MARILYN BUCK, PETITIONER V. UNITED STATES OF AMERICA No. 89-6316 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court of Appeals For The Second Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A6) is reported at 888 F.2d 234. An earlier opinion of the court of appeals (Pet. App. A7-A14) is reported at 813 F.2d 588. JURISDICTION The judgment of the court of appeals was entered on October 20, 1989. The petition for a writ of certiorari was filed on December 19, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether evidence seized in reliance on a search warrant should have been suppressed on the ground that the description of the property to be seized under the warrant was insufficiently particularized. STATEMENT On April 11, 1984, an indictment was filed in the United States District Court for the Southern District of New York charging petitioner with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. 1962(d) (Count 1); participation in the affairs of a racketeering enterprise, in violation of 18 U.S.C. 1962(c) (Count 2); armed bank robbery, in violation of 18 U.S.C. 2113(a) and (d) (Counts 3, 4, 6 and 7); and murder during the commission of a bank robbery, in violation of 18 U.S.C. 2113(e) (Counts 5 and 8). See Gov't C.A. Br. 4-5. The district court thereafter entered a pretrial order suppressing physical evidence seized during a search of petitioner's apartment, finding that the search warrant had failed to particularize the items to be seized (Pet. App. A15-A41). Following an interlocutory appeal by the government, the court of appeals reversed the order suppressing evidence, United States v. Buck, 813 F.2d 588 (Pet. App. A7-A14), and this Court denied certiorari, 484 U.S. 857. After a six-month jury trial, petitioner was convicted on all counts. Petitioner was sentenced to concurrent 20-year terms of imprisonment on the RICO and RICO conspiracy counts; to a consecutive 30-year term of imprisonment on the murder charge alleged in Count 5; and to a 30-year term of imprisonment on the murder charge alleged in Count 8, to run consecutively to the sentences imposed on the RICO counts, and concurrently with the sentence imposed on Count 5. Gov't C.A. Br. 7. /1/ The court of appeals affirmed (Pet. App. A1-A6). 1. The relevant facts, which are not in dispute, are summarized in the opinions of the court of appeals (Pet. App. A2, A8-A10). Petitioner was a participant in the "family," a militant organization dedicated to the advancement of a political agenda through the commission of violent crimes. From 1976 to 1981, the "family" committed a series of robberies and attempted robberies of armored trucks in the New York-Connecticut area, resulting in the murders of two guards and two police officers. Petitioner served as a member of the so-called "secondary team," a group consisting mostly of women, who assisted in the robberies by scouting robbery targets, driving get-away cars, planning escape routes, and renting "safe houses." Pet. App. A2. On October 20, 1981, "family" members armed with automatic weapons robbed a Brinks armored truck at a shopping mall in Nanuet, New York. The robbers gathered $1.6 million from the truck, and in the process killed one guard and wounded another. An eyewitness reported to police that the robbers had fled the scene of the crime in a U-Haul truck. Police officers located the U-Haul truck, but the robbers escaped after a shoot-out that left two policemen dead. According to bystanders, the robbers fled in several cars and proceeded to a nearby location where they transferred to another set of escape vehicles, including a white Oldsmobile bearing the New Jersey license plate "594 PJV." Pet. App. A8. Although the white Oldsmobile eluded the police, officers traced the license plate to "Carole J. Durant," at 166 Grove Street in North Plainfield, New Jersey. /2/ Investigating throughout the night of October 20, officers learned that Leonard Tosto, and not petitioner, resided at 166 Grove Street. The police then spoke with Tosto. He told them that he knew "Durant"; that he had allowed her to register her car at his address for insurance purposes; and that "Durant" actually lived in an apartment located at 223 Prospect Street, in East Orange, New Jersey. Tosto added that "Durant" had telephoned him late in the day of the Nanuet robbery and had asked him to conceal her whereabouts if he were contacted by the police. Pet. App. A8-A9. After first verifying the building at 223 Prospect Street as "Durant's" residence, New Jersey State Police Detective Richard Ryan telephoned a municipal court judge at 6:00 a.m. on October 21, 1981, to apply for a warrant to search "Durant's" apartment. At the beginning of the conversation, which was tape-recorded by the state police, Detective Ryan gave a brief description of the Nanuet robbery and murders. The municipal judge asked for "some factual basis" connecting the white Oldsmobile to the crime, and Detective Ryan recounted the role of the car in the crime, the tracing of the license plate number to Tosto's residence, and the information provided by Tosto connecting the car to "Durant's" apartment at 223 Prospect Street. After placing Detective Ryan under oath, the municipal judge telephonically authorized the search of the apartment. As dictated by the judge, the warrant stated (Pet. App. A9): Bench warrant issued verbally to Richard Ryan, on phone, to search premises 223 Prospect Street, East Orange, New Jersey, Apartment 1A, and to search person of Carol Durant and search warrant to seize any papers, things or property of any kind relating to previously described crime. At the judge's direction, Detective Ryan wrote down the warrant language as dictated and submitted a written affidavit and search warrant application to the judge later that day. Pet. App. A9; Gov't C.A. Br. 130. In the ensuing search of petitioner's apartment, officers seized, among other things, a semi-automatic rifle and pistol, various other weapons, a make-up kit containing wigs and false mustaches, insurance documents relating to the white Oldsmobile, and various diagrams and paraphernalia for constructing home-made bombs. Pet. App. A9-A10. 