- - 

- 

AUSTIN,TEXAS 2'8711 

CII**w7FOPglw 6. PilAwcr!tmATTORNEY GExv.‘.R*l- January 4, 1971 

Hon. Wilson E. Speir OPINION NO. M-769 

Director, Texas Department 

of Public Safety Re: Whether State officers 

5805 North Lamar Blvd. may execute federal search 

Austin, Texas 78751 warrants issued under the 

provisions of the federal 

‘Comprehensive Drug Abuse 

Dear Col. Speir: and Control Act”? 

Your recent letter to this office requests our opinion 

as to whether state officers are included as “officers” who are 

empowered to execute search warrants under the provisions of the 

federal “Comprehensive Drug Abuse Prevention, and Control Act of 

1970”) Public Law 91 -, gist Congress, H.R. 18583, October -, 

1970. You cite Section 509(a) of the above law, dealing with 

search warrants, said section providing as follows: 

“Sec. 509(a) A search warrant relating to 

offenses involving controlled substances 

may be served at any time of the day or 

night if the judge or United States magistrate issuing the warrant is satisfied that 

there is probable cause to believe that 

grounds exist for the warrant and for Its 

service at such time. 

“(b) Any officer authorized to execute a 

search warrant relating to offenses involving controlled substances the penalty 

for which is imprisonment for more than 

one year may, without notice of his authority and purpose, break open an outer 

or inner door or window of a building, or 

any part of the building. or anything 

therein, if the judge or United States 

magistrate issuing the warrant (1) is satisfied that there is probable cause to believe that (A) the property sought may and, 

if such notice is given, will be easily and 

quickly destroyed or d-fsposed of, or (B) 

the giving of such notice will immediately 

endanger the life or safety of the executing officer or another person, and (2) 

has included in the warrant a direction 

that the officer executing it shall not 

be required to give such noti,ce. Any offfcer acting under such warrant, shall, as 

-3751- 
Hon. Wilson E. Speir, page 2 (M-769) 

soon as practicable after entering the 

premises, identify himself and give the 

reasons and authorftty for his entrance 

upon the premises. (Emphasis supplied.) 

You then ask: 

“Because of this legislation we request 

your opinion as to whether or not State 

officers are included within the purview 

of this Section, and particularly whether 

or not they may, assuming a proper warrant, be authorized to gain admittance 

into the premises covered by the warrant 

under these so-called “no-knock” provisions. ” 

Your attention is directed to Section 508 of the subject law which provides in pertinent part: 

“Sec. 508 Any officer or employee of the 

Bureau of Narcotics and Dangerous Drug 

designated by the Attorney General may-- 

“(1) . . . . . 

execute and serve search warrants, 

iSZ2st warrants , administrative inspection warrants, subpenas, and summonses 

issued under the authority of the United 

States; 

“(3) . . .I’ (Emphasis added .) 

It is clear that state officers are not “officer 

employee(s) of the Bureau of Narcotics and Dangerous Drug 

designated by the Attorney General”. It follows that Sec. 

grants no authority to state officers to execute search warrants 

under the provisions and terms of Sec. 509. 

The federal law dealing with searches and seizures 

and search warrants generally is expressed in Rule 41, Federal 

Rules of Criminal Procedure. Section (C) of Rule 41 provides 

that a search warrant: 

11 

. . . 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.” 

‘(Emphasis added, ) 

-3752- 
Hon. Wilson E. Speir, page 3 ( M-769) 

It is likewise clear that state officers are not 

“civil officer(s) of the United States” and so would not be 

authorized under this grant of authority to execute a federal 

search warrant. 

Moreover , your Department informs us that no officers of your department have been authorized by the President 

to enforce laws of the United States nor, to its knowledge, 

has any other state officer been so authorized. 

Accordingly, it is our opinion that state officers 

do not come within the purview of Sec. 508 of the Comprehensive Drug Abuse Prevention and Control Act and so would not 

be authorized -- by the Act -- to gain admittance under a 

federal search warrant without 

pose. ” 

“notice of authority and purWe do not express any opinion herein as to whether 

state officers may gain admittance to premises under a valid 

state,search warrant without giving notice of authority and 

purpose where the circumstances may indicate that the giving 

of notice may endanger the lives of the executing officers 

or of some person within the premises or where the circumstances reveal that evidence may be destroyed if notice is 

given. 

SUMMARY 

In the absence of conferred authority from 

the President, state officers may not execute a federal search warrant issued under 

the Comprehensive Drug Abuse and Control 

Act and accordingly may not gain admission 

to premises under a federal search warrant 

without giving notice of authority and purpose 0 

Prepared by Lonny F. Zwiener 

Assistant Attorney General 

-3753- 
. . 

Hon. Wilson E. Speir, Page 4 ( M-769) 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor; Chairman 

w. E. Allen, Co-Chairman 

Max Hamilton 

S. J. Aronson 

Melvin Corley 

James Quick 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-3754-