U.S. v. Soussi

• Decision Date: 12 July 1994
• Docket Number: No. 93-1038,93-1038
• Citation: 29 F.3d 565
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Fikri SOUSSI, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 565

29 F.3d 565

63 USLW 2069

UNITED STATES of America, Plaintiff-Appellant, v. Fikri SOUSSI, Defendant-Appellee.

No. 93-1038.

United States Court of Appeals Tenth Circuit.

July 12, 1994.

James R. Allison, Interim U.S. Atty., Denver, CO, for plaintiff-appellant.

Robert T. McAllister of McAllister & Murphy, P.C., Denver, CO (Barry Boughman of McAllister & Murphy, P.C., with him on the brief) for defendant-appellee.

Before TACHA and EBEL, Circuit Judges, and COOK, District Judge. ¹

EBEL, Circuit Judge.

This is an interlocutory appeal from the district court's suppression order brought pursuant to 18 U.S.C. Sec. 3731. The government contends that the court (1) erroneously amended the search warrant's date restriction; and (2) improperly excluded evidence seized under the plain view doctrine. We conclude that the original date restriction in the search warrant was supported by probable cause and that the court's plain view doctrine analysis was in error. Accordingly, we reverse and remand for further proceedings.

I. BACKGROUND

This action arose from the government's investigation of Defendant-Appellee Fikri Soussi's ("Soussi") alleged role in the exportation of goods to Libya in violation of 50 U.S.C. Secs. 1702 and 1705(b), the International Emergency Economic Powers Act. ² Soussi is the president and sole shareholder of Oasis International, Inc., an export company incorporated in Colorado and located in Denver ("Oasis Denver").

By affidavit filed on November 21, 1991, United States Customs Senior Special Agent James P. Roth ("Agent Roth") alleged that Soussi engaged in a conspiracy to ship fifty camping trailers from the United States to Libya. Agent Roth's affidavit describes an elaborate scheme involving Oasis Denver and two sister companies--Oasis International, Guernsey, United Kingdom ("Oasis Guernsey") and Oasis International Oilfield, Abu Dhabi, United Arab Emirates ("Oasis Abu Dhabi"). The scheme purportedly entailed the planned purchase of fifty trailers from a United States manufacturer and the subsequent shipment of these trailers from the United States to LaSpezia, Italy and ultimately to Benghazi, Libya. Three shipping companies were allegedly hired to transport the trailers during various legs of the journey, and Barclay's Bank in Geneva, Switzerland allegedly issued a letter of credit to facilitate the transaction. Agent Roth testified that his information was gathered from a confidential informant as well as from U.S. Customs Agents' discussions with the manufacturer of the trailers and the three shipping companies hired to ship the trailers.

On November 21, 1991, Magistrate Judge Donald E. Abram concluded that Agent Roth's affidavit demonstrated probable cause to support a document search of Oasis Denver's office pursuant to the following warrant:

Business records and documents, including correspondence, telephone messages, facsimile transmittals, purchase orders, invoices, sales records, payment records, contracts, customer information, product information, business contacts, business cards, address books, rolodex cards, and notes; shipping records, including orders, receipts, waybills, packing lists, correspondence with freight forwarders and shippers, and insurance documents; Customs records, including correspondence, regulations, applications, declarations, reports, and licenses; telephone records, including telephone numbers, toll call records, telexes, and facsimile transmittals; financial records, including checks, letters of credit, debits, receipts, payment records, bills, and account records; and similar documents, whether physical or electronic, relating to the sale, shipment, or exportation of trailers or other goods, directly or indirectly, to Libya during the time period of August 1, 1990 to the present.

Order of November 17, 1992 at 3 (emphasis added).

Accordingly, Agent Roth and several other agents executed the search warrant on November 21, 1991. During their five-hour search of Oasis Denver's business office, the agents discovered between ten and fifteen thousand pages of documents, of which they seized approximately three hundred and fifty pages. The warrant did not incorporate Agent Roth's affidavit, but Agent Roth testified at the suppression hearing that he summarized his affidavit for the other agents who participated in the search. Agent Roth made the final decision on site as to which documents to seize.

