PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 08-5025

TIMOTHY LEE CLARIDY,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Richard D. Bennett, District Judge.

(1:07-cr-00244-RDB-1)

Argued: December 3, 2009

Decided: April 9, 2010

Before TRAXLER, Chief Judge,

NIEMEYER, Circuit Judge, and

John Preston BAILEY, Chief United States District Judge

for the Northern District of West Virginia,

sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Bailey joined. Chief Judge Traxler

wrote a separate concurring opinion.

COUNSEL

ARGUED: Meghan Suzanne Skelton, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant. Michael Joseph Leotta, OFFICE OF THE

UNITED STATES ATTORNEY, Baltimore, Maryland, for

Appellee. ON BRIEF: James Wyda, Federal Public

Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Philip S. Jackson, Assistant

United State Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Baltimore, Maryland, for Appellee.

OPINION

NIEMEYER, Circuit Judge:

Based on evidence seized during the execution of a search

warrant at a townhouse in Baltimore County, Maryland,

where Timothy Claridy resided, Claridy was convicted of

conspiracy to distribute heroin, in violation of 21 U.S.C.

§ 846; possession with intent to distribute heroin, in violation

of 21 U.S.C. § 841; and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). The district

court sentenced Claridy to 240 months’ imprisonment.

On appeal, Claridy contends that the evidence seized under

the search warrant should have been suppressed because a

federally deputized Baltimore City police officer, participating in a joint task force, obtained the warrant from a state

court judge before an attempt was made to obtain it from a

federal magistrate judge, in violation of Federal Rule of Criminal Procedure 41(b). The Rule authorizes a state judge to

issue a warrant when a federal magistrate judge is not "reasonably available." Claridy also argues that an inculpating

statement that he made several hours after his arrest should be

suppressed because, he claims, it was made after an unreasonable delay, in violation of 18 U.S.C. § 3501(c) and Corley v.

United States, 129 S. Ct. 1558 (2009).

While the applicability of Rule 41 to search warrants

obtained in investigations conducted jointly by federal and

2 UNITED STATES v. CLARIDY
state law enforcement officers has not been clearly defined in

our precedents, we conclude that, based on the circumstances

in this case, Rule 41 did not govern the search warrant challenged by Claridy. Moreover, even if Rule 41 did apply,

Claridy was not prejudiced by the claimed violation and

therefore would not have been entitled to suppression of the

evidence seized during the search. We also reject as unsupported by the evidence Claridy’s argument that his inculpating

statement was made after an unreasonable delay after his

arrest. Accordingly, we affirm.

I

Based on information obtained from confidential informants and by extensive surveillance of Timothy Claridy and

Flora Jones by officers of a joint federal-state lawenforcement task force, Baltimore City Detective Keith Gladstone, who was a 15-year veteran of the Baltimore City Police

Department and had been deputized federally to participate in

the joint task force, obtained a search warrant from a Maryland state court judge. The warrant authorized Baltimore City

and Baltimore County police to search the townhouse where

Claridy and Jones were apparently living and to seize evidence relating to violations of the narcotics laws of the State

of Maryland, particularly Maryland Criminal Code, §§ 5-101

through 5-1101 and § 7-104. Detective Gladstone presented

an application for the search warrant to a Maryland District

Court judge "after hours" on May 21, 2007, and the judge

reviewed the application and signed the warrant. Gladstone

and other officers of the joint task force, including federal

agents, then executed the warrant the next day, on May 22,

2007. Claridy was present during the course of the search and

told the officers before any items were seized that heroin and

a gun were in the upstairs closet. The search resulted in recovery of heroin, a small bag of marijuana, scales, a .357 Smith

and Wesson revolver, and paperwork in Claridy’s name.

The joint task force, of which Detective Gladstone was a

member, was a federally funded effort organized to operate in

UNITED STATES v. CLARIDY 3
a "High Intensity Drug Trafficking Area" (HIDTA), and it

included both agents of the federal Drug Enforcement Administration and local police officers from Baltimore City and

Baltimore County. During the course of its operations, the

HIDTA joint task force made hundreds of arrests relating to

suspected drug-trafficking violations, of which, Detective

Gladstone estimated, 90% resulted in state prosecutions and

10% in federal prosecutions. When the joint task force was

initially investigating Claridy and Jones, it had not been determined whether any crimes that might be uncovered would be

prosecuted in federal court or state court. At the time, the

investigation was "just [a] narcotics investigation[]."

