667 F.2d 117 (D.C. Cir. 1981), 79-2138, In re Search Warrant Dated July 4

Docket Nº:79-2138, 79-2176.
Citation:667 F.2d 117
Party Name:In re SEARCH WARRANT DATED JULY 4, 1977, FOR PREMISES AT 2125 S STREET, NORTHWEST, WASHINGTON, D. C. Appeal of UNITED STATES. In re SEARCH WARRANT DATED JULY 4, 1977, FOR PREMISES AT 2125 S STREET, NORTHWEST, WASHINGTON, D. C. Appeal of FOUNDING CHURCH OF SCIENTOLOGY.
Case Date:October 02, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 117

667 F.2d 117 (D.C. Cir. 1981)

In re SEARCH WARRANT DATED JULY 4, 1977, FOR PREMISES AT

2125 S STREET, NORTHWEST, WASHINGTON, D. C.

Appeal of UNITED STATES.

In re SEARCH WARRANT DATED JULY 4, 1977, FOR PREMISES AT

2125 S STREET, NORTHWEST, WASHINGTON, D. C.

Appeal of FOUNDING CHURCH OF SCIENTOLOGY.

Nos. 79-2138, 79-2176.

United States Court of Appeals, District of Columbia Circuit

October 2, 1981

        Argued Dec. 9, 1980.

        As Amended Oct. 30, 1981.

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        Appeals from the United States District Court for the District of Columbia (D.C. Miscellaneous Action No. 77-0151).

        Michael W. Farrell, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Raymond Banoun, Judith Hetherton and Steven C. Tabackman, Asst. U. S. Attys., Washington, D. C., were on the brief for appellant in No. 79-2138 and cross-appellee in No. 79-2176.

        Philip J. Hirschkop, Alexandria, Va., with whom Victor M. Glasberg and Leonard S. Rubenstein, Alexandria, Va., were on the brief for appellee in No. 79-2138 and cross-appellant in No. 79-2176.

        Albert P. Blaustein and Jay A. Sigler were on the brief for amici curiae, pro se., urging that the search warrant and search were constitutionally invalid.

        Nadine Strassen was on the brief for amicus curiae American Civil Liberties Union, urging that the Court hold that the search warrant and search were unconstitutionally general.

        Before ROBINSON, Chief Judge, MacKINNON and WALD, Circuit Judges.

        Opinion for the Court filed by Circuit Judge MacKINNON.

        Separate opinion for the Court filed by Circuit Judge WALD.

        Chief Judge ROBINSON concurs in the opinion filed by Circuit Judge WALD.

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        PER CURIAM:

        Judge MacKinnon files an opinion in which Chief Judge Robinson and Judge Wald concur, except with respect to Part III, B (entitled "The Bases of the District Court's Decision"), Part X (entitled "The Remand to Consider the Return of Individual Documents"), and the Conclusion. Judge Wald files a separate opinion in which Chief Judge Robinson concurs. Judge Wald's opinion, and Judge MacKinnon's opinion, except for Part III, B, Part X, and the Conclusion, together constitute the opinion of the court. The district court's order is reversed and the case remanded for further proceedings consistent with the opinion of the court.

        So ordered.

        MacKINNON, Circuit Judge:

        In this appeal we again consider legal challenges by the Founding Church of Scientology (hereinafter, Scientology) to a July 8, 1977 search and seizure by agents of the Federal Bureau of Investigation (FBI) on the premises of the Scientology's Washington, D. C. headquarters. The search, conducted pursuant to a warrant, was for documentary evidence of a conspiracy by, inter alia, Scientology officials and agents to steal documents from government offices. Upon the motion of Scientology under Fed.R.Crim.P. 41(e) for return of property "unlawfully seized," 1 the district court, while rejecting Scientology's other challenges to the search and seizure, ruled that the agents had engaged in a general seizure violative of the Fourth Amendment and ordered the suppression and return of all 567 of the documents seized. Both sides appealed, and the court stayed its order pending the government's appeal. We now affirm in part and reverse in part, holding that the record does not support the conclusion that the agents executed a general seizure and that Scientology's other challenges to the search and seizure are also without merit. While we reiterate our prior holding that Scientology is entitled to the return of items seized outside the warrant, we note that Scientology has shown the illegal seizure of no item that the government has not already agreed to return.

