U.S. v. Fuccillo, 86-1577

Decision Date09 January 1987
Docket NumberNo. 86-1577,86-1577
Citation808 F.2d 173
PartiesUNITED STATES of America, Appellant, v. Carl A. FUCCILLO, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

Paul F. Healy, Jr., Assist. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief for appellant.

Sandra L. Hautanen with whom Barry M. Haight and Buckley, Haight, Muldoon, Jubinville & Gilligan, Milton, Mass., were on brief for appellee.

Before CAMPBELL, Chief Judge, TIMBERS, * Senior Circuit Judge, and BREYER, Circuit Judge.

TIMBERS, Circuit Judge:

The United States ("government") appeals from an order entered May 9, 1986 in the District of Massachusetts, 634 F.Supp. 358, Andrew A. Caffrey, Chief Judge, granting the motion of Carl A. Fuccillo ("appellee") to suppress all articles of clothing and other articles seized during the execution on September 28, 1984 of three search warrants at premises owned by appellee. The court held that the warrants were constitutionally deficient in their failure to describe the goods to be seized with sufficient particularity, as required by the Fourth Amendment. The court held, further, that the "good faith" exception to the exclusionary rule, as delineated in United States v. Leon, 468 U.S. 897 (1984), was inapplicable to the instant case because the agents had not acted in good faith within the meaning of Leon.

On appeal, the government argues that the description set forth in the warrants was sufficiently particular to pass constitutional muster. In the alternative, the government asserts that, even if the description was overly broad, the remedy of suppression is not justified because the agents' actions were objectively reasonable and taken in good faith. We hold that the warrants in question did not meet the particularity requirements of the Fourth Amendment. We also hold that suppression of the evidence seized was appropriate and decline the government's invitation to apply the good faith exception to the Fourth Amendment exclusionary rule.

We affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

On September 28, 1984, Federal Bureau of Investigation ("FBI") agents executed three separate, but identical, search warrants which authorized the seizure of:

"[C]artons of women's clothing, the contents of those cartons, lists identifying the contents of the cartons, and control slips identifying the stores intended to receive these cartons, such items being contraband and evidence of a violation of Title 18, United States Code, Section 659, Possession of Goods Stolen from Interstate Shipments."

The premises which were searched were: (1) Fashion Apparel Distributors ("FAD"), a wholesale distributor located in Revere, Massachusetts; (2) a warehouse in Milford, Massachusetts ("Milford warehouse"); and (3) a retail clothing store located in downtown Boston, known as Fashions on Tremont ("FOT"). All three premises are owned by appellee.

In issuing the three warrants, the magistrate relied exclusively on a single affidavit submitted by FBI Agent Frisoli. The affidavit stated that two trailers containing 839 cartons of women's clothing, with an approximate value of $500,000, had been stolen from Women's Specialty Retailing of Enfield, Connecticut, sometime between August 10 and 13, 1984. Attached to the cartons of clothing were shipping slips which contained information concerning the stores which were to receive the goods, including the store name, address and number. The affidavit stated that Casual Corner stores were among the stores which were to receive the cartons of women's clothing.

The affidavit further stated that on September 25, 1984 a confidential informant had advised Frisoli that stolen women's clothing would be found at FAD, FOT and the Milford warehouse; that "it" had been inside the Milford warehouse and FAD; and that while inside these premises "it" had observed Casual Corner women's clothing which "it" knew to be stolen.

The affidavit next related that an FBI agent, accompanied by a Casual Corner store manager, visited FOT on September 26, 1984. The Casual Corner manager, after spending approximately fifteen minutes inside FOT, informed the FBI agent that she had observed the following clothes for sale at FOT, which she stated were manufactured exclusively for Casual Corner stores and should not have been offered for sale elsewhere: eight Newsport skirts, twelve Jenniffer blouses and twelve Organically Grown sweaters. She further informed the FBI agent that she had observed one hundred Jennifer Reed cotton knit vests and two down angora vests, which, although their labels had been removed, she positively identified as having been made for Casual Corner.