After completing the search of the townhouse, however,

Detective Gladstone took Claridy to Baltimore City Central

Booking as a "federal" detainee and, the next morning, took

him to federal court pursuant to a federal criminal complaint

to make his initial appearance there. Claridy was thereafter

charged by a federal grand jury for violating federal law.

Prior to trial, Claridy filed a motion to suppress the evidence obtained through the warrant based on a violation of

Federal Rule of Criminal Procedure 41(b). He contended that

suppression was warranted because Detective Gladstone had

obtained the warrant from a state judge, without having first

attempted to obtain it from a federal magistrate judge, in violation of the Rule. See Fed. R. Crim. P. 41(b). He argued that

because the investigation was federal in nature, Rule 41

applied, and Detective Gladstone was not authorized to seek

a warrant from a state judge unless he first attempted to get

the warrant from a federal judge and found that one was not

"reasonably available." See id.

The district court denied the motion. While it accepted, for

purposes of argument, that Rule 41 applied to the issuance of

the warrant, it found that even if the Rule had been violated,

there was no evidence of a deliberate disregard for the Rule,

4 UNITED STATES v. CLARIDY
nor evidence of any prejudice caused to Claridy by the violation. Accordingly, it denied the motion to suppress.

Following his conviction by a jury and sentencing, Claridy

filed this appeal, challenging the denial of his motion to suppress. He also seeks, for the first time on appeal, suppression

of a post-arrest inculpating statement, based on his claim that

the statement was made more than six hours after his arrest.

II

Claridy summarizes his principal argument as follows:

[Detective] Gladstone, a federal law enforcement

officer, violated Fed. R. Crim. P. 41 by applying to

a state judge for a warrant, despite the fact that he

was conducting a federal narcotics investigation and

despite the fact that there was no indication that a

federal magistrate was unavailable, contrary to the

plain language of the Rule.1

He asserts that the search violated both Rule 41 and the

Fourth Amendment and that suppression is the appropriate

remedy.

The government argues that Rule 41 must not be interpreted to preclude officers of a joint task force from using

state investigatory tools. It argues:

1Federal Rule of Criminal Procedure 41(b)(1) provides, in relevant part:

At the request of a federal law enforcement officer or an attorney

for the government: (1) a magistrate judge with authority in the

district—or if none is reasonably available, a judge of a state

court of record in the district—has authority to issue a warrant to

search for and seize a person or property located within the district. 

(Emphasis added). 

UNITED STATES v. CLARIDY 5
The State of Maryland has authorized its state law

enforcement officers to bring search warrant applications, premised on violations of state law, to state

judges, as was done here. Overseeing and guiding

state law enforcement has traditionally been the role

of state judges. Although these task-force officers

are cross-designated as federal officers and empowered to enforce federal laws in addition to state laws,

90% of their work is in the state courts. The fact that

the state of Maryland has accepted federal funds and

partnered with the federal government to fight drug

crime does not warrant the loss of state sovereignty

. . . . 

Alternatively, the government argues that any violation of

Rule 41 was "ministerial in nature, and neither prejudiced

[Claridy] nor was a product of deliberate disregard of the

Rule." See United States v. Simons, 206 F.3d 392, 403 (4th

Cir. 2000) (holding that "[n]onconstitutional violations of

Rule 41 warrant suppression only when the defendant is prejudiced" or when the violation is an "intentional and deliberate

disregard of a provision in the Rule").

The issue thus framed raises the question of when Rule 41

applies to search warrants obtained during the course of a

joint federal-state law-enforcement task force investigating

violations of both federal and state law.

We have addressed the issue on a limited basis in several

prior cases. See United States v. Williams, 977 F.2d 866, 869-

70 (4th Cir. 1992); United States v. Smith, 914 F.2d 565, 569

(4th Cir. 1990); United States v. Johnson, 451 F.2d 1321,

1322 (4th Cir. 1971). But in each case we concluded simply

that the arguments advanced by counsel for the appellants

were unsupported by the evidence and never articulated affirmatively the requirements for finding when Rule 41 applies

in a joint federal-state law-enforcement investigation of violations of both federal and state law. In Johnson, the appellants

6 UNITED STATES v. CLARIDY
argued that Rule 41 applied because federal officers "participated" in the search. Johnson, 451 F.2d at 1322. Without

articulating when Rule 41 applies, we rejected the appellants’

argument, concluding that the evidence showed that "federal

agents were present simply as observers and that they did not

participate in the search." Id.

