Appellant United States of America appeals from an order entered in the United States District Court for the Western District of New York (Telesca, C.J.) suppressing evidence seized in consequence of the execution of two covert entry warrants allowing searches without physical seizure and one conventional search and seizure warrant. The evidence is relevant to the prosecution of defendant-appellee Frank J. Salcido for various crimes arising out of his alleged involvement in precursor chemical trafficking. The warrants were issued by the Los Angeles Municipal Court upon the application of a special agent employed by the Bureau of Narcotics Enforcement ("BNE") of the California Department of Justice and authorized the search of a certain storage locker situated in Sylmar, California. The chemicals suppressed were seized from the locker pursuant to the third warrant.
The district court determined: that the two covert entry warrants allowing searches without physical seizure were invalid for failure to provide that notice be given to Salcido at least seven days after each covert entry; that the third warrant was invalid because it was issued on the basis of information acquired through the two covert entry searches; and that the claim of objective good faith put forward by the Government was not supportable. Although we have required that seven days notice be given after covert entries for which search without physical seizure has been authorized, that notice requirement is grounded in Fed.R.Crim.P. 41 and is not compelled by the Constitution. Therefore, in the absence of a showing of intentional disregard of the requirement or of prejudice, we will not suppress evidence gained under a warrant that does not provide for the proper notice. Because no such showing was made here, we reverse the order of suppression as to the first two warrants. We also reverse as to the third warrant, which was properly issued on the basis of information gained from the execution of the first two warrants.
Miner '56, Roger J., "US v. Pangburn, 983 F. 2d 449 - Court of Appeals, 2nd Circuit 1993" (1993). Circuit Court Opinions. 378.