HINCKS, Circuit Judge.
These are cross appeals from an order of Judge Weinfeld in the Southern District of New York, granting in part and denying in part motions of the defendants to suppress evidence pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The opinion of the District Court is reported at 17 F.R.D. 18.
The defendants, who had been arrested in the Eastern District of New York at 4:00 p. m., on August 2, 1954, but whose arraignment had been deferred until August 4, 1954 at 1:00 p. m., moved to suppress all evidence obtained during and by reason of the presence of government agents in the defendants' apartment in the Southern District of New York from about 8:00 p. m. on August 2, 1954 to 11:30 a. m. August 4, 1954, on the ground (1) that the presence of the agents in the apartment violated their rights under the Fourth and Fifth Amendments of the Constitution of the United States and (2) that the delay in arraigning them was in violation of Rule 5(a) of the Federal Rules of Criminal Procedure. The defendants also moved to suppress all evidence obtained as a result of the search made (1) of their apartment on August 4, 1954, and (2) of the defendant Paula Klapholz's safe deposit box on August 4, 1954 pursuant to a warrant dated that date. These motions were filed by the defendants in the court below on September 13, 1954. Meanwhile, on August 23, 1954 indictments against the defendants had
After a hearing in which all the defendants' procedural rights were scrupulously and fully protected the District Court denied the defendants' motions to suppress the evidence obtained by execution of the search warrants. The denial was based on findings that the warrants were issued on probable cause; that they were sufficient on their faces in stating the grounds of probable cause for their issuance; that the warrants were seasonably executed within the ten-day period specified in Rule 41(d); and that failure to give a receipt for items seized did not invalidate an otherwise lawful search. From the order giving effect to this ruling, the defendants appealed.
We affirm that order on Judge Weinfeld's findings and opinion below.
As to the motion to suppress evidence in addition to that obtained through the search warrants, i. e., evidence which had been obtained through the presence of the government officers in their apartment, the court found that the officers were there by the defendants' consent. That finding required a conclusion — which was implicit, if not expressly stated, in the opinion below — that the search and seizure was not in violation of the Fourth Amendment. However, the judge apparently thought that even though there had been no constitutional violation the evidence might be suppressed if there had been "unnecessary delay" in bringing the defendants before a United States Commissioner in violation of Rule 5(a). Apparently assuming that, on the authority of McNabb v. U. S., 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, the court had jurisdiction to suppress for violation of Rule 5(a), he meticulously found that to defer the defendants' presentation to a Commissioner until August 3 at 10:30 a. m. did not involve "unnecessary delay" within the meaning of Rule 5(a), but that the further deferment of the presentation was unreasonable and so did constitute "unnecessary delay." Accordingly, it was ordered that, as to evidence obtained through the presence of the government agents in defendants' apartment prior to that date and hour, the motion to suppress should be denied; and that, as to evidence so obtained thereafter, the motion be granted. From this order, both the defendants and the government appealed.
The sole express authority for a pre-trial suppression of evidence by any court other than a trial court is found in Rule 41(e). And the authority thus conferred goes no further than to permit a district court to suppress evidence obtained by unlawful searches and seizures within its district. Its operativeness thus depends on a violation of constitutional rights under the Fourth Amendment. The cases are clear that a breach of Rule 5(a) does not constitute such a constitutional violation. Brown v. Allen, 344 U.S. 443, 476, 73 S.Ct. 397, 97 L.Ed. 469; Stein v. New York, 346 U.S. 156, 187, 73 S.Ct. 1077, 97 L.Ed. 1522; Upshaw v. United States, 335 U.S. 410, 414, note 2, 69 S.Ct. 170, 93 L.Ed. 100. It follows that authority to enforce Rule 5(a) is not carried by Rule 41(e).
Until the recent decision in Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, we think the only judicial technique utilized for the enforcement of Rule 5 (a) was the rule of McNabb v. United States, supra, which was stated 318 U.S. at pages 340-341, 63 S.Ct. 608, as an evidentiary rule of exclusion, formulated by the Supreme Court as a deterrent to the violation of Rule 5(a). In that case, it was held that a trial court could and should in the trial exclude evidence of confessions obtained in violation of Rule 5(a). But neither McNabb nor (until Rea) any of the cases which have applied and developed its doctrine have held that evidence not obtained by an unlawful search and seizure may be suppressed by a court other than the trial court.
However, in the Rea case, supra [350 U.S. 214, 76 S.Ct. 294], the Supreme Court said that the federal Rules "are designed as standards for federal agents" and that, since the Rules were prescribed by the Supreme Court after submission to Congress, it has "`supervisory powers over federal law enforcement agencies'" and that "Federal courts sit to enforce federal law; and federal law extends to the process issuing from those courts." Accordingly, it held that when "a federal agent has violated the federal Rules governing searches and seizures * * * [t]he power of the federal courts extends to policing these requirements and making certain that they are observed"; and that having such power it was erroneous for a federal court to refuse to enjoin the federal officer from using "the fruits of his unlawful act" as "the basis of testimony in the state court." Under this doctrine, we think it plain that the court below had jurisdiction to entertain and determine motions for the suppression of evidence obtained within its territorial jurisdiction even though it was without jurisdiction to try the moving parties for violations of federal law committed in another district under an indictment therein pending. It is true that here we are concerned with a suppression based on violation of Rule 5(a) instead of one based on violation of the Fourth Amendment which is the subject-matter of Rule 41. But the language and rationale of the majority opinion in the Rea case permits no distinction on that account.
However, although we accept the Rea decision as decisive on the presence of jurisdiction in the court below to rule as it did, we think the Rea decision did not require that court to exercise that jurisdiction. In Rea, the exercise of the court's injunctive powers was required because of the showing that a criminal prosecution was pending in a state court of New Mexico in which the evidence sought to be suppressed might have been admissible even though obtained in violation of the Fourth Amendment.
In the setting of this case, in so far as it has been disclosed to us, we think that it would have been a proper and a wise exercise of discretion by the court below, after disposing of the attack on the search and seizure under Rule 41(e), to have declined jurisdiction over the other motions to suppress, leaving the defendants free to move for suppression in the trial court. Such a course would have avoided invasion of the trial court's normal province
We come, therefore, to the merits of the rulings on the motions to suppress. We agree with Judge Weinfeld that no waiver by the defendants of compliance with Rule 5(a) may be implied from the bare consent of the defendants to the presence of the agents in their home. His findings as to the time reasonably required to accomplish the arraignments were made with painstaking care and were fully supported by the underlying facts. It only remains to consider whether the evidence suppressed was proper subject-matter for suppression under the McNabb rule. The order provided that "all evidence derived as a result of the presence of the government agents in the defendants' apartment * * *" subsequent to 10 a. m. on August 3, 1954 "is suppressed."