In Smith, the appellants again argued that Rule 41 applied

to a warrant obtained during the course of joint investigation

because "(1) Drug Enforcement Administration agent was

present at the motel during the search and (2) after the search,

the matter became largely a federal prosecution." Smith, 914

F.2d at 569. Again we rejected the argument, stating, "[T]here

is no evidence that [the state police officer] applied for the

warrant at the direction or urging of a federal officer. . . .

Although a DEA agent was present during the search and

requested the motel manager to phone Smith and lure him

from his room, this in itself is insufficient to render the search

a federal one." Smith, 914 F.2d at 569. Again we did not articulate affirmatively the basis for when Rule 41 applies to warrants obtained during the course of an investigation conducted

jointly by federal and state officers.

Finally, in Williams, the appellants argued that Rule 41

applied to a warrant obtained from a state (county) magistrate

during the course of a federal-state investigation because the

participating state officers "had initially intended to prosecute

appellants federally." Williams, 977 F.2d at 869. We again

rejected the argument, noting that Rule 41 can only apply

when "the warrant application was made ‘at the direction or

urging of a federal officers,’" and there was no evidence to

support that claim. 977 F.2d at 870 (quoting Smith, 914 F.2d

at 569 (concluding that "there is no evidence that [the state

officer] applied for the warrant at the direction or urging of

a federal officer")). Other than to reiterate that Rule 41

requires that the application for the warrant be made by a federal officer, we did not otherwise articulate any standards for

determining whether Rule 41 or state law would apply in

UNITED STATES v. CLARIDY 7
obtaining search warrants during a joint federal-state investigation. Our holding was to conclude simply that appellants’

argument was not supported by the evidence. See id. at 870

(holding that "the record here reveals no evidence suggesting

that the warrant obtained by Detective Nido was issued in

response to a directive or urging from [federal] Agent Kennedy, the only federal agent who accompanied the [state] officers during their arrest of appellants and search of the

apartment"); id. (finding that there was also no showing that

the state officers "initially intended to prosecute the case federally," as argued by the appellant).

Thus, we have in our earlier cases recognized, at most, that

Rule 41 requires at least that a federal law enforcement officer, or someone at his direction or urging, apply for a warrant

covered by the Rule. See Fed. R. Crim. P. 41(b). But we have

not gone further to state the standard for when Rule 41 applies

in obtaining search warrants during the course of a joint

federal-state law-enforcement investigation into violations of

both federal and state law or to state from where the standard

is to be derived.

We begin in this case by noting that the Federal Rules of

Criminal Procedure, including Rule 41, govern "criminal proceedings" in the United States courts and, "[w]hen a rule so

states," proceedings before state and local judicial officers.

Fed. R. Crim. P. 1(a) (emphasis added). Rule 41(b) is such a

rule, authorizing state judges to issue search warrants if a federal magistrate judge is not "reasonably available." See also

Fed. R. Crim. P. 3 (authorizing state judges to administer

oaths for the issuance of a criminal complaint); Fed. R. Crim.

P. 4(b)(1)(C), (c)(4)(A) (authorizing return of arrest warrants

to state judges); Fed. R. Crim. P. 5(c)(1)(B) (authorizing state

judges to conduct initial appearances after arrests). When a

state judge acts under the authority of a federal rule, the "proceeding" is a federal proceeding. See Fed. R. Crim. P. 1(a)(2).

Despite the arguments made to us in this case, and indeed

in the other earlier cases cited, urging us to focus almost

8 UNITED STATES v. CLARIDY
entirely on the character of the investigation in which the

search warrant was obtained, see Williams, 977 F.2d at 870;

Smith, 914 F.2d at 569; Johnson, 451 F.2d at 1322, the triggering condition for application of Rule 41 is not a finding

that the investigation was federal in nature but a determination that the proceeding was a federal proceeding. Criminal

investigations are not "proceedings" in United States courts or

state courts, subject to court rules, but rather a function of the

law enforcement officers in the Executive Branch. To be sure,

investigations are typically designed to lead to proceedings

through the prosecution of suspects, and officers frequently

initiate proceedings to aid their investigations, by, for example, going to court to obtain a wiretap, a search warrant, or an

arrest warrant. Nonetheless, Rule 41’s application must hinge

on whether the proceeding, as distinct from the investigation,

was federal.

