distinguishing between an “overly broad” warrant, under which evidence “need not be suppressed if the good faith exception applies,” and a warrant that is so “general” that “executing officers could not have reasonably trusted in its legality”
How later courts described this case
- distinguishing between an “overly broad” warrant, under which evidence “need not be suppressed if the good faith exception applies,” and a warrant that is so “general” that “executing officers could not have reasonably trusted in its legality”
- contrasting general warrants with overly broad warrants by stating, in part, that evidence seized pursuant to an overly broad warrant need not be suppressed if the good faith exception applies.
- rejecting defendant’s "argument that [an] 11-month gap rendered the information in the affidavit so clearly stale that reasonable officers could not have believed that the warrant was valid”
- contrasting general warrants with overly broad warrants by stating, in part, that overly broad warrants can be cured by redaction
Written by the judges who cited it.
The opinion
Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
9-20-2002
USA v. 422.57 US Curr
Precedential or Non-Precedential: Precedential
Docket No. 00-4348
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PRECEDENTIAL
Filed September 20, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-4348
UNITED STATES OF AMERICA
v.
NINETY-TWO THOUSAND FOUR HUNDRED TWENTY-TWO
DOLLARS AND FIFTY-SEVEN CENTS ($92,422.57),
UNITED STATES CURRENCY SEIZED FROM PNC BANK
ACCOUNT #8400369727 HELD IN THE NAME OF KIM’S
WHOLESALE DISTRIBUTORS, INC.
KIM’S WHOLESALE DISTRIBUTORS, INC.,
Appellant
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 00-cv-03548)
District Court Judge: Stewart Dalzell
Argued December 6, 2001
Before: ALITO, AMBRO, and GREENBERG, Circuit Judges.
(Opinion Filed: September 20, 2002)
David M. Howard
Stephen J. McConnell (Argued)
Dechert, Price and Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Catherine M. Recker
Welsh & Recker
2000 Market Street
Suite 2903
Philadelphia, PA 19103
Counsel for Appellant
Michael L. Levy
Robert A. Zauzmer
Christopher R. Hall (Argued)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
ALITO, Circuit Judge:
This is an appeal from a judgment of civil forfeiture for
funds from a bank account owned by Kim’s Wholesale
Distributors, Inc. ("Kim’s"). The complaint claimed that the
funds were subject to forfeiture under 18 U.S.C.
S 981(a)(1)(A) on the ground that they had been involved in
transactions in violation of the money laundering statute,
18 U.S.C. S 1956. Proof supporting the forfeiture was
obtained from business records seized from Kim’s pursuant
to a warrant issued by a United States Magistrate Judge in
connection with a wide-scale investigation of illegal
trafficking in food stamps.
Kim’s moved to suppress the evidence under the Fourth
Amendment1 and to dismiss the complaint. When the
_________________________________________________________________
1. In One 1958 Plymouth Sedan v. Pennsylvania , 380 U.S. 693, 700
(1965), the Supreme Court held that the Fourth Amendment’s
2
District Court denied those motions, the parties entered
into a stipulation under which Kim’s conceded that it had
no defense to the forfeiture action, final judgment was
entered against Kim’s in the amount of $92,422.57, and
Kim’s retained the right to appeal the District Court’s ruling
on its motion to suppress and dismiss. The District Court
entered judgment against Kim’s in the amount of
$92,422.57, and this appeal followed.2 For the reasons
stated below, we reject Kim’s arguments relating to
probable cause and particularity, but we find the record
inadequate to resolve Kim’s argument concerning the
seizure of documents written in Chinese, and we therefore
vacate the judgment and remand for further proceedings
regarding that issue.
I.
In October 1996, the government received anonymous
letters implicating two individuals, Qiang Wang and Qun
Chen, in an elaborate food stamp trafficking scheme.
According to the letters, Chinese take-out restaurants were
buying food stamps from low-income food stamp recipients
for seventy cents on the dollar. JA at 107. It was alleged
that the restaurants were then reselling the food stamps to
a partnership (the "Wang-Chen Partnership") for ninety
cents on the dollar. The partnership, in turn, was allegedly
_________________________________________________________________
exclusionary rule applies to forfeiture cases because "a forfeiture
proceeding is quasi-criminal in character." However, in recent years, the
Supreme Court has declined to extend the exclusionary rule to a variety
of non-criminal proceedings. See e.g., Pennsylvania Bd. of Prob. and
Parole v. Scott, 524 U.S. 357, 369 (1998)(a parole board may consider
evidence obtained in violation of the Fourth Amendment when making a
recommittal determination); Immigration and Naturalization Serv. v.
Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984)(declining to apply the
exclusionary rule to civil deportation hearings held by the INS); United
States v. Janis, 428 U.S. 433, 447 (1976)(refusing to apply the
exclusionary rule to federal civil tax proceedings). In this case, the
government does not contest the applicability of One 1958 Plymouth
Sedan.
2. Here, unlike in Verzilli v. Flexon, Inc. , 295 F.3d 421 (3d Cir. 2002), we
have appellate jurisdiction because reversal would not result in a "full
trial." Id. at 425.
3
redeeming the food stamps through grocery stores that did
little if any legitimate business. Id. The partnership
allegedly opened stores, operated them for a time, and then
closed them to avoid paying taxes. Id. The letters named
three stores, Wyoming Variety Store, Tasker Grocery Store,
and Jacky’s Food, that they claimed were operating solely
for the purpose of trafficking food stamps. Id .
After receiving the letters, the Secret Service and
Department of Agriculture began an extensive investigation.
In the spring of 1997, "undercover Secret Service agents
sold more than $130,000 in food stamps" to the members
of the Wang-Chen Partnership for sixty cents on the dollar.3
Id. at 106. Those food stamps were later redeemed through
Wyoming Variety, one of the three stores named in the
letter, and two others, Gou Bao Grocery and Hing Loong
_________________________________________________________________
3. For example, on March 11, 1997, a confidential informant sold Wang
"$3,030 in food stamps for $2,100 in cash." JA at 120. After the sale,
Government agents watched Wang walk to a Chinese restaurant with the
stamps purchased from the informant. Wang then went to another
Chinese restaurant and to Hing Loong Food Market. A few days later, an
agent retrieved food stamp book covers from the $3,030 in food stamps
sold to Wang from the garbage receptacle outside Hing Loong Food
Market. The stamps had cancellation markings from Hing Loong Food
Market.
On March 18, 1997, the confidential informant introduced Wang to
Secret Service Agent Chan. Agent Chan indicated that he sold bulk
quantities of food stamps for cash. During this contact, "Wang told Agent
Chan that he had seven grocery stores through which he redeemed food
stamps and that he and his partners had already redeemed over one
million dollars worth [of food stamps]." Id. at 121. Wang further stated
that he could "take up to $100,000 in food stamps at one time." Id.
Wang gave Agent Chan $18,000 in cash for $30,000 in food stamps,
which were then redeemed by Hing Loong Food Market and Wyoming
Variety. Id. at 121-22.
On April 4, 1997, Wang called the confidential informant and told him
that he had six individuals who would like to buy any amount of food
stamps that Agent Chan could obtain. Id. at 122. On May 8, 1997,
another Secret Service agent posed as an associate of Chan’s and met
with Wang to sell him $100,000 in food stamps for $60,000 in cash. Id.
During this meeting, Wang told the agent that he would redeem $70,000
of the $100,000 in food stamps through his businesses and would resell
the $30,000 balance to other parties. Id. at 123.
4
Food Market and Trading, Inc. Id. A sixth store, Zheng’s
Grocery, was later identified. Id. at 108. A review of the
bank records of five of these six stores revealed that they
had "collectively redeemed over $12,000,000 in food stamps
since April 1994." Id.
The investigation yielded substantial evidence that these
stores did "little if any legitimate retail food business." Id. at
109. Agents videotaped customer traffic in and out of Gao
Bao Grocery and found that on average only eight
customers a day left with a bag. The store received few
deliveries: a man "carried two to three plastic grocery bags
into the store on approximately twenty-one occasions
between January and April 1997." Id. at 137. Yet Gao Bao
deposited $1,885,205 in food stamps between September
23, 1996, and May 31, 1997. Id. at 138. The store would
have had "to turn over a $5,000 inventory ten times a week
to generate these sales." Id. Wyoming Variety, which had no
cash register and was sparsely stocked with a small supply
of canned foods and beverages, nevertheless redeemed
"$308,359 a month on average" in food stamp deposits. Id.
at 140-41. A mail carrier who delivered mail around noon
to Jacky’s Grocery reported that the store was closed 85%
of the time; nevertheless, between March 6, 1995, and
March 28, 1996, Jacky’s "deposited $2,735,573 in food
stamps," which "accounted for 99% of all [its] business
receipts." Id. at 147-48.
