U.S. v. George
| Decision Date | 17 September 1992 |
| Docket Number | No. 767,D,767 |
| Citation | 975 F.2d 72 |
| Parties | UNITED STATES of America, Appellant, v. Russell R. GEORGE, aka Rusty, and Pamela A. Johnson-Sherman, Defendants, Francis R. LaJoice, Defendant-Appellee. ocket 91-1524. |
| Court | U.S. Court of Appeals — Second Circuit |
John-Claude Charbonneau, Asst. U.S. Atty., Rutland, Vt. (Charles A. Caruso, U.S. Atty., Gary G. Shattuck, Asst. U.S. Atty., of counsel), for appellant.
Carolyn Browne Anderson, Rutland, Vt. (Abell, Kenlan, Schwiebert & Hall, P.C., of counsel), for defendant-appellee.
Before: VAN GRAAFEILAND and CARDAMONE, Circuit Judges, and STEWART, District Judge. *
Because everyone has some kind of secret or other, most people are anxious that their personal privacy be respected. For that very human reason the general warrant, permitting police agents to ransack one's personal belongings, has long been considered abhorrent to fundamental notions of privacy and liberty. See Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931). We have before us on this appeal a warrant that is, in part, so broad as to be a general warrant and which, as to that part, no reasonable police officer could suppose otherwise. Yet, we think the warrant in this particular case may be saved as an object in plain view under the doctrine of severance, which strikes that portion of the warrant that is constitutionally infirm and upholds the remainder. Our reasons follow.
Sometime just after midnight on April 18, 1989 at McDonald's restaurant in Manchester, Vermont, several people, including two managers of the restaurant, were victims of an armed robbery. The perpetrator, a blonde white male, said he had a gun and made a pointing gesture with it, as he ordered one of the victims, Dawn Wood, to throw the bags she had just placed in her car on the ground. Another manager of McDonald's exited the store at this time, and he too was told to throw down his bag. The robber picked up Ms. Wood's purse and brief case, as well as the other manager's bag, and ran into a wooded area behind the restaurant. An investigation by the Manchester Police Department immediately after the robbery provided probable cause to believe evidence of the crime could be found at an apartment shared by defendants Russell George, Pamela Johnson-Sherman, and Francis LaJoice, the appellee.
The following day, April 19, Officer Brickell swore out an affidavit detailing the investigation, concluding:
I believe the following itemscan [sic] be located at ... 30 Baxter St. in Rutland Vermont:
Burgundy Purse
Burgundy Shoulder bag
Credit Cards belonging to Dawn Wood
Personal Papers of Dawn Wood
I.D. of Dawn Wood
Misc. photos
Keys to Honda motorcycle
Dark attache case containing McDonalds management material
A McDonald's Uniform
Duffle Bag
Handgun
Workboot of similar design to plaster casts
Other evidence relating to the commission of a crime
(emphasis added). A Bennington County District Court Judge issued a warrant that day authorizing the search for and seizure of
1 Burgundy purse, 1 burgundy shoulder bag, credit cards, personal papers, and ID of Dawn Wood. Misc. photos, keys to Honda motorcycle, dark attache case containing McDonalds management material, McDonalds uniform Handgun, workboot of similar design to plaster cast, any other evidence relating to the commission of a crime
(emphasis added).
The warrant was executed during the afternoon of the same day by local and state police officers. Officer Brickell was On May 15, 1991 LaJoice moved to suppress all evidence seized during the search. On August 19 the United States District Court for the District of Vermont (Billings, C.J.) granted the motion, finding that the warrant failed to satisfy the particularity requirement of the Fourth Amendment and was so facially deficient the executing officers could not reasonably have relied upon it in "good faith." The United States appeals. Although we are in general agreement with the district court's conclusions, the plain view argument raised by the government that could justify admission of the shotgun was not reached or decided by the trial court. Hence, we remand.
