452 F.3d 433 (6th Cir. 2006), 03-5582, Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco and Firearms

Docket Nº:Keith B. BARANSKI, d/b/a Magua Industries (03-5582), and Pars International Corporation (03-5614), Plaintiffs-Appellants,
Citation:452 F.3d 433
Case Date:July 03, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

Page 433

452 F.3d 433 (6th Cir. 2006)

Keith B. BARANSKI, d/b/a Magua Industries (03-5582), and Pars International Corporation (03-5614), Plaintiffs-Appellants,

v.

FIFTEEN UNKNOWN AGENTS OF THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, Brian Dixon, Michael R. Johnson, Douglas R. Dawson, Mark S. James, Karl L. Stankovic and William J. Hoover, Defendants-Appellees.

Nos. 03-5582, 03-5614.

United States Court of Appeals, Sixth Circuit.

July 3, 2006

Argued: December 7, 2005

Appeal from the United States District Court for the Western District of Kentucky at Louisville, 01-00398—John G. Heybum II, Chief District Judge.

Page 434

[Copyrighted Material Omitted]

Page 435

COUNSEL

ARGUED:

Richard E. Gardiner, Fairfax, Virginia, Saeid Shafizadeh, Louisville, Kentucky, for Appellants.

Howard S. Scher, United States Department of Justice, Washington, D.C., for Appellees.

ON BRIEF:

Richard E. Gardiner, Fairfax, Virginia, Saeid Shafizadeh, Louisville, Kentucky, for Appellants.

Howard S. Scher, Barbara L. Herwig, United States Department of Justice, Washington, D.C., for Appellees.

SUTTON, J., delivered the opinion of the court, in which BOGGS, C. J., BATCHELDER, GIBBONS, COOK, McKEAGUE, and GRIFFIN, JJ., joined and in which GILMAN, J., joined as to Part II.B.

GILMAN, J. (p. 450), delivered a separate opinion concurring in the judgment, in which DAUGHTREY, J., joined.

CLAY, J. (pp. 450 - 465), delivered a separate dissenting opinion in which MARTIN, MOORE, and COLE, JJ., joined and in which GILMAN, J., joined as to Part II.A.

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, SUTTON, COOK, McKEAGUE, GRIFFIN, and NEILSON, Circuit Judges.[*]

OPINION

SUTTON, Circuit Judge.

The Fourth Amendment provides in part that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or

Page 436

things to be seized." In this case, several agents of the United States Bureau of Alcohol, Tobacco and Firearms (B ATF) obtained a search warrant that satisfied the particularity requirements of the Fourth Amendment at the time the magistrate issued the warrant. But by the time the agents conducted the search, a supporting affidavit that was cross-referenced in the warrant and that particularly described the things to be seized had been placed under seal and thus was not present during the search.

In this money-damages action filed against the agents under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), Keith Baranski and Pars International Corporation contend that the agents' search of a warehouse owned by Pars and seizure of weapons owned by Baranski violated their Fourth Amendment rights. Because the warrant described the items to be seized when the magistrate "issue[d]" it, the warrant satisfied the particularity requirements of the Fourth Amendment. And because the agents conducted the search in a reasonable manner, they did not otherwise violate the Fourth Amendment. We therefore affirm the judgment of the district court in favor of the agents.

I.

In September 1999, Keith Baranski, a licensed firearms dealer, began importing machine guns from Eastern European countries. United States v. Baranski, 75 F. App'x 566, 567 (8th Cir. 2003). He imported the guns through a bonded customs warehouse owned by Pars and located in Louisville, Kentucky, where federal law required Baranski to keep the guns until he could sell them to eligible law enforcement departments.

Instead of selling the guns to eligible buyers, however, Baranski obtained forged letters of interest from a police chief located in Farber, Missouri, so that he could remove the weapons from the warehouse and could sell them illegally. BATF agent Michael Johnson uncovered the scheme when he found documents in a Missouri gun dealer's shop that linked Baranski to the dealer and when he learned that one of Baranski's letters of interest was forged, id. at 567.

On April 10, 2001, Johnson applied for a search warrant from a magistrate judge in Louisville, Kentucky, to allow him to search for and seize "about 425" weapons still being held by Baranski at the Pars warehouse. JA 120. As part of the warrant application, Johnson prepared an affidavit explaining Baranski's scheme, detailing the probable cause for the search, identifying the bonded section of the warehouse as the place to be searched and identifying the machine guns as the items to be seized. In the location on the search warrant for describing the things to be seized, the warrant did not separately list those items but said "See Attached Affidavit," which described the things to be seized. JA 91.

