U.S. v. Buck

• Decision Date: 10 March 1987
• Docket Number: D,No. 755,755
• Citation: 813 F.2d 588
• Parties: UNITED STATES of America, Appellant, v. Marilyn BUCK, Defendant-Appellee. ocket 86-1500.
• Court: U.S. Court of Appeals — Second Circuit

Page 588

813 F.2d 588

55 USLW 2535

UNITED STATES of America, Appellant, v. Marilyn BUCK, Defendant-Appellee.

No. 755, Docket 86-1500.

United States Court of Appeals, Second Circuit.

Argued Jan. 22, 1987.

Decided March 10, 1987.

Kerri L. Martin, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., James L. Kainen, Stuart E. Abrams, Asst. U.S. Attys., of counsel) for appellant.

Judith L. Holmes, New York City (Holmes & Tipograph, New York City, Jill Elijah, of counsel), for defendant-appellee.

Before LUMBARD, KEARSE, and PRATT, Circuit Judges.

LUMBARD, Circuit Judge:

The United States appeals from two pre-trial orders entered in the Southern District of New York on October 24 and December 3, 1986 by Judge Charles S. Haight, Jr. These orders suppressed physical evidence seized pursuant to a search warrant at an apartment rented by the defendant, Marilyn Buck, in East Orange, New Jersey, on the ground that the warrant violated the particularity requirement of the Fourth Amendment. Although we believe that the search warrant was impermissibly broad, we do not believe that the evidence seized should be suppressed. In view of the circumstances under which the law enforcement officers were compelled to conduct their investigation, we believe that they acted in good faith and in reasonable reliance on the warrant in conducting their search. Accordingly, we reverse the orders of the district court.

I.

An April 14, 1984 indictment in the Southern District charged Buck in eight counts with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act, and with participation in a racketeering enterprise, in violation of 18 U.S.C. Secs. 1961, 1962(c), 1962(d) and 2. The indictment further charged Buck with bank robbery, armed bank robbery and murder during the commission of an armed bank robbery, in violation of 18 U.S.C. Secs. 2113(a), 2113(d), and 2113(e), respectively. These charges stemmed from an armored car robbery in the Bronx on June 2, 1981, during which a Brinks security guard was killed. In addition, the indictment charged Buck with bank robbery, armed bank robbery and murder during the commission of an armed bank robbery, in violation of the same statutes, arising out of another armored car robbery in Nanuet, New York, on October 20, 1981, during and immediately after which a Brinks guard and two police officers were killed. Buck is currently incarcerated, serving sentences imposed on her as a result of convictions on other, unrelated charges.

The facts giving rise to Buck's suppression motion are as follows. In the late afternoon of October 20, 1981, at a busy shopping mall in Nanuet, New York, a number of men wearing ski masks emerged from a red van and began firing an M-16 machine gun at guards unloading a Brinks armored car, killing one guard and injuring another. The gunmen quickly gathered $1.6 million from the armored car and sped off in the van.

Shortly thereafter, a local resident told the police that he saw the gunmen transfer themselves, the apparent proceeds of the robbery, and their weapons to a U-Haul truck. The local police located the U-Haul as it was attempting to enter the New York Thruway. When the police stopped the U-Haul to question its occupants, several men burst from the back of it and began firing automatic weapons at the police. The gunmen killed two officers and injured a third. Eyewitnesses saw the gunmen flee the shoot-out in several cars and proceed to a nearby driveway, which served as another switch point. There witnesses saw the gunmen drive off in several other cars, including a white Oldsmobile bearing the New Jersey license plate 594 PJV. The police were unable to catch the white car as it sped away, but, later that evening, they traced the license plate to one "Carole J. Durant," at 166 Grove Street, North Plainfield, New Jersey.

