U.S. v. Cherna, 98-11097

Citation184 F.3d 403
Decision Date04 August 1999
Docket NumberNo. 98-11097,98-11097
Parties(5th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARVIN B CHERNA, Defendant-Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Texas

Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

KING, Chief Judge:

Defendant-appellant Marvin B. Cherna appeals his conditional plea of guilty to one count of mail fraud in violation of 18 U.S.C. 1341 on the ground that the district court erred in denying his motion to suppress evidence obtained pursuant to an allegedly unconstitutional search warrant. Because we find that the executing officers acted in objectively reasonable good-faith reliance on the warrant, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

In 1997, defendant-appellant Marvin B. Cherna was the executive director of Help Hospitalized Children's Fund (HHCF) and American Veterans' Relief Fund (AVRF), two charities based in Dallas, Texas. On May 19, 1997, Special Agent Loretta Smitherman of the Federal Bureau of Investigation (FBI) applied to Magistrate Judge John Tolle of the Northern District of Texas for a warrant to search Cherna's business and residence, both of which, she alleged, were located at 7610 Meadow Oaks Drive in Dallas, Texas. The application for the warrant referred to two documents: Attachment A, which set forth the place to be searched, and Attachment B, which described the evidence to be seized. Smitherman's affidavit in support of probable cause was also attached to the application. Without hearing oral testimony, Magistrate Judge Tolle issued a search warrant that authorized officers to search the premises described in Attachment A and to seize the property described in Attachment B. Attachment A stated that the "offices of HELP HOSPITALIZED CHILDREN'S FUND (HHCF) and AMERICAN VETERANS' RELIEF FUND (AVRF) are located at 7610 Meadow Oaks Drive, Dallas, Texas including all rooms/parts of the residence and the attached garage." Attachment B described the evidence subject to seizure thus: "Records and items related to Fraud by Wire and Mail Fraud as described in the affidavit of FBI agent Loretta Smitherman, within the premises of 7610 Meadow Oaks Drive, Dallas, Texas, including, but not limited to the following, however maintained," followed by a list of twenty-six categories of evidence, primarily written and electronic documents. Smitherman's affidavit was not, however, physically attached to the search warrant.

The next day, May 20, 1997, six FBI agents executed the search warrant under Smitherman's direction. The agents were required by FBI policy to read the warrant, the accompanying documents, and the affidavit prior to participating in the search and to sign the back of the warrant to show that they had done so. Smitherman did not know whether several other FBI employees who assisted in the search but did not participate in seizing evidence read the affidavit. Cherna was given a copy of the warrant and Attachments A and B but, although it was present in Smitherman's vehicle throughout the search, he was not shown the affidavit because it had been placed under seal. Upon entering the premises at 7610 Meadow Oaks Drive, the agents determined that four rooms were being used as office space and that the garage had been converted into a telemarketing room and a storage room for records. They did not limit their search to only these rooms, however, but also searched all areas in the residence where records might be stored, including the bedroom, kitchen, and living room. At the conclusion of the search, the agents left with Cherna the warrant, the attachments, and an inventory of seized property.

On March 3, 1998, a grand jury in the Northern District of Texas returned an indictment charging Cherna with thirteen counts of mail fraud perpetrated by soliciting funds for two non-profit entities and then converting the contributions received to his own use. Cherna filed a motion to suppress all evidence seized in the May 20, 1997 search. The district court denied this motion, concluding that "Attachment B to the search warrant sets out with sufficient particularity twenty-six types of items to be seized so as to remove the warrant from the purview of a general warrant" and, in the alternative, that "the officers executing the warrant acted in good faith and in reasonable reliance upon the warrant's validity, thereby avoiding the Fourth Amendment's exclusionary rule." Cherna then entered a conditional plea of guilty to one count of the indictment, reserving his right to appeal the district court's adverse ruling on his motion to suppress. The district court sentenced him to a four-year prison term and a $12,500.00 fine. Cherna appealed.

II. STANDARD OF REVIEW

When reviewing the denial of a motion to suppress, we review factual findings for clear error and the trial court's conclusions as to the constitutionality of law enforcement action and the sufficiency of a warrant de novo. See United States v. Kelley, 140 F.3d 596, 601 (5th Cir.), cert. denied, 119 S. Ct. 186 (1998). The district court's determination of the reasonableness of a law enforcement officer's reliance upon a warrant issued by a magistrate--for purposes of determining the applicability of the good-faith exception to the exclusionary rule--is also reviewed de novo. See United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992).

III. DISCUSSION

On appeal, Cherna attacks the search warrant on two grounds. First, he contends that it is an unconstitutional general warrant. Cherna argues that the warrant's general grant of authority to seize "[r]ecords and items related to Fraud by Wire and Mail Fraud as described in the affidavit of FBI agent Loretta Smitherman . . . , including, but not limited to" twenty-six categories of evidence does not describe the evidence sought with sufficient particularity. Although the warrant refers to Smitherman's affidavit, Cherna contends, the affidavit cannot save the warrant because it was neither attached thereto nor shown to Cherna. Second, Cherna maintains that the warrant was unsupported by probable cause.

We employ a two-step process for reviewing a district court's denial of a motion to suppress when a search warrant is involved. See United States v. Lampton, 158 F.3d 251, 258 (5th Cir. 1998), cert. denied, 119 S. Ct. 1124 (1999). First, we determine whether the good-faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984), applies. If so, we end our analysis and affirm the district court's decision to deny the motion to suppress. See Satterwhite, 980 F.2d at 320. If not, we proceed to the second step, in which we "'ensure that the magistrate had a substantial basis for . . . concluding that probable cause existed.'" United States v. Pena-Rodriguez, 110 F.3d 1120, 1129 (5th Cir.) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)), cert. denied, 118 S. Ct. 71 (1997). If the good-faith exception applies, we need not reach the question of probable cause. See id.; see also United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988) ("Principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of the evidence under Leon will resolve the matter.").

We begin our analysis of the good-faith exception with Leon. In that case, the Supreme Court held that the Fourth Amendment does not require the suppression of evidence obtained as a result of objectively reasonable reliance on a warrant, even if the warrant is subsequently invalidated. See Leon, 468 U.S. at 922. Although the Court noted that "[w]hen officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time," id. at 924, it also cautioned that "the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued," id. at 922-23 (footnotes and citation omitted). Thus, the good-faith exception does not apply when "the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth." Id. at 923. Similarly, suppression remains an appropriate remedy where the issuing magistrate "wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant." Id. Nor is the exception available to an officer who relies on a warrant based on an affidavit "'so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable.'" Id. (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring)). "Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient--i.e., in failing to particularize the place to be searched or the things to be seized--that the executing officers cannot reasonably presume it to be valid." Id.

Cherna contends that the last three situations obtain here. First, he asserts that "the Warrant represents a complete abdication by the Magistrate Judge of his authority to determine what can and cannot be seized." As we explained above, Leon teaches that the good-faith exception will not apply where the magistrate conducted himself as did his counterpart in Lo-Ji Sales. In that case, an investigator purchased two films from a so-called "adult" bookstore, concluded that they violated state...

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