U.S. v. Young

• Decision Date: 08 February 1989
• Docket Number: No. 88-1803,88-1803
• Parties: UNITED STATES of America, Appellee, v. Stephen D. YOUNG, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1099

877 F.2d 1099

UNITED STATES of America, Appellee, v. Stephen D. YOUNG, Defendant, Appellant.

No. 88-1803.

United States Court of Appeals, First Circuit.

Heard Feb. 8, 1989.

Decided June 21, 1989.

Albert F. Cullen, Jr., Boston, Mass., for defendant, appellant.

Jeffrey L. Russell, Dept. of Justice, Crim. Div., Narcotics & Dangerous Drug Section, Washington, D.C. with whom Peter E. Papps, Acting U.S. Atty., was on brief, for the U.S.

Before BREYER, ALDRICH and SELYA, Circuit Judges.

BREYER, Circuit Judge.

Stephen Young, appealing from a judgment of conviction for having participated in a continuing criminal enterprise, 21 U.S.C. Sec. 848, and having filed a false income tax return, 26 U.S.C. Sec. 7206, asks us to decide the lawfulness of the search that produced the evidence against him. See Fed.R.Crim.P. 11(a)(2) (permitting plea of guilty "conditional" on appellate review of adverse decisions of pretrial motions). The district court partly granted and partly denied Young's motion to suppress evidence that law enforcement officers seized during a search of his home in mid-January 1984. The district court agreed with one of Young's "search and seizure" claims, namely that certain aspects of the search unlawfully exceeded the scope of the search warrant. It consequently suppressed all evidence not specifically covered by the search warrant. But Young argues that the district court should also have suppressed items that the warrant mentioned. He says (1) the warrant itself was not lawfully obtained, and (2) in any event, the unlawful elements of the search were so egregiously improper as to taint the entire search and require suppression of all the items taken. After reviewing the record of the circumstances surrounding the search compiled in a related state court proceeding, State v. Valenzuela, 130 N.H. 175, 536 A.2d 1252 (1987), cert. denied, --- U.S. ----, 108 S.Ct. 1474, 99 L.Ed.2d 703 (1988), and after taking some additional evidence, the district court rejected these contentions. After reading the 16-volume record appendix before us, we conclude that the district court's determinations were legally correct.

I. Background Facts

Because the legal questions before us are highly fact-specific, we shall first summarize the key facts, as the district court could lawfully find them. "The standard of review of an appeal from denial of a motion to suppress is that the decision will be upheld if any reasonable view of the evidence supports the trial court's decision." United States v. Veillette, 778 F.2d 899, 902 (1st Cir.1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). See United States v. Kiendra, 663 F.2d 349, 351 (1st Cir.1981); United States v. Payton, 615 F.2d 922, 923 (1st Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2950, 64 L.Ed.2d 830 (1980).

1. In about June 1983, New Hampshire State Police Detective Sergeant Henry Carpenito and Federal Drug Enforcement Administration ("DEA") Agent Gerald Graffam began to investigate Young, whom they suspected of being a major drug dealer. In October 1983 they interviewed William Tobin. Tobin described to them how he had transported drugs for Young, how others had purchased drugs from Young, and the nature of Young's drug operation. The officers obtained from the telephone company, and from a lawfully authorized "pen register" device, records that showed that Young made many calls to persons with criminal convictions for drug offenses and whom reliable confidential sources described as still in the drug business.

2. In early January 1984, Carpenito asked a New Hampshire state court to authorize a wiretap on Young's residence telephone. He supported the application for the wiretap order with an affidavit describing records of several hundred phone calls made from Young's phone to different persons whom the affiant or reliable informants identified as having recently been, or as still being, involved in unlawful drug transactions. The affidavit also described Carpenito's meetings with Tobin and other informants, who described the drug activities of Young and his associates.

The court issued the wiretap order. The wiretap revealed that Young sometimes talked in a kind of code, often used aliases, and often asked callers to whom he was speaking in code to call him back at a public telephone. Carpenito, an experienced drug investigator, says he recognized the code, and that when, for example, Young spoke about making room for a large shipment of "lumber" that would arrive on January 13, Young really meant marijuana.

