George M. Mitchell v. United States ( 1958 )

PER CURIAM.

Armed with a search warrant, officers found contraband drugs in Mitchell’s house and in his immediate possession. His pre-trial motion to suppress, based upon a claim that the Commissioner issued the warrant without a proper showing of probable cause, was denied. The motion was renewed at the trial and again denied. Having been found guilty by the jury, Mitchell appeals.

He assigns as error the trial court’s denial of the motion to suppress and its refusal to grant his motion for judgment of acquittal made at the conclusion of the Government’s proof. We think the District Judge acted correctly in denying the motions.

The search warrant was issued February 12, 1957, but was not executed until February 17, 1957. This delay was not made the basis of an objection, and appellant made no point of it on appeal. Nevertheless, although he notes that Mitchell “did not object to the warrant on the ground of unseasonable execution” and concludes that “That objection is therefore not available to him on appeal,” our brother Bazelon discusses the matter and expresses the view that a search warrant is not executed “forthwith” when five days intervene between its issue and execution.

While it is true that Rule 41(c) of the Federal Rules of Criminal Procedure ^* provides that a search warrant “shall command the officer to search forthwith the person or place named for the property specified,” subsection (d) of the same Rule begins: “The warrant may be executed and returned only within 10 days after its date.” Thus the federal rule defines the word “forthwith” by limiting the time of the search to ten days after the issuance of the warrant. Sgro v. United States, 1932, 287 U.S. 206, 53 S. Ct. 138, 77 L.Ed. 260; Murby v. United States, 1 Cir., 1924, 2 F.2d 56.

Affirmed.

* 18 U.S.C.A.