U.S. v. Mittelman, 92-10623

• Decision Date: 14 July 1993
• Docket Number: No. 92-10623,92-10623
• Citation: 999 F.2d 440
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Richard MITTELMAN; Weldon Ray Reeves, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 440

999 F.2d 440

UNITED STATES of America, Plaintiff-Appellant, v. Richard MITTELMAN; Weldon Ray Reeves, Defendants-Appellees.

No. 92-10623.

United States Court of Appeals Ninth Circuit.

Submitted July 14, 1993. ^*

Decided July 21, 1993.

Donald W. Searles, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellant.

Dale A. Drozd, Blackmon & Drozd, Sacramento, CA, for defendant-appellee Reeves.

Appeal from the United States District Court for the Eastern District of California.

Before: WALLACE, Chief Judge, D.W. NELSON and O'SCANNLAIN, Circuit Judges.

WALLACE, Chief Judge:

The government appeals from the district court's order suppressing all evidence seized during a warranted search of Reeves's law office. The government argues that the district court clearly erred in finding both that Federal Bureau of Investigation Agent Pereira (Agent) made false statements to the federal magistrate who issued the warrant and that the resulting search exceeded the scope of the warrant. The government also argues that the court erred in suppressing all evidence seized during the search, including evidence within the scope of the warrant. The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291. We vacate the district court's order and remand.

I

In November 1990, the Agent participated in a search of a residence belonging to Mittelman, who was suspected of bank and bankruptcy fraud. Reeves was Mittelman's attorney. Based on the evidence found at Mittelman's, the Agent sought a warrant from a federal magistrate to search Reeves's law office. The Agent informed the magistrate that probable cause existed to believe that the office contained evidence of Reeves's participation in bankruptcy fraud and a conspiracy to commit bankruptcy fraud.

The Agent also assured the magistrate, in his affidavit accompanying the warrant application, that he was aware of the confidential interests at stake in a law office search, and that he would follow certain procedures designed to safeguard those interests: the procedures for searching and seizing documents described in the American Law Institute's Model Code of Pre-Arraignment Procedure (ALI procedures), which we suggested but did not require the government follow in United States v. Tamura, 694 F.2d 591, 595-96 (9th Cir.1982) (Tamura). The magistrate issued the warrant, and the Agent and several other officers searched Reeves's office that same day.

Based on information gathered in the searches of Mittelman's residence and Reeves's office, the government charged Mittelman and Reeves with conspiracy to commit bankruptcy fraud and various related substantive offenses. Reeves and Mittelman subsequently moved to suppress the evidence seized during the search of Reeves's law office. They sought suppression on the ground that the Agent made material misstatements in applying for the warrant, justifying an evidentiary hearing and remedy pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (Franks ), and also on the ground that the search was overbroad and abusive.

The district court denied Reeves and Mittelman's Franks motion, holding that even if the material misstatements were known to the magistrate, a reasonable magistrate would still have issued the warrant. The court subsequently conducted a hearing to determine whether the search was overbroad. During that hearing, the court found that the Agent did not follow the ALI procedures as promised in his affidavit. According to the court, the Agent and other officers conducting the search examined the entire contents of files, failed to follow proper sealing procedures, and perused the indexes of computer files and seized a number of computer disks. Testifying at the hearing, the Agent admitted that he had never read the ALI procedures. He also related that, one week prior to the search of Reeves's office, he had testified at another criminal proceeding involving Mittelman where he was cross-examined by Reeves. At the close of the hearing, Reeves and Mittelman sought reconsideration of their Franks motion.

The district court found that the Agent's failure to relate his earlier testimony in Mittelman's case and his misstatement regarding his familiarity with ALI procedures did not bear on the issue of probable cause to conduct the search. Those facts, the court concluded, were "relevant only to the scope of the warrant and the manner of execution." Nevertheless, the court found that Franks was applicable to this case. Drawing on an analogy from wiretap cases, the district court held that

where a defendant is able to make a prima facie showing that an affidavit supporting a request for a search warrant of a law office containing criminal files includes wilfully false material [statements] and/or omissions bearing upon how that search will be conducted relative to protection of those values, a Franks-like hearing is appropriate. If, upon the hearing, the court finds that the affidavit does contain such false material and that the search was not conducted in accordance with the reasonable expectations of the magistrate derived from those representations, suppression should follow.