On September 28, 1984 the warrants were executed by three separate teams of FBI agents. Seized from FAD were twenty-nine cartons of Casual Corner women's clothing, one hundred and eleven Sassoon dresses, one hundred and thirty men's corduroy sport jackets, and four empty boxes with Casual Corner markings. Prior to the search of the Milford warehouse, while appellee was present, the FBI agent in charge asked appellee to identify which, if any, of the goods "were legitimate." When appellee declined to reply, the agents seized the entire contents of the Milford warehouse. Empty cartons, papers and receipts also were confiscated from the Milford warehouse. At FOT, apparel was removed from clothing racks and placed in approximately seven bags, which then were seized.

On January 22, 1986, appellee was indicted by a grand jury and charged with one count of receipt of stolen goods in interstate commerce, in violation of 18 U.S.C. Sec. 2315 (1982); one count of interstate transportation of stolen goods, in violation of 18 U.S.C. Sec. 2314 (1982); and four counts of possession of goods stolen from interstate shipment, in violation of 18 U.S.C. Sec. 659 (1982). The indictment was based in part on the evidence seized from the three premises owned by appellee. On February 28, 1986 appellee moved to suppress all evidence seized. A hearing was held before Chief Judge Caffrey on March 3, 1986. On May 9, 1986 Chief Judge Caffrey filed a memorandum and order granting appellee's motion to suppress. On June 5, 1986 the government took the instant appeal pursuant to 18 U.S.C. Sec. 3731 (1982).

For the reasons stated below, we affirm the order of the district court suppressing the evidence seized from FAD, the Milford warehouse and FOT.

II.

The Fourth Amendment provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized". Thus general warrants are prohibited by the Bill of Rights. "[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings...." Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). In requiring a particular description of articles to be seized, the Fourth Amendment " 'makes general searches ... 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.' " Stanford v. Texas, 379 U.S. 476, 485 (1965) (quoting Marron v. United States, 275 U.S. 192, 196 (1927)).

We recognize, however, that the overriding principle of the Fourth Amendment is one of reasonableness and on occasion have accepted general descriptions in warrants, holding that such descriptions are not always constitutionally infirm. E.g., United States v. Cortellesso, 601 F.2d 28 (1st Cir.1979) (general description upheld due to practical impossibility of precise description); Vitali v. United States, 383 F.2d 121 (1st Cir.1967) (general description permissible due to common nature and nonuniqueness of items to be seized). Such general descriptions are permissible only in "special contexts in which there [is] substantial evidence to support the belief that the class of contraband [is] on the premises and in practical terms the goods to be described [can] not be precisely described." Montilla Records of Puerto Rico v. Morales, 575 F.2d 324, 326 (1st Cir.1978). In United States v. Klein, 565 F.2d 183 (1st Cir.1977), we set forth two tests which in particular circumstances may help to illuminate whether this principle is satisfied: first, the degree to which the evidence presented to the magistrate establishes reason to believe that a large collection of similar contraband is present on the premises to be searched, and, second, the extent to which, in view of the possibilities, the warrant distinguishes, or provides the executing agents with criteria for distinguishing, the contraband from the rest of an individual's possessions. In this case, we hold, with respect to all three sets of seizures, that the warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized.

A.

We begin with the seizure of clothing, papers and boxes from FAD and the Milford warehouse.

The instant warrants contained no explanation as to how the executing agents were to differentiate cartons of stolen women's clothing from legitimate goods at either location. This failure was held to be fatal in both Klein, supra, 565 F.2d at 188-190 and Montilla Records, supra, 575 F.2d at 326--especially in view of the fact that the defects could have been cured had the warrants in both cases set forth information clearly available to the government for distinguishing the contraband. As indicated below, we are faced with a like situation in the instant case.

In Klein, we held invalid a mass seizure of tapes and tape cartridges under a warrant authorizing the seizure of "unauthorized 'pirate' reproductions". We did so because information detailing the background and...

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