3. By Saturday, January 14, 1984, drug investigators were making plans to search Young's home. That morning state police arrested two persons working as confederates of Young, whom they saw drive a rented truck to Young's house and later depart. The officers feared that the arrestees might warn Young about an imminent search if they (the arrestees) made phone calls. One of the police officers, Lt. Brown, therefore called a state court judge and asked him about the consequences of holding the two incommunicado. The judge, Justice Gage of the Exeter District Court, explained to Brown that any evidence the two gave after being refused permission to make phone calls might be inadmissible in court.

4. Later in the same day Carpenito obtained, from the same Justice Gage, a search warrant for Young's residence. The warrant authorized a search for "marijuana, cocaine, records and ledgers of drug sales transactions, weight scales, drug paraphernalia, U.S. currency, safety deposit box keys."

5. On the morning of Sunday, January 15, Carpenito, along with Graffam and other federal and state law enforcement officers, began to search Young's home. They arrested Young at the start of the search. They continued the search through Sunday night, Monday, and Monday night, and ended it Tuesday evening. They seized nearly 70 pounds of cocaine, more than a ton of marijuana, LSD tablets, $200,000 cash, firearms and munitions, ledgers of drug transactions, and other records of drug activities and of various financial activities thought to be evidence of the drug transactions.

6. On Sunday, soon after the search began, a federal Internal Revenue Service agent, Edward Blair, heard about the search. On Monday morning he met Carpenito, by chance, as the two ate breakfast at a restaurant on the highway near Young's house. Sometime later on Monday, Blair took a group of federal tax agents to Young's house, and, walking past the police guards without identifying himself, he began to search for tax information. With other IRS agents, he went through every room of Young's garage/office (next to the house), seizing the majority of the documents he found there. He also searched, though to a lesser degree, Young's main house. Blair took ten file drawers of records from the office, marked them for seizure, gave them to the state police, and later inspected them at state police offices.

Blair testified later that he had never read the search warrant or heard its terms. He said that he thought he had had permission to enter the house, that he thought police guards had let him enter because he "looked like" a government agent, and that he directed his search without consulting state officers. He testified that his search was intended both to help state officers understand financial materials and to conduct his own tax investigation, but he also testified that he did not actually help the state police identify or understand any records during the search.

7. The district court determined that Blair had behaved unlawfully. It suppressed all items seized to which the search warrant did not specifically refer. As we read the record, the suppressed items would include the tax information that Blair obtained, and other miscellaneous items (such as jewels, krugerrands, books, personal records and belongings) outside the warrant's scope.

II. The Legal Issues

Young raises four legal issues. Having reviewed the record, we find each of them without legal merit. We shall briefly explain why.

A. "Probable cause" for the search warrant. Young argues that Carpenito's affidavit seeking authority for the wiretaps was invalid because it contained materially misleading, intentionally false, information. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We suppose that Young makes this argument because he believes that, if it is true, the invalidity of the wiretap order could, in turn, make the search warrant invalid, for the search warrant rested upon an affidavit that contained information from the wiretap. Even if we assume that we can apply Franks at one remove from the search warrant and also assume that the Constitution requires us to review a state's wiretap authorization as we would review a federal search warrant, we reject Young's position because the items to which Young points are either insignificant or not misleading. That is to say, if we excise (or otherwise appropriately adjust) all misleading statements from the affidavit, Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85; United States v. LaRouche Campaign, 695 F.Supp. 1290, 1305 (D.Mass.1988) (remedy under Franks is not "to disregard those statements entirely; rather, it is appropriate to reconsider the affidavit disregarding the falsities and supplemented by the omitted information"), there is still a more than adequate showing of "probable cause." Thus any misstatements are immaterial. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85; United States v. Cole, 807 F.2d 262, 268 (1st Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2461, 95 L.Ed.2d 870 (1987). We discuss each alleged misstatement in turn:

1. Carpenito's affidavit says that Tobin identified Milton S. Cash, Maurice Grenier, and Dennis Boudreau as three of Young's drug customers, whereas in fact Tobin identified the three customers as "Milt," "Big Moe from Manchester," and "Dennis," adding some description of...