859 F.2d 667 (9th Cir. 1988), 86-5153, United States v. Luk

Docket Nº:86-5153.
Citation:859 F.2d 667
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Louis LUK, Defendant-Appellant.
Case Date:October 06, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 667

859 F.2d 667 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


Louis LUK, Defendant-Appellant.

No. 86-5153.

United States Court of Appeals, Ninth Circuit

October 6, 1988

Argued and Submitted Jan. 7, 1987.

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[Copyrighted Material Omitted]

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William S. Wong, Florance and Wong, San Diego, Cal., for defendant-appellant.

William F. Fahey, Asst. U.S. Atty., Chief, Public Corruption and Government Fraud Section, Los Angeles, Cal., for plaintiff-appellee.

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

Before POOLE and HALL, [*] Circuit Judges, and SCHWARZER, [**] District Judge.


Louis Luk, following the entry of a conditional plea of guilty, appeals the district court's denial of his motion to suppress evidence obtained from a search of his home. Luk argues tat the search warrant was issued in violation of Rule 41(a) of the Federal Rules of Criminal Procedure and that the warrant was so overbroad as to preclude a good faith, objectively reasonable belief in its validity. We affirm.


Louis Luk was one of four persons indicted for conspiracy, illegally exporting high technology computer components to Hong Kong and the People's Republic of China, and making false statements to United States government agents, under 18 U.S.C. Sec. 371, 50 U.S.C. App. Sec. 2410(a), and 18 U.S.C. Sec. 1001, respectively. The indictment followed a lengthy investigation of Luk and his business, Mcall Resources, Inc., by Doris Koplik, an agent of the United States Department of Commerce, Office of Export Enforcement ("OEE"). Throughout the investigation, Koplik was in communication with Assistant United States Attorney Henry Rossbacher.

After Koplik ascertained that Mcall Resources operated out of Luk's home in Irvine, California, she sought a search warrant. With Rossbacher's assistance, she prepared a draft affidavit. The affidavit was typed partially in her office and partially in his. The warrant itself was prepared by Rossbacher in his office. On the day the warrant was issued, October 22, 1984, Rossbacher's office 1 determined which magistrate was on duty and Rossbacher directed Koplik to go to that magistrate and present the application for a warrant. There is no evidence to show that Rossbacher or anyone in his office ever spoke directly to the magistrate. 2 Koplik complied with Rossbacher's instructions and the magistrate issued the warrant. The warrant was executed at Luk's home the following day by a team of agents from the United States Customs Service and the United States Department of Commerce.

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Luk moved to suppress evidence obtained during the search on the ground that the warrant was unconstitutionally overbroad. He supplemented his original motion with the contention that suppression was required because the search warrant was issued upon the request of an unauthorized person in violation of Rule 41(a) of the Federal Rules of Criminal Procedure. 3 The district court denied Luk's motion. The court found that the warrant was unconstitutionally overbroad, 4 but that suppression was unnecessary because the agents who executed the search did so in good faith reliance upon the warrant's validity. 5 The court also held that the requirements of Rule 41(a) were satisfied:

I cannot find based on the evidence available to me that Mr. Rossbacher, the Assistant U.S. Attorney involved, made any request directly by him personally to Magistrate Penne that the warrant issue, but I will find that the warrant was issued upon the request of an attorney for the Government and that, therefore, Rule 41(a) has been satisfied; that the warrant is, therefore, not invalid for failure to qualify under Rule 41(a).

Following the denial of his motion to suppress, Luk entered a conditional guilty plea under Fed.R.Crim.P. 11(a)(2), preserving his right to challenge the district court's evidentiary rulings. He received a sentence of five years probation and a $50,000 fine. Luk timely filed this appeal.


In reviewing the question whether an unauthorized person requested the search warrant, we are called upon to determine whether the district court properly applied existing law to the established facts of this case. Because the question presented "requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles," we review de novo the district court's determination that Assistant United States Attorney Rossbacher requested the warrant to search Luk's home. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); see United States v. Johnson, 641 F.2d 652, 656 (9th Cir.1980).

