the federal Bureau of Alcohol, Tobacco and Firearms, and a team of Chicago police officers and federal agents were waiting in concealment outside the building when Janik and Heidemann arrived.
Janik unlocked the front door of the building, and as he and Heidemann entered the lobby Heidemann pressed the button in the side of the door's lock so that it would remain unlocked. They entered Janik's apartment and Janik took Heidemann into the kitchen, where the gun, which Heidemann recognized as a submachine gun, was lying disassembled on a table. (Janik had told Heidemann that he had disassembled the gun after firing it and had not been able to reassemble it.) Heidemann asked to use the bathroom. While inside it he tried to radio the team outside the building to come in and seize the gun, but he could not make radio contact. He then went to the front door of the apartment and opened it, and either while standing in the entrance or after stepping into the lobby he again radioed the team, this time making contact, and told them to come inside. Janik had followed him into the lobby and now asked him what he was doing. Without answering, Heidemann placed Janik up against the wall of the lobby, and then either he opened the door to the lobby to admit the team or they entered on their own, the door being unlocked. A police officer put handcuffs on Janik but the head federal agent ordered them removed unless Janik was to be arrested on state charges. Janik asked the agents and police to come into his apartment so that they would not be seen by the neighbors. The handcuffs were removed either before or immediately after Janik asked the officers to come in. A brief search was made of the apartment to see whether anyone else was in it (no one was). After receiving Miranda warnings Janik signed waivers of his right to counsel and to remain silent and consent forms authorizing a search of the apartment for unregistered guns. The apartment was then searched again and the sawed-off shotgun was found in a laundry bag in a closet.
The federal agents took away the guns but did not arrest Janik. The police, however, arrested him on suspicion of possessing a stolen gun (the submachine gun). The state charges were later dropped but on October 27, 1981, Janik was indicted on federal charges. He was arraigned on November 4, and on November 23 he moved to suppress the evidence seized on March 26. A hearing on the motion was scheduled for February 4, 1982, and then changed to February 5. When the parties showed up for the hearing they were told that the court had cancelled it and that it would be rescheduled for a later date. In the words of the district judge, "The case appears to have slipped into limbo following February 5, 1982." The judge's minute clerk had gone on maternity leave and, as the judge explained, "The court's new minute clerk joined the court's staff in late February 1982. With well over 400 cases on the court's docket, it is hardly surprising that the inactivity in Janik was not detected until mid-April." The hearing took place on April 28 and May 3, the last post-hearing brief was filed on August 6, and the judge then took the matter under advisement. But on November 12 she ordered the hearing reopened to take additional testimony on when the handcuffs had been removed from Janik, and further testimony was taken on December 2. Finally, on December 13, she denied the motion to suppress. Janik then moved to dismiss the indictment, on the ground that the Speedy Trial Act had been violated. The motion was denied. His trial, a bench trial, was held on January 18, 1983, on the basis of the record of the suppression hearing, as the parties had agreed. The judge found Janik guilty and sentenced him to eight months in prison for possession of the submachine gun and to five years probation and a fine of $2,000 for possession of the sawed-off shotgun.
The Speedy Trial Act required the government to indict Janik within 30 days after arresting him, 18 U.S.C. § 3161(b), which it did not do if his arrest on March 26 counts. An arrest by state officers on state charges does not start the running of the 30-day period. United States v. Iaquinta, 674 F.2d 260, 267-68 (4th Cir. 1982); United States v. Wilson, 657 F.2d 755, 767 n. 17 (5th Cir. 1981). Janik's detention in the lobby by a group that included federal as well as state officers was, as we shall see, a federal arrest, but it did not start the running of the 30-day period either. Although a literal reading of section 3161(b) supports Janik's argument that it did, there is abundant and we think persuasive case authority that an arrest does not start the 30-day period running unless a criminal charge is lodged, and no federal criminal charge was lodged against Janik until he was indicted. See, e.g., United States v. Alfarano, 706 F.2d 739, 741 (6th Cir. 1983); United States v. Candelaria, 704 F.2d 1129, 1131 (9th Cir. 1983); United States v. Sayers, 698 F.2d 1128, 1131 (11th Cir. 1983); United States v. Jones, 676 F.2d 327, 329-31 (8th Cir. 1982).
The purpose of the Speedy Trial Act is to implement the Sixth Amendment's right to a speedy trial, see S. Rep. No. 1021, 93d Cong., 2d Sess. 1 (1974), a right designed to limit the time during which criminal charges are hanging over a person's head unresolved, see United States v. Marion, 404 U.S. 307, 317-18, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). Therefore "no Sixth Amendment right to a speedy trial arises until charges are pending" against the person. United States v. MacDonald, 456 U.S. 1, 7, 71 L. Ed. 2d 696, 102 S. Ct. 1497 (1982). See also United States v. Samples, 713 F.2d 298, 301 (7th Cir. 1983). After a person is arrested and before he is arraigned criminal charges are hanging over him in a palpable sense even if he is free on bond. But Janik was unconditionally released from federal custody immediately after being arrested and no federal criminal charge was filed against him at the time. Thus, until he was arraigned his situation was the same as that of anyone who knows that he is the target of a criminal investigation. The Speedy Trial Act does not protect the man whose peace of mind is disturbed because, though he is not under arrest or out on bail and no charge has been lodged against him, he is likely to be charged. And if he was arrested but moments later was released without being booked, it is the same, from the standpoint of the policies behind the Act, as if he had never been arrested. We would not let the government circumvent the Act by releasing an accused on the eve of arraignment and immediately rearresting him; but that is not what happened here.
