UNITED STATES of America, Plaintiff-Appellee, v. Luther T. PENNINGTON and Senator Harding Colbert, Defendants-Appellants, 635 F.2d 1387

McWILLIAMS, Circuit Judge. Pennington and Colbert were convicted of conspiring to possess with an intent to distribute a controlled substance, marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Prior to trial, defense counsel moved to suppress the use at trial of marijuana and other items, taken in a search of a quonset-hut owned by the defendants. After an evidentiary hearing, the motion to suppress was denied. On appeal, the only issue raised is the correctness of that ruling. The warrant to search the quonset-hut was issued by a United States Magistrate sitting in McAlester, Oklahoma.

The warrant issued on the basis of the affidavit of one Freddie Keith Means, an agent for the Oklahoma Bureau of Narcotics and Dangerous Drugs Control. Prior to the issuance of the warrant, Agent Means had been in touch with an Assistant United States Attorney for the Eastern District of Oklahoma concerning his investigation. We infer that the Assistant United States Attorney encouraged State Agent Means to pursue the case.

In any event, we know, from the record, that the Assistant United States Attorney telephonically contacted the United States Magistrate and personally arranged for a time when the' Magistrate could conduct a hearing on the matter. The only evidentiary matter before the Magistrate when he issued a warrant to search the quonset-hut owned by the defendants for marijuana was the affidavit of Agent Means. The warrant was directed to the “U. S.

Marshal or any other authorized law enforcement officer.” The warrant was executed by Agent Means, a fellow agent for the Oklahoma Bureau of Narcotics and Dangerous Drugs Control, two deputy sheriffs for Pontotoc County, Oklahoma, and a member of the Oklahoma State Highway Patrol. The search of the quon-set-hut, which was being used as a greenhouse, disclosed a great number of growing marijuana plants, many of which were in the seedling stage. The primary ground urged for reversal is that the execution of a federal search warrant by state officers does not comply with Fed.R.Crim.P. 41(

c) and therefore voids the search and renders the items seized in the search inadmissible in a federal prosecution. Under the circumstances, we do not agree with this argument. In resolving this particular issue, we shall assume the initial applicability of Rule 41(c), though Government counsel makes some suggestion to the contrary. There is no doubt that in the instant case we are concerned with a federal search, as opposed to a search that is purely state in character. The warrant was issued by a United States Magistrate in connection with an alleged violation of federal law.

An Assistant United States Attorney had arranged for the state drug agent to go before the Magistrate in an effort to secure a search warrant. The federal government had a “hand” in the matter, even though the affiant before the Magistrate was a state official, and therefore this was a federal search. Lustig v. United States, 338 U.S. 74, 78, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949) and United States v. Rios, 611 F.2d 1335, 1347 (10th Cir. 1979).

Being a search which is “federal in character,” the legality of the search is conditioned on a finding that the warrant satisfies constitutional requirements and certain provisions of Fed.R.Crim.P. 41 “designed to protect the integrity of the federal courts or to govern the conduct of federal officers.” United States v. Millar, 543 F.2d 1280, 1284 (10th Cir. 1976) and United States v. Sellers, 483 F.2d 37, 43 (5th Cir. 1973), cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974). As above indicated, the warrant here involved issued to the “U. S.

Marshal or any other authorized law enforcement officer.” Counsel points out that Fed.R. Crim.P. 41(

c) provides only that the warrant “shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States.” At the evidentiary hearing on the motion to suppress, Means conceded that he was neither “a civil officer of the United States” nor had he been “so authorized by the President of the United States,” and that no federal agent or officer assisted in the execution of the warrant. Such deviation from 41(c), however, does not justify invoking the exclusionary rule.

A case quite similar to the instant one is United States v. Burke, 517 F.2d 377 (2nd Cir. 1975). The warrant in Burke was issued by a state judge, not a United States Magistrate, as in the instant case. However, in our view, that is not significant, since in Burke, as here, the search was federal in character. Being a federal search, the Second Circuit in Burke held that the search is governed by Rule 41.

In Burke, the warrant was issued to, and executed, by a state officer, and not a “civil officer of the United States ... or a person so authorized by the President of the United States,” as provided for by Rule 41(c). Notwithstanding this deviation from the rule, the Second Circuit declined to apply the exclusionary rule. That Court opined that courts should generally be “wary in extending the exclusionary rule in search and seizure cases to violations which are not of constitutional magnitude.” 517 F.2d at 386.