We also review de novo whether the "good faith" exception to the exclusionary rule applies in a particular case. United States v. Hendricks, 743 F.2d 653, 656 (9th Cir.1984), cert. denied, 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985).


In United States v. Vasser, 648 F.2d 507 (9th Cir.1980), cert. denied, 450 U.S. 928, 101 S.Ct. 1385, 67 L.Ed.2d 360

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(1981), DEA agents obtained a warrant using a tape-recorded affidavit, a procedure not authorized by Rule 41 which requires that warrants may only be issued upon oral telephonic or written affidavits. Although the Court agreed that the agents' "novel approach" did not conform with the procedures sanctioned by Rule 41, the Court held that suppression was not required in all cases in which the issuance of a warrant failed to conform to Rule 41. The Court then elaborated the following two-part test for Rule 41 violations:

Only a "fundamental" violation of Rule 41 requires automatic suppression, and a violation is "fundamental" only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards. Violations of Rule 41 which do not arise to constitutional error are classified as "non-fundamental." "Non-fundamental" noncompliance with Rule 41 requires suppression only where:

'(1) there was "prejudice" in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or

(2) there is evidence of intentional and deliberate disregard of a provision in the Rule.'

648 F.2d at 510 (citations omitted).

This fundamental/nonfundamental test existed before United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and is a judge-made suppression doctrine for Rule 41 violations similar to the good faith exception to the exclusionary rule. The Vasser court noted that the "policies behind the exclusionary rule are not absolute and must be evaluated realistically and pragmatically on a case-by-case basis." Id. at 510 n. 2; see, e.g., Leon, 468 U.S. at 906-07, 104 S.Ct. at 3411-12 (exclusionary rule is judge-made, not constitutional, and application of suppression sanction must be evaluated in each case). Because the exclusionary rule tends to exclude evidence of high reliability, the suppression sanction should only be applied when necessary and not in any automatic manner. See, e.g., Oregon v. Elstad, 470 U.S. 298, 354, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (Brennan, J. dissenting) ("the [Leon ] Court held that ... the Fourth Amendment does not per se require suppression of evidence derived from an unconstitutional search...."). Further, the link between suppression and the deterrence of unconstitutional conduct should be closely scrutinized, and when deterrence is attenuated or slight suppression should be disfavored. See Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 1166, 94 L.Ed.2d 364 (1987). Noting that the DEA agents acted in good faith, we held in Vasser that the Rule 41 violations in question were nonfundamental violations that did not require suppression. Id. at 511.

This Court affirmed the Vasser test the following year in United States v. Stefanson, 648 F.2d 1231 (1981), rejecting a "rather technical" construction of Rule 41 by a Sixth Circuit decision. Stefanson held that a magistrate's failure to administer and record an oath for a telephonic search warrant, and other violations of Rule 41, did not require suppression when the errors were nonfundamental and "neither deliberate nor prejudicial." Id. at 1235.

Luk contends that the fundamental/nonfundamental test should not be applied to violations of Rule 41(a). Alternatively, he argues that this doctrine should be overruled. We reject both contentions. Although neither Vasser nor Stefanson involved violations of Rule 41(a), the fundamental/nonfundamental test is not confined to violations of any particular subsection of Rule 41. Rather, the test is clearly directed to the substantive nature of the violation rather than under which subsection of the Rule it falls.

In United States v. Ritter, 752 F.2d 435 (9th Cir.1985), a state judge issued a telephonic search warrant, violating Rule 41's directive that only a "federal magistrate" may issue a telephonic warrant. Fed.R.Crim.P. 41(c)(2)(A). The Court stated that "the settled rule in the Ninth Circuit is that a purely technical violation of Rule 41 does not require the suppression of evidence otherwise legally obtained." 752 F.2d at 441.

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Absent prejudice indicating that "a federal magistrate would have handled the search warrant application differently" or deliberate violation of the Rule by the police officers, the Court concluded that the technical violation of the federal magistrate requirement of Rule 41 was insufficient to call for suppression. See also United States v. Johnson, 660 F.2d 749, 753 (9th Cir.1981) ("Johnson II ") ("the lack of a federal magistrate issuing the warrant" did not...

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