That same day, the magistrate judge approved the warrant. In doing so, he separately signed both the search warrant and the attached affidavit, then sealed the affidavit to protect the BATF's confidential sources. D. Ct. Op. at 2.

On April 11, 2001, Johnson led approximately 20 BATF agents to the Pars warehouse to execute the warrant. Upon reaching the warehouse, the agents were met by Saeid Shafizadeh, an attorney for Pars, who asked to see the warrant. After reading the warrant, Shafizadeh asked to see the affidavit, at which point the officers told him that it was under seal. One agent then told Shafizadeh that they were looking for firearms owned by Baranski (or by

Page 437

his company, Magua Industries) located in the bonded section of the warehouse. Shafizadeh complained that the search was illegal because the warrant itself failed to describe with particularity what the agents could seize, but nonetheless cooperated with the agents. At Shafizadeh's direction, several United States Customs agents, who had recently inventoried the warehouse, escorted the agents to the basement of the building where the bonded warehouse was located. Once in the bonded warehouse, the agents seized 372 machine guns and 12 crates of firearm accessories belonging to Baranski. Id. upon leaving the warehouse, the agents left an inventory of the seized items, id., and a copy of the search warrant with Shafizadeh, id.

On July 5, 2001, Baranski and Pars filed this money-damages action in the United States District Court for the Western District of Kentucky. As pertinent here, they (1) brought a Bivens claim against Johnson and several named and unnamed agents, contending that the agents had violated their Fourth Amendment rights and (2) separately moved to unseal the affidavit referenced in the search warrant. On March 22, 2002, the district court denied plaintiffs' motion to unseal the affidavit and stayed the Bivens action pending the completion of the criminal investigation of Baranski.

On July 3, 2002, a grand jury based in the Eastern District of Missouri indicted Baranski for making "a false entry on any application, return, or record required by [the firearm importation laws], knowing such entry to be false." 26 U.S.C. § 5861(1). The indictment also sought criminal forfeiture of the guns and accessories seized in the April 11 search. Baranski moved to suppress the machine guns and accessories on Fourth Amendment grounds. The district court denied the motion. United States v. Baranski, no. 4:02-CR-361, slip op. at *4-5 (E.D. Mo. Nov. 1, 2002). On November 18, 2002, a jury found Baranski guilty of violating § 5861(1), and the court sentenced him to 60 months in prison. Baranski, 75 F. App'x at 568. Three months later, on February 27, 2003, the district court required Baranski to forfeit the weapons and accessories.

The Eighth Circuit affirmed. As to the suppression ruling, the court concluded that probable cause supported the warrant and that "[t]he warrant should not have been suppressed for lack of particularity. Although the warrant did not set out the property to be seized, the warrant referred to a sealed affidavit that described the weapons." Baranski, 75 F. App'x at 568. Any error in denying the motion to suppress, the court added, was harmless in view of the other evidence admitted against Baranski. Id. the court also upheld Baranski's conviction and sentence as well as the forfeiture of his property. Id. at 569.

After Baranski's conviction, the United States District Court for the Western District of Kentucky lifted the stay on Baranski's Bivens claim and unsealed agent Johnson's affidavit. On March 14, 2003, the district court granted the agents' claim of qualified immunity, holding that the search did not violate the Fourth Amendment and, alternatively, that the search did not violate clearly established Fourth Amendment law. D. Ct. Op. at 5-6.

On March 14, 2005, a panel of this court reversed the district court's grant of qualified immunity. Relying on the Supreme Court's intervening decision in Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), the panel concluded that the warrant was facially deficient because the affidavit referenced in the warrant and describing the items to be seized

Page 438

was under seal and was not attached to the warrant when the search was conducted. Baranski v. Fifteen Unknown Agents, 401 F.3d 419, 429 (6th Cir. 2005). In the absence of the affidavit, the panel concluded that the search was a warrantless one, that no exigent circumstances justified a warrantless search and that the agents had violated the claimants' clearly established rights. Id. at 432-33. On August 5, 2005, the full court vacated the panel's decision and granted rehearing en banc.

II.

In Bivens, the Supreme Court held that individuals could "recover money damages for any injuries [they have] suffered as a result of [a federal agent's] violation of the [Constitution]." 403 U.S. at 397, 91 S.Ct. 1999. As with § 1983 actions against state and local officials, the Court has held that a claimant seeking relief under Bivens must overcome the federal official's...

To continue reading

FREE SIGN UP