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- AUSTIN,TEXAS 2'8711 CII**w7FOPglw6.PilAwcr!tmATTORNEY GExv.‘.R*l- January4, 1971 Hon. Wilson E. Speir OPINIONNO. M-769 Director, Texas Department of Public Safety Re: Whether State officers 5805 North LamarBlvd. mayexecute federal search Austin, Texas 78751 warrants issued under the provisions of the federal

‘Comprehensive DrugAbuse Dear Col. Speir: and Control Act”?

Your recent letter to this office requests our opinion as to whether state officers are included as “officers” whoare empowered to execute search warrants under the provisions of the federal “Comprehensive DrugAbuse Prevention, and Control Act of 1970”) Public Law91-, gist Congress, H.R. 18583, October -, 1970. Youcite Section 509(a) of the above law, dealing with search warrants, said section providing as follows:

“Sec. 509(a) Asearch warrant relating to offenses involving controlled substances maybe 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) Anyofficer 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 abuilding, 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 mayand, 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 adirection that the officer executing it shall not be required to give such noti,ce. Anyofffcer acting under such warrant, shall, as -3751-Hon. Wilson E. Speir, page 2 (M-769)

soon as practicable after entering the premises, identify himself andgive the reasons and authorftty for his entrance upon the premises. (Emphasis supplied.) Youthen ask:

“Because of this legislation werequest 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 aproper 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 lawwhich provides in pertinent part:

“Sec. 508 Anyofficer or employee of the Bureau of Narcotics andDangerous 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 noauthority to state officers to execute search warrants under the provisions andterms 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:

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. . .shall be directed to acivil officer of the United States authorized to enforce or assist in enforcing any lawthereof or to aperson 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 sowould not be authorized under this grant of authority to execute afederal search warrant.

Moreover , your Department informs us that noofficers 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 comewithin the purview of Sec. 508of the Comprehensive DrugAbuse Prevention and Control Act and sowould not be authorized -- by the Act -- to gain admittance under a federal search warrant without pose. ” “notice of authority and purWedonot express any opinion herein as to whether state officers maygain admittance to premises under avalid state,search warrant without giving notice of authority and purpose where the circumstances mayindicate that the giving of notice mayendanger the lives of the executing officers or of someperson within the premises or where the circumstances reveal that evidence maybe destroyed if notice is given. SUMMARY

In the absence of conferred authority from the President, state officers maynot execute a federal search warrant issued under the Comprehensive DrugAbuse and Control Act and accordingly maynot gain admission to premises under a federal search warrant without giving notice of authority and purpose0

Prepared by Lonny F. Zwiener Assistant Attorney General

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

APPROVED: OPINIONCOMMITTEE Kerns Taylor; Chairman w. E. Allen, Co-Chairman MaxHamilton S. J. Aronson Melvin Corley James Quick MEADE F. GRIFFIN Staff Legal Assistant ALFREDWALKER Executive Assistant NOLAWHITE First Assistant

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