U.S. v. $10,000 In U.S. Currency

• Decision Date: 02 January 1986
• Docket Number: No. 85-6088,D,Nos. C537246 and C428957,No. 32,s. C537246 and C428957,32,85-6088
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. $10,000 IN UNITED STATES CURRENCY; $26,900 In United States Currency; Two Gold Bars Stamped 8 Oz. 999.9 Fine, Serial; and One 18K Gold Identification Bracelet With No Inscription, Defendants, Antonia Vega, Claimant-Appellant. ocket
• Court: U.S. Court of Appeals — Second Circuit

Page 213

780 F.2d 213

UNITED STATES of America, Plaintiff-Appellee, v. $10,000 IN UNITED STATES CURRENCY; $26,900 In United States

Currency; Two Gold Bars Stamped 8 Oz. 999.9 Fine, Serial

Nos. C537246 and C428957; and One 18K Gold Identification

Bracelet With No Inscription, Defendants,

Antonia Vega, Claimant-Appellant.

No. 32, Docket No. 85-6088.

United States Court of Appeals, Second Circuit.

Argued Aug. 29, 1985.

Decided Jan. 2, 1986.

Kurt F. Zimmermann, Asst. U.S. Atty., D. of Connecticut, New Haven, Conn. (Alan H. Nevas, U.S. Atty., New Haven, Conn., of counsel) for plaintiff-appellee.

David A. Moraghan, Torrington, Conn. (Joseph F. Keefe, Smith & Keefe, Torrington, Conn., of counsel) for claimant-appellant.

Before MANSFIELD, CARDAMONE, and PIERCE, Circuit Judges.

CARDAMONE, Circuit Judge:

This appeal addresses the troublesome issue presented when objects not particularly described in a search warrant and neither stolen nor contraband are seized in the course of an otherwise legitimate search. The question raised is whether the seizure of this property, constituting proceeds of illegal narcotics transactions, during the execution of a valid search warrant violated appellant's Fourth Amendment rights against unreasonable searches and seizures; and, if so, is the government's action seeking the property's forfeiture therefore void?

Antonio Vega appeals from a judgment entered in the United States District Court for the District of Connecticut (Murphy, J.) that declared certain items of personal property forfeited to the United States under 21 U.S.C. Sec. 881(a)(6) (1982). ¹ The res which is the subject of this appeal consists of $10,000 in United States currency, $26,900 in United States currency, two eight-ounce gold bars, and one 18k gold identification bracelet.

Appellant mounts three challenges to the district court's ruling. First, that the res was not in plain view and not inadvertently discovered, therefore making its seizure a violation of his Fourth Amendment rights. Second, that the illegal seizure should bar the government's subsequent efforts to retain the property through a forfeiture action. Third, that the lower court's findings and judgment are not supported by the evidence.

There is no doubt that government agents pursuant to a properly issued and executed search warrant may seize items particularly described in the warrant as the objects to be seized. The items seized here were not described in the warrant, but following a trial, the district court found that discovery of the res resulted from an inadvertent plain view search. It therefore held the res properly forfeitable because it was "from the 'cash and carry' business of a confessed narcotics dealer, Antonio Vega." Under the "plain view" doctrine, incriminating evidence discovered inadvertently during the course of an initially lawful intrusion may be seized. Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 564 (1971) (plurality opinion of Stewart, J.); Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968) (per curiam); United States v. Rollins, 522 F.2d 160, 166 (2d Cir.), cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1975).

To rule on this appeal it is necessary to determine the meaning of the word "inadvertent." Webster's Third New International Dictionary defines it as "unintentional" or "heedless". While such definition may aid in our resolution, a dictionary is not a divining rod that unerringly predicts correct legal solutions. When analyzing the plain view doctrine in this context, additional factors must be examined, most significantly the history and purpose of the Fourth Amendment. A thorough analysis of all the factors present in this case persuasively shows that discovery of appellant's property was inadvertent. Hence, we affirm.