This is not to say that when federal agents conduct an

investigation into violations of federal law and then proceed

to apply for a search warrant in aid of that investigation, the

question of whether the investigation was federal in nature

does not map nicely onto the question of what body of law

governs the issuance of the warrant. See Williams, 977 F.2d

at 869-70; Smith, 914 F.2d at 569. Indeed, it does. The same

is true of the situation where state officers conduct an investigation into violations of state law, applying for search warrants in aid of the investigation.

When, however, federal and state agencies cooperate and

form a joint law-enforcement effort, investigating violations

of both federal and state law, an application for a search warrant cannot categorically be deemed a "proceeding" governed

by the Federal Rules of Criminal Procedure, based simply on

the role that federal law-enforcement officers played in the

investigation. See, e.g., Smith, 914 F.2d at 569 (observing that

mere involvement of federal officers in the execution of the

search warrants does not trigger application of Rule 41). Such

an investigation is conducted on behalf of both sovereigns,

UNITED STATES v. CLARIDY 9
and its object is to reveal evidence of crime—be it federal

crime or state crime.

Moreover, there is nothing in the Federal Rules of Criminal

Procedure that suggests that in a joint federal-state lawenforcement investigation, all search warrants must be

obtained under Federal Rule of Criminal Procedure 41(b).

Stated differently, nothing in the Federal Rules of Criminal

Procedure suggests that a joint task force cannot use either

federal or state investigatory tools governed, respectively, by

federal or state law. See United States v. Sellers, 483 F.2d 37,

43 (5th Cir. 1973). Restricting warrants issued under state law

to the requirements of Rule 41 in every joint investigation

would "place officers acting jointly on the horns of a dilemma

in deciding whether to charge state or federal crimes. Such

officials should be free to make a considered choice based on

the best available information and unencumbered by merely

technical procedural rules." Id. at 44. We recognize, of

course, that the decision with respect to the court in which

charges are to be brought is often made by the Office of the

United States Attorney and the state prosecutor, not the investigating officer.

Thus, the question of what law governs the application for

a warrant cannot be resolved solely on the basis of the investigation’s character, but instead turns on the nature of the judicial proceeding undertaken during the course of the

investigation, such as a proceeding initiated by the application

for a search warrant. Therefore, when a member of a joint

task force initiates a proceeding in state court to obtain a

search warrant in furtherance of the joint investigation, it is

not only relevant to understand the role of federal officers in

obtaining the warrant and conducting the search, but it is also

necessary to review the details of the proceeding itself to

determine what law the warrant will serve and the scope of

the warrant. Search warrants obtained during a joint federalstate investigation may be authorized by Federal Rule 41(b)

or by state law and may serve to uncover violations of federal

10 UNITED STATES v. CLARIDY
law as well as state law. See Sellers, 483 F.2d at 43 (recognizing that Rule 41(b)’s authorization of state courts to issue

warrants is "in addition to the state-vested power of those

courts" to issue warrants (second emphasis added)). 

In this case, the evidence shows that the HIDTA joint task

force was an ongoing cooperative effort of the federal Drug

Enforcement Agency and the Baltimore City and Baltimore

County police, organized to conduct investigations into drug

and gun violations of both federal and state law, and its investigations indeed led to both federal and state prosecutions,

determined on the basis of the facts uncovered.

The record shows that during the course of the investigation by this joint task force, Detective Gladstone made an

application to a Maryland state judge for a search warrant,

presenting probable cause to believe that Claridy and Jones

were violating Maryland state narcotics laws. The state judge

issued the warrant, directing "[a]ny Police Officer of Baltimore City/Baltimore County . . . to search" the townhouse for

evidence of violations of Maryland’s narcotics law and "to

seize" relevant evidence found there. The warrant directed the

state officer to file a return after execution of the warrant with

the state judge who had signed the warrant. Because the warrant alleged violations of state law, the state judge’s authority

to issue the warrant and supervise its return was conferred by

Maryland law—see Md. Code Ann. Crim. Proc. § 1-203; Md.

