United States v. Janice Fitzgerald

724 F.2d 633, 1983 U.S. App. LEXIS 14713

• Court: Court of Appeals for the Eighth Circuit
• Decided: December 7, 1983
• Docket: 82-1242
• Status: Published

Opinions

BRIGHT, Circuit Judge.

A jury convicted Janice Fitzgerald and three codefendants of violating 18 U.S.C. App. § 1202(a)(1) (possession by a convicted felon of a firearm in interstate commerce).¹ A three-judge panel of this court affirmed the convictions of the three codefendants, but on a divided vote reversed Fitzgerald’s. United States v. Apker, 705 F.2d 293 (8th Cir.1983).

The United States petitioned for rehearing en banc, which this court granted, limited to the question whether firearms discovered in plain view during the course of a search pursuant to a federal search warrant, which warrant fails to describe some of the objects of the search with sufficient particularity, are admissible into evidence. We hold such firearms admissible, and affirm Fitzgerald’s conviction. Except as to this issue, our decision en banc does not otherwise disturb the panel opinion in this case.

I. Background.

A grand jury indicted Fitzgerald and nine other persons, alleging that as members or associates of the Hells Angels they conspired to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Federal warrants issued authorizing the arrest of the indictees, and the search of their residences for various indicia of Hells Angels membership which would serve to establish their involvement in the alleged drug conspiracy.² Teams of federal and state law enforcement officers executed the arrest and search warrants early on the morning of February 28, 1981. At Fitzgerald’s residence, the officers seized a Hells Angels T-shirt, a Hells Angels poster and medallions, a mirror bearing a Hells Angels sticker, a large number of photographs and photo albums, a telephone directory, and various other documents. They also seized three firearms: (1) a shotgun found in its case resting against the wall of a bedroom closet, (2) a pistol found in the pocket of a woman’s coat hanging in the closet, and (3) a rifle found “behind a dresser drawer.” These firearms supplied the basis for Fitzgerald’s subsequent indictment and conviction under section 1202(a)(1), from which conviction she now appeals.

The three-judge panel which initially considered the appeal of Fitzgerald and her codefendants held the search warrants invalid on the ground that they failed to describe some of the objects of the search with sufficient particularity. Specifically, the panel determined that the warrant provisions authorizing the seizure of Hells Angels membership directories and “papers relating to Club activities” were too broad to satisfy the “scrupulous exactitude” standard which applies to warrants impinging on first amendment interests. See United States v. Apker, supra, 705 F.2d 293, 299-303. The invalidity of those portions of the warrants is not at issue here. But the panel also held that the portions of the warrants describing jackets, belt buckles, T-shirts, photographs, and plaques and mirrors satisfied the scrupulous exactitude requirement. Id. at 302-03. The precise issue before the court on this rehearing is whether the invalidity of certain portions of the warrants renders the warrants wholly invalid, as the panel majority held, or whether, rather, the insufficiently particular portions of the warrant can be severed from the rest, leaving the warrant intact apart from the severed portions.

For the reasons set forth below, we adopt the severance approach, and hold the warrants valid as to those portions which authorized a search for particular items, i.e., certain articles of clothing, belt buckles, plaques and mirrors, and photographs tending to show association with the Hells Angels. Because the warrants as redacted were valid, the police possessed authority under the “plain view” doctrine, see Texas v. Brown,-U.S.-, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), and Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 2037-42, 29 L.Ed.2d 564 (1971), to seize any apparent contraband or evidence of a crime they might inadvertently find while executing the valid portions of the warrant. On the record before us, it appears clear that the officers discovered the shotgun in Fitzgerald’s closet in plain view during the search for clothing carrying insignia of the Hells Angels. Because the shotgun seized during execution of the valid portions of the warrant suffices to support Fitzgerald’s conviction under section 1202(a) (1), we affirm that conviction.

II. Discussion.

The prime purpose of the rule excluding evidence seized in violation of the fourth amendment is the deterrence of future unlawful police conduct. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). Additionally, the rule serves to protect courts from any taint-by-association with police misconduct, and prevents the prosecution from benefiting from unconstitutional- police activity. See United States v. Cook, 657 F.2d 730, 734 (5th Cir.1981). In deciding whether particular evidence should be suppressed in any given case, then, courts properly weigh the deterrent effect of the suppression against its societal costs. See, e.g., United States v. Janis, 428 U.S. 433, 453-54, 457-58, 96 S.Ct. 3021, 3031-32, 3033-34, 49 L.Ed.2d 1046 (1976). Where little or no deterrence will result from suppression, suppression is inappropriate, for where the reason for the rule ceases, its application also must cease.

Here, then, we consider whether suppressing the firearms seized in Fitzgerald’s bedroom would advance the purposes which animate the exclusionary rule. First, we observe that the law enforcement officials in this case sought and obtained arrest and search warrants from a magistrate. The magistrate, the district court, and the three-judge panel of this court all concluded that the police had probable cause to search Fitzgerald’s residence. Five of the seven clauses of the search warrant met the particularity requirement in describing the objects of the search; the other two were subsequently held deficient only in that they failed to satisfy the “scrupulous exactitude” test. Nothing in the record suggests that the officers or the magistrate did not believe themselves to be according the in-dictees’ constitutional rights the full respect they merit. Under these circumstances, we do not think it would advance the purposes behind the exclusionary rule to exclude all that the officers seized in Fitzgerald’s residence, merely because the warrant was in one respect deficient. Accordingly, we follow the approach which the First, Third, Fifth, Sixth, and Ninth Circuits,³ and several states,⁴ have adopted, and hold that, absent a showing of pretext or bad faith on the part of the police or the prosecution, the invalidity of part of a search warrant does not require the suppression of all the evidence seized during its execution. More precisely, we hold that the infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant (assuming such evidence could not otherwise have been seized, as for example on plain-view grounds during the execution of the valid portions of the warrant), but does not require the suppression of anything described in the valid portions of the warrant (or lawfully seized — on plain-view grounds, for example — during their execution). This approach, we think, complies with the requirements of the fourth amendment.

