U.S. v. Cook

• Citation: 657 F.2d 730
• Decision Date: 30 September 1981
• Docket Number: No. 80-1917,80-1917
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Lee COOK and Jackie B. Kirk, Defendants-Appellees. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 730

657 F.2d 730

UNITED STATES of America, Plaintiff-Appellant, v. Lee COOK and Jackie B. Kirk, Defendants-Appellees.

No. 80-1917.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 30, 1981.

James R. Gough, Daniel Tucker Kamin, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellant.

Charles S. Szekely, Jr., Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for Cook.

W. B. "Bennie" House, Jr., Houston, Tex., for Kirk.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, RANDALL and SAM D. JOHNSON, Circuit Judges.

REAVLEY, Circuit Judge:

In this appeal by the Government from an order of a United States district judge suppressing evidence prior to a criminal trial, we must decide whether a search warrant that authorized the seizure of illegally reproduced videotapes from the defendants' place of business violated the Fourth Amendment. We also must decide whether so much of the warrant that did not conform to Fourth Amendment standards should have been severed from the remainder of the warrant and suppression limited solely to those items seized pursuant to the invalid portion of the warrant. The district judge held that the search warrant violated the Fourth Amendment and, without reaching the issue of severance, granted one defendant's motion for suppression of all of the evidence seized under the warrant. We agree with the district judge that the search warrant was impermissibly general, but we hold that under the circumstances the trial court should have severed the infirm portion of the warrant and suppressed only the evidence seized under that portion of the warrant. As modified, we affirm the order of the district court, 498 F.Supp. 1057.

I.

The prosecution is for criminal infringement of copyright and related offenses. Defendants Lee Cook and Jackie B. Kirk are charged with illegally reproducing copyrighted motion pictures onto videotape cassettes and then renting those cassettes for profit. Federal officers conducted an investigation of the operations of the defendants for some time before going before a United States magistrate for a warrant to search their place of business, The Company of Actors Theater. Probable cause was shown to the magistrate by a nine page affidavit, which justified a belief that Jim Cook and Lee Cook had illegally obtained and reproduced copyrighted films, that they rented tapes of those movies and distributed them out of the premises to be searched, that Lee Cook had admitted that "many" of his films were illegal, that many videotape cassettes were stored on open shelves on three walls around or near the projection room, and that defendants' place of business contained equipment that could be used to reproduce films onto videotape. The affidavit states that it had attached to it a brochure and a list of the films available from defendants' operation, but we do not find that attachment in the record. The Government's brief states that a catalogue of "pirated motion pictures" was presented with the warrant.

The warrant directed the seizure of the following described property:

Illegally obtained and reproduced copyrighted films of which there have been no first sales by the copyright owners, and recorded video tape cassettes on to which these illegally obtained and copyrighted films of which there have been no first sales have been electronically transferred and recorded, including but not limited to the motion pictures described in the affidavit, ¹ recorded video tapes of those aforementioned films but not limited to them; electronic transfer and playback equipment capable of transferring film to video tape and video tape to video tape, and capable of playback and exhibition of those tapes, used in the production, reproduction, manufacture and distribution of recorded video tapes containing copyrighted motion pictures on which there have been no first sales by the copyright owners and which are violations of Title 17, U.S.Code, Section 104(a) and all records, books, contracts of sale, rental and/or lease of any copyrighted films and for video cassettes. The films, recorded video tapes containing those films, and instrumentalities are used and have been used to commit violations of Title 17, United States Code, Section 104(a).

The warrant was executed by six or seven federal officers who conducted a seven and one-half hour search and seized 1,317 items, listed in a 52 page inventory. Defendant Lee Cook moved to suppress "any and all evidence" obtained during the execution of the warrant. After a hearing, the district judge granted the motion. The Government then took this appeal. See 18 U.S.C. § 3731 (1976).

II.