R. 4-601—and the authority of Detective Gladstone to execute the warrant came from his position as a "Police Officer

of Baltimore City." Even though he was also deputized as a

federal officer for purposes of participating in the joint task

force, the warrant was directed to a police officer of Baltimore City or Baltimore County. 

While state law might well authorize a judicial officer to

issue a warrant to a federal officer to execute, making closer

the question of whether the federal officer requested the warrant under Rule 41(b), in this case that argument is foreclosed

UNITED STATES v. CLARIDY 11
because the state judicial officer issued the warrant to a Baltimore City police officer for execution. Even if the warrant

was directed more generally to any authorized officer, the fact

that it commanded a search for evidence of a state-law violation would indicate that the warrant proceeding was a state

proceeding, not one under Federal Rule 41(b).

In this case, we readily conclude that the application for the

search warrant initiated a state proceeding governed by state

law and that it was not a federal proceeding governed by Rule

41(b).

This is indicated further by the fact that the state judge

commanded Detective Gladstone to make his return to the

state judge, not to a federal magistrate judge, as he would

have done under Rule 41. See Fed. R. Crim. P. 41(f)(1)(D).

Moreover, there is no evidence that the return was then forwarded to the Clerk in the federal court, as would have been

done had the proceeding been conducted under Rule 41. See

Fed. R. Crim. P. 41(i).

Our conclusion that this was a state warrant proceeding

governed by state law is consistent with the notion that Maryland confers authority to issue warrants independent of the

authority conferred by Rule 41(b). See Sellers, 483 F.2d at 43.

Because we conclude that the legal authorization for the

search warrant in this case was Maryland law, not Rule 41(b),

we reject Claridy’s argument that the evidence should be suppressed because its issuance did not comply with the requirements of Rule 41(b).

Alternatively, if we were to assume, for purposes of discussion, that Rule 41(b) was applicable—presumably based on

the facts deemed important by Claridy that the task force

included federal officers and was federally funded and that

the prosecution was ultimately under federal law—we would

still reject his argument because the purported violations of

12 UNITED STATES v. CLARIDY
Rule 41(b) were nonconstitutional2

 and nonprejudicial. See

Simons, 206 F.3d at 403. Nor is there any evidence that the

purported violations were an intentional and deliberate effort

to disregard or circumvent Rule 41. See id. Thus, even the

violation claimed by Claridy would not justify suppression of

the evidence seized under the warrant.

III

Claridy also claims, for the first time on appeal, that a statement he made during the execution of the search warrant—

that "he had a gun and some heroin, a hundred grams of heroin upstairs in the closet"—should be suppressed because it

was made in violation of the McNabb-Mallory rule, as modified by 18 U.S.C. § 3501.

Section 3501 provides, in relevant part:

In any criminal prosecution by the United States

. . . , a confession made or given by a person who is

a defendant therein, while such person was under

arrest or other detention in the custody of any lawenforcement officer . . . , shall not be inadmissible

solely because of delay in bringing such person

before a magistrate judge . . . if such confession is

found by the trial judge to have been made voluntarily and if the weight to be given the confession is left

2For the first time on appeal, Claridy seeks to argue that the warrant was

not in fact supported by probable cause and therefore that suppression

should result because of a constitutional violation. If the record showed

that he simply failed to make this argument in the district court, we could

find the issue "forfeited" and consider review of it under the plain-error

standard of Federal Rule of Criminal Procedure 52(b). But in this case,

Claridy explicitly waived any objection to probable cause before the district court, admitting that the warrant was supported by probable cause.

When a claim of constitutional error has been waived, it is not reviewable

on appeal. See United States v. Olano, 507 U.S. 725, 732-33 (1993).

Accordingly, we do not address the constitutional argument. 

UNITED STATES v. CLARIDY 13
to the jury and if such confession was made or given

by such person within six hours immediately following his arrest or other detention: Provided, That the

time limitation contained in this subsection shall not

apply in any case in which the delay in bringing such

person before such magistrate judge or other officer

beyond such six-hour period is found by the trial

judge to be reasonable considering the means of

transportation and the distance to be traveled to the

nearest available such magistrate judge or other officer.

