United States of America, Plaintiff-appellee, v. David Loyd, William Harrison Hood, A/k/a Wayne Tabone, A/k/abillie Wooten, Donald Lewis Canup, James Douglashume, Defendants-appellants, 721 F.2d 331 (11th Cir. 1983)

Defendants David Loyd, William Hood, Donald Canup and James Hume were convicted in a nonjury trial of conspiracy and possession with intent to distribute more than 2,000 pounds of marijuana in violation of 21 U.S.C.A. Secs. 841(a) (1), 846, and 18 U.S.C.A. 2. On appeal they claim that the marijuana, seized pursuant to a telephonic search warrant, should have been suppressed because the issuing magistrate did not certify the accuracy of the transcript of the taped oral warrant as required by Fed. R. Crim. P. 41(c) (2) (D). Finding no constitutional violation, prejudice to the defendants, or bad faith conduct in disregard of the rule, we affirm.

Fed. R. Crim. P. 41(c) (2) provides a procedure for the issuance of a search warrant on oral testimony by telephone.¹  When a voice recording device is used, the Rule requires the Federal magistrate authorizing the issuance of the warrant to have the record transcribed, to certify the accuracy of the transcription, and to file a copy of the original recording and the transcription with the court. Fed. R. Crim. P. 41(c) (2) (D). In this case the magistrate failed to certify the accuracy of the transcription.

These are the significant facts. On August 4, 1981, Florida police officers observed the four defendants unloading a large quantity of marijuana from two boats and taking it to a nearby home. One of the officers notified his superior, who contacted a Drug Enforcement Agency agent to have him obtain a search warrant for the home. The agent decided to obtain the warrant by telephone, because the unloading occurred at approximately 1:30 a.m. and there was a possibility that the defendants might escape. The agent prepared the duplicate original warrant required by Fed. R. Crim. P. 41(c) (2) (B) and telephoned a federal magistrate, who recorded the conversation and issued a warrant. Execution of the warrant led to the seizure of 2,148 pounds of marijuana and the arrest of the four defendants.

The magistrate had the original tape of the oral warrant transcribed but did not, contrary to Fed. R. Crim. P. 41(c) (2) (D), formally certify the accuracy of the transcript. At the suppression hearing, the original tape was played for the district judge, who made a de novo certification of the accuracy of the transcript and denied the motion to suppress.

The defendants contend the magistrate's failure to certify the accuracy of the transcript of the telephone call authorizing the search was a fundamental violation of Fed. R. Crim. P. 41(c) (2) (D) requiring application of the exclusionary rule and suppression of the marijuana. This argument is based on United States v. Shorter, 600 F.2d 585 (6th Cir. 1979), in which the Sixth Circuit court invalidated a telephonic search warrant because the affiant seeking the warrant was not immediately placed under oath as required by Rule 41(c) (2) (D), but gave an oath after he had testified.

This is an issue of first impression in this Court. We adopt the standard articulated in United States v. Stefanson, 648 F.2d 1231 (9th Cir. 1981):

[U]nless a clear constitutional violation occurs, noncompliance with Rule 41 requires suppression of evidence only where (1) there was 'prejudice' in the sense that the search might not have occurred or would not have been so abrasive if the rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.

648 F.2d at 1235 (citations omitted). In Stefanson, the court held that suppression was not required although the affiant was not immediately placed under oath and the magistrate failed to make a verbatim transcript of the conversation. Other circuits have adopted this standard. See United States v. Gitcho, 601 F.2d 369, 372 (8th Cir.), cert. denied, 444 U.S. 871, 100 S. Ct. 148, 62 L. Ed. 2d 96 (1979); 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 case the facts do not indicate any constitutional violation. The magistrate's failure to certify the transcript after the search had taken place clearly had no effect on whether a search occurred, nor did it affect the abrasiveness of the search. There is no evidence to indicate bad faith or an intentional disregard of the rule.

The purpose of transcribing the taped conversation and certifying the transcription is to give reviewing courts an accurate account of the facts originally presented to the magistrate which resulted in the issuance of a search warrant. In this case the district court's listening to the recording and certifying the accuracy of the transcript fulfilled the purpose of the rule and minimized the effect of the magistrate's technical error. The motion to suppress was properly denied.

AFFIRMED.