U.S. v. Miller

• Citation: 24 F.3d 1357
• Decision Date: 06 July 1994
• Docket Number: No. 92-5026,92-5026
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Tanfield C. MILLER and Helen A. Miller, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1357

24 F.3d 1357

UNITED STATES of America, Plaintiff-Appellant, v. Tanfield C. MILLER and Helen A. Miller, Defendants-Appellees.

No. 92-5026.

United States Court of Appeals Eleventh Circuit.

July 6, 1994.

Roberto Martinez, U.S. Atty., Frank H. Tamen, Linda Collins Hertz, Barbara A. Ward, Asst. U.S. Attys., Miami, FL, for plaintiff-appellant.

E. David Rosen, Rosen Law Offices, P.A., Miami, FL, for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before COX and BIRCH, Circuit Judges, and SMITH ^*, Senior Circuit Judge.

EDWARD S. SMITH, Senior Circuit Judge:

On 27 February 1992, appellees Tanfield and Helen Miller were indicted for violating the federal arson statute, 18 U.S.C. Sec. 844(i), in the destruction by fire of a building that housed their business, T.C. Miller & Company (TCM). On 11 August 1992, the United States District Court for the Southern District of Florida, Fort Lauderdale Division, No. 92-6027-CR-Paine, granted appellees' motion to suppress evidence obtained and to return property seized by the Government via an allegedly defective search warrant. On 29 September 1992, the district court denied the Government's motion for reconsideration of the court's order granting appellees' suppression motion. Pursuant to 18 U.S.C. Sec. 3731, the Government appeals the district court's grant of the appellees' suppression motion. We reverse.

Issues

The Government contends that the district court erred as a matter of law in suppressing the evidence based on the court's conclusion that, because a sufficient factual basis was not asserted to establish that the property destroyed in the arson was involved in an activity affecting interstate commerce, the affidavit supporting the search warrant failed to state probable cause of a federal crime. The Government further contends that the district court erred in concluding that the exclusionary rule's good faith exception was inapplicable because the alleged defect in the affidavit was jurisdictional and in suggesting that the magnitude of the probable cause deficiency precluded good faith reliance.

Appellees contend that the affidavit in support of the search warrant failed to allege jurisdiction as required by the federal arson statute in that the affidavit did not provide a sufficient factual basis to conclude that property damaged in the arson was used in an activity affecting interstate or foreign commerce and that, therefore, violation of a federal law had occurred; further, that the Government failed to meet its burden of establishing that the search warrant was not so facially deficient that the executing officers could not rely in good faith on its validity and that, therefore, the district court did not err in suppressing the improperly procured evidence.

Facts

The facts were essentially fully stipulated, and those pertinent to the appeal are as follows:

On 25 September 1988, the building housing appellees' business was destroyed by fire of suspicious origin. On 25 October 1990, a special agent with the Bureau of Alcohol, Tobacco and Firearms executed an Application and Affidavit for Search Warrant before a United States magistrate for a warrant to search the business premises to which TCM had relocated. The search warrant affidavit asserted that TCM was an "accounting/investment entity owned, operated and controlled" by appellee Tanfield Miller, that investigation had determined that arson was the cause of the fire, and that State Farm Insurance had denied TCM's insurance claims based on the determination of arson. The affidavit further asserted that employees of TCM had seen, at the company's new office, a number of personal items belonging to appellees and business-related items that had been considered permanent fixtures at the company's former location and that should have been destroyed or severely damaged in the fire, but were not. These items included specified personal photographs of the appellees, a cigarette lighter, an office photograph album, a corporate record book, and property appraisal books. The affidavit also related that the items that had reappeared at TCM's new office were of the type that one, who had prior knowledge of a fire, would want to remove from the premises beforehand. After noting that the federal arson statute, 18 U.S.C. Sec. 844(i), prohibited the malicious destruction, by means of fire or explosion, of property used in interstate or foreign commerce, the affidavit finally asserted that the items of personal property belonging to the appellees that had been seen in the new TCM building and that should have been destroyed in the fire established probable cause to believe that evidence of a violation of the federal arson statute might be found at TCM's new premises. Satisfied that the affidavit's contents established the requisite probable cause, the magistrate immediately issued the search warrant, and it was executed the same day, yielding a number of personal property items belonging to the appellees.

