U.S. v. Hillyard

• Citation: 677 F.2d 1336
• Decision Date: 26 May 1982
• Docket Number: No. 81-1413,81-1413
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Arthur HILLYARD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1336

677 F.2d 1336

UNITED STATES of America, Plaintiff-Appellee, v. James Arthur HILLYARD, Defendant-Appellant.

No. 81-1413.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 2, 1982.

Decided May 26, 1982.

William P. Koontz, Cottage Grove, Or., for defendant-appellant.

Thomas Coffin, Asst. U. S. Atty., Eugene, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before KENNEDY, FARRIS and NORRIS, Circuit Judges.

KENNEDY, Circuit Judge:

Appellant James Hillyard suffered the jury's conviction on five counts of interstate transportation of stolen motor vehicles, six counts of concealment of stolen motor vehicles, and one count of interstate transportation of stolen property. Hillyard contends principally that some of the stolen items were seized by general, and so unlawful, search warrants, and also that a logbook and map were seized improperly from the cab of one vehicle. We find the warrants gave proper directions to the officers conducting the search and were lawful and in satisfaction of the particularity requirement of the fourth amendment. We affirm.

Seven stolen vehicles were seized by officers at three locations. Appellant does not challenge seizure of two vehicles at the residences of his acquaintances. He does challenge seizure of a Ford pickup and a Datsun automobile at his own residence in Cottage Grove and seizure of a truck, tractor, and low-boy trailer at property known as "Eleven Acres Wrecking," which was owned by an associate of Hillyard and where Hillyard was storing equipment. ¹

Two search warrants are challenged here. Both were issued based on an affidavit of special agent Enyart of the FBI. The Enyart affidavit set out grounds for his belief that at least ten stolen motor vehicles and pieces of heavy equipment were to be found on the specified properties. The affidavit described in detail the prior ownership and Hillyard's acquisition of four pieces of equipment. Enyart stated he had seen these at one or the other of the locations later searched. The affidavit further averred that Hillyard concealed the thefts by grinding or altering identification numbers on the vehicles and by substituting other identification numbers. There were lengthy supporting allegations that furnished ample probable cause to believe Hillyard ran a stolen vehicle operation. An allegation of importance to this case is Enyart's disclosure, based on statements of two informants, that Hillyard had a box or sack full of vehicle serial number plates and special rivets for attaching them, plus titles, documents, and keys to fit different kinds of machinery. The affidavit recited certain statements by Hillyard indicating criminal activity. Based on these allegations, Enyart stated he had reason to believe that in executing the warrants he would encounter other unknown vehicles that would prove to be stolen upon examination. He requested, therefore, authorization to inspect all motor vehicles and heavy equipment at the locations and to seize those shown to be stolen. Enyart detailed at length how the stolen vehicles could be identified at the scene of the search, explaining that openly displayed motor vehicle identification numbers can be compared with other numbers on the vehicle that are hidden and often can be compared with records kept by law enforcement officials and legitimate dealers.

Upon review of the affidavit, the magistrate issued search warrants for Hillyard's Cottage Grove premises and Eleven Acres Wrecking yard. In addition to describing certain pieces of stolen equipment to be seized, the warrants "commanded" the executing officers "to search all motor vehicles and heavy equipment found on the premises to determine if said vehicles are stolen and to seize those vehicles which possess altered or defaced identification numbers or which are otherwise determined to be stolen."

In executing the warrants, the officers did examine numerous vehicles at the Cottage Grove residence and Eleven Acres Wrecking and discovered two stolen vehicles in addition to those Enyart had known of before. The officers also seized a notebook and logbook from the cab of one of the stolen vehicles, containing entries and a map which placed Hillyard in Texas at the time and place where one of the vehicles was stolen.

Hillyard contends the search was a general one and beyond the scope of what a warrant can properly authorize. The contentions are ill-founded. The vehicles and the documents were properly seized and were admissible.

The allegations in support of each warrant were more than sufficient to establish probable cause; the only issues that deserve discussion here concern the scope of the warrant and the searches made to execute them.

