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                                  AUSTIN,TEXAS            2'8711
CII**w7FOPglw 6. PilAwcr!tm-
  ATTORNEY    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 magis-
                    trate    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        in-
                    volving    controlled      substances       the penalty
                    for which is imprisonment            for more than
                    one year may, without          notice     of his au-
                    thority    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 sat-
                    isfied    that there is probable            cause to be-
                    lieve    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 execu-
                    ting 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 offf-
                    cer acting      under such warrant,           shall,     as
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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 war-
              rant, be authorized    to gain admittance
              into the premises covered      by the warrant
              under these so-called    “no-knock”    provi-
              sions. ”

            Your attention                   is directed   to Section   508   of   the   sub-
ject   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     inspec-
              tion 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:

                      . shall  be directed    to a civil  of-
              11
                 .  .

              ficer     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, )
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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 offi-
cers 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 Comprehen-
sive Drug Abuse Prevention     and Control   Act and so would not
be authorized    -- by the Act -- to gain admittance       under a
federal  search warrant without    “notice   of  authority   and pur-
pose. ”

             We 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 circum-
stances    reveal   that evidence  may be destroyed       if notice     is
given.

                              SUMMARY

              In the absence    of conferred    authority    from
              the President,    state officers    may not exe-
              cute 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 pur-
              pose 0




Prepared    by Lonny F. Zwiener
Assistant    Attorney General


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                                              .   .




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

MEADEF. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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