724 F.2d 633 (8th Cir. 1983), 82-1242, United States v. Fitzgerald

Docket Nº:82-1242.
Citation:724 F.2d 633
Party Name:UNITED STATES of America, Appellee, v. Janice FITZGERALD, Appellant.
Case Date:December 07, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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724 F.2d 633 (8th Cir. 1983)

UNITED STATES of America, Appellee,


Janice FITZGERALD, Appellant.

No. 82-1242.

United States Court of Appeals, Eighth Circuit

December 7, 1983

Submitted Sept. 2, 1983.

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Alan P. Caplan, Cleveland, Ohio, for appellant.

Ronald D. Lahners, U.S. Atty., D. Nebraska, Omaha, Neb., Robert J. Erickson, Attorney, Dept. of Justice, Washington, D.C., David A. Kubichek, Asst. U.S. Atty., Omaha, Neb., for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, and BOWMAN, Circuit Judges.

BRIGHT, Circuit Judge.

A jury convicted Janice Fitzgerald and three codefendants of violating 18 U.S.C.App.

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Sec. 1202(a)(1) (possession by a convicted felon of a firearm in interstate commerce). 1 A three-judge panel of this court affirmed the convictions of the three codefendants, but on a divided vote reversed Fitzgerald's. United States v. Apker, 705 F.2d 293 (8th Cir.1983).

The United States petitioned for rehearing en banc, which this court granted, limited to the question whether firearms discovered in plain view during the course of a search pursuant to a federal search warrant, which warrant fails to describe some of the objects of the search with sufficient particularity, are admissible into evidence. We hold such firearms admissible, and affirm Fitzgerald's conviction. Except as to this issue, our decision en banc does not otherwise disturb the panel opinion in this case.

I. Background.

A grand jury indicted Fitzgerald and nine other persons, alleging that as members or associates of the Hells Angels they conspired to distribute methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Federal warrants issued authorizing the arrest of the indictees, and the search of their residences for various indicia of Hells Angels membership which would serve to establish their involvement in the alleged drug conspiracy. 2 Teams of federal and state law enforcement officers executed the arrest and search warrants early on the morning of February 28, 1981. At Fitzgerald's residence, the officers seized a Hells Angels T-shirt, a Hells Angels poster and medallions, a mirror bearing a Hells Angels sticker, a large number of photographs and photo albums, a telephone directory, and various other documents. They also seized three firearms: (1) a shotgun found in its case resting against the wall of a bedroom closet, (2) a pistol found in the pocket of a woman's coat hanging in the closet, and (3) a rifle found "behind a dresser drawer." These firearms supplied the basis for Fitzgerald's subsequent indictment and conviction under Sec. 1202(a)(1), from which conviction she now appeals.

The three-judge panel which initially considered the appeal of Fitzgerald and her codefendants held the search warrants invalid on the ground that they failed to describe some of the objects of the search with sufficient particularity. Specifically, the panel determined that the warrant provisions authorizing the seizure of Hells Angels membership directories and "papers relating to Club activities" were too broad to satisfy the "scrupulous exactitude" standard which applies to warrants impinging on first amendment interests. See United States v. Apker, supra, 705 F.2d 293, 299-303. The invalidity of those portions of the warrants is not at issue here. But the panel also held that the portions of the warrants describing jackets, belt buckles, T-shirts, photographs, and plaques and mirrors satisfied the scrupulous exactitude requirement. Id. at 302-303. The precise issue before the court on this rehearing is whether the invalidity of certain portions of the warrants renders the warrants wholly invalid, as the panel majority held, or

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whether, rather, the insufficiently particular portions of the warrant can be severed from the rest, leaving the warrant intact apart from the severed portions.

For the reasons set forth below, we adopt the severance approach, and hold the warrants valid as to those portions which authorized a search for particular items, i.e., certain articles of clothing, belt buckles, plaques and mirrors, and photographs tending to show association with the Hells Angels. Because the warrants as redacted were valid, the police possessed authority under the "plain view" doctrine, see Texas v. Brown, --- U.S. ----, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), and Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 2037-42, 29 L.Ed.2d 564 (1971), to seize any apparent contraband or evidence of a crime they might inadvertently find while executing the valid portions of the warrant. On the record before us, it appears clear that the officers discovered the shotgun in Fitzgerald's closet in plain view during the search for clothing carrying insignia of the Hells Angels. Because the shotgun seized during execution of the valid portions of the warrant suffices to support Fitzgerald's conviction under Sec. 1202(a)(1), we affirm that conviction.

II. Discussion.

The prime purpose of the rule excluding evidence seized in violation of the fourth amendment is the deterrence of future unlawful police conduct. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). Additionally, the rule serves to protect courts from any taint-by-association with police misconduct, and prevents the prosecution from benefiting from unconstitutional police activity. See United States v. Cook, 657 F.2d 730, 734 (5th Cir.1981). In deciding whether particular evidence should be suppressed in any given case, then, courts properly weigh the deterrent effect of the suppression against its societal costs. See, e.g., United States v. Janis, 428 U.S. 433, 453-54, 457-58, 96 S.Ct. 3021, 3031-32, 3033-34, 49 L.Ed.2d 1046 (1976). Where little or no deterrence will result from suppression, suppression is inappropriate, for where the reason for the rule ceases, its application also must cease.

Here, then, we consider whether suppressing the firearms seized in Fitzgerald's bedroom would advance the purposes which animate the exclusionary rule. First, we observe that the law enforcement officials in this case sought and obtained arrest and search warrants from a magistrate. The magistrate, the district court, and the three-judge panel of this court all concluded that the police had probable cause to search Fitzgerald's residence. Five of the seven clauses of the search warrant met the particularity requirement in describing the objects of the search; the other two were subsequently held deficient only in that they failed to satisfy the "scrupulous exactitude" test. Nothing in the record suggests that the officers or the magistrate did not believe themselves to be according the indictees' constitutional rights the full respect they merit. Under these circumstances, we do not think it would advance the purposes behind the exclusionary rule to exclude all that the officers seized in Fitzgerald's residence, merely because the warrant was in one respect deficient. Accordingly, we follow the approach which the First, Third, Fifth, Sixth, and Ninth Circuits, 3 and several states, 4 have adopted, and hold that, absent

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a showing of pretext or bad faith on the part of the police or the prosecution, the invalidity of part of a search warrant does not require the suppression of all the evidence seized during its execution. More precisely, we hold that the infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant (assuming such evidence could not otherwise have been seized, as for example on plain-view grounds during the execution of the valid portions of the warrant), but does not require the suppression...

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