The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
John Allen ("Allen") and Ronald Zilberbrand ("Zilberbrand")
and four other defendants*fn1 have been indicted in a
multi-count indictment, including charges of:
1. conspiracy to distribute cocaine (Count
2. possession with intent to distribute cocaine
Zilberbrand has also been charged with distributing cocaine
Shortly after Allen and Zilberbrand were arrested, law
enforcement officials obtained a search warrant that
authorized a search of three connecting rooms in Chicago's
Blackstone Hotel. Allen and Zilberbrand have moved to quash
the search warrant*fn2 and to suppress the evidence found in
the search, asserting the government's failure to comply with
Fed.R.Crim.P. ("Rule") 41(c)(2).*fn3
This Court's March 15, 1984 oral ruling rejected the
Allen-Zilberbrand contention the government should not be
given the opportunity to reconstruct the basis of the search
warrant: oral testimony given over the telephone to Magistrate
Joan Lefkow. This Court's rejection was predicated on the
numerous cases (including United States v. Mendel,
578 F.2d 668, 673-74 (7th Cir.), cert. denied, 439 U.S. 964, 99 S.Ct.
450, 58 L.Ed.2d 422 (1978) in this Circuit) holding violations
of Rule 41(c) should not result in exclusion of evidence unless
a defendant can show:
1. the search violated the Fourth Amendment; or
2. there was either prejudice to the defendant
or intentional and deliberate disregard of the
Rule by the government.
Accord, such cases as United States v. Stefanson,
648 F.2d 1231, 1235-36 (9th Cir. 1981) (perhaps the closest case to this
one on the facts); United States v. Vasser, 648 F.2d 507,
509-11 (9th Cir. 1980), cert. denied, 450 U.S. 928, 101 S.Ct.
1385, 67 L.Ed.2d 360 (1981); but cf. United States v. Hittle,
575 F.2d 799, 801-02 (10th Cir. 1978).
Allen and Zilberbrand do not assert the officers violated
the Fourth Amendment, nor is there any predicate for saying
the government intentionally disregarded Rule 41(c)(2).
Instead the Allen-Zilberbrand position rests on the
"prejudice" alternative: Assertedly the government's failure
(albeit inadvertent) to record the oral testimony impeded the
ability of Allen and Zilberbrand to test whether the facts
constituting probable cause were in fact communicated to
Magistrate Lefkow by sworn testimony.
For the reasons set forth in this memorandum opinion and
order, this Court finds and concludes:
1. Magistrate Lefkow rightly determined
probable cause existed for the issuance of the
2. Allen and Zilberbrand have shown no actual
prejudice occasioned by the government's failure
to record the oral testimony.
Accordingly the Allen-Zilberbrand motions to quash the search
warrant and to suppress the seized evidence are denied.
Before the weekend of September 17-18, 1983 Sullivan had
been alerted, in connection with an ongoing narcotics
investigation, to the potential need for a search warrant on
short notice during the course of the weekend. In turn
Sullivan had apprised Magistrate Lefkow of that possibility.
Then on Sunday night September 18 Tomeik and Griffin called
Sullivan and told him they did need a search warrant for some
rooms at the Blackstone Hotel. Sullivan drove down to his
office, met with the agents and reviewed the facts with them,
taking notes as the agents talked.
It was late, and Sullivan hoped to get Magistrate Lefkow to
act on the warrant application before the 10 p.m. watershed
made relevant by Rules 41(c)(1) and 41(h).*fn5 Because of the
extensive factual background that needed the Magistrate's
detailed review for a probable cause determination, Sullivan
decided the time needed to draft and write out an affidavit
and then deliver it to Magistrate Lefkow's home for her review
would certainly push matters beyond the 10 p.m. deadline. That
led to Sullivan's decision to resort to the
sworn-oral-testimony alternative of Rule 41(c)(2).
Accordingly, at about 9 p.m. Sullivan telephoned Magistrate
Lefkow at her house and discussed the requirements for an oral
affidavit. Magistrate Lefkow had neither a tape recorder nor
blank search warrant forms, so she agreed to let Griffin bring
those items to her house.
Once Griffin arrived at Magistrate Lefkow's house, he
connected the recorder to the phone with the suction cup
recording device, inserted the tape and tested the recorder to
make sure it was working. It was. Griffin then called Sullivan
and told him everything was ready. Sullivan then
set up a four-way phone conversation with Dailey at the
Blackstone, Magistrate Lefkow at her house, and Tomcik and
Sullivan at the federal building.*fn6 Magistrate Lefkow
placed Tomcik and Dailey under oath. Sullivan then narrated
the facts, periodically asking Tomcik and Dailey to confirm
what he was telling Magistrate Lefkow was true. Sullivan's
narration comprised all the relevant facts set forth in the
complaint he prepared the next day (Ex. A to this
opinion).*fn7 Tomcik and Dailey did verify those facts under
Sullivan, Dailey and Magistrate Lefkow all testified the
Magistrate asked questions about why the rooms at the
Blackstone Hotel should be searched. Magistrate Lefkow
remembered being told the agents believed more drugs were
likely to be in the room because the first transaction had
been set up on the understanding that if the buyers found the
first buy was of good quality, more cocaine was available
nearby and could be supplied quickly. Dailey testified, based
on his substantial experience, that if the sellers were
operating out of a hotel room and that was the understanding
between the sellers and buyers, it was likely more drugs were
in the hotel room. Magistrate Lefkow also testified the agents
thought records of some sort could be found in the room.
At the end of the conversation Magistrate Lefkow (1) said
she would authorize the warrant, (2) told Tomcik to sign her
name to the copy of the warrant in front of him and (3) signed
her copy. All the procedures already described had carried the
parties past 10 p.m. (it was then 10:28). Consequently
Magistrate Lefkow authorized the search in the form required
by the portion of Rule 41(c)(1) quoted in n. 5. Sullivan kept
the copy of the warrant Tomcik had signed. Griffin left
Magistrate Lefkow's house, leaving the tape and the other copy
of the search warrant with the Magistrate. Next day Magistrate
Lefkow gave the tape and search warrant to her assistant
Williams, who in turn put those items under lock and key in
her office, accessible only to Williams.
In late November Sullivan wanted a copy of the tape and
learned a transcript still had not been made. Sullivan
borrowed the tape from Williams, made copies*fn8 and returned
the original to Williams that same day. Sullivan gave copies
of the tape to the court reporter (for transcription) and to
defense counsel. To everyone's consternation the original tape
and all the copies were blank. No one knows why, but the
consequence has been a literal noncompliance with Rule
41(c)(2)(D) and an obvious inability to determine exactly what
was said during the key telephone call.
There is no mystery as to the controlling standard ...