18 U.S.C. § 3501(c) (first emphasis added). The Supreme

Court recently applied § 3501(c), holding that statements

made by an arrestee more than six hours after arrest and

before the defendant’s presentment to a magistrate judge may

be suppressed if the court determines that the delay in presentment was "unreasonable or unnecessary under the McNabbMallory cases." Corley v. United States, 129 S. Ct. 1558,

1571 (2009). The McNabb-Mallory cases, in turn, held that

even voluntary confessions made prior to an arrestee being

presented to the magistrate judge should be suppressed if presentment was unreasonably delayed. See McNabb v. United

States, 318 U.S. 332, 345 (1943); Mallory v. United States,

354 U.S. 449, 455 (1957). In short, a confession must be suppressed if (1) it was made prior to the arrestee’s presentment

to a magistrate judge; (2) the presentment to a magistrate

judge was unreasonably or unnecessarily delayed; and (3) the

confession was made more than six hours after the arrest or

detention. See Corley, 129 S. Ct. at 1571.

Claridy contends that his statement, made after the search

began—which was at about 2:00 p.m. on May 22, 2007—and

before 6:36 p.m., when he was booked at Baltimore City Central Booking, should be suppressed because the statement was

made more than six hours after his arrest. He argues that

because he was arrested at about 11:00 a.m., a statement made

between 2:00 p.m. and 6:36 p.m. could be more than six hours

14 UNITED STATES v. CLARIDY
after his arrest. Accordingly, he requests that the statement be

suppressed or, alternatively, that the issue be remanded to the

district court for factfinding.

Claridy did not preserve this issue in the district court.

Therefore, we review his argument under the plain-error standard. Under Rule 52(b), for a court of appeals to correct an

error not raised in the district court, "there must be (1) ‘error,’

(2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’"

Johnson v. United States, 520 U.S. 461, 466-67 (1997) (quoting Olano, 507 U.S. at 732). Plain error review is discretionary, however, and a court of appeals should exercise its

discretion to notice a forfeited error only if the error "‘seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.’" Id. at 467 (quoting Olano, 507 U.S. at

732). The burden of demonstrating the requirements of plain

error falls on Claridy. See Olano, 507 U.S. at 734-35.

In this case, Claridy has failed to carry his burden. First, he

is unable to demonstrate that the statement he seeks to suppress was made more than six hours after his arrest. The evidence shows that Claridy was arrested at 11:00 a.m. and

thereafter taken to the townhouse where he lived at approximately 2:00 p.m. He made the statement during the course of

the search of the townhouse that followed, but probably early

on. As Detective Gladstone testified, "So upon making entry,

[Claridy] was secured on the first floor and we began . . . executing the search warrant and Mr. Claridy related to Agent

Malone that he had a gun and some heroin, a hundred grams

of heroin upstairs in the closet." At that point in the search,

no items had yet been recovered. After the statement, the officers recovered the handgun and heroin where Claridy had told

them they were located, and the officers also recovered scales,

marijuana, and paperwork in Claridy’s name. After completing the search of the townhouse, the officers then took Claridy

to two other addresses that were searched before they drove

him to Baltimore City Central Booking, where he was booked

at 6:36 p.m. In light of this sequence, Claridy simply cannot

UNITED STATES v. CLARIDY 15
demonstrate that he made his statement after 5:00 p.m. (six

hours after his arrest at 11:00 a.m.). Indeed, all indications

suggest that he made the statement during the early portion of

the search, which began at 2:00 p.m. Regardless of precisely

when he made the statement, the burden is on Claridy to demonstrate that he made the statement more than six hours after

his arrest and that this period was unreasonable in the circumstances. This he has failed to do.

In addition, the error Claridy claims could not have affected

his substantial rights, inasmuch as the statement contributed

nothing to the search or to the prosecution. Shortly after

Claridy was arrested at about 11:00 a.m., he told Detective

Gladstone that there was a key on his key ring that opened the

townhouse front door and that "he had a handgun in the residence, in the bedroom closet." Moreover, because the handgun was visible upon an inspection of the closet, it surely

would have been discovered during the course of the search,

even had Claridy said nothing.

For these reasons, we will not take notice of the error

claimed by Claridy, if indeed there was error.

For the foregoing reasons, the judgment of the district court

is 

AFFIRMED.