Working through the night, the local police enlisted the assistance of the New Jersey State Police in tracking down the "Durant" automobile. At about 3:30 a.m. the next morning, New Jersey State Police officers went to 166 Grove Street. They spoke to the resident, Leonard Tosto, who told them that he knew "Carol Durant" but that she did not live there. He said that "Durant" had asked him to allow her to register her car at his address "for insurance purposes," and that she really lived at 223 Prospect Street, Apartment 1A, East Orange, New Jersey. "Durant," police later learned, was actually one of Marilyn Buck's several aliases. Tosto further told the officers that "Durant" had called him in the late afternoon of October 20--the date of the robbery and murders in Nanuet--and had told him that she had been in an automobile accident and that, if the police were to question him about her, Tosto should tell them that she lived in New York at an unknown address.

After the officers drove Tosto to 223 Prospect Street and he verified that building as "Durant's" residence, the New Jersey police officials decided to seek a search warrant for the residence. Shortly after 6:00 a.m., Detective Richard Ryan of the New Jersey State Police telephoned Judge Julius Fielo of the East Orange Municipal Court, at the Judge's home, to apply for a search warrant for "Durant's" apartment at 223 Prospect Street. At the beginning of the conversation, which was tape-recorded by the state police, Ryan gave a brief description of the crime in Nanuet. Judge Fielo then told Ryan to "give me some factual basis ah, indicating as to how you've come to know that this vehicle is involved with that crime." Ryan then informed Judge Fielo of the fleeing white car, the tracing of the car registrant to Tosto's residence, and the questioning of Tosto. Ryan also recounted Tosto's version of why "Durant" registered the car at his address and her phone call to him the previous day.

At about 6:45 a.m., Judge Fielo administered an oath to the detective over the phone and then orally authorized a search of the premises at 223 Prospect Street. The warrant stated, as Fielo dictated it over the telephone, "Bench warrant issued verbally to Richard Ryan, on phone, to search premises 223 Prospect Street, East Orange, New Jersey, Apartment 1A, and to search person of Carol Durant and search warrant to seize any papers, things or property of any kind relating to previously described crime." Ryan and other New Jersey police officers went immediately to 223 Prospect Street and executed the search warrant. Among the items the police found in Buck's unoccupied apartment were the following: a .45 caliber semi-automatic rifle, a 9 mm. handgun, a Bowie knife, a blow gun, chuka sticks, ammunition, gun-cleaning kits, a sawed-off shotgun barrel and butt, wigs, a false mustache and make-up kit, insurance documents relating to the white Oldsmobile, numerous detailed bomb-making diagrams, a bomb-detonating device and several household items which the diagram indicated would be of use in making a home-made bomb.

Buck moved to suppress the evidence seized during the search on a variety of grounds. In an opinion filed October 24, 1986, Judge Haight rejected Buck's claims that there was inadequate probable cause for the search; that the issuing judge abandoned his "detached and neutral role;" that New Jersey law required suppression; and that a Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), hearing should have been held. Judge Haight agreed, however, with Buck's claim that the warrant was unconstitutionally broad. Accordingly, Judge Haight suppressed the fruits of the search, finding that Judge Fielo's orally-issued order lacked the "particularity" required by the Fourth Amendment. The Government moved for reconsideration. In a second opinion, decided December 3, 1986, Judge Haight reaffirmed his earlier ruling. This appeal followed.

II.

The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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." (emphasis added)

Our first task is to determine whether the warrant was, as Judge Haight held, excessively broad under the Fourth Amendment. The purpose of the particularity requirement, the Supreme Court has held, "is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the 'general warrant' abhorred by the colonists, and the problem 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, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). Moreover, the Court has stated, in an oft-quoted passage, that the particularity requirement "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." Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). This Court, however, has recognized that these familiar words from Marron "ha[ve] not always been applied literally.... Courts tend to tolerate a greater degree of ambiguity where law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant." United States v. Young, 745 F.2d 733, 759 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985).

In Andresen v. Maryland, 427 U.S. 463, 479, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976), the Court considered whether a specific warrant was violative of the Fourth Amendment. The warrant at issue authorized a search for an "exhaustive list...