U.S. v. Strand, 84-5041

• Citation: 761 F.2d 449
• Decision Date: 02 May 1985
• Docket Number: No. 84-5041,84-5041
• Parties: UNITED STATES of America, Appellee, v. Anna M. STRAND, a/k/a Anna Rogers, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 449

761 F.2d 449

UNITED STATES of America, Appellee, v. Anna M. STRAND, a/k/a Anna Rogers, Appellant.

No. 84-5041.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 11, 1984.

Decided May 2, 1985.

Scott Tilsen, Minneapolis, Minn., for appellant.

Joseph Walbran, Minneapolis, Minn., for appellee.

Before ARNOLD, FAGG, and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

In February 1983, the United States Postal Service began an investigation into mail missing from the Minneapolis-Winstead postal route in Minnesota. On April 29, 1983, Postal Inspector Michael George wrote out an affidavit setting forth results of the investigation. On the basis of this affidavit, George obtained a warrant from a United States Magistrate authorizing the search of a certain apartment in New Germany, Minnesota occupied by Anna Strand and Paul Rogers, both of whom were mail carriers on the route in question.

On May 5, 1983, four postal inspectors searched the Strand/Rogers apartment and compared items found in the apartment with items listed in the affidavit and in another document. The postal inspectors seized certain items that matched items reported missing and also seized three mail sacks belonging to the Postal Service. Some of the items seized were not identified by the postal patrons who had reported mail losses and were eventually returned to Strand. Strand was indicted on June 9, 1983. On July 29, 1983, the District Court sustained the validity of the warrant and denied Strand's motion to suppress the incriminating items seized in the May 5 search. On September 15, 1983, Strand was convicted of knowing possession of articles stolen from the mail (Count I of the indictment), theft of Postal Service property (Count II), and obstructing correspondence (Count III), under 18 U.S.C. Secs. 1708, 1707, and 1702. Strand appeals her convictions to this Court, arguing that the search warrant was invalid because it was issued without probable cause and because it was a general warrant prohibited by the Fourth Amendment, and that the items seized by postal inspectors should therefore have been suppressed.

I.

When reviewing the issuance of a warrant by a magistrate, the function of this Court is to determine whether "the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960) ). The facts and conclusions set forth in the affidavit in support of the application for the warrant may be summarized as follows:

1) Postal customers from ten post offices along the Minneapolis-Winstead route had reported numerous losses of letter and parcel mail.

2) There were twelve dates on which customers lost "substantial" quantities of mail.

3) Either Anna Strand or Paul Rogers was the driver on the Minneapolis-Winstead route on nine of the twelve dates on which "substantial" losses occurred.

4) Either Strand or Rogers probably was the driver on the other three dates.

5) Strand and Rogers were living together in Winstead and in New Germany.

6) Many of the letters stolen contained checks which had not yet been negotiated.

7) Several parcels had been reported missing, two of which contained unusual and readily identifiable contents. One parcel contained 300 hammer-shaped ball point pens, while the other parcel included sheets, gloves, socks, a sweatshirt, a copper flowerpot, a flowered butterdish, cosmetics, and a copy of the Kuhlman Kinfolk Heritage book.

8) The merchandise in the parcels was of the type which would not be resalable and would be put into regular use.

9) The outgoing trash at the Rogers/Strand residence in New Germany had been examined periodically and none of the missing mail had been discarded in the garbage.

10) Because parcel post and letter mail is processed separately by different employees in Minneapolis, it was unlikely that the mail was stolen there.

For these reasons, the postal inspector believed and the magistrate was satisfied that there was probable cause to believe that the missing mail was in the Strand/Rogers apartment in New Germany.

"Probable cause exists where 'the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925) ). "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. We therefore turn to the affidavit to determine whether it provided a substantial basis for the magistrate's finding of probable cause.

The affidavit, as subscribed and sworn to by Postal Inspector George, recounts the results of his investigation into the disappearance of large amounts of parcel post and other mail. The missing mail was posted from ten separate post offices, all of which were on the same postal route. Once the mail arrived in Minneapolis, one group of postal employees handled the parcel post and a different group handled the other mail. Thus, only the route drivers had regular, practical access to all the missing mail and it is reasonable to infer that the mail was disappearing on the postal route. ¹

There were twelve dates on which large amounts of mail had disappeared. On nine of these twelve dates, either Strand or Rogers had been the driver of record on the postal route; postal records do not indicate who the driver was on the other three days, but Inspector George thought it probable that it was either Strand or Rogers. Strand and Rogers lived together.

None of the missing mail had been discovered. Inspector George assumed that Strand would store the stolen mail in her home since some of it was of the kind that would be put into normal home use. Thus, Inspector George believed that the missing mail could reasonably be expected to be in the Strand/Rogers apartment in New Germany. ²

Examining "all the circumstances set forth in the affidavit," Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332, we cannot conclude that the affidavit did not provide the magistrate with a substantial basis for determining the existence of probable cause. Compare Iverson v. North Dakota, 480 F.2d 414 (8th Cir.), cert. denied, 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 335 (1973) (where defendant had known murder victims, had been in the victims' apartment 48 hours before the bodies were discovered and had scratches on his hands, arms and neck, probable cause existed for search of defendant's car and home for bloodstained clothes).

II.

We next consider whether the warrant described the items to be seized with sufficient particularity to be valid under the Fourth Amendment. The warrant simply stated that postal inspectors were to search the Strand/Rogers apartment for "stolen mail which is evidence of and the fruits of the crime of theft from the mail." The constitutional standard for particularity of description in a search warrant is that the language be sufficiently definite to enable the searcher reasonably to ascertain and identify the things authorized to be seized. Steele v. United States, 267 U.S. 498, 503-04, 45 S.Ct. 414, 416-17, 69 L.Ed. 757 (1925). This Court has applied a standard of "practical accuracy" in determining whether a description is sufficiently precise to satisfy the requirements of the Fourth Amendment, recognizing that the degree of specificity required necessarily depends upon the circumstances of each particular case. United States v. Johnson, 541 F.2d 1311, 1314 (8th Cir.1976).

We believe that the term "stolen mail" is sufficiently definite to enable a postal inspector to identify and seize items which clearly fit within such a generic class, such as letters and parcels, neither addressed to nor sent by the person whose property is being searched, bearing postage stamps or marks. A search for "stolen mail" does not, however, permit the seizure of items which do not fit into the generic category. Many of the items seized in the present case under the rubric of stolen mail were not found in parcels of mail, and included items such as socks, a sweatshirt, cosmetics, a sweater, a thermometer, a china plate, and gloves; a warrant commanding postal inspectors to seize "stolen mail" clearly does not authorize them to seize items ordinarily considered to be normal household goods. We believe the magistrate erred in issuing a warrant which did not identify with sufficient particularity the items to be seized from the Strand/Rogers apartment in New Germany other than those items clearly recognizable as being within the generic category of "stolen mail."

The government argues, however, that the warrant in this particular case incorporated the affidavit, satisfying the Fourth Amendment's demand for particularity through the specific listing in the affidavit of the non-generic items to be seized. This Court discussed the incorporation of affidavits into warrants in United States v. Johnson:

The traditional rule is that the generality of a warrant cannot be cured by the specificity of the affidavit which supports it because, due to the fundamental distinction between the two, the affidavit is neither part of the warrant nor available for defining the scope of the warrant.... However, where the affidavit is incorporated into the warrant, it has been held that the...