TRAXLER, Chief Judge, concurring:

I concur in Parts I and III of Judge Niemeyer’s opinion and

in the result reached in Part II. However, because my analysis

of Claridy’s claim that the district court erred in refusing to

suppress the fruit of the search warrant diverges from Judge

Niemeyer’s, I write separately regarding that claim.

In analyzing Claridy’s motion to suppress this evidence, the

district court noted that a "threshold issue is whether the

16 UNITED STATES v. CLARIDY
search was federal or state in nature, because compliance with

Rule 41 is only required for federal searches." United States

v. Claridy, 2007 WL 4554017, at *3 (D. Md. Dec. 18, 2007).

In this regard, the court stated that "the test to be applied in

determining whether a warrant must be obtained in compliance with Rule 41(b) is whether the warrant application was

made at the direction or urging of a federal officer." Id. (internal quotation marks and alteration omitted). The court concluded that the test was satisfied and that Rule 41 was

triggered. See id. In so doing, the district court noted that the

investigation and searches were conducted by members of the

task force, all of whom were federal officers or federally deputized. See id. The court also observed that after Claridy was

arrested, Detective Gladstone had told him that he was the target of a federal drug investigation and Claridy "was designated as a federal detainee by the Division of Pretrial

Detention and Services of the Maryland Department of Public

Safety and Correctional Services." Id.

Having found that Rule 41 applied to the search, the district

court did not explicitly decide whether Gladstone had violated

the rule. See id. at *4. The court did not do so because it concluded that even if a violation occurred, the violation would

not warrant suppression of the fruit of the searches because it

did not amount to a constitutional violation, the defendants

were not prejudiced by any violation of the rule, and neither

Gladstone nor any other task force member had acted with

deliberate disregard for Rule 41(b). See id.

The government now argues that we should affirm the

denial of Claridy’s suppression motion on the basis that the

district court erred in concluding that Gladstone was required

to comply with federal Rule 41 in obtaining the search warrant. The relevant facts are not in dispute, and the correctness

of the district court’s legal conclusion that those facts required

Gladstone to comply with federal Rule 41 in obtaining the

warrant is an issue we review de novo. See United States v.

Kimbrough, 477 F.3d 144, 147 (4th Cir. 2007) (explaining

UNITED STATES v. CLARIDY 17
that we review fact findings underlying a suppression order

for clear error and review de novo the legal conclusions

underlying such an order).

Gladstone, a Baltimore City police officer, obtained his

warrant under Maryland Code of Criminal Procedure § 1-203,

which provides in pertinent part:

A circuit court judge or District Court judge may

issue forthwith a search warrant whenever it is made

to appear to the judge, by application as described in

paragraph (2) of this subsection, that there is probable cause to believe that:

(i) a misdemeanor or felony is being committed by a person or in a building, apartment, premises, place, or thing within the

territorial jurisdiction of the judge; or

(ii) property subject to seizure under the

criminal laws of the State is on the person

or in or on the building, apartment, premises, place, or thing.

Md. Code, Crim. Proc. § 1-203(a)(1). Federal Rule of Criminal Procedure 41(b), with which Claridy claims Gladstone

was required to comply in obtaining his warrant, provides, in

pertinent part:

Authority to Issue a Warrant. At the request of a

federal law enforcement officer or an attorney for the

government:

(1) a magistrate judge with authority in the

district—or if none is reasonably available,

a judge of a state court of record in the district — has authority to issue a warrant to

18 UNITED STATES v. CLARIDY
search for and seize a person or property

located within the district.

Fed. R. Crim. P. 41(b)(1). 

In my view, the inquiry into whether Gladstone was

required to comply with Rule 41 in obtaining the warrant

must begin with United States v. Williams, 977 F.2d 866 (4th

Cir. 1992). In Williams, a state police officer obtained a

search warrant from a county magistrate based on probable

cause that evidence of crack cocaine crimes would be found

at the place to be searched. As part of his training, a federal

officer accompanied state officers in executing the warrant.

The defendants, upon their arrests, were "booked . . . as federal prisoners," and an assistant United States Attorney indicated that they would be federally prosecuted. Id. at 868.