       I. PRIOR PROCEEDINGS

        According to the affidavit filed in support of the July 4, 1977 search warrant that is the subject of this proceeding, the offenses that caused the warrant to be issued were committed in connection with Scientology's tax exemption as a religious institution under the Internal Revenue laws. In support of this objective Scientology set out to obtain government documents

by (valid) FOIA (Freedom of Information Act) actions and covert scientology operations against various United States agencies; those documents gathered through legitimate, non-covert channels are marked "FOI" and those obtained by covert actions are marked "non-FOI". (The distinction is noted so that Church officials can be certain which documents can safely be disclosed for public purposes.) Covertly obtained documents are those obtained either through outright burglaries or theft by Scientology agents who work for government agencies.

        Affidavit of FBI Special Agent Robert Tittle ("the Tittle Affidavit"), reprinted in Joint Appendix (JA) at 61 (emphasis added).

        A further allegation in the supporting affidavit states:

        In December, 1975 Cindy Raymond, the Collections Officer within (Scientology's) Deputy Guardian for Information, U.S.

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Office, developed a "program" calling for covert operations designed to obtain Interpol documents regarding the Church of Scientology contained in files held by government agencies. That program was developed in response to the general directive contained in Guardian Order (GO) 1634 composed and disseminated by the Guardian Office World-Wide. All documents not turned over to the Church by the government pursuant to an FOIA request were to be covertly obtained by agents of the Church, according to the Raymond program. That program was to be implemented in the District of Columbia either by burglarizing the targeted office or by placing a secure Scientology agent on the staff of the targeted government attorney. This agent would have access to the attorney's files and would xerox the sought-after documents and turn them over to Meisner, who supervised the activities of all Scientology covert agents in Washington, D. C.

        (Id.) (JA 47-48) (Footnote omitted) (Emphasis added).

        The warrant directed the search of a fourth floor suite in Scientology's Washington, D. C. headquarters at 2125 S Street, N.W. The warrant contained 162 descriptions of property. Items 1-99 list documents stolen and copied from the office of an Assistant United States Attorney. Items 100-148 list documents stolen and copied from a Justice Department attorney. Items 149-161 list other stolen documents and internal documents of Scientology alleged to set forth Scientology's plan to purloin government documents. Item 162, finally, authorized the agents to seize:

        162. Any evidence (at this time unknown) of the crimes of conspiracy, obstruction of justice and theft of government property in violation of 18 U.S. Code §§ 371, 1503 and 641 which facts recited in the accompanying affidavit make out.

        (JA 39, emphasis added). The reference to the "accompanying affidavit" effectively incorporated a 33-page "Affidavit in Support of Search Warrant" (JA 42-74) that was attached to the warrant's "Description of Property" (JA 33-41). The affidavit was signed by FBI Agent Robert Tittle and was based on the disclosure of Michael Meisner, who claimed to have participated personally with other Church officials in a conspiracy to burglarize government offices.

        The district court originally held that the search warrant constituted a "general warrant" violative of the Fourth Amendment guarantee against unreasonable searches and seizures. Such ruling relied principally on a claim that Item 162 did not sufficiently particularize the offenses. In Re Search Warrant, Dated July 4, 1977, 436 F.Supp. 689 (D.D.C.1977). On appeal to this court we reversed, In re Search Warrant, 572 F.2d 321 (D.C.Cir.1977), ruling that the district court "gave an overbroad construction of the search warrant, improperly interpreted the relevant offenses, ignored a significant part of item 162 (the reference to the "accompanying affidavit"), and gave an unduly restrictive construction to the Supreme Court decision in Andresen v. Maryland, (427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976))." We also held that the magistrate properly found probable cause to have been shown for the search. Id. at 323-24. Our judgment accordingly reversed the decision of the district court, vacated the 1977 order in its entirety and remanded the case to the district court for consideration of other grounds alleged for invalidating the warrant that had not been considered by the district court at the initial hearing. The other grounds were (1) that the manner of the search constituted a violation of the Fourth Amendment, (2) that the agents employed unnecessary force in violation of 18 U.S.C. § 3109; and (3) that the warrant was issued on stale allegations of fact. 572 F.2d at 328. We also noted at that time that

If any of the documents seized in the search by the agents exceed the bounds of the search warrant they should be returned, but the "fruits, instrumentalities and evidence" that were seized, and that are relevant to the particularized offenses and which are specifically referred to in the affidavit and search warrant,

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should be delivered to the government forthwith for use in connection with the grand jury proceedings. Our order herein does not restrict the right of the court to consider and determine whether any specific document may have been seized outside the authority of the search warrant as construed in this opinion.

        572 F.2d at 327.

       II. THE REMAND

        In response to the district court's request for help in limiting its task on remand, the government indicated by marking on its documents inventory an "R" for each document...

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