United States v. Fuccillo

• Decision Date: 09 May 1986
• Docket Number: Crim. No. 86-00019-C.
• Citation: 634 F. Supp. 358
• Parties: UNITED STATES of America, Plaintiff, v. Carl A. FUCCILLO, Defendant.
• Court: U.S. District Court — District of Massachusetts

634 F. Supp. 358

UNITED STATES of America, Plaintiff, v. Carl A. FUCCILLO, Defendant.

Crim. No. 86-00019-C.

United States District Court, D. Massachusetts.

May 9, 1986.

Robert L. Jubinville, Milton, Mass., for defendant.

Paul F. Healy, Boston, Mass., for the U.S.

MEMORANDUM

CAFFREY, Chief Judge.

This is a criminal action in which the defendant Carl A. Fuccillo has been charged with one count of receiving stolen goods in interstate commerce under 18 U.S.C. § 2315, four counts of possession of goods stolen from interstate shipment under 18 U.S.C. § 659, and one count of interstate transportation of stolen goods under 18 U.S.C. § 2314. The matter is now before the Court on the defendant's motion to suppress all articles seized during the execution of three search warrants on September 28, 1984.

As grounds for his motion to suppress, the defendant contends that the searches were executed in violation of his rights under the Fourth Amendment of the United States Constitution. More specifically, the defendant maintains that the affidavit of F.B.I. Agent Frisoli, relied upon by the Magistrate issuing the warrants, did not support a finding of probable cause, and that the warrants failed to specify the articles to be seized with sufficient particularity. The defendant further maintains that Agent Frisoli and the other F.B.I. agents who executed the warrants did not act in objectively reasonable reliance upon the warrants and, accordingly, the good faith exception to the exclusionary rule established by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply. For the reasons set forth below, I rule that the warrants in this case did not meet the particularity requirement of the Fourth Amendment, and I further rule that the government has failed to show that the F.B.I. agents who executed the warrants acted in good faith.¹

After hearing, I find and rule that on September 28, 1984 F.B.I. agents executed three separate search warrants for the following premises: 1) a one-story red brick building housing Fashion Apparel Distributors ("FAD"), a wholesale distributor located at 191 Revere Street, Revere, Massachusetts; 2) a one-story beige brick building, housing a warehouse, located at 5 Fayette Street, Milford, Massachusetts; and 3) Fashions on Tremont, a retail store located on the first floor of 151 Tremont Street, Boston, Massachusetts. Each of the three warrants authorized the seizure of "cartons of women's clothing, the contents of those cartons, lists identifying the contents of the cartons, and control slips identifying the stores intended to receive these cartons, such items being contraband and evidence of a violation of Title 18, United States Code, Section 7659, Possession of Goods Stolen from Interstate Shipments."

In issuing the warrants, the Magistrate relied exclusively upon an affidavit submitted by F.B.I. Agent Lawrence Frisoli.² The affidavit related that two trailers containing 839 cartons of women's apparel and accessories were stolen between August 10-13, 1984 from Women's Specialty Retailing in Enfield, Connecticut. Information identifying the stores that were to receive the goods, including the store numbers, names, and addresses, were attached to the cartons. Agent Frisoli's affidavit further stated that the stores that were to receive the cartons of women's clothing "were among others Casual Corner." Most of the other information in the affidavit was provided by a confidential informant. The affidavit states that the informant advised Agent Frisoli that stolen women's clothing was located at FAD in Revere, the Milford warehouse, and Fashions on Tremont in Boston, that "it" had been inside FAD and the Milford warehouse, and that while inside these premises, "it" had observed Casual Corner women's clothing which "it" knew to be stolen.