More specifically, the Second Circuit commented as follows: ... violations of Rule 41 alone should not lead to exclusion unless (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. Id. at 386-387.

Applying to the instant case the rationale of Burke, we conclude that the fact that the warrant was executed by a state officer, and not “a civil officer of the United States” or “a person so authorized by the President of the United States,” as provided by Rule 41(c), does not require invoking the exclusionary rule. There is nothing to indicate that the search would not have occurred but for the violation of the rule, or would not have been “so abrasive” if the rule had been followed.

In this latter regard, counsel suggests that the state officials, in collecting the evidence found in the quonset-hut greenhouse, inflicted some damage to the premises which would not have occurred had federal officials been involved. The assertion that federal officials would have been more neat and tidy in executing the search warrant is problematical. Any damage was incidental to the gathering of evidence, which, under the circumstances, was no small chore. The quon-set-hut greenhouse was chock-full of growing marijuana plants, with stalks some 12 feet high. Photographs were taken which required some staging.

Suffice it to say, the defendants in the instant case did not show any real prejudice resulting from the fact that the warrant was executed by state officials, without federal help. See United States v. Turner, 558 F.2d 46, 52 (2nd Cir. 1977) and United States v. Dudek, 530 F.2d 684, 688 (6th Cir. 1976). Applying the second prong of the Burke test, there is nothing in the record to indicate that the deviation from the literal requirements of Rule 41(

c) was either intentional or deliberate, or that such in anywise undermined the integrity of the whole process. 517 F.2d at 387. In sum, the fact that the warrant was executed by a state officer, who was authorized under Oklahoma law to execute search warrants, and not by a federal official, is not, under the circumstances here disclosed, such a deviation from Rule 41(

c) as would justify invoking the exclusionary rule. The second ground urged for reversal concerns the sufficiency of the affidavit. Counsel contends that the affidavit does not measure up to the probable cause requirements of the Fourth Amendment. We disagree. The warrant issued on the basis of Means’ affidavit. In that affidavit Means stated that he had “met” a confidential and reliable informant who had advised him that he (the informant) had seen marijuana plants in a great number growing in the quonset-hut located on defendants’ property.

The informant indicated how he could tell that the plants he observed were in fact marijuana plants. At the evidentiary hearing on the motion to suppress, it was brought out that Agent Means had “met” the informant in a telephone conversation and not in a face-to-face situation. Whether this is an inaccuracy is debatable. One can “meet” another over the phone, as well as in person. In any' event, it is not such as inaccuracy as would go to the integrity of the warrant. The important thing is the type of information relayed to the agent by the informant, and not the means of transmission of such information.

See United States v. Turner, 558 F.2d at 50. In the affidavit, Agent Means characterized the informant as being reliable. Agent Means had actually never had any contact with the informant before their telephone conversation. However, Agent Means did check out the informant’s name, in at least a limited sense, and found that he had no criminal record. Also, Agent Means inquired of a local sheriff who considered the informant to be reliable and truthful. It developed at the evidentiary hearing that the local sheriff actually didn’t have a great deal of knowledge about the informant.

Be that as it may, such discrepancies are only minor in nature, and under the circumstances do not affect the ultimate determination by the Magistrate that there was probable cause to search defendants’ quonset-hut greenhouse. United States v. Axselle, 604 F.2d 1330, 1338 (10th Cir. 1979). We emphasize the fact that the informant here involved was not a paid or professional informant, whose tips are sometimes open to suspicion.

Rather, the informant was a private citizen who went onto the defendants’ premises at their request to perform some excavating and leveling services, and while there observed the growing marijuana. As a public spirited citizen, he felt compelled, and commendably so, to report what he had seen to the proper officials. In United States v.

McCoy, 478 F.2d 176, 179 (10th Cir. 1973), we noted that the fact that an affidavit sets forth information acquired from eyewitnesses to a crime, rather than from a professional informer, is of “considerable significance in connection with the magistrate’s determination as to the reliability of the affiant’s sources of information.” In McCoy, we made reference to United States v.

Bell, 457 F.2d 1231 (5th Cir. 1972), which held that though a supporting affidavit in an application for a search warrant must generally attest to the credibility of an informant and his information, such requirement did not extend to information acquired from an eyewitness to a crime. Judgment affirmed.