2. The district court ordered the suppression of evidence seized from petitioner's apartment, finding that the search warrant -- although supported by probable cause (Pet. App. A22) -- failed sufficiently to particularize the items to be seized (id. at A33-A37). The court acknowledged that search warrants have often been upheld that "allowed the executing officers a considerable degree of discretion" through the use of "generic categories" and "catch-all phrases" to describe the property to be seized (id. at A34-A35). The court held, however, that the warrant in this case -- authorizing the seizure of "any papers, things or property of any kind" relating to the Naunuet robbery -- was "deficient on its face" (id. at A36). The court explained that "the catch-all language" in the warrant "stands alone," without a "specific list of items to be seized" (ibid.). The court also held that the exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984), was inapplicable. In the court's view, the search warrant in this case was "too facially deficient to be presumed valid" (Pet. App. A38). 3. The court of appeals reversed the district court's suppression order (Pet. App. A7-A14). The court agreed that the search warrant was impermissibly broad, in light of its exclusive reliance on "general boilerplate terms" to describe the property to be seized (id. at A12). The court held, however, that there was no reason to suppress the evidence seized by the officers in reliance on the search warrant. The court explained that the officers had "made considerable efforts to comply with the dictates of the Fourth Amendment" in applying for the search warrant (id. at A13). "What the officers failed to do," the court continued, "was to anticipate our holding today that the particularity clause of the Fourth Amendment prohibits the use of a catch-all description in a search warrant, unaccompanied by any list of particular items or any other limiting language" (ibid.). In view of the "considerable ambiguity as to the exact requirements of the particularity clause," the court of appeals stated that "a reasonably well-trained police officer could not be expected to know that the warrant issued by (the municipal judge) violated the Fourth Amendment" (id. at A14). The court therefore held that the rule in Leon barred the suppression of the seized evidence. ARGUMENT Petitioner contends (Pet. 6-8) that evidence seized under a warrant that lacks sufficient particularity cannot satisfy the "good faith" standard articulated in United States v. Leon, 468 U.S. 897 (1984), and Massachusetts v. Sheppard, 468 U.S. 981 (1984). She also asserts (Pet. 12-14) that the court of appeals' decision conflicts with the approach taken by other circuits. Neither contention has merit. This Court recently denied certiorari in a case raising substantially the same issues, Norton v. United States, No. 88-1889 (Oct. 2, 1989), and the same result is warranted here. 1. Assuming, arguendo, that the search warrant in this case was overly broad, the agents nevertheless acted in good faith in seizing the evidence pursuant to the warrant. In United States v. Leon, supra, this Court held that the exclusionary rule "cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity." 468 U.S. at 919. That is particularly true, the Court noted, "when an officer acting with objective good faith has obtained a search warrant from a judge or a magistrate and acted within its scope." Id. at 920. The Court reasoned that, in such circumstances, the deterrent value of the exclusionary rule is vitiated by the fact that an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the search warrant is technically sufficient. Id. at 921. The Court applied the same exception in the companion case of Massachusetts v. Sheppard, supra, to a search warrant that insufficiently described the items to be seized. In Sheppard, the trial judge suppressed evidence seized during the execution of a search warrant that incorrectly identified the items to be seized as evidence of a narcotics transaction, rather than a murder. Relying on Leon, this Court reversed, emphasizing that the officers had demonstrated their good faith by submitting an affidavit to a judge and thereafter relying on the judge's determination that the warrant was sufficiently particularized. 