U.S. v. McLaughlin

• Decision Date: 08 July 1988
• Docket Number: Nos. 87-1099,87-1113,s. 87-1099
• Citation: 851 F.2d 283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Mark McLAUGHLIN, and Paul M. Bernauer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 283

851 F.2d 283

UNITED STATES of America, Plaintiff-Appellee, v. Robert Mark McLAUGHLIN, and Paul M. Bernauer, Defendants-Appellants.

Nos. 87-1099, 87-1113.

United States Court of Appeals Ninth Circuit.

Argued Jan. 11, 1988.

Submitted July 8, 1988.

Decided July 8, 1988.

David W. Dratman, Sacramento, Cal., for defendant-appellant McLaughlin; Doron Weinberg, Larson & Weinberg, San Francisco, Cal., for defendant-appellant Bernauer.

Richard J. Bender, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee U.S.

Appeal from the United States District Court for the Eastern District of California.

Before GOODWIN, FARRIS and NELSON, Circuit Judges.

NELSON, Circuit Judge:

McLaughlin and Bernauer were indicted for possession with intent to distribute the drug 3,4-methylenedioxymethamphetamine (MDMA). Bernauer was also indicted for possession with intent to distribute cocaine. Police obtained warrants for McLaughlin's apartment and for Bathcrest, McLaughlin and Bernauer's shared business. While searching Bathcrest, officers found cocaine in Bernauer's briefcase. Bernauer then consented to a search of his apartment, where the officers found additional evidence, including MDMA, and drug paraphenalia.

Appellants moved to suppress the evidence, alleging invalidity of the warrants and searches, and to dismiss the action, alleging that the prohibition of MDMA was itself invalid. They contend that the facts supporting the warrant lacked sufficient nexus to the premises to create probable cause, that information used to support the warrant was too old to support a finding of probable cause, and that the warrant contained overbroad descriptions of the items to be seized. They also object to the search of Bernauer's briefcase, claiming that it exceeded the scope of the warrant. Finally, they contend that the regulatory scheme under which the drug MDMA was made illegal was unconstitutional and beyond the scope of agency power. After these motions were denied, appellants pled guilty, reserving for appeal the issues raised by the motions to suppress and to dismiss.

We reverse McLaughlin and Bernauer's convictions for possession with intent to distribute MDMA. Because the regulatory scheme under which possession and distribution of MDMA were made illegal has been struck down as beyond the power delegated to the D.E.A., see United States v. Emerson, 846 F.2d 541 (9th Cir.1988), neither defendant committed a crime by possessing MDMA at the time of arrest.

We affirm Bernauer's conviction for possession with intent to distribute cocaine. We need not decide whether the warrant was based on probable cause, because we find that even if the warrant lacked probable cause, the evidence was properly admitted under the exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 3420-21, 82 L.Ed.2d 677 (1984). The officers in this case relied on the determination of a neutral magistrate that they had probable cause to search Bathcrest. We cannot say that their reliance was objectively unreasonable. There is no evidence that the affidavit upon which the warrant was based contained any knowing or reckless falsehood, or that the magistrate abandoned his judicial role. The warrant, even if not based on probable cause, was not so deficient that no officer could reasonably have believed it to be valid, and the affidavit did not lack all indicia of probable cause. See id. at 923, 104 S.Ct. at 3421. We therefore must decide only two remaining issues: whether the warrant was overbroad, and whether the police exceeded the scope of the warrant by searching Bernauer's briefcase.

Warrant Overbroad

The search warrant describes four general categories of evidence to be seized: (1) drugs and drug distribution paraphenalia; (2) evidence of possession or sale of cocaine; (3) evidence of conspiracy to distribute cocaine; and (4) evidence of control or ownership of the premises searched. Appellants contend that the warrant describes the latter three categories with insufficient particularity to satisfy the fourth amendment, which does not permit warrants for general searches that leave discretion to the officers executing the warrant. Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927).

Although precise description of the items to be seized is not always possible, some specificity is required. How specific the warrant must be varies with the circumstances, including "(1) whether probable cause exists to seize all items of a particular type described in the warrant; (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those [that] are not; and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued." United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986) (citations omitted). Whether a warrant describes items to be seized with sufficient specificity is reviewed de novo. Id.

Appellants raise one general objection and several specific objections to the descriptions of categories two, three and four. The warrant describes category two as "articles of personal property tending to establish and demonstrate sales, possession for sale, and possession of cocaine as well as other controlled substances, consisting in part of and including United States Currency, buyer list, seller list, and recordation of sales and purchases." It describes category three as "articles of personal property tending to establish the existence of conspiracy to possess with intent to distribute cocaine, as well as other personal telephone books, address books, telephone bills, papers and documents containing lists of names." It describes the fourth category as "articles of personal property tending to establish the identity of persons in control of the area to be searched, and consisting in part of and including, but not limited to, utility company receipts, addressed envelopes, keys, photographs, and business records."

Appellants suggest that these descriptions fail to identify the items to be found with sufficiently specific descriptions. They rely for support on Spilotro, 800 F.2d 959 and United States v. Cardwell, 680 F.2d 75 (9th Cir.1982). In Cardwell, we struck down as overbroad a search warrant for "corporate books and records, including but not limited to cancelled and duplicate checks, check stubs, journals, ledgers, weekly summaries, driver trip envelopes, and daily schedules ... which are the fruits and instrumentalities, of violations of 26 U.S.C. Sec. 7201." 680 F.2d at 76. The search for evidence of tax fraud was disallowed because it required the police to distinguish between fraudulent and nonfraudulent records without offering guidelines for distinguishing them, because making such distinctions exceeded police competence, and because information available from a prior investigation would have permitted more specific descriptions. Id. at 78.

In Spilotro, the court rejected a warrant permitting police to search for "notebooks, notes, documents, address books and other records ... which are evidence of violations of 18 U.S.C. Sec. 1084, 1952, 1955, 892-894, 371, 1503, 1511, 2314, 2315, 1962-1963." 800 F.2d at 961. The court rejected this warrant on two grounds. First, the government had sufficient information to narrow the description of the items sought. The government sought evidence of loan sharking and gambling. Although it did not know specifically what documents would be found, it might have specified that any records seized must relate to gambling, and it might have given examples such as "pay and collection sheets, lists of loan customers, loan accounts and telephone numbers, line sheets, bet slips, tally sheets, and bottom sheets." See id. at 964 (quoting United States v. Timpani, 665 F.2d 1, 4-5 (1st Cir.1981)). Second, the warrant failed even to describe the criminal activity suspected. It provided only a list of statutes. The court noted that the statutes listed could encompass hundreds of criminal acts, and suggested that reference to specific illegal activities would have saved the warrant. Spilotro...