one of those officers. During the search the police seized four items: an Ithaca 12 gauge shotgun, boots, a clock and .22 ammunition. The 12 gauge shotgun served as the basis of a federal grand jury indictment on February 20, 1991 charging LaJoice with possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The same indictment charged defendants George and Johnson-Sherman with this count, as well as controlled substance violations. These two defendants are not before us on this appeal
The general warrant--authorizing police agents to undertake an indiscriminate rummaging through citizens' personal effects--is prohibited by the Fourth Amendment's command that "no Warrants shall issue [unless] particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend IV. See Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971) (plurality). In order to prevent a "wide-ranging exploratory search," Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987), the warrant must enable the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize. See Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925); United States v. Vargas, 621 F.2d 54, 56 (2d Cir.), cert. denied, 449 U.S. 854, 101 S.Ct. 150, 66 L.Ed.2d 68 (1980). Whether a warrant is sufficiently particular to pass constitutional scrutiny presents a question of law that we decide de novo. See United States v. Harris, 903 F.2d 770, 774 (10th Cir.1990); United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986).
The instant warrant's broad authorization to search for "any other evidence relating to the commission of a crime" plainly is not sufficiently particular with respect to the things to be seized because it effectively granted the executing officers' "virtually unfettered discretion to seize anything they [saw]." United States v. Mankani, 738 F.2d 538, 546 (2d Cir.1984). The government attempts to blunt the implications of this indiscriminate warrant by urging that, read in context, the broad catch-all phrase refers only to evidence relating to the McDonald's robbery. It cites Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), in support of this proposition. Andresen involved a fraud investigation concerning the sale of real estate (Lot 13T). The warrant authorized a search for items pertaining to the sale of Lot 13T, listed several categories and types of evidence separated by semicolons, and concluded with the phrase "together with other fruits, instrumentalities and evidence of crime at this [time] unknown." 427 U.S. at 480-81 n. 10, 96 S.Ct. at 2749 n. 10. In rejecting the argument that the clause "evidence of crime at this [time] unknown" transformed the warrant into a general warrant, the Supreme Court observed that as the preambulatory phrase "pertaining to [Lot 13T]" was followed by a colon and the following clauses were separated by semicolons, each clause was therefore logically limited to items pertaining to Lot 13T. Id. at 480-82, 96 S.Ct. at 2748-49. Thus, the catch-all phrase, read in context, authorized only a search for evidence relating to the crime of false pretenses with respect to Lot 13T.
The warrant in the instant case does not lend itself to such a limiting construction. Nothing on the face of the warrant tells the searching officers for what crime the search is being undertaken. Compare, e.g., United States v. Washington, 797 F.2d 1461, 1472 (9th Cir.1986) (); United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir.1976) (per curiam) (). Although we have upheld warrants authorizing the seizure of "evidence," "instrumentalities" or generic classes of items where a more precise description was not possible in the circumstances, the warrants in those cases identified a specific illegal activity to which the items related. See United States v. Young, 745 F.2d 733, 758 (2d Cir.1984) (), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985); Mankani, 738 F.2d at 546 (); United States v. Dunloy, 584 F.2d 6, 8 (2d Cir.1978) (); United States v. Scharfman, 448 F.2d 1352, 1353 n. 1 (2d Cir.1971) (), cert. denied, 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789 (1972).
A failure to describe the items to be seized with as much particularity as the circumstances reasonably allow offends the Fourth Amendment because there is no assurance that the permitted invasion of a suspect's privacy and property are no more than absolutely necessary. See Coolidge, 403 U.S. at 467, 91 S.Ct. at 2038; United States v. Cardwell, 680 F.2d 75, 78 (9th Cir.1982); United States v. Klein, 565 F.2d 183, 186 (1st Cir.1977); United States v. Marti, 421 F.2d 1263, 1268 (2d Cir.1970). The particularity requirement prevents this sort of privacy invasion and reduces the breadth of the search to that which a detached and neutral magistrate has determined is supported by probable cause. See Garrison, 480 U.S. at 84, 107 S.Ct. at 1016; Coolidge, 403 U.S. at 467, 91 S.Ct. at 2038. Mere reference to "evidence" of a violation of a broad criminal statute or general criminal activity provides no readily ascertainable guidelines for the executing officers as to what items to seize. See ...
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