468 U.S. at 989-991. See also Illinois v. Krull, 480 U.S. 340 (1987) (applying Leon to a state law, later held invalid, that authorized a warrantless search, even though the statute could have been more narrowly drawn). The same considerations that prompted this Court to apply the good faith exception in Leon, Sheppard, and Krull are also present here. As the court below concluded, it was not obvious that the property description in the telegraphic warrant was unconstitutionally overbroad since, at the time the warrant was issued, "the existing cases left considerable ambiguity as to the exact requirements of the particularity clause" (Pet. App. A14). /3/ Moreover, as the court of appeals also noted, the officers "performed reasonably under the circumstances (in) collect(ing) all the 'descriptive facts' they could in the middle of the night at an early point in the investigation" (id. at A12), and thereafter making "considerable efforts to comply with the dictates of the Fourth Amendment" (id. at A13) under emergency conditions. "What the officers failed to do was anticipate (the court of appeals') holding * * * that the particularity clause of the Fourth Amendment prohibits the use of a catch-all description in a warrant, unaccompanied by any list of particular items or any other limiting language" (ibid.). That failure, as the court of appeals correctly concluded, does not undermine the reasonableness of the officers' reliance on the warrant duly issued by the municipal judge. Nor does it render the warrant so "facially deficient" that the executing officers could not have reasonably presumed that it was valid. Leon, 468 U.S. at 923. See United States v. Luk, 859 F.2d 667, 677-678 (9th Cir. 1988); United States v. Kepner, 843 F.2d 755, 763-764 (3d Cir. 1988); United States v. Diaz, 841 F.2d 1, 6 (1st Cir. 1988); United States v. Gros, 824 F.2d 1487 (6th Cir. 1987); United States v. Michaelian, 803 F.2d 1042, 1046-1047 (9th Cir. 1986); United States v. Weinstein, 762 F.2d 1522, 1531 (11th Cir. 1985), cert. denied, 475 U.S. 1110 (1986). Because the district court and the court of appeals found that the telephonic warrant was overbroad, petitioner contends that the reasonable mistake exception adopted in Leon is automatically inapplicable in this case. That argument reads too much into Leon. Leon held that suppression is appropriate when a search warrant is so facially deficient in failing to particularize the things to be seized that the executing officer could not reasonably presume that the warrant is valid. 468 U.S. at 923. But Leon did not hold that the good faith exception is inapplicable simply because a warrant is later found to be overbroad. Instead, whether the exception will apply "depend(s) on the circumstances of the particular case." Ibid. In this case, there was ample basis for the officers to believe that the property description was adequately limited and that the warrant was therefore not overbroad. The court of appeals' ruling therefore is consistent with the inquiry required by Leon. 2. Petitioner next contends (Pet. 12-13) that the Ninth and First Circuits have ruled that the exception adopted in Leon is inapplicable to overbroad search warrants as a matter of law. That claim is mistaken. Although those courts may have followed such an approach at one time, subsequent decisions by those courts have shown that they examine this question on the facts of each case and that they have held that Leon may be applicable when a warrant is found to be overbroad. a. As petitioner notes (Pet. 12), several Ninth Circuit cases refused to apply the good faith exception when officers relied on search warrants later found to be impermissibly general. See United States v. Dozier, 844 F.2d 701, 708 (1988), cert. denied, 109 S. Ct. 312 (1989); United States v. Spilotro, 800 F.2d 959, 968 (1986); United States v. Crozier, 777 F.2d 1376, 1381 (1985). On the other hand, in United States v. Luk, 859 F.2d 667 (9th Cir. 1988), the warrant, which authorized law enforcement officers to seize a broad range of corporate documents stored at the defendant's home, was held "unconstitutionally overbroad" (id. at 676 & n.6), but the court nevertheless refused to suppress the evidence, noting that the officers had reasonably relied on the warrant. As the court explained, the warrant was supported by a 22-page affidavit that "related the results of an extensive investigation." Id. at 677. Although the affidavit could not cure the overbroad warrant, the court found that the affidavit was "evidence of good faith" because it "provided the particularity that the warrant lacked" and because the officers relied on the affidavit in conducting their search. Id. at 677-678. Likewise, in United States v. Michaelian, 803 F.2d 1042 (9th Cir. 1986), the warrants for a broad range of personal and business records were found to be impermissibly general "in light of the lengthy IRS investigation and detailed knowledge provided (to the agents by certain informants)." Id. at 1046 n.1. The court of appeals applied the good faith exception, however, finding that the warrants did not "approximate the degree of facial deficiency which would preclude objective reasonable reliance by federal agents," id. at 1047, even though the warrants could have been more specific. See also Center Art Galleries - Hawaii, Inc. v. United States, 875 F.2d 747, 753 (9th Cir. 1989) (noting that Leon applies unless "(t)he warrants were so overbroad that * * * no agent could reasonably rely on them"). b. The First Circuit has followed a similar course. In United States v. Fuccillo, 808 F.2d 173, cert. denied, 482 U.S. 905 (1987), that court refused to apply the good faith exception on two grounds: the agents who executed the warrant exceeded the scope of the warrant (by seizing men's clothing as well as women's clothing, even though the warrant only authorized seizure of the latter), and the agents did not take "'every step that could reasonably be expected of them'" in describing the items to be seized. 