On 27 February 1992, appellees were indicted for violating section 844(i). On 14 July 1992, appellees moved to suppress the evidence seized under the search warrant by asserting that the search warrant affidavit failed to state probable cause of a federal offense inasmuch as the affidavit did not establish that the property destroyed by the arson was used in interstate or foreign commerce or in any activity affecting such commerce. The Government failed to timely file a memorandum in opposition to appellees' motion to suppress, as required by the local rules of the Southern District of Florida, and on 11 August 1992 the district court granted appellees' motion to suppress by default. In also granting the suppression motion on the merits, the district court relied on the former Fifth Circuit's holding in United States v. Brouillette, 478 F.2d 1171 (5th Cir.1973), and concluded that "mere recitation of the federal arson statute does not provide the necessary nexus to interstate commerce" and that, "because the Search Warrant Affidavit lacked any specific factual allegation concerning interstate commerce," the evidence seized via the search warrant not only must be suppressed but also must be returned to appellees.

On 1 September 1992, the Government moved the district court to reconsider its order granting appellees' suppression motion and asked the court not only to excuse its earlier failure to timely file a written opposition by setting aside the default but also to revisit its order on the merits. In addition to arguing that the search warrant affidavit did provide the magistrate with a factual basis upon which to conclude that property destroyed in the arson affected interstate commerce, the Government alternatively asserted that, alleged defects in the affidavit notwithstanding, any such deficiencies were not so substantial as to preclude application of the exclusionary rule's good faith exception.

Appellees responded by asserting that the magistrate was without authority to issue the warrant but did not otherwise object to the reconsideration motion. Although finding that the Government's explanations for its failure to oppose the motion did not rise to the level of good cause or excusable neglect, the district court nevertheless agreed to address the merits of appellees' suppression motion and its order to grant said motion "due to the importance of the Motion to Suppress, and the Government's representation that Defendants do not oppose reconsideration." In denying the motion for reconsideration on the merits, the district court reasoned that the search warrant affidavit's failure to assert sufficient probable cause for an interstate commerce nexus rendered the warrant improper for lack of federal jurisdiction. Furthermore, the court concluded that, because the magistrate lacked jurisdiction in issuing the warrant, law enforcement officers executing the warrant could not reasonably rely on its legitimacy and, therefore, that the exclusionary rule's good faith exception was inapplicable. This appeal followed.

Standard of Review

Whether the search warrant affidavit in this case offers sufficient facts to establish probable cause of a federal crime is a question of law, United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir.) (en banc) (citing United States v. Hurtado, 779 F.2d 1467, 1477 (11th Cir.1985)), cert. denied, --- U.S. ----, 112 S.Ct. 299, 116 L.Ed.2d 243 (1991), and therefore is subject to complete and independent review by this court. In re Sure-Snap Corp., 983 F.2d 1015, 1017 (11th Cir.1993).

Probable Cause

Because we agree with the Government's contention that the search warrant affidavit asserted sufficient facts from which probable cause of a federal crime reasonably could be concluded by the magistrate and because we believe this determination to be dispositive of the issues on appeal in this case, we find it unnecessary to reach the merits of either the Government's good faith exception argument or the district court's foreclosure of this argument on jurisdictional grounds. Additionally, we do not address that portion of the district court's order granting appellees' suppression motion by default; we construe the district court's willingness, in its denial of appellant's reconsideration motion, to consider the merits of the suppression motion, "due to the importance of the Motion to Suppress and ... [because] the Defendants [did] not oppose reconsideration," as essentially rendering moot the default issue. Neither party addressed the default issue in submitted briefs; consequently, the issue is not before us on appeal.

We begin our analysis of the probable cause issue by briefly examining Congress' intent concerning the interstate or foreign commerce nexus required for conviction under 18 U.S.C. Sec. 844(i). ¹ Section 844(i) was passed as part of Title XI of the Organized Crime Control Act of 1970, Pub.L. No. 91-452, ...