U.S. v. LeBron

• Decision Date: 05 March 1984
• Docket Number: No. 83-1074,83-1074
• Citation: 729 F.2d 533
• Parties: UNITED STATES of America, Appellee, v. Roderick L. LeBRON, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 533

729 F.2d 533

UNITED STATES of America, Appellee, v. Roderick L. LeBRON, Jr., Appellant.

No. 83-1074.

United States Court of Appeals Eighth Circuit.

Submitted June 17, 1983.

Decided March 5, 1984.

Timothy J. Cuddigan, P.C., Marks, Clare, Hopkins, Rauth & Cuddigan and James Schaefer of the firm of Troia & Schaefer, Omaha, Neb., for appellant.

Ronald D. Lahners, U.S. Atty., D. Neb., Joseph F. Gross, Jr., Asst. U.S. Atty., D. Neb., Omaha, Neb., for appellee.

Before LAY, Chief Judge, BROWN, Senior Circuit Judge, ^* and ARNOLD, Circuit Judge.

LAY, Chief Judge.

Roderick LeBron was convicted under 26 U.S.C. Secs. 5861(d) and 5871 (1976) for knowingly possessing firearms that had not been registered to him. ¹ On appeal, LeBron asserts, inter alia, that the search of his home and seizure of the firearms was pursuant to an illegal warrant. We find that the warrant was impermissibly broad and that the seizure of the firearms was improper; we therefore reverse and remand to the district court for further proceedings.

Background

The search warrant was issued on June 9, 1982, by Judge Pittman of the Douglas County Municipal Court, Omaha, Nebraska. The warrant was issued upon presentation of an affidavit subscribed by Officer Tomsheck of the Omaha Police Department.

The affidavit alleged, in part, the following facts. In February and March of 1982, the Bureau of Alcohol, Tobacco, and Firearms (BATF), in conjunction with the Omaha Police Department, was investigating the fencing of stolen property in the Omaha area. In the course of the investigation, an informant introduced Special Agent Petersen, BATF, to Durke Dailey. Dailey fenced stolen property, and on several occasions he sold or offered to sell stolen items to Agent Petersen. The informant also was responsible for supplying Agent Petersen with information about LeBron, including that LeBron was an active purchaser of stolen property. On March 12, 1982, in Agent Petersen's presence, LeBron agreed to purchase a Panasonic large screen television set and a Sony video cassette recorder (VCR) from Dailey. During this transaction, Dailey freely discussed the fact that the items were hot and were from the Omaha area. Agent Petersen observed the serial numbers on these items, respectively, TKZ178623 and 23486. A surveillance team observed LeBron return to the meeting place later that day, load the television and VCR into a van, and unload it at his home. Subsequent investigation revealed that items matching these descriptions had been reported as lost or stolen.

On June 4, 1982, the informant introduced Agent Petersen to Jesse Chant; Chant showed Petersen a Sylvania VCR with a sticker on it reading "Benson High School, Media Center." Subsequent investigation revealed that a Sylvania VCR, serial number 8300933 had been reported stolen from the Media Center of Benson High School. Moreover, Chant admitted that the VCR was stolen. The informant directed Chant to LeBron in order to sell the VCR and Chant later relayed to the informant that he had sold the Sylvania VCR to LeBron. On June 7, 1982, LeBron admitted to the informant that he still possessed the Sony VCR and the Panasonic large screen television set which he had purchased from Dailey in March. On June 8, 1982, LeBron told the informant that he was seeking additional stolen VCR's like the Sylvania VCR he had purchased recently from Chant.

The warrant described LeBron's residence in detail and authorized a search of the residence for:

(1) 1 Sony Video Cassette Recorder, serial # 23486;

(2) 1 Panasonic Large Screen Television Set, serial # TKZ178623; (3) 1 Sylvania Video Cassette Recorder, serial # 8300933;

(4) any records which would document illegal transactions involving stolen property;

(5) and other property, description unknown, for which there exists probable cause to believe it to be stolen.

The search team was comprised of approximately eight Omaha Police Department officers and two special agents from the BATF. The officers served the warrant at LeBron's residence at approximately 10:00 a.m. Upon entering the premises, the officers observed a Panasonic large screen television set, a Sony VCR and a Sylvania VCR. The serial numbers on the two VCRs were identical to the numbers on the warrant. The large screen television set was the same brand and make as the one described in the warrant; however, the serial number was not the same as the one listed in the warrant. Despite the variance, all three items were seized.

