565 F.2d 183 (1st Cir. 1977), 77-1121, United States v. Klein

Docket Nº:77-1121.
Citation:565 F.2d 183
Party Name:196 U.S.P.Q. 273 UNITED STATES of America, Appellant, v. Allan Michael KLEIN et al., Defendants, Appellees.
Case Date:November 14, 1977
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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565 F.2d 183 (1st Cir. 1977)

196 U.S.P.Q. 273

UNITED STATES of America, Appellant,


Allan Michael KLEIN et al., Defendants, Appellees.

No. 77-1121.

United States Court of Appeals, First Circuit

November 14, 1977

Argued May 31, 1977.

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Henry H. Hammond, Asst. U. S. Atty., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellant.

Albert F. Cullen, Jr., Boston, Mass., by appointment of the Court, with whom William B. Duffy, Jr., Boston, Mass., by appointment of the Court, was on brief, for defendants, appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, LAY, Circuit Judge. [*]

LAY, Circuit Judge.

On March 5, 1975, a federal magistrate issued a warrant authorizing the search of a retail music store located in Somerville, Massachusetts, known as "D and L Limited". The warrant authorized the executing officer to seize "certain 8-track electronic tapes and tape cartridges which are unauthorized 'pirate' reproductions and also any commercial documentation and advertising materials relating thereto which are evidence of the commission of a criminal offense, to wit, the knowing and wilful infringement of copyrights secured by Title 17, United States Code, in violation of 17

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U.S.C. § 104. . . ." 1 In execution of the warrant three FBI agents, with the assistance of two or three experts from the music recording industry, entered the business premises of D and L where they seized 1989 eight-track tapes which the agents believed to be unauthorized reproductions of copyrighted sound recordings. Following the seizure a 10 count information was filed against the alleged owners of D and L, Allan Klein and Lawrence Weiner, charging them with selling unauthorized reproductions of copyrighted sound recordings in violation of 17 U.S.C. § 104. After pleading not guilty, the defendants filed a motion to suppress the tapes on the grounds that the warrant was issued in violation of the Fourth Amendment. The district court, the Honorable W. Arthur Garrity, Jr., presiding, sustained the motion to suppress on two grounds: First, that the warrant did not comply with the Fourth Amendment in that it failed to circumscribe the executing officer's discretion by particularly describing the things to be seized, and second, that the tapes were seized in violation of the principles of Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), since there was not a sufficient nexus between the crime charged and the items seized. Because we find that the warrant insufficiently described the items to be seized we need not discuss the second basis for Judge Garrity's holding; we affirm the ruling of the district court.

The affidavit submitted to the issuing magistrate by Agent Saraceni of the FBI recites the facts which preceded the issuance of the warrant. 2 In the affidavit Saraceni stated that on March 3 and 4, 1975, he entered defendant's premises and on each occasion purchased an eight-track

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tape which he later determined was an unauthorized reproduction of copyright tapes.

Since neither the warrant nor the affidavit specifies how the so-called "pirate" tapes were to be identified, the defendants assert that the warrant is an illegal "general warrant" and that the tapes seized under the warrant must be suppressed. They rely on the often repeated language of Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927):

The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.

Id. at 196, 48 S.Ct. at 76. See also Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965).

The Marron standard finds its derivation in Colonial America's aversion to writs of assistance and general warrants which placed broad discretionary authority with British custom officials to search anywhere for smuggled goods and seize anything they pleased. See Weeks v. United States, 232 U.S. 383, 389-91, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Boyd v. United States, 116 U.S. 616, 623-35, 6 S.Ct. 524, 29 L.Ed. 746 (1886). See also Stanford v. Texas, supra, 379 U.S. at 481-86, 85 S.Ct. 506; Marcus v. Search Warrant, 367 U.S. 717, 724-29, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Frank v. Maryland, 359 U.S. 360, 363-66, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959).