Applying this holding to the facts, the court found that the Agent's search did not conform to the ALI procedures. The court further found that the Agent's affidavit contained a reckless or intentional misstatement regarding his familiarity with ALI procedures. The court then concluded that this misrepresentation "certainly lulled the magistrate into concluding that additional special precautions were not necessary. Given that the result of these misrepresentations was a search inconsistent with the magistrate's reasonable expectations premised upon them, suppression appears appropriate." The court suppressed all of the evidence seized during the search, and the government appealed. Mittelman has since pleaded guilty to the bankruptcy conspiracy and thus is not a party to this appeal.

We review de novo the lawfulness of a search. United States v. Chen, 979 F.2d 714, 716 (9th Cir.1992) (Chen ). Although we ordinarily review the district court's ruling as to the existence of probable cause for clear error, we review de novo the district court's review of allegedly false statements and their effect on probable cause. United States v. Elliott, 893 F.2d 220, 222 (9th Cir.) (Elliott ), amended, 904 F.2d 25 (9th Cir.), cert. denied, 498 U.S. 904, 111 S.Ct. 268, 112 L.Ed.2d 224 (1990). The district court's factual findings underlying its decision to suppress evidence are reviewed for clear error, including its findings regarding whether a government agent made intentional or reckless misstatements when applying for a search warrant. Id.

II

The government devotes a large portion of its brief to contesting the factual findings of the district court. The government contends that the court clearly erred in finding that the Agent made intentional or reckless material misstatements or omissions to the magistrate. The government also disputes the court's finding that the Agent and others exceeded the scope of the search warrant and generally conducted the search with little regard for the privacy interests at stake. Based upon the record before us, the district court's findings are not clearly erroneous.

III

The government also challenges, on two grounds, the district court's wholesale suppression of evidence. First, the government argues that neither a Franks hearing nor suppression is required where material misstatements or omissions do not bear on the issue of probable cause. Second, the government contends that even if the search exceeded the terms of the warrant, the proper remedy is suppression only of that evidence seized outside of the scope of the warrant.

A.

To determine whether a Franks hearing is required when intentional or reckless misstatements or omissions by officers are shown, the reviewing court should set aside the false assertions and determine whether the remaining evidence is sufficient to establish probable cause. Elliott, 893 F.2d at 222-23. The district court conducted this type of review in response to Reeves's Franks motion and held that a hearing was not warranted. At a subsequent hearing to determine whether the search was overbroad, the court discovered that the Agent had made additional misrepresentations and omissions, but it concluded that these did not bear on the issue of probable cause. In light of its conclusion, the court should have held again that a Franks hearing was not warranted.

Instead, the court determined that the Franks doctrine should be applied to situations, such as law office searches, "where false affidavits have supported invasions of privacy interests which are deemed especially sensitive ... even when the false material is not relevant to probable cause determinations." In support of this theory, the court drew an analogy to wiretap cases, in which we have applied Franks to the issue of whether a wiretap was necessary. See United States v. Ippolito, 774 F.2d 1482 (9th Cir.1985) (Ippolito ). In those cases, we review any misstatements or omissions to determine whether the judge would have found the use of a wiretap necessary absent those false statements. Id. at 1485.

There are at least two reasons why the analogy to the wiretap cases is inappropriate here. First, a showing of necessity is a statutory requirement for the issuance of a wiretap authorization order. See id. (necessity is a "congressionally warranted requirement "). By contrast, necessity is not a statutory requirement to obtain a warrant to search a law office. The Privacy Protection Act, 42 U.S.C. § 2000aa-11(a)(3), demands a general "recognition of special concern for privacy interests in cases in which a search ... would intrude upon a known confidential relationship such as that which may exist...