We recognize the dangers which would attend on this approach were it carelessly administered. The police might be tempted to frame warrants in general terms, adding a few specific clauses in the hope that under the protection of those clauses they could engage in general rummaging through the premises and then contend that any incriminating evidence they recovered was found in plain view during the search for the particularly-described items. We believe, however, that careful administration of the rule will afford full protection to individual rights. First, magistrates must exercise vigilance to detect pretext and bad faith on the part of law enforcement officials. Second, courts should rigorously apply the exclusionary rule to evidence seized pursuant to the invalid portions of the warrant. Third, items not described in the sufficiently particular portions of the warrant will not be admissible unless it appears that (a) the police found the item in a place where one would reasonably have expected them to look in the process of searching for the objects described in the sufficiently particular portions of the warrant, (b) the police found the item before they found all the objects described in the sufficiently particular portions of the warrant (that is, before their lawful authority to search expired), and (c) the other requirements of the plain view rule — inadvertent discovery and probable cause to associate the item with criminal activity — are met.

III. Conclusion.

Applying these standards to Fitzgerald’s case, we conclude that at least one of the weapons introduced against her was properly received into evidence. The valid portions of the warrant authorized the officers to search for, among other things, certain jackets, T-shirts, and belt buckles. The officers would reasonably have looked in the bedroom closet for these items, and it was there, in plain view, that they found the shotgun. The officers never found a Hells Angels belt buckle or jacket at Fitzgerald’s residence, so their discovery of the shotgun occurred before the expiration of their authority under the warrant to search for particularly-described items. Because the record reflects neither pretext, bad faith, nor lack of inadvertence on the officers’ part, the district court properly admitted the shotgun into evidence.

The pistol, on the other hand, is not admissible. We do not think the police had reason to search the pockets of an ordinary overcoat while looking, pursuant to the valid portions of the warrant, for Hells Angels insignia. Likewise, the record relating to the discovery of the rifle fails to disclose sufficient information to permit us to conclude that the officers discovered it in plain view during the execution of the valid portions of the warrant. We know that the police discovered the rifle “behind a dresser drawer,” but not why they were looking there. But because possession of one weapon is enough to support a conviction under section 1202(a)(1), it is not necessary to determine whether the rifle is admissible. In the context of this case, moreover, the trial court’s admission of the pistol and the rifle into evidence must be deemed harmless error.

The conviction is affirmed.⁵

1 . The Honorable Albert G. Schatz, United States District Judge for the District of Nebraska, presided at trial.

2 . The search warrants authorized the search and seizure of the following items:

A. Sleeveless leather and jean jackets with a Death’s Head insignia with wings on the back with the notation “Hell’s Angels” written above the Death’s Head and the state that the party is a member of, in this case Nebraska, is written beneath the Death’s Head symbol (commonly and hereafter referred to as “Hell’s Angel’s Colors”).

B. A metal belt buckle which states “Hell’s Angels” on it.

C. Certain plaques, mirrors and other items which give the names of members of the Hell’s Angels.

D. Photographs which depict the association of members of the Hell’s Angels.

E. Telephone books with telephone numbers listed therein of members of the Hell’s Angels, which includes local and national members.

F. Certain papers relating to Club activities, expenditures, financial records, Club rules and regulations.

G. Red T-shirts with “Hell’s Angels” printed on them.

3 . See United States v. Riggs, 690 F.2d 298 (1st Cir.1982) (adopting severance); United States v. Christine, 687 F.2d 749 (3d Cir.1982) (adopting severance); United States v. Cook, supra, 657 F.2d 730, 734-36 (5th Cir.1981) (adopting severance); United States v. Freeman, 685 F.2d 942, 952-53 (5th Cir.1982) (admitting evidence discovered in plain view during execution of the valid portions of a severed warrant); Sovereign News Co. v. United States, 690 F.2d 569, 576 (6th Cir.1982) (adopting severance), cert. denied, — U.S.-, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983); United States v. Cardwell, 680 F.2d 75 (9th Cir.1982) (endorsing the severance approach but holding the warrant in question not susceptible of severance).

4 . See, e.g., Aday v. Superior Court, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47 (1961) (admitting items seized pursuant to valid portions of warrant, other portions of which were insufficiently particular). See also United States v. Giresi, 488 F.Supp. 445, 459 n. 17 (D.N.J.1980) (collecting state cases).

5 . Chief Judge Lay joins this opinion in its entirety. Judges Ross, Arnold, John R. Gibson, Fagg, and Bowman join in all but Part III. of this opinion, and concur in the affirmance. Judge Floyd R. Gibson concurs in the result only, for the reasons set forth in his separate opinion.