Hillyard first argues that the warrants were improper, or lacked probable cause, because two vehicles were listed on both warrants, and "clearly the vehicles cannot be in two places at once." When property to be seized is being moved from place to place, it may be reasonable to issue warrants directed to multiple locations, and officers need not confine themselves to chance by choosing only one location for a search. Here it was proper for the magistrate to direct a search of both of the locations identified in the affidavit because it was reasonable that the equipment would be found at either or both of the premises. United States v. Johnson, 641 F.2d 652, 659 (9th Cir. 1981); United States v. Hendershot, 614 F.2d 648, 654 (9th Cir. 1980).

The main insistence of appellant is that the authorization for search of all vehicles on the premises makes the warrant a general and impermissible one, and that evidence supporting the counts for two vehicles not previously identified as stolen should have been suppressed.

The requirement that a warrant not be a general one is in part a function of the probable cause rule and is in part derived from the fourth amendment requirement that warrants be ones "particularly describing the place to be searched, and the persons or things to be seized." The particularity requirement thus guards the right to be free from unbounded general searches. The central protection has been stated as insuring that "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). Limiting discretion in this sense is the requirement that officers' actions be sufficiently circumscribed so that the magistrate issuing the warrant is fully apprised of the scope of the search, and can make the determination that the search in all of its dimensions is based upon probable cause and particular descriptions.

We have relied upon this principle to describe a search unlawfully general where the accompanying warrant "left to the executing officers," rather than to the magistrate upon issuance, "the task of determining what items fell within broad categories stated in the warrant" and where there were no clear guidelines distinguishing between property which was contraband and that which was not. United States v. Drebin, 557 F.2d 1316, 1322-23 (9th Cir. 1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1978); see United States v. Marti, 421 F.2d 1263, 1268 (2d Cir. 1970), cert. denied, 404 U.S. 947, 92 S.Ct. 287, 30 L.Ed.2d 264 (1971).

The particularity guarantee does not preclude use of generic language. In many cases officers are unable to specify in advance all seizable evidence on the premises to be searched. See United States v. Cook, 657 F.2d 730, 733 (5th Cir. 1981) (discussing cases upholding warrants with generic descriptions). For example, in United States v. Federbush, 625 F.2d 246 (9th Cir. 1980), we upheld the use of a search warrant that described the property to be seized generically as "documents, securities, papers, and all mechanical instruments such as check protectors and specialized writing devices associated with issuing such documents, pertaining to (a certain bank) ..., and are being held in violation of United States Code, Title 18, Section 2314." Id. at 251. The warrant was proper because it specified the crime and the enterprise to which the items listed were to pertain, cf. Andresen v. Maryland, 427 U.S. 463, 479-82 & 480 n.10, 96 S.Ct. 2737, 2748-49 & 2749 n.10, 49 L.Ed.2d 627 (1976) (upholding search warrant listing in generic terms various types of documents and including catch-all phrase interpreted as authorizing search for other evidence relevant to criminal fraud involving certain real estate).

When there is probable cause to believe that premises to be searched contains a class of generic items or goods, a portion of which are stolen or contraband, a search warrant may direct inspection of the entire class or all of the goods if there are objective, articulated standards for the executing officers to distinguish between property legally possessed and that which is not. United States v. Klein, 565 F.2d 183, 188 (1st Cir. 1977); see Montilla Records of Puerto Rico, Inc. v. Morales, 575 F.2d 324 (1st Cir. 1978). A search warrant authorizing inspection will not be a general warrant if such standards reasonably guide the officers in avoiding seizure of protected property, and if upon return of the warrant the magistrate may review the search to determine whether the instructions were followed and legitimate property and privacy interests were protected. The standards may be contained in the search warrant or, if certain conditions are met, in the accompanying affidavit. The search warrant may be construed with reference to the affidavit for purposes of satisfying the particularity requirement if (1) the affidavit accompanies the warrant, and (2) the warrant uses suitable words of reference which incorporate the affidavit therein. In re Seizure of Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1319 (9th Cir. 1981); see United States v. Klein, ...