U.S. v. Nafzger, 91-3230

• Decision Date: 26 May 1992
• Docket Number: No. 91-3230,91-3230
• Citation: 965 F.2d 213
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ralph NAFZGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 213

965 F.2d 213

UNITED STATES of America, Plaintiff-Appellee, v. Ralph NAFZGER, Defendant-Appellant.

No. 91-3230.

United States Court of Appeals, Seventh Circuit.

Argued April 21, 1992.

Decided May 26, 1992.

Grant C. Johnson, Asst. U.S. Atty., Madison, Wis. (argued), for plaintiff-appellee.

Joseph F. Owens, Arthur & Owens, New Berlin, Wis. (argued), for defendant-appellant.

Before CUMMINGS and POSNER, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

PER CURIAM.

Ralph Nafzger entered a conditional plea of guilty to the charge of possessing a stolen vehicle that had been transported across state lines. 18 U.S.C. § 2313 (1988). The condition of the plea was that he could contest on appeal the denial of his two motions to suppress evidence, which he now does.

Nafzger's plea arose out of an investigation by federal and state law enforcement officers into a multistate car-theft ring. As a part of that investigation the officers went to Nafzger's dairy farm in Juda, Wisconsin to execute a search warrant for a specific stolen truck. The search warrant failed to state any "place" to be searched other than the Western District of Wisconsin. Nafzger's farm included a residence and several outlying buildings used for his dairy business. When the officers got to the farm they knocked on the door of the residence. A woman answered and told them that Nafzger was out working on the farm somewhere. The officers found him outside his dairy barn, at which point Nafzger asked them what they wanted. The officers told him that they were looking for a black Ford F250 4X4 pickup truck. They showed him the search warrant for the truck that detailed what they were looking for. Nafzger read the search warrant and told the officers that he had a truck which fit that description. He then led them to the tool shed where he said that he kept the truck. The truck inside the shed matched the description of the truck detailed in the warrant. Once inside the shed, but before they searched the truck, one of the officers read to Nafzger a standard FBI consent-to-search document. The officer explained to him that he had to sign the form before anyone could search the truck in his shed. Nafzger read the form and signed it, then the officers searched the truck.

The officers, after telling Nafzger that he was not under arrest, began asking Nafzger questions about the truck. Because they were questioning Nafzger in the shed, which was quite cold, they asked him if he wanted to answer their questions inside the house, or if he wanted to go inside to get a coat. He declined their offer and answered the questions. The interview lasted approximately an hour, during which time Nafzger eventually stated that he knew the truck was stolen.

Before he pleaded guilty Nafzger moved to suppress as admissible evidence the truck and the statements he gave to the officers during their investigation. The court denied both motions. As to the truck, the court found that Nafzger had consented to the search of his premises. As to Nafzger's statements, the court held that he was not in custody at the time of questioning, so he did not have a right to Miranda warnings. Nafzger contests these findings on appeal.

Nafzger claims that the truck should be suppressed as evidence because the officers seized it during an illegal search. The search was illegal, Nafzger claims, because the search warrant for the truck failed to specify with particularity the place to be searched. The search warrant described the truck in detail, but it described the place where it was to be found only as "the Western District of Wisconsin."

The fourth amendment leaves no doubt that search warrants must "particularly describ[e] the place to be searched." Failure to do so renders the warrant a "general warrant," which the amendment's plain language clearly forbids. See Payton v. New York, 445 U.S. 573, 584 n. 21, 100 S.Ct. 1371, 1378 n. 21, 63 L.Ed.2d 639 (1980) (retracing the roots of the particularity requirement to the colonialists' objections to the writs of assistance). The particularity requirement is satisfied if "the description is such that the officers with a search warrant can with reasonable effort ascertain and identify the place intended." Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925). This reading of the particularity requirement embodies two concerns. The first concern is the deterrence of "general, exploratory rummaging in a person's belongings." Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976). The second concern is that the scope of a lawful search will be limited to "the places in which there is probable cause to believe that it may be found." Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987). Officers can avoid these concerns by making "a sufficient showing to the magistrate that the described items are to be found in a particular place." 2 W. LaFave, Search and Seizure § 4.5, p. 207 (2d ed.1987). This showing may be evidenced by the search warrant itself, by the affidavit supporting the search warrant (if properly incorporated), United States v. Maxwell, 920 F.2d 1028, 1032 (D.C. Cir.1990), or, in limited cases, by the executing officer's knowledge that there was a particular place to be searched, known to both him and the magistrate judge at the time the warrant was issued. United States v. Gahagan, 865 F.2d 1490, 1497-98 (6th Cir.1989) (discussing cases).

In this case, the truck was to be searched for "certain vehicle identification numbers and parts numbers" located on the vehicle. The warrant said that these numbers along with the vehicle constituted evidence of a violation of Title 18 U.S.C. §§ 511, 2312, & 2313. Neither the search warrant nor the supporting affidavit described the farm or even its general location. This is not a case in which the officer's knowledge goes to the probable cause determination. These omissions result in a total failure to show probable cause that the truck described could be found on Nafzger's farm, Juda, or anywhere in Dane County. Judging from the search warrant and the affidavit, the only place for which there was probable cause to search for the truck was "the Western District of Wisconsin." This language "limits" the search to the whole of the district court's jurisdiction; in other words, it does not limit the search at all. Courts have rejected, on the grounds of overbreadth, search warrants that use more particular descriptions than the description here. E.g., United States v. Alberts, 721 F.2d 636, 639 (8th Cir.1983); Maxwell, 920 F.2d at 1031 (warrant found overly broad but upheld on sufficiency of affidavit). By accepting "the Western District of Wisconsin" as a particular description of the place the truck was to be found we would be giving the government carte blanche to search anywhere in that district that the truck might conceivably be found, condoning the use of the pernicious general warrant, and redacting the particularity requirement from the fourth amendment. The warrant used in this search was defective.

The...