United States v. Bert Samuel Stefanson

Citation: 648 F.2d 1231Docket: 80-1624

Court: Court of Appeals for the Ninth Circuit; August 28, 1981; Federal Appellate Court

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Bert Samuel Stefanson was convicted of illegal possession of firearms and an unregistered machine gun, prompting an appeal challenging the legality of evidence obtained during his arrest and subsequent search of his residence. Stefanson argued the initial arrest by Officer McClain for reckless driving was illegal and that the telephonic search warrant issued for his residence did not comply with Federal Rule of Criminal Procedure 41. The government contended that there was substantial evidence supporting the validity of the arrest and the issuance of the search warrant.

On March 29, 1980, Officer McClain observed Stefanson driving erratically and arrested him, seizing firearms that were in plain view. Later, ATF Agent Bertolani applied for a telephonic search warrant for Stefanson's residence based on evidence from the traffic stop and prior criminal activity. Despite issues with the recording of the warrant application, Magistrate Rothwell found probable cause and authorized the search, during which additional firearms and contraband were seized.

The defense contested the validity of the magistrate's transcript of the warrant application, but a second, accurate transcript was prepared and stipulated to by both parties. Key facts presented in the warrant application included Stefanson's involvement in an ongoing investigation into the Hells Angels Motorcycle Club, a previous indictment involving firearms and drugs, and his felony convictions from 1973. The Court of Appeals affirmed the district court’s rulings and upheld Stefanson's conviction, determining that both the arrest and search warrant were legally justified.

On March 21, 1980, shots were fired near Stefanson's residence, prompting him to exit and enter a car with his wife, which was later stopped. On March 29, 1980, the day of the warrant application, Stefanson was apprehended for reckless or drunk driving while operating his vehicle at 80 miles per hour. During this stop, police seized two loaded pistols, a machine gun with an obliterated serial number, an ammunition belt, and a plastic bag containing fourteen "seconal" capsules, with no firearms registered in Stefanson's name. Agent Bertolani testified that individuals with firearms typically keep related items at home and that drug users often store paraphernalia alongside their drugs.

Due to alleged issues with the magistrate's transcript, an evidentiary hearing was conducted. Magistrate Rothwell recounted a phone call from Agent Bertolani requesting a search warrant shortly before 10:00 p.m. on March 29. Rothwell acknowledged he did not have a current copy of Rule 41 and was unclear on its telephonic application requirements but remembered that Bertolani declared the truth of his statements under penalty of perjury. The declaration, however, was not recorded due to possible machine failure or accidental erasure. Rothwell did not place Bertolani under oath at the start of the call, not being aware of the requirement, but he did not intentionally disregard it. Rothwell confirmed that he attributed the need for nighttime service to Bertolani’s affirmation regarding the potential destruction of evidence.

Stefanson's motion to suppress the evidence from the truck and residence search was denied, leading him to plead guilty to being a felon in possession of the two loaded pistols. During the trial for possession of the unregistered machine gun and two shotguns, evidence was presented, resulting in convictions on Counts 2 and 3. Stefanson appeals, questioning the validity of the telephonic search warrant, asserting that the process violated Rule 41 due to the failure to place Bertolani under oath and record the oath properly.

The appellant argues for the suppression of evidence obtained under a telephonic search warrant, claiming procedural violations of Rule 41. However, the court finds this argument unfounded both factually and legally. Rule 41(c)(2)(D) mandates that all testimony during the warrant application process be recorded, either via a voice recording device or a verbatim written record. While the Sixth Circuit’s decision in United States v. Shorter supports strict adherence to this rule, the Ninth Circuit applies a more lenient standard, requiring suppression only in cases of clear constitutional violations or where noncompliance prejudiced the outcome or indicated intentional disregard for the rule.