The Fourth Amendment to the Constitution of the United States provides that search warrants may be issued only on probable cause "particularly describing the place to be searched, and the persons or things to be seized." A general order to explore and rummage through a person's belongings is not permitted. The warrant must enable the searcher to reasonably ascertain and identify the things which are authorized to be seized. Steele v. United States, 267 U.S. 498, 503-04, 45 S.Ct. 414, 416-417, 69 L.Ed. 757 (1925); United States v. Dresser, 542 F.2d 737, 740 n.4 (8th Cir. 1976). Circumstances often make an exact description of the property impossible and in those cases the judicial officer issuing the warrant must weigh the practical necessities of law enforcement against the likelihood of a violation of the personal rights of the one whose premises and possessions are to be searched.

Assuming that probable cause has been shown, the warrant may be sufficient with only a generic description such as "United States currency." United States v. Bright, 630 F.2d 804, 811-12 (5th Cir. 1980). Search of a fur dealer's store was upheld under a warrant describing "fur coats" stolen from a truck and "books, records and other fruits and instrumentalities" of the crime. 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). Similarly, we upheld a warrant authorizing seizure of "gambling paraphernalia ... records, sales receipts, customers' lists, shipping orders, supplies, machine equipment, machine tools and hand tools for the manufacture of gambling paraphernalia ...." James v. United States, 416 F.2d 467, 473 (5th Cir. 1969), cert. denied, 397 U.S. 907, 928, 90 S.Ct. 902, 938, 25 L.Ed.2d 87, 108 (1970). See also United States v. Cortellesso, 601 F.2d 28, 30 (1st Cir. 1979) ("stolen goods, wares and merchandise valued in excess of $5,000 which have travelled in interstate commerce, in particular men's suits, sports jackets, women's boots, leather coats"), cert. denied, 444 U.S. 1072, 100 S.Ct. 1016, 62 L.Ed.2d 753 (1980); United States v. Johnson, 541 F.2d 1311, 1313 (8th Cir. 1976) ("marijuana, paraphenrnalia (sic) and U.S. currency"); United States v. Wilson, 451 F.2d 209, 214 (5th Cir. 1971) ("paraphernalia for making coins"), cert. denied, 405 U.S. 1032, 92 S.Ct. 1298, 31 L.Ed.2d 490 (1972).

The use of a generic term or a general description in a warrant, however, is acceptable to the judicial officer issuing the warrant only when a more specific description of the things to be seized is unavailable. Thus, in United States v. Cortellesso, the First Circuit upheld a warrant issued to search for and seize stolen clothing when the "labels had been removed from the Pierre Cardin suits so that a more precise description would not have assisted the (searcher) and, that with respect to other stolen items, only a generic description was known." 601 F.2d at 32. Failure to employ the specificity available will invalidate a general description in a warrant. As we said in United States v. Bright, if the police had possessed a complete list of serial numbers of currency being sought, it would have been necessary to give them in the warrant description because "generic classifications in a warrant are acceptable only when a more precise description is not possible." 630 F.2d at 812. See Montilla Records v. Morales, 575 F.2d 324 (1st Cir. 1978); United States v. Klein, 565 F.2d 183 (1st Cir. 1977).

Under these standards, we hold that the search warrant was constitutionally flawed. ² The warrant issued by the magistrate used a generic term when it authorized the seizure of "cassettes on to which ... copyrighted films ... have been electronically transferred and recorded." As issued, it supplied the searching agents with little guidance when it provided for the seizure of "illegally obtained films ... not limited to the motion pictures described in the affidavit" (emphasis added).

It is clear that the magistrate either was not given or did not use available directions to specify tapes and films and to describe methods by which the items to be seized could be determined. The FBI agent who served as the affiant in the application for the warrant had experience with copyright offenses and knew that recent movies were likely to be protected by copyright and that pornographic material, also stored at The Company of Actors Theater, was not. The telling factor here, however, was the catalogue of "pirated motion pictures" on videotape that the special agent had obtained from The Company of Actors Theater. This catalogue provided a complete list of motion pictures currently available on videotape from the defendants. If a law enforcement officer has a list of the property on the premises, he can determine what is likely to be illegal or evidence of illegality, and the magistrate may easily direct seizure of that property only without unnecessarily interfering with the other property of the possessor. Because that course was not followed here, we agree with the district judge that the search warrant failed to describe with particularity the things to be seized.

III.

When the Government conducts a search pursuant...