United States v. William Riley, Norman Burnett, Jeffrey Sizemore, Vincent Mazza

906 F.2d 841, 1990 U.S. App. LEXIS 10175

• Court: Court of Appeals for the Second Circuit
• Decided: June 22, 1990
• Docket: 575, Docket 89-1387
• Status: Published

Opinions

JON 0. NEWMAN, Circuit Judge:

The United States appeals from the August 1, 1989, order of the District Court for the District of Vermont (Franklin S. Billings, Jr., Chief Judge), suppressing items seized pursuant to two search warrants. See 18 U.S.C. § 3731 (1988). The warrants, issued by a magistrate, authorized searches of the home of defendant William Riley and of a storage locker that Riley had rented. Among the items suppressed were financial records, firearms, and a rental agreement for the storage locker, all seized from the residence, and three kilograms of cocaine, seized from the storage locker. The District Court held the residence warrant partially unsupported by probable cause and insufficiently particularized, and the locker warrant unsupported by probable cause and tainted as a product of the invalid residence search. We reverse.

Background

Riley, a Vermont resident, and Vincent Mazza, a Florida resident, had been the subjects of a narcotics investigation since September 1988. Based on evidence from informants, surveillance, telephone toll records, and court-authorized wiretaps, agents of the Drug Enforcement Administration determined that Riley and Mazza had previously brought multi-kilogram quantities of cocaine into Vermont and were planning a 1,200 pound marijuana deal. In December, Riley and Mazza were arrested in a Vermont hotel room; in plain view was a large amount of money paid by Riley for the first 200 pounds of the planned marijuana shipment.

At the time of Riley’s arrest, agents applied for a warrant to search his home in Underhill, Vermont. In a detailed 25-page affidavit, a DEA agent recounted the investigation of Riley and Mazza, including information that in August 1988 Mazza had sold 20 kilograms of cocaine to contacts in Vermont, including Riley, that in September and October Riley had negotiated with Mazza for an additional 30 to 50 kilograms of cocaine, and that in December Riley had received a large quantity of marijuana from Mazza. The affidavit also reported that in connection with the recent marijuana shipment, Riley received an out-of-state rental vehicle from Mazza, drove it to his home in Underhill, Vermont, and later the same night returned the vehicle, along with a cash payment, to Mazza’s hotel. In addition to facts specific to the Riley/Mazza investigation, the affidavit also recounted the agent’s unsurprising knowledge that drug traffickers often maintain records of their transactions, launder the proceeds of drug transactions, and secrete drugs, drug proceeds, drug records, and firearms at their homes and stash houses.

Based on the affidavit, the magistrate issued a warrant authorizing a search of Riley’s home and the seizure of

evidence of the offense of conspiracy to distribute controlled substances, namely cocaine, and marihuana, firearms, instru-mentalities of cocaine and marihuana distribution such as scales, dilution or “cut” materials, packaging materials, telephone and/or address books and lists, telephone toll records,

and the following items, which were deemed insufficiently particularized by the District Court:

records of the distribution of cocaine including records of distribution made and/or payments given or received, the investment of proceeds of drug trafficking in tangible or intangible objects and things, including but not limited to, bank records, brokerage house records, business records, safety deposit box keys or records and other items that constitute evidence of the offenses of conspiracy to distribute controlled substances and distribution of the same[.]

Upon executing the warrant, agents found 36 pounds of marijuana, firearms, and an agreement between Riley and a Burlington, Vermont, storage company for rental of a storage locker. The agents also found 96 pounds of marijuana in the rental car that Riley had received from Mazza. The agents then applied to the magistrate for a warrant to search the storage locker. The affidavit in support of this warrant incorporated the allegations of the first affidavit and added the discovery of the marijuana and the locker rental agreement, and information that Riley had been at the locker three weeks prior to his arrest. The magistrate issued a warrant to search the locker and to seize items described in the same language as that used in the warrant for the search of Riley’s home. A search of the locker resulted in the seizure of three kilograms of cocaine.