808 F.2d at 177-178 (citation omitted). After Fuccillo, however, the First Circuit in United States v. Diaz, 841 F.2d 1, 6 (1988), applied Leon in the context of a search conducted in reliance on a warrant later found to be overbroad. Accordingly, it now appears that the First Circuit, like the Ninth Circuit, examines each case on its facts and does not regard the Leon doctrine as per se inapplicable to overbroad warrants. c. Petitioner also claims (Pet. 13) that the Tenth Circuit has held that Leon is inapplicable to overbroad warrants, but the case she cites, United States v. Leary, 846 F.2d 592 (1988), did not adopt any such rule. Leary found overbroad a warrant that authorized the seizure of all "records and correspondence" relating to the illegal exportation of arms, even though the affidavit supporting the warrant disclosed probable cause as to a single, readily identifiable illegal transaction. Id. at 600-606. The court noted that the case "present(ed) a different factual situation" than that in the instant case. The court held that the officers could not reasonably have relied on the warrant in Leary, because the expansive description of the property to be seized bore no relationship to the limited probable cause showing. In so holding, the court did not purport to rule that officers may not rely in good faith on an overbroad warrant; it merely held that the officers' reliance was unreasonable on the facts of that case. Thus, the difference between the result below and the results in the cases cited by petitioner turn on a difference in the facts, not a disagreement over the relevant legal principles. While petitioner is correct that some post-Leon decisions of various circuits conflicted at one time with the approach taken here, /4/ that conflict now appears to have abated as the circuits have continued to address this subject. Subsequent case law has shown that the First and Ninth Circuits now resolve Leon claims in this context on a case-by-case basis and have eschewed any per se rule that officers cannot be found to have reasonably relied on a warrant that is later found to be overbroad. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ROBERT J. ERICKSON Attorney FEBRUARY 1990 /1/ Because petitioner's bank robbery and armed bank robbery convictions on Counts 3, 4, 6, and 7 merged for sentencing purposes with her murder convictions on Counts 5 and 8, the district court did not impose sentence on those counts. Gov't C.A. Br. 7 n.*. /2/ "Carole J. Durant" proved to be an alias used by petitioner. Pet. App. A9. /3/ Indeed, it is not clear that the search warrant was overbroad at all. The requirement that a warrant contain a particularized description of the property to be seized includes "a practical margin of flexibility" depending on the facts of each case. United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982) (collecting cases), cert. denied, 464 U.S. 814 (1983). Both this Court and the various courts of appeals have flexibly construed the particularity requirement to allow the seizure of broadly described property categories pertaining to a specifically identified crime. For example, in Andresen v. Maryland, 427 U.S. 463, 479-482 (1976), this Court upheld the validity of a search warrant that allowed the seizure of "other fruits, instrumentalities and evidence of crime at this (time) unknown." That property description did not render the warrant impermissibly general, the Court stated, since it was clear from the context of the warrant that the phrase authorized the seizure only of items pertaining to a specifically identified scheme to defraud. Various courts of appeals -- including the Second Circuit, in which this case was prosecuted, and the Third Circuit, in which the search occurred -- have also approved warrants containing similarly broad property descriptions. See, e.g., United States v. Johnson, 690 F.2d 60, 65 (3d Cir. 1982), cert. denied, 459 U.S. 1214 (1983) (any "paper, articles or things which are the instruments of a criminal offense (of manufacturing drugs)"); United States v. Timpani, 665 F.2d 1, 4-5 (1st Cir. 1981) ("any and all records relating to extortionate credit transactions" and "gambling paraphernalia and gambling records"); United States v. Osborne, 630 F.2d 374, 378 (5th Cir. 1980), cert. denied, 450 U.S. 934 (1981) (money order machine and "any other evidence relating to the (described) armed robbery"); United States v. Cortellesso, 601 F.2d 28, 30-33 (1st Cir. 1979), cert. denied, 444 U.S. 1072 (1980); United States v. Dunloy, 584 F.2d 6, 8 (2d Cir. 1978) (cocaine and "all * * * documents, records and other evidence of distribution and possession with intent to distribute narcotic drug controlled substances"). /4/ In our certiorari petition in Fuccillo, we pointed out that the decision in the present case was in conflict with Fuccillo -- which was, at the time, the leading First Circuit decision -- as well as with several Ninth Circuit decisions that pre-dated Michaelian. 86-1622 Pet. 14-17. We noted that the decision in Michaelian appeared to be consistent with the majority position that the good faith exception can be applied to warrants found to be overbroad. Id. at 16-17.