On the basis of the presumed authority of the warrant, the officers continued their search of the house. While searching LeBron's bedroom, two officers observed an overhead storage closet, the outside dimensions of which were approximately five feet by four feet. Officer Blecha opened the closet and, utilizing an available step ladder, observed an "enormous" number of firearms (approximately 262), including the ten firearms charged in the indictment, and the subject of the Motion to Suppress at issue here.

Adopting the magistrate's findings, the district court found that the officers had identified and seized the three items specifically described in the warrant almost immediately upon entering the LeBron home. The district court concluded that the warrant's authorization of a search for "any records which would document illegal transactions involving stolen property" was a valid description of an acceptable generic class. See, e.g., United States v. Johnson, 541 F.2d 1311 (8th Cir.1976). The court then held that the observation and seizure of the guns while the officers were executing this clause were valid under the plain view doctrine. The court concluded that the warrant did not unduly threaten a violation of LeBron's personal rights under the Fourth Amendment.

Discussion

On appeal, LeBron contends that, other than the three specified items, the warrant fails to describe the property to be seized with the particularity required by the Fourth Amendment. Specifically, LeBron asserts that the fourth and fifth clauses of the warrant are impermissibly broad. He urges that the search should have ceased immediately upon the officers' seizure of the first three items listed in the warrant.

At the hearing before the magistrate, the government argued that the entire warrant was valid and that the guns were admissible under the plain view doctrine. At oral argument before this court, however, the government essentially conceded that the fifth clause was impermissibly broad. We agree. The warrant's authorization of a search for "other stolen property" allows a general search, contrary to the Fourth Amendment. A valid warrant should describe the things to be taken and the place to be searched with particularity such that it provides a guide to the exercise of informed discretion of the officer executing the warrant. Cf. Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). The Fourth Amendment's prohibition of general warrants is to prevent an exploratory rummaging of a person's belongings. Acknowledging this purpose, in United States v. Johnson, 541 F.2d 1311 (8th Cir.1976), this court observed that "[t]he underlying measure of adequacy in the description is whether given the specificity in the warrant, a violation of personal rights is likely." Id. at 1313.

Applying this standard, courts generally approve warrants if they provide reasonable guidance to the exercise of informed discretion. Similarly, when it is impossible to describe the fruits of a crime, approval has been given to a description of a generic class of items. See, e.g., United States v Scharfman, 448 F.2d 1352 (2d Cir.1971), cert. denied, 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789 (1972); Spinelli v. United States, 382 F.2d 871 (8th Cir.1967), rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). But the general description of "property ... believe[d] to be stolen" is not a description of a generic class. In fact, it is not descriptive at all. It is simply conclusory language. No guidelines are provided to guide the officers in their execution of the warrant or to limit their discretion. No means of distinguishing between stolen property and property that is not stolen is delineated; moreover, the distinction is not one that is readily apparent. These directions provide no protection against subjecting a person's lawfully held property to a general search and seizure. Such a general authorization allows officers to search indiscriminately throughout one's house and to seize anything they please.

Alternatively, the government urges that the admission of the firearms can be upheld by an application of the severance doctrine. See United States v. Fitzgerald, 724 F.2d 633 (8th Cir.1983) (en banc). ² Under this theory, the government urges us to sever the fifth clause from the warrant and uphold the remainder. The government contends that the fourth clause of the warrant is valid and urges that, if the officers were searching for records when they came upon the firearms, the latter should be admitted under the plain view doctrine. Alternatively, the government contends that the officers were not searching merely for records when they came upon the firearms. Relying on the variance in the serial numbers of the large screen television set found and the one described in the warrant, the government urges that the officers had a continuing right to search for, and were, in fact, still searching for, a large screen television set with a serial number matching that in the warrant as well as searching for records "which would document illegal transactions involving stolen property" when they came upon the guns.

The record does not support the government's contention that at the time the firearms were seized, the officers were still searching for the television set. Admittedly, there is some ambiguity in the evidence adduced at the suppression hearing. The district court,...