District Court Ruling. With respect to the home warrant, the District Court ruled that there was no probable cause to believe that firearms were located in Riley’s home. The Court also ruled that part of the language of the warrant was insufficiently particularized, especially the phrase authorizing seizure of “evidence of ... the investment of proceeds of drug trafficking in tangible or intangible objects and things, including but not limited to, bank records, brokerage house records, business records[, and] safety deposit box keys and records.” However, the Court found that some of the language describing items to be seized was sufficiently particularized, including the phrase “other items that constitute evidence of the offenses of conspiracy to distribute controlled substances and distribution of the same.” Concluding that the defects in the warrant should have been apparent to a reasonably well-trained agent, the Court ruled that the good-faith exception to the exclusionary rule for seizures pursuant to warrants was unavailable, see United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and suppressed the firearms and the storage locker rental agreement.

With respect to the storage locker warrant, the Court ruled that seizure of the rental agreement was not called for by any valid portion of the home warrant, that the storage locker warrant was therefore the fruit of the partially invalid search of the home, that, even with the rental agreement, there was no probable cause to believe that drugs were located in the storage locker, and that the good-faith exception of Leon was inapplicable to this search as well. The Court therefore suppressed the cocaine found in the locker.

On appeal, the Government does not seek review of the conclusion that probable cause to search the home for firearms was lacking, but defends seizure of the firearms from the home on the basis of the Leon good-faith exception and on the further ground that the firearms were in plain view. To support seizure of the cocaine from the storage locker, the Government contends that the rental agreement was in plain view, that the “records” language of the home warrant was sufficiently particularized, that there was probable cause to believe that cocaine was in the storage locker, and that the Leon good-faith exception is applicable.

Discussion

We consider first the particularity issue, to which the parties have devoted primary attention. As the District Court noted, the particularity requirement guards against general searches that leave to the unguided discretion of the officers executing the warrant the decision as to what items may be seized. See Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976); Marron v. United States, 275 U.S. 192, 195-96, 48 S.Ct. 74, 75-76, 72 L.Ed. 231 (1927).

In considering the District Court’s application of this requirement to the language of the warrant to search Riley’s home, we encounter two puzzling aspects of the Court’s opinion. First, the Court appears to have misread one portion of the warrant. Focusing on the phrase authorizing seizure of “records of ... the investment of proceeds of drug trafficking in tangible or intangible objects and things,” ¹ the Court concluded that this phrase left the officers free to search through all of Riley’s papers “trying to determine — without any guidance — whether or not any particular paper constitutes ‘tangible or intangible’ evidence of the investment of drug proceeds.” Whatever the uncertainty confronting the officers, a matter we consider below, it did not concern determining whether a piece of paper constitutes tangible or intangible evidence of invested drug proceeds. The warrant did not call for seizure of tangible or intangible evidence of investments; the phrase “tangible or intangible” described the objects or things in which the drug proceeds were invested.

Second, the Court’s view that the language describing investment proceeds records was too broad appears unrelated to its conclusion that the storage locker rental agreement was improperly seized. This agreement was within a category of items that the Court ruled was sufficiently described in the warrant — namely, “items that constitute evidence of the offenses of conspiracy to distribute controlled substances.” With respect to a person who has negotiated for the acquisition of, and accepted delivery of large quantities of narcotics, a rental agreement for a storage locker in a nearby town is evidence of a conspiracy to distribute drugs.

In any event, we disagree with the District Court that the warrant’s description of the category of records that could be seized was insufficiently particularized. In upholding broadly worded categories of items available for seizure, we have noted that the language of a warrant is to be construed in light of an illustrative list of seizable items. See United States v. Young, 745 F.2d 733, 759-60 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985); see also Andresen v. Maryland, 427 U.S. at 480-81, 96 S.Ct. at 2748-49. In the pending case, the warrant supplied sufficient examples of the type of records that could be seized — bank records, business records, and safety deposit box records. No doubt the description, even with illustrations, did not eliminate all discretion of the officers executing the warrant, as might have occurred, for example, if the warrant authorized seizure of the records of defendant’s account at a named bank. But the particularity requirement is not so exacting. Once a category of seizable papers has been adequately described, with the description delineated in part by an illustrative list of seizable items, the Fourth Amendment is not violated because the officers executing the warrant must exercise some minimal judgment as to whether a particular document falls within the described category.

It is true that a warrant authorizing seizure of records of criminal activity permits officers to examine many papers in a suspect’s possession to determine if they are within the described category. But allowing some latitude in this regard simply recognizes the reality that few people keep documents of their criminal transactions in a folder marked “drug records.”

