Montilla Records of Puerto Rico, Inc. v. Morales

• Decision Date: 15 May 1978
• Docket Number: No. 77-1199,77-1199
• Citation: 575 F.2d 324
• Parties: , 1978-81 Copr.L.Dec. 25,019 Application of MONTILLA RECORDS OF PUERTO RICO, INC., Petitioner, Appellant, v. The Honorable Julio MORALES et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 324

575 F.2d 324

198 U.S.P.Q. 129, 1978-81 Copr.L.Dec. 25,019

Application of MONTILLA RECORDS OF PUERTO RICO, INC. Petitioner, Appellant, v. The Honorable Julio MORALES et al., Respondents, Appellees.

No. 77-1199.

United States Court of Appeals First Circuit.

Argued Feb. 10, 1978.

Decided May 15, 1978.

Irwin Klein, New York City, with whom Ricardo Rechani Acevedo, San Juan, P.R., and Steve Segal, were on brief, for petitioner, appellant.

Charles E. Fitzwilliam, Asst. U. S. Atty., San Juan, P.R., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P.R., was on brief, for respondents, appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

In November, 1976, FBI agents in Puerto Rico received information from an informant, a former employee of Montilla Records of Puerto Rico, Inc. (hereafter Montilla), that Montilla was engaged in the illegal manufacture of Motown records. The FBI investigated these allegations and concluded that Montilla was producing Motown records for which it did not possess licenses as required by copyright law. The FBI sought and received a search warrant, entered Montilla's premises on November 19, 1976, and seized a large quantity of records and recording equipment. No criminal charges have been brought against Montilla since that time. Plaintiffs sought to have their property returned under Rule 41e of the Federal Rules of Criminal Procedure, but the district court denied their motion. Plaintiffs appeal that denial.

At issue in this case is the validity of the search warrant under which the FBI carried out the two day search of the Montilla factory and seized its inventory and equipment. Because we agree with plaintiffs that the warrant in question did not meet the particularity requirements of the Fourth Amendment, we reverse the district court's decision on that ground and have no need to decide the other issues presented to us.

The search warrant authorized the FBI to search for and seize "sound recordings including but not limited to records, cartridges and cassettes which have been manufactured from sound recordings protected by the Copyright Act without the permission of the sound recordings copyright owner, and all records relating to the manufacture, distribution and sale of unauthorized copies of copyrighted sound recordings and all equipment used to copy, manufacture, and test the above described sound recordings." An affidavit detailing the evidence supporting the FBI's contention that there was probable cause to believe that Montilla was engaged in the illegal manufacture of records was presented to the magistrate before the warrant was issued. ¹ There is nothing in the affidavit that would indicate that any other records produced by Montilla, other than those bearing a Motown label, were manufactured in violation of the copyright law. Nor was there any indication that the Motown production constituted a dominant or even significant part of Montilla's output. However, there is nothing in the search warrant that would indicate to the executing officer that his authority was limited to the seizure of only Motown records. It is obvious from the conduct of the agents who participated in the search that they did not consider their authority to be limited since they examined and seized recordings other than Motown.

The purpose of the particularity requirement in search warrants is to "make general searches under them impossible and prevent(s) 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", Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1972). Despite this requirement, on occasion the description in a warrant has been accepted by courts although little more than the general class or type of item to be seized was listed. These exceptions involved special contexts in which there was substantial evidence to support the belief that the class of contraband was on the premises and in practical terms the goods to be seized could not be precisely described. See 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); and United States v. Scharfman, 448 F.2d 1352 (2d Cir. 1971). This is not such a case. The warrant here could have easily been circumscribed to permit only the seizure of recordings bearing a Motown label.

In United States v. Klein, 565 F.2d 183 (1st Cir. 1977), we affirmed the decision of the district court holding invalid a mass seizure of tapes and tape cartridges under a warrant authorizing the seizure of "unauthorized 'pirate' reproductions". Our concern in that case involved the failure to inform the magistrate issuing the warrant how an agent would distinguish "pirate" tapes from legal merchandize so that the warrant description could effectively limit the agent's discretion. Although it appeared that there were significant visible physical differences between pirate tapes and legitimate tapes which an agent could determine, we held that the failure to delineate what those differences were made the warrant constitutionally invalid.

The circumstances in this case are far more egregious. The only Montilla product which the evidence in the affidavit suggested was illegally manufactured was Motown records. These recordings could have been easily differentiated by their labels from the rest of Montilla's inventory. Yet instead of focusing on this obvious description which would have directly limited the executing agent's discretion, the warrant did nothing more than direct the agents to seize all unauthorized or illegal recordings. But there was no evidence presented to the magistrate that Montilla was a "pirate manufacturer" all of whose product was physically distinguishable from that of legal producers. Moreover, unlike the circumstances in Klein, there was no clear visual or aural test by which agents could determine which of Montilla's inventory was illegally produced.

Without any physical criteria or detailed description in the warrant to enable them to determine what they might lawfully seize, the agents would have to make use of outside sources of information. The only available test would be to evaluate the licensing agreements between Montilla and the companies which owned the recording rights of the artists. Such an evaluation would of necessity involve substantial reliance on the information supplied by the contracting parties. ² This is precisely the kind of evidentiary evaluation that the search warrant procedure was designed to take out of the hands of police officers in the field and reserve for magistrates and judges. " 'The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' " Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1963), quoting Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1947). To permit a magistrate to delegate his responsibility for determining whether or not probable cause exists to the officers executing a search warrant, as was done in this case, would be to eliminate the particularity requirement as a restriction on police discretion in searching for and seizing goods.

In United States v. Drebin, 557 F.2d 1316 (9th Cir. 1977), the Ninth Circuit considered a seizure of hundreds of film prints and thousands of documents under a warrant to seize " '. . . illegally reproduced and stolen copies of 35mm, 16mm, and 8mm motion picture films which are duly copyrighted and protected by the provisions of the United States Copyright law' . . ." The court...