The difficult Speedy Trial Act issue in this case relates to the delay between Janik's arraignment on November 4, 1981, and his trial on January 18, 1983, 14 1/2 months later. The Act allows only 70 days to elapse between arraignment and trial, 18 U.S.C. § 3161(c)(1), in addition to time that is "excludable" from the computation of delay under the various subsections of 18 U.S.C. § 3161. The parties agree that 42 days between the arraignment and the trial were not excludable. This leaves a "credit" of only 28 nonexcludable days before the 70-day allowance would be exhausted.
Some of the time consumed in getting to trial clearly was excludable, and we can confine our attention to three periods that may not have been. The first is the period of 70 days between February 5, 1982, when the parties appeared for the suppression hearing only to be told that it had been cancelled, and April 16, when a status conference was held, following the new minute clerk's discovery that the case had been inactive during this period, to schedule a new hearing. The second was a period of 68 days between September 5, 1982, and November 12. Section 3161(h)(1)(J) excludes "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court." So far as the proceeding on the motion to suppress was concerned, that period ended on September 5, the thirtieth day after the last briefs were filed following the suppression hearing and the matter was taken under advisement by the district judge. November 12 was the day the judge ordered the suppression hearing reopened. The third period comprises the 31 days between the order to reopen the hearing and the disposition of the motion to suppress. If at least 29 days in any of these periods were not excludable, the indictment must be dismissed.
All three periods occurred in the course of proceedings on Janik's pretrial motion to suppress, so we begin our consideration with section 3161(h)(1)(F), which as amended in 1979 excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." The first two periods in question were entirely within the interval between the filing of the motion and the conclusion of the hearing, which as reopened did not conclude till December 2. But the phrase "other prompt disposition" implies that the court may not delay a criminal trial indefinitely by deferring a hearing on a pretrial motion indefinitely. The government does not, and could not, contend otherwise. See United States v. Cobb, 697 F.2d 38, 44 (2d Cir. 1982); S. Rep. No. 212, 96th Cong., 1st Sess. 34 (1979). It is hard to see how the disposition of Janik's motion can be called "prompt" when for more than two months the case was in limbo, as the judge put it, because her office had neglected to reschedule a hearing for which both parties had shown up. The fact that it was in limbo because of the number of other cases on the judge's docket may explain, but does not in a legal sense excuse, the delay. The delays in bringing criminal cases to trial that led to the enactment of the Speedy Trial Act were due not to federal district judges' being lazy or willful but to the congestion of their dockets. See United States v. Nance, 666 F.2d 353, 356 (9th Cir. 1982); H.R. Rep. No. 1508, 93d Cong., 2d Sess. 16 (1974). Since the Act explicitly rejects "general congestion of the court's calendar" as a ground for an excludable continuance, 18 U.S.C. § 3161(h)(8)(C), it is unlikely that Congress meant such congestion to be a ground for excludable delay when no continuance was granted. The 70 days of nonexcludable time allowed by the Act, a period chosen after extensive legislative deliberations, provide some safety margin for the inevitable slips in getting a case to trial.
We can be more precise about the requirements of prompt disposition in this case. Section 3161(h)(1)(J) allows up to 30 days to be excluded while a matter is under advisement by the court. Although this subsection does not refer to pretrial motions explicitly, so that it can be argued that subsection F ("prompt disposition") is the only provision applicable to delay in deciding such motions, the history of F refutes the argument. Section 3161(h)(1)(E) of the original Speedy Trial Act excluded "delay resulting from hearings on pretrial motions," but made no provision for the time between the filing of the motion and the holding of the hearing, or between the filing of the motion and the disposition of the motion if no hearing was held. The 1979 amendments changed E to F and added an unconditional requirement of prompt disposition after filing, S. Rep. No. 212, supra, at 33-34, 40-41, but there was no intention of thereby enlarging the 30-day period for consideration of any matter (including a motion) taken under advisement. The Senate Report states explicitly that the use of the words "prompt disposition" is not intended to permit circumvention of the 30-day requirement in J -- an observation that would make no sense if F motions (that is pretrial motions) were not also subject to J. Id. at 34. A contrary conclusion would allow the judge to take more than 30 days to decide pretrial motions but not to decide any other type of motion or submission, however novel, difficult, and complex the issues it raised. This result would make no sense, and has been rejected. United States v. Raineri, 670 F.2d 702, 708 (7th Cir. 1982); United States v. Bufalino, 683 F.2d 639, 642-44 (2d Cir. 1982); United States v. Cobb, supra, 697 F.2d at 43; United States v. DeLongchamps, 679 F.2d 217, 220 (11th Cir. 1982). If 30 days is too little to dispose of a particular pretrial motion, the judge can grant a continuance either on his own motion or on that of counsel for either party.
Thus, from the time the district judge took Janik's motion under advisement after the filing of the last post-hearing briefs on August 6 she had 30 days to decide it unless she granted a continuance under section 3161(h)(8)(A), which she did not do. Hence the ...