No. 84-1077 The trial judge appears, however, to have overlooked United States v. New York Tel. Co., 434 U.S. 159, 168-70 (1977), where the Supreme Court held that Rule 41 of the Federal Rules of Criminal Procedure, which authorizes the issuance of search warrants, embraces orders to install "pen registers" (devices that record the phone numbers that a telephone subscriber is dialing). See also Michigan Bell Tel. Co. v. United States, 565 F.2d 385, 388-89 (6th Cir. 1977); United States v. Hall, 583 F. Supp. 717, 718-19 (E.D. Va. 1984). Although the language of Rule 41 is that of conventional searches (see especially subsection (b)), the Court in the New York Telephone case read the rule flexibly and concluded that it covers "electronic intrusions" as well—including bugging. 434 U.S. at 169 (dictum). We cannot think of any basis on which the rule might be thought sufficiently flexible to authorize a pen register, bug, or wiretap, but not a camera. It is true that secretly televising people (or taking still or moving pictures of them) while they are in what they think is a private place is an even greater intrusion on privacy than secretly recording their conversations. But the fact that electronic eavesdropping is more intrusive than conventional searching did not prevent the Supreme Court in the New York Telephone case from reading Rule 41-very broadly in view of its language-to embrace electronic eavesdropping. The next step, to television surveillance, is smaller than the one the Court took. There is another basis, besides Rule 41, for the issuance of warrants for television surveillance. Like the power to prescribe or regulate procedure, to punish for contempts of court, and to issue writs in aid of the court's jurisdiction, the power to issue a search warrant was historically, and is still today, an inherent (by which we mean simply a nonstatutory, or common law) power of a court of general jurisdiction. Indeed, it is an aspect of the court's power to regulate procedure. A search warrant is often used to obtain evidence for use in a criminal proceeding, and is thus a form of (or at least an analogue to) pretrial discovery. Although Congress can limit the No. 84-1077 5 procedural authority of the federal courts-if nothing else, Congress's power to create lower federal courts (Art. I, § 8, cl. 9) so implies-until it does so with respect to a particular subject the courts retain their traditional powers. Rule 57(b) of the Federal Rules of Criminal Procedure virtually so states. And much of federal criminal procedure, especially in the early days of the federal courts, was judge-made. Orfield, Early Federal Criminal Procedure, 7 Wayne L. Rev. 503 (1961), gives a number of examples, though none involve search warrants. See id. at 529. In England the inherent judicial power to issue warrants (warrants to seize persons and things and therefore implicitly to search for them) goes back very far-perhaps to the twelfth century. See Baker, An Introduction to English Legal History 15 (2d ed. 1979); Crown Pleas of the Wiltshire Eyre, 1249, at 75, 92, 98, 100 (Meekings ed. 1961). By the seventeenth century the power was firmly lodged in the justices of the peace. See Dalton, The Countrey Justice 1619, at 300-06 (1972 reprint ed. [1622]); Lasson, The History and Development of the Fourth Amendment to the United States Constitution 36 n. 86 (1937). Hale's History of the Pleas of the Crown (1736) makes clear that the justices of the peace could issue search warrants, provided they were not general warrants. See passages quoted in Scarboro & White, Constitutional Criminal Procedure 21 (1977). As the justices of the peace were not even lawyers, it seems likely that the judges of the royal courts (from which many features of the federal courts were borrowed) had the same power, if little or no occasion to exercise it. A modern American parallel is Rule 41(a) of the Federal Rules of Criminal Procedure, which in terms authorizes only federal magistrates and state-court judges to issue search warrants (see 3 Wright, Federal Practice and Procedure: Criminal 2d, pp. 571-73 nn. 1-7 (1982)) but has been uniformly assumed (for example in the New York Telephone case) to empower federal district judges as well to issue search warrants. 6 No. 84-1077 Although Entick v. Carrington, 19 Howell's State Trials 1029 (C.P. 1765), has been cited for the proposition that statutory authority was required in England for the issuance of search warrants, see, e.g., United States v. Finazzo, 583 F.2d 837, 843 (6th Cir. 1978), summarily vacated on other grounds, 441 U.S. 929 (1979), the only issue in Entick was whether a nonjudicial officer (the secretary of state, described in the opinion as "the king's private secretary," 19 Howell's State Trials at 1046) had common law authority to issue a general warrant to investigate seditious libel. See id. at 1063-74. The court held he did not, but did not express doubt about the power of judicial officers to issue particularized warrants. Cf. Boyd v. United States, 116 U.S. 616, 629-30 (1886); Lasson, supra, at 47-49; cf. id. at 34-37, 51-78; Dickerson, Writs of Assistance as a Cause of the Revolution, in The Era of the Revolution 40, 75 (Morris ed. 1939). The power to issue a search warrant is a common law power in America as well as England, see Adams v. New York, 192 U.S. 585, 598 (1904); Boyd v. United States, supra, 