Defendant Fuccillo contends that none of the warrants in this case specified the goods to be seized with sufficient particularity. The United States Supreme Court has explained that the particularity requirement "makes general searches under warrants impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927); See also, Montilla Records of Puerto Rico, Inc. v. Morales, 575 F.2d 324, 326 (1st Cir.1978). The warrants at issue in this case did not specify what types or brands of clothing were subject to seizure, but instead referred only to "cartons of women's clothing." Such a broad description is not necessarily fatal to the warrants. The Court of Appeals for the First Circuit has held that warrants which provide only a generic description of the goods to be seized may in some instances satisfy the particularity requirement. United States v. Cortellesso, 601 F.2d 28 (1st Cir.1979); United States v. Klein, 565 F.2d 183 (1st Cir.1977). While it is true that in certain cases a warrant which provides merely a generic description of the goods to be seized may be adequate, for the reasons stated below, I rule that the description of the goods to be seized in the three different warrants in this case fail to satisfy the particularity requirement of the Fourth Amendment.

The Court of Appeals for the First Circuit has established two similar but significantly different tests both of which must be met before a Magistrate may issue a valid warrant providing only a generic description of the goods to be seized: first, whether the evidence presented to the Magistrate established that there was reason to believe that a large collection of similar contraband was present on the premises to be searched; and second, whether the evidence before the Magistrate explained the method by which the executing agents were to distinguish between contraband and the rest of the defendant's inventory. United States v. Cortellesso, 601 F.2d 28, 31 (1st Cir.1979); United States v. Klein, 565 F.2d 183, 188 (1st Cir.1977). With respect to the requirement that there be reason to believe that a large collection of similar contraband was present on the premises, the Court of Appeals has said that "there must be specific and detailed foundation for such a belief." Klein, 565 F.2d at 188. There was no specific and detailed foundation for a belief that a large collection of stolen women's clothing in cartons was present at the FAD premises in Revere or the Milford warehouse. Agent Frisoli's affidavit stated that a confidential informant knew that stolen women's clothing was present at FAD and the Milford warehouse and that the informant personally observed stolen Casual Corner clothing at both locations. This information, when considered in light of the fact that 839 cartons of women's clothing, including cartons headed for Casual Corner stores, were previously stolen in Connecticut, arguably supports the inference that some of the 839 stolen cartons were in FAD and the Milford warehouse. Nonetheless, I rule that the information in the affidavit does not provide a sufficiently specific and detailed foundation for the belief that a large number of stolen cartons of women's clothing were present at the three locations. There is no information as to how much stolen clothing was at FAD or the Milford warehouse. Moreover, there is no information whatsoever in the affidavit that any cartons of women's clothing were at FAD or the Milford warehouse. In fact, Agent Frisoli's affidavit reveals that two F.B.I. agents observed through an open garage door at the Milford warehouse "several racks of hanging women's clothing."

The government has also failed to show that the evidence before the Magistrate, which again consisted only of Agent Frisoli's affidavit, explained the method by which the executing agents were to differentiate contraband from legitimate goods at FAD or the Milford warehouse.³ Moreover, unlike the facts in Cortellesso where it was apparent from the affidavit that "for all practical purposes the collection of stolen goods could not be precisely described for the purpose of limiting the scope of the seizure," Cortellesso, 601 F.2d at 32, the F.B.I. in the instant case could have learned and presented to the issuing Magistrate specific information which would have enabled the agents executing the warrants to differentiate contraband cartons from legitimate ones. Agent Frisoli's affidavit expressly stated that attached to the 839 stolen cartons was "information identifying the store that was receiving the goods, including the store number, store name, and address." The government has made no showing that this information could not have been obtained from Women's Specialty Retailing in Connecticut or from someone else. In summary, I rule that in light of the information available to the agents which could have served to narrow the scope of the warrant and protect the defendant's personal rights, the warrants were inadequate. See Klein, 565 F.2d at 190.

The warrant authorizing the search of Fashions on Tremont is also constitutionally deficient for failure to specify the goods to be seized with sufficient particularity. In light of the information which Agent Frisoli's affidavit reveals was available to the F.B.I. and the Magistrate, a generic description in the warrant of the goods to be seized was clearly inadequate. In Cortellesso, the Court of Appeals for the First Circuit said that where a warrant contains only a generic description of the goods to be seized, it is proper for a court to look at the affidavit submitted in support of the warrant to determine whether the use of a generic description in the warrant was adequate. Cortellesso, 601 F.2d at 32. In addition to stating that there was information attached to the 839 stolen cartons of women's clothing identifying the number, names, and addresses of stores that...