I

Antonio Vega has two apartments--one in Milford, Connecticut and the other in Port Chester, New York. Search warrants were obtained for both. The investigation that led to obtaining the warrants reveals that in 1981 a New York State Police Investigator was assigned to work with the U.S. Drug Enforcement Administration that was looking into cocaine trafficking in Port Chester. An undercover agent purchased cocaine from Vega in Port Chester in September and October, and arranged for a third purchase on December 9, 1981. In addition to these cocaine transactions with Vega, the State Investigator's affidavit in support of the application for the New York search warrant also disclosed information he had received from a female informant who had lived with Vega for a year. She supplied Vega's home address in Port Chester and his apartment address in Milford, which she related was used as a "safe" house and for narcotics deals. She told the investigator that during the past year she had seen in Vega's Port Chester home cocaine paraphernalia and three separate $5,000 stacks of money.

In an affidavit for the Connecticut search warrant, the State Investigator outlined the above facts. He further stated that Vega had used the Milford apartment for narcotics purposes as recently as December 7 and 8, 1981 and that the informant had seen a large cocaine press in the Milford apartment, the same one that had been in Port Chester. The affidavit for the Connecticut search warrant contained no reference to money, currency or gold being observed by the informant in Vega's Milford home.

As a result of this information, a search warrant for the Port Chester apartment was issued. It authorized government officers to search and seize "quantities of cocaine; equipment used to distribute cocaine including utensils, substances, chemicals containers, testing equipment and other narcotics paraphernalia; documents regarding said distribution including notes, papers and records; monies and other proceeds of narcotics transactions; property and goods which constitute evidence of or are property designed or intended for use as a means of [violating the narcotics laws]." The search warrant for the Milford apartment was issued by a Connecticut Magistrate. It authorized government agents to search and seize "controlled substances, narcotic trafficking and processing paraphernalia and documents which are evidence of trafficking in controlled substances."

On December 9, 1981 after another buy was made by undercover agents from Vega at his Port Chester residence, he was arrested. That same day, government agents executed search warrants at both of Vega's residences. At Milford agents seized 1,431 grams of cocaine found primarily in nine separate ZIPLOC bags in a suitcase found in the bedroom of Vega's minor son. In the child's bedroom closet agents discovered 1,212 grams of marijuana in two clear plastic bags in a black suitcase. In separate containers in the refrigerator's freezer compartment, 59.3 grams and 29.1 grams of cocaine were located. The currency and gold were found in the master bedroom closet in two bank lock-bags, one marked Connecticut Bank & Trust Company and the other Westport National Bank. The investigator testified at trial that he had been advised by the informant of the existence--but not the contents--of these bags.

Vega subsequently pled guilty in a separate criminal proceeding and received a sentence of seven years and a fine of $20,000. On November 19, 1982 the United States instituted the present action in rem seeking forfeiture of the seized assets contending that they were the proceeds of illegal transactions.

II

Appellant contends that inasmuch as the Connecticut warrant contained no mention of--much less particularized--authorization to seize assets, monies or other proceeds of narcotics transactions, the search violated the Fourth Amendment's particularity requirement. The seizure of the res was invalid, Vega asserts, because under the law a warrant should be sufficiently precise so that "[n]othing 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).

The Fourth Amendment states that "[N]o warrants shall issue but upon probable cause ... particularly describing ... the persons or things to be seized." This constitutional mandate is implemented by the return of property provisions of Fed.R.Crim.P. 41(e). The particularity requirement prevents the issuance of general warrants by insuring that a search extends no further than is necessary to find the objects listed in the warrant. Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976). Specificity eliminates general searches and prevents the seizure of objects upon the mistaken belief that such action was taken pursuant to a magistrate's authorization. Marron, 275 U.S. at 196, 48 S.Ct. at 76; see generally 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, Sec. 4.6 (1978 and 1985 Supp.). Concededly, the Connecticut warrant--in contrast to the New York warrant--failed to specify all the property that was actually seized when the Connecticut warrant was executed.

Yet, appellant's Fourth Amendment rights were not violated because an exception exists for unparticularized objects that are in "plain view" of the searching officers. But, this exception is limited. One of the limitations applicable to the seizure of goods "not contraband nor stolen nor dangerous in themselves" is that these objects in plain view must be discovered inadvertently. Coolidge, 403 U.S. at 470-71, 91 S.Ct. at 2040. Or to state it another way: although a search warrant has not particularly described certain items, they may be seized during a search without violating the Fourth Amendment when they are in plain view, provided they are found "inadvertently." Id. at 465, 91 S.Ct. at 2037. That is to say without premeditation or prior intention.

We now address the troublesome scenario of unparticularized objects seized in plain view--where it is...