Following the execution of the warrant, the government obtained a two-count indictment, on February 28, 1992, charging Soussi with conspiracy to export goods to Libya in violation of 18 U.S.C. Sec. 371; and aiding and abetting a transaction involving the export of goods to Libya in violation of 18 U.S.C. Sec. 2 and 50 U.S.C. Secs. 1702 & 1705(b). On May 29, 1992, Soussi filed a suppression motion, arguing that the government failed to establish probable cause to support the search warrant and that the warrant was facially overbroad. The district court conducted a suppression hearing on July 2, 1992 and issued an order on November 17, 1992 granting in part, and denying in part, Soussi's motion to suppress.

The court first held that the government had established probable cause to support the search warrant for information relating to the export of fifty trailers to Libya. However, the court also concluded that the government lacked probable cause to search for information relating to the export of unspecified "other goods" because the government offered no information to suggest that Oasis International was illegally exporting any items other than the trailers.

Next, the court ruled that the government lacked probable cause to seize any documents dated prior to July 17, 1991. Whereas the warrant authorized the seizure of documents dating back to August 1, 1990 (nine days prior to the date of Oasis Denver's incorporation), the district court concluded that July 17, 1991 was the proper cutoff date because it was the first date known to the government on which Soussi contacted the manufacturer of the trailers. Thus, the court suppressed all documents dated between August 1, 1990 and July 17, 1991.

Finally, the court rejected the government's reliance on the plain view doctrine to support its seizure of documents relating to "other goods" and those dated prior to July 17, 1991. In this regard, the court reasoned that the government may not "seize an item under the authority of an invalid portion of the warrant and later try to justify the seizure on the ground that the document came into plain view as they executed the warrant." Order of November 17, 1992 at 12. Because the search warrant contained both valid and invalid language, the court invoked the rule of partial suppression and suppressed those items seized under the invalid portion of the warrant. ³

In this appeal, the government challenges the court's treatment of the date restriction and the plain view doctrine analysis. We address these issues in turn. ⁴

II. DISCUSSION

In our review of the court's suppression order, we must accept its factual findings unless clearly erroneous and consider the evidence in the light most favorable to that order. United States v. Naugle, 997 F.2d 819, 821-22 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). However, we review de novo the court's determinations of law, such as the "severability of the warrant and the permissible scope of the search." Id. at 822.

A. Date Restriction

The government first contends that it had probable cause to seize documents dating back to August 1, 1990 because it believed that Soussi was engaged in a complex international business transaction involving multiple parties that necessarily preceded July 17, 1991, which was the date that the court concluded was the first time that Soussi contacted the manufacturer of the trailers. ⁵ In rejecting the government's argument, the district court stated that any date earlier than July 17, 1991 would be arbitrary.

The Fourth Amendment requires that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend IV; United States v. Mesa-Rincon, 911 F.2d 1433, 1436 (10th Cir.1990). The Supreme Court has stated that "probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983).

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Id. at 238, 103 S.Ct. at 2332.

A reviewing court must give "great deference" to the magistrate's determination of probable cause and should uphold that conclusion if the "totality of the information contained in the affidavit provided a substantial basis for finding there was a fair probability that evidence of criminal activity would be found at" Oasis Denver's office. United States v. Hager, 969 F.2d 883, 887 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 437, 121 L.Ed.2d 357 (1992). The affiant's experience and expertise may be considered in the magistrate judge's calculus, United States v. Wicks, 995 F.2d 964, 972 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993), which, in Agent Roth's case, consisted of four years as a special agent for the U.S. Customs Service, training in the enforcement of export laws, participation in numerous export violation investigations, and assignment to Operation Exodus, a program directed toward the investigation of unlawful exports.

We determine whether a search warrant's date restriction is supported by probable...