Valid seizure of the storage locker rental agreement and over 100 pounds of marijuana found in Riley’s house and car provided probable cause for the Government to obtain a warrant to search the locker. The fact that the period covered by the rental agreement had ended seven months prior to the search of the locker did not undermine probable cause. One of the agents contacted the storage company and determined that Riley was still renting that particular locker and had been seen using it as recently as November 30, 1988. Armed with these facts and knowing from experience that dealers use such lockers to store drugs pending distribution, the agents would have been remiss in their duties had they not sought a warrant to search the storage locker. The agents were under no obligation to establish that Riley had used the locker during the pendency of the marijuana transaction that resulted in his arrest. See United States v. Cruz, 785 F.2d 399 (2d Cir.1986). The cocaine found in the locker was validly seized.

Our dissenting colleague, fearing we have approved a general search, conducts a general review of Fourth Amendment law and reaches the extravagant conclusion that our ruling would justify an examination of every piece of paper in a suspect’s home, including diaries and love letters, and scientific examination of every physical item in the home. The breadth of Judge Weinstein’s alarms is exceeded only by their distance from the holding in this case. The warrant authorized the agents to search for records of the distribution of cocaine and records of the investment of drug proceeds and illustrated permissible types of the latter records by listing bank records, business records, and safety deposit records, in other words, records that could reasonably be expected to indicate what the defendant had done with drug proceeds or the locations where he maintained such proceeds or items obtained by use of such proceeds. A storage locker is surely a location where drugs held for distribution or items purchased with drug proceeds might reasonably be stored, and a rental agreement for such a locker is surely a business record of such distribution or storage. It is neither a diary nor a love letter. Nor is there any claim in this case that agents read diaries or love letters in the search that discovered the storage locker rental agreement.

Having found the rental agreement, the agents did not proceed lawlessly to search the locker; they presented their evidence to a magistrate who justifiably found probable cause to believe that a search of the locker would uncover evidence of drug trafficking. In executing the second warrant, the agents found cocaine and lawfully seized it. The two warrants were valid, as were the actions of the agents in executing them. The Fourth Amendment is not well served by misreading a narrow ruling as if it gave law enforcement officials a broad license to conduct general searches. Law enforcement officials would be well advised to take their guidance from what the majority has ruled in the particular circumstances of this case, not from what the dissent apprehends would be the state of the law if a far broader ruling had been made.

With respect to the firearms seized at Riley’s home, the District Court read our decision in United States v. $10,000 in United States Currency, 780 F.2d 213 (2d Cir.1986), as a holding that a warrant to search for firearms is not justified by officers’ general knowledge that drug traffickers often have weapons. We do not read that opinion so strongly. Though it discounts the significance of agents’ knowledge concerning drug traffickers’ possession of weapons as a basis to search for such weapons, 780 F.2d at 218, it is not a holding on that point. The holding had nothing to do with a seizure of firearms; our holding was that a seizure of currency and gold bars was valid because the items were in plain view during the execution of a valid search warrant authorizing seizure of narcotics.

In the pending case, we need not decide whether the observation in $10,000 concerning firearms should become a holding because we are satisfied that the seizure of the firearms from Riley’s home was valid under the good-faith exception of Leon. Whether or not the firearms were in plain view, as the Government contends (a matter on which the record is inconclusive), the officers were in good faith in seizing the weapons in the execution of a warrant that explicitly authorized the seizure of “firearms.” If the inclusion of “firearms” in the list of seizable items was error at all, it surely was not an error of which a reasonable police officer should have been aware.

The order of the District Court is reversed.

1 . The District Judge quoted this excerpt as "evidence of ... the investment of proceeds [etc.]" (emphasis added). We think it clear that the warrant was more precise in its description of things to be seized than is suggested by the way the Court quoted the excerpt. The warrant begins its description of things to be seized with the phrase "evidence of the offense of conspiracy to distribute controlled substances, namely” and follows this general phrase with several categories of items; one of those categories is "records of the distribution of cocaine including records of ... the investment of proceeds of drug trafficking in tangible or intangible objects and things....” Thus, the warrant did not merely authorize seizure of “evidence of ... the investment of proceeds” but more precisely illustrated such evidence by identifying the category of "records of ... the investment of proceeds.” Clearer understanding of the proper parsing of the affidavit would have been aided by more helpful punctuation.