The district court determined that although the oath was not recorded, it was nonetheless administered, as supported by the testimonies of Magistrate Rothwell, Agent Bertolani, and Assistant U.S. Attorney Dondero. This violation was deemed technical and non-prejudicial, thus satisfying the Fourth Amendment warrant requirement. The appellant also challenges the validity of the warrant due to the magistrate's failure to create a verbatim transcription of the conversation. However, Magistrate Rothwell clarified that he accurately dictated the probable cause statement based on his memory and the original tape, with no discrepancies noted. The magistrate's certification of the conversation's accuracy to the district court further undermines the appellant's claims.

All testimony regarding the case was undisputed, with the appellant's counsel acknowledging the substantial accuracy of the verbatim transcription. Although the opinion is under reconsideration, the Ninth Circuit ruled that a failure to record a telephonic conversation constitutes a technical violation of Rule 41(c)(2)(D) but does not warrant the suppression of legally obtained evidence. The district court found no substantial prejudice to the appellant due to the accurate transcript and the magistrate's lack of bad faith in transcribing the conversation.

The appellant challenged the validity of the search warrant, arguing that Magistrate Rothwell lacked detachment and impartiality in authorizing a nighttime execution. This claim hinges on Rothwell’s proactive inquiry about the risk of evidence destruction, which Agent Bertolani confirmed. Rule 41(c) mandates daytime service of warrants unless justified for nighttime execution based on reasonable cause, supported by specific facts.

Agent Bertolani's telephonic affidavit cited the likelihood of evidence destruction, particularly by Mrs. Stefanson, the appellant's wife, who might have begun destroying evidence upon learning of her husband's arrest. Precedents allow for warrantless searches under exigent circumstances, which similarly apply to justifying immediate nighttime execution of a search warrant.

The district court upheld the nighttime search's reasonableness under Rule 41(c) and declined to suppress evidence obtained during it. Additionally, the appellant's assertion that the oral affidavit lacked sufficient facts to establish probable cause was deemed meritless, as it included evidence of illegal drugs found at the appellant's residence in prior instances and his history of drug-related convictions.

Agent Bertolani's expertise suggests that individuals in possession of illegal drugs typically have larger quantities stored at their residences. This inference established reasonable probable cause for the magistrate to believe that the appellant's home contained additional drugs, a conclusion supported by case law (United States v. Spearman and United States v. Dubrofsky). The district court affirmed this finding after reviewing the oral affidavit. The appellant also contested the district court's conclusion that there was probable cause to believe illegal firearms and ammunition were present in his home. The affidavit provided crucial details: the appellant was arrested with two pistols, a machine gun, and ammunition; he had prior felony convictions related to firearms; a similar machine gun had previously been seized from his residence; and a shooting incident occurred near his home shortly before his arrest. Agent Bertolani's extensive experience also indicated that individuals possessing firearms are likely to have additional weapons at home. Consequently, the district court upheld the magistrate's ruling regarding probable cause for illegal weapons.

In addressing the appellant's appeal regarding the legality of his arrest by Officers McClain and Spradlin, who are park district police officers, the appellant argued these officers lacked authority to arrest outside the park district under California Penal Code 830.3(h) and Public Resources Code 5561. Although these statutes limit park district officers’ authority to their district, California Penal Code 830.3(q) provides an exception, allowing officers to act statewide under certain conditions. Thus, the appellant’s claim that the initial arrest was unlawful, leading to the subsequent seizure of evidence, is countered by the statutory framework that permits park district officers some authority beyond their designated areas.

Officers McClain and Spradlin, assigned to the East Bay Regional Park District, lawfully arrested the appellant either within the park district or outside it but within the state, pursuant to California law. The arrest was justified under Public Resources Code 5561 and California Penal Code 830.3(q)(1)(2), as it involved pursuing an offender or making an arrest for a crime committed in the officers' presence while on duty. The evidence obtained following the arrest, including weapons and ammunition, was in plain view, supporting the legality of the arrest. Consequently, the district court correctly ruled against suppressing this evidence. The court affirmed the rulings based on substantial evidence.