The present warrant does not have all the indices of a general warrant. It is limited to a search of a particular place and to particular items, that is, certain eight-track tapes and cartridges located at D and L. Neither the warrant nor the affidavit, 3 however, sets out clear standards which assure the magistrate that the executing officer will be able to differentiate a pirate reproduction from a legitimate eight-track tape. Although Agent Saraceni recounted that, based on his experience, he had " noticed approximately 500 or more 8-track tapes (in the store) which . . . appeared to be unauthorized reproductions of commercial copyrighted tapes," his affidavit does not reveal the basis of his experience or the means by which an executing officer could identify the tapes. The transcript of the hearing before Judge Garrity provides no additional illumination on Saraceni's identification methods. 4 The affidavit therefore presented the magistrate with nothing more than a generic description of the items to be seized. 5

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Thus the fundamental issue before us is whether the generic description of a pirate tape is sufficient under the circumstances to comply with the Fourth Amendment. 6

Relying solely on an Eighth Circuit opinion, Spinelli v. United States, 382 F.2d 871 (8th Cir. 1967), rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the government lightly brushes aside the district court's ruling in favor of the defendants. In Spinelli the Eighth Circuit upheld a warrant for "bookmaking paraphernalia," stating:

When the circumstances of the crime make an exact description of the fruits and instrumentalities a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking.

382 F.2d at 886. This court took a similar approach in Calo v. United States, 338 F.2d 793 (1st Cir. 1964), involving the generic description of "bet sheets . . . run down sheets . . . and like paraphernalia." Id. at 794. See also James v. United States, 416 F.2d 467, 472-73 (5th Cir. 1969), cert. denied, 397 U.S. 907, 90 S.Ct. 902, 25 L.Ed.2d 87 (1970); Nuckols v. United States, 69 App.D.C. 120, 122, 99 F.2d 353, 355 (1938), cert. denied, 305 U.S. 626, 59 S.Ct. 89, 83 L.Ed. 401 (1938).

Perhaps more supportive of the government's position is the language in this court's decision in Vitali v. United States, 383 F.2d 121 (1st Cir. 1967), which was followed by the Second Circuit in United States v. Scharfman, 448 F.2d 1352 (2d Cir. 1971), cert. denied, 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789 (1972). The Scharfman case involved a hijacked shipment of fur coats. After a tip concerning the location of the fur coats, the FBI obtained a warrant to search for "fur coats, stoles, jackets and other finished fur products . . . ." Id. at 1353 n. 1. The Second Circuit held the description sufficient, quoting Vitali in support of its position: "Where goods are of a common nature and not unique there is no obligation to show that the one (sic) sought . . . necessarily are the ones stolen, but only to show the circumstances indicating this to be likely." Id. at 1354, quoting Vitali v. United States, supra at 122. See also United States v. Averell, 296 F.Supp. 1004 (E.D.N.Y.1969) (seizure of thousands of undescribed hijacked wigs held constitutional). It must therefore be accepted that generic descriptions are sufficient in at least some cases.

In both Vitali and Scharfman there were, in addition to the facts which indicated the common nature and nonuniqueness of the items, circumstances indicating the likelihood that the goods seized were the goods stolen. In Vitali the affidavit supporting the search warrant established the similarity between a group of stolen watchbands and those known to be in the defendant's possession. The court then noted that:

Having established similarity it was then enough that it appeared that the manufacturer-consignor sold only to the watch and watch band trade, in which defendant, and AAA Acceptance Corporation which occupied the premises, did not appear to be, and that the manufacturer had no record of sales to either of them.

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Vitali v. United States, supra at 122. Thus, a magistrate would have known that the executing officer, in seizing Speidel watchbands from an establishment not in the watch or watchband trade, was not likely to violate any personal rights.

In Scharfman a particular shipment containing hundreds of furs had been hijacked, an informant, "himself an experienced furrier," alerted FBI agents to the fact that furs from the shipment were in the defendant's premises, and an employee of the shipment's owner positively identified a fur coat in defendant's store as being part of the hijacked load. Given these facts it could reasonably be inferred that a large collection of similar contraband was in the defendant's possession and that for all practical purposes that collection could not be precisely described for the purpose of limiting the scope of the seizure.

The present case is different in two important respects. First, the affidavit and the warrant failed to provide any before the fact guidance...

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