Seeking to suppress the fruit of the search, the defendants

contended that the officer had been required to obtain the warrant in compliance with Rule 41 because the officers had

intended from the beginning that the case would be prosecuted federally. The district court rejected the defendants’

argument, finding that the decision to proceed federally was

made after the search warrant had been obtained and executed. The defendants reiterated their argument on appeal, and

we affirmed. In so doing, we explained that "the test to be

applied in determining whether a warrant must be obtained in

compliance with Rule 41(a) is whether the warrant application

was made ‘at the direction or urging of a federal officer.’" Id.

at 870 (quoting United States v. Smith, 914 F.2d 565 (4th Cir.

1990)); see also United States v. Clyburn, 24 F.3d 613, 616

(4th Cir. 1994) (applying the same test). Because that test had

not been satisfied and because there had not been any showing that the officers had intended from the beginning that the

case would be prosecuted federally, we held that the warrant

had been properly obtained. See Williams, 977 F.2d at 870.

Thus, under the test set out in Williams, the critical time is

when the warrant application is made. It is as of that time that

UNITED STATES v. CLARIDY 19
we look to see if the warrant was sought "at the direction or

urging of a federal officer." Events that occur and statements

that are made after the warrant is applied for, while not necessarily irrelevant to that inquiry, must be considered with the

realization that the character of an investigation can change as

the investigation progresses, as can the intent as to what jurisdiction should prosecute the case. Often this depends on what

is discovered during the search and on other factors that may

interest a particular law enforcement agency or prosecutor.

The evidence here is uncontradicted that Gladstone was a

state law enforcement officer who was also a member of a

state-federal task force. Because he had been assigned by his

department to the task force, he had been deputized as a federal officer. However, this designation alone did not make all

of his activities those of a federal officer, nor did it make all

of his investigations federal. In fact, the vast majority of his

work continued to be the investigation of crimes for prosecution in the state courts of Maryland. He testified that during

his time on the task force, he had participated in hundreds of

arrests related to narcotics violations and that 90% of those

crimes were prosecuted in state court.

In this particular case, Gladstone testified that the investigation of Claridy was "conducted by local law enforcement

agencies." J.A. 86. When Gladstone received his initial information from his confidential informants, he shared it only

with his sergeant, a Baltimore City police officer. Gladstone

then undertook, with the help of Baltimore City Police Detective William Bearde, to confirm some of the information and

to apply for the warrants once he had obtained the information

he needed. There is not one mention in the record of involvement by any member of any federal law enforcement agency

before the search warrants were issued. For Gladstone, it was

simply business as usual, and from this there can be but one

conclusion—no federal officer directed or urged Gladstone to

get these warrants.

20 UNITED STATES v. CLARIDY
Claridy argues that the evidence shows Gladstone intended

the case to be prosecuted in federal court all along. No evidence supports that conclusion, however. Gladstone testified

that, prior to seeking the warrant, he had not reached out to

any federal authority in an attempt to have Claridy’s case

prosecuted federally. And as I have noted, in 90% of the

narcotics-related arrests that Gladstone participated in during

his time with the task force, the suspects were prosecuted in

state court. Gladstone’s comment to Claridy that he had been

the subject of a federal investigation was made only after execution of one of the warrants uncovered $7,999 in Claridy’s

car. The comment gave no indication that Gladstone viewed

the case as anything other than a normal task-force investigation. Indeed, Gladstone testified that he only described it as

"federal" to emphasize to Claridy the "seriousness of the situation." J.A. 93. Nor did Claridy’s designation as a federal

detainee after execution of the warrants indicate that any decision that the case would be federally prosecuted had been

made beforehand. See Williams, 977 F.2d at 870 (affording no

significance to the fact that the defendant was booked federally). And, although some of the officers assisting in the execution of the search warrants were DEA agents, I note that the

use of other task force officers as support for an arrest or

search is common, and their performing this role would not

support an inference that a decision had been made to federally prosecute the case. 

Under these circumstances, I would hold that the only conclusion that could be drawn from the record before us is that

Gladstone was not required to comply with federal Rule 41 in

obtaining the warrant relating to state-law crimes, but rather

was free to use the same Maryland procedure that any other

Baltimore city police officer could employ. In any event, for

the reasons Judge Niemeyer explains, even assuming Gladstone violated Rule 41, such a violation would not warrant

suppression of the fruit of the search. See ante, at 12-13 &

n.2. I therefore agree that the district court properly denied

Claridy’s suppression motion.

UNITED STATES v. CLARIDY 21