116 U.S. at 623; United States v. Maresca, 266 Fed. 713, 721 (S.D.N.Y. 1920) (Hough, J.), and in the federal system as well as in the states. While "the whole criminal jurisdiction of the courts of the United States [is] derived from Acts of Congress," Jones v. United States, 137 U.S. 202, 211 (1890), this does not mean that every procedural incident of their jurisdiction is statutory. Until 1917 there was no general statutory authorization for the issuance of federal search warrants; yet it is hard to believe that before then no warrants were issued outside of the few specific areas (discussed in United States v. Jones, 230 Fed. 262, 265-68 (N.D.N.Y. 1916)) in which Congress had explicitly authorized their issuance, usually by United States Commissioners. So we are not surprised to have found cases which assume as if it were an uncontroversial proposition that federal courts could issue such warrants before 1917. See Weeks v. United States, 232 U.S. 383 (1914); In re Jackson, 96 U.S. 727, 733 (1878); Agnello v. United States, 290 Fed. 671, 677 (2d Cir. 1923); but cf. No. 84-1077 United States v. Jones, supra, 230 Fed. at 268. We are only surprised not to have found more such cases. In 1917 Congress enacted as part of the Espionage Act its first and last general authorization to federal courts to issue search warrants. See 40 Stat. 228-230, 18 U.S.C. §§ 611-633 (1940 ed.). Judging from the committee. reports, Congress seems not to have thought it was grant ing the courts a new power as distinct from creating a procedural framework for the exercise of an old one, cf. H.R. Conf. Rep. No. 65, 65th Cong., 1st Sess. 20 (1917); H.R. Conf. Rep. No. 69, 65th Cong., 1st Sess. 20 (1917), although the floor debates indicate that a number of Congressmen-and the Attorney General of the United States-thought that without the new statute the federal courts would be helpless to authorize search warrants outside of the specific areas covered by previous statutes authorizing search warrants. See 55 Cong. Rec. 1838-39, 2065 (1917). When Congress overhauled the federal criminal code in 1948, it repealed most of the search-warrant provisions of the Espionage Act, see Notes of Advisory Committee on Fed. R. Crim. Proc. 41, thereby leaving the matter of search warrants to be governed by rule of court. This broad delegation suggests that Congress views the is suance of federal search warrants as standing on a plane with other procedural powers that courts traditionally have exercised without explicit legislative direction. Additional evidence of this is found in the electroniceavesdropping cases decided by the Supreme Court before the enactment in 1968 of Title III (of which more shortly), which explicitly authorized warrants for electronic eavesdropping. Osborn v. United States, 385 U.S. 323, 32831 (1966), upheld without mention of Rule 41 a federal court order authorizing a police officer to carry a concealed recording device, and Katz v. United States, 389 U.S. 347, 354-56 (1967), stated that a federal warrant could authorize bugging, and made only a passing reference to Rule 41(d) (execution and return). See id. at 355 n. 16. Other authorities for the inherent power of the federal courts to 8 No. 84-1077 issue search warrants include United States v. Williams, 617 F.2d 1063, 1099 (5th Cir. 1980) (en banc) (concurring opinion), and United States v. Yuck Kee, 281 Fed. 228, 23031 (D. Minn. 1922); see also United States v. Cafero, 473 F.2d 489, 499 (3d Cir. 1973). We shall not pretend greater certainty than we feel that the federal courts can authorize new types of search without statutory authorization, though New York Telephone is powerful authority. The historical evidence we have marshaled is, as so commonly is the case, incomplete and enigmatic; and the floor debates on the 1917 searchwarrant provisions are contrary to our position, as is Congress's quick passage of a statute to permit searches for "mere evidence" after the Supreme Court held that the Fourth Amendment did not forbid such searches. See 18 U.S.C. § 3103a; 3 Wright, supra, § 664, at pp. 607-08. But a conclusion that neither Rule 41 nor the inherent common law powers of the federal courts allow warrants for television surveillance would have a most curious implication that in combination with all else we have said persuades us to reject it. A search without a warrant certainly is permissible in an emergency, see, e.g., Welsh v. Wisconsin, 104 S. Ct. 2091, 2097 (1984); Warden v. Hayden, 387 U.S. 294, 297-99 (1967); and a situation in which the FBI had strong reason to believe that an organization was operating a bomb factory but the FBI could not obtain a warrant to conduct the only type of search that would be effective in obtaining necessary evidence of this, because no court had been given authority to issue such a warrant, could fairly be described as an emergency. Therefore the government would have an argument that the fruits of such a search, though it had been conducted without a warrant, would be admissible in the criminal proceeding, provided the search was otherwise reasonable (an important qualification, as we shall see). A holding that federal courts have no power to issue warrants authorizing television surveillance might, therefore, simply validate the conducting of such surveillance without warrants. This would be a Pyrrhic victory for those who view the search |