Tasker Grocery’s mail carrier reported that "the door was
always locked . . . . There were never any customers." Id. at
150. But Tasker Grocery redeemed $2,004,164 in food
stamps between April 1, 1994, and March 22, 1995. Id.
Food stamps accounted for 99% of all its deposits. Id.
Officers videotaped Zheng’s Grocery between May 13 and
May 16, 1996. The videotape disclosed an employee enter
the store at about 8:30 a.m. and lock the door behind him.
People who tried to enter the store were unable to do so.
The employee left at 4:30 p.m. and locked the door behind
him. There were no deliveries. Id. at 152. However, between
December 26, 1995, and October 18, 1996, Zheng’s
redeemed $2,383,296 in food stamps. Id. Zheng’s deposited
only $900 in cash during this entire period. Id. at 153.
5
The investigation also produced evidence that the sham
store owners withdrew food stamp proceeds from their bank
accounts by checks made payable either to cash, to the
store owners, to an employee of a take-out restaurant, or to
one of a group of wholesale food companies -- including
Kim’s. Id. at 109, 161. Indeed, all of the sham grocery
stores "drafted a substantial number of checks to Kim’s
despite the fact that the stores were selling little if any food
inventory." Id. at 161. For example, Zheng’s Grocery drafted
$951,603 in checks to Kim’s and Wyoming Variety drafted
$46,503 in checks to Kim’s despite doing little legitimate
business. Id. at 162. After reviewing canceled checks
drafted by sham grocery stores to Kim’s, an agent
determined that Kim’s had deposited $399,389.20 from
these sources into its account at PNC Bank since
September 11, 1996. Id. at 164.
The sham grocery store owners drafted checks to Kim’s in
a manner designed to conceal the proceeds of the food
stamp trafficking scheme and make it appear that the
stores were purchasing significant food inventory.
According to the investigating agents, food stamp traffickers
mistakenly believe that checks for more than $10,000
result in the filing of a Currency Transaction Report or a
Suspicious Activity Report,4 id. at 118, and the vast
majority of the checks drafted to Kim’s by Gou Bao Grocery
and Zheng’s Grocery were in amounts just below $10,000.
Id. 163, 164. Zheng’s Grocery often drafted more than one
check a day to Kim’s. For example, on July 1, 1996,
Zheng’s drafted four checks to Kim’s in the following
amounts: $9,400, $9,300; $9,200, and $9,100. Id. at 163.
Gou Bao wrote checks for just under $10,000 several times
a week. Id. at 164.
Two lead case agents -- Senior Special Agent Debra
Thomerson, from the Department of Agriculture, and
Special Agent Glen McElravy, from the Secret Service--
swore out an affidavit in support of a master search
warrant for numerous locations, including Kim’s. Agent
Thomerson had been involved in over 100 investigations
_________________________________________________________________
4. In fact, only cash transactions result in the filing of such reports. 31
U.S.C. S 5313 (2000); 31 C.F.R. S 103.22 (2001).
6
involving the illegal use of food stamps, had received special
training in the area of food stamp trafficking, and was a
specialist in the documentation, identification, and retrieval
of food stamps. Special Agent McElravy had assisted in
numerous money laundering investigations and had
received special training in identifying assets subject to
forfeiture due to involvement in money laundering offenses.
The affidavit underlying the search warrant set forth facts
to show that Kim’s was a participant in an ongoing and
extensive scheme to traffic in food stamps, in violation of 7
U.S.C. SS 2024 (b) and (c) (food stamp fraud), 18 U.S.C.
S 1956 (money laundering), 18 U.S.C. S 1956 (h) (money
laundering conspiracy), and 18 U.S.C. S 371 (conspiracy).
The warrant application was presented to and signed by a
Magistrate Judge on September 11, 1997. The warrant
authorized the seizure of the following Kim’s records:
1. Receipts, invoices, lists of business associates,
delivery schedules, ledgers, financial statements,
cash receipt, disbursement, and sales journals,
and correspondence.
2. Computers, computer peripherals, related
instruction manuals and notes, and software in
order to conduct an off-site search for electronic
copies of the items listed above.
Id. at 181.
When the warrant was executed, numerous documents
were seized from Kim’s premises, including handwritten
notes on brown paper bags recording food stamp
transactions, invoices to Chinese restaurants documenting
the exchange of food stamps for Kim’s products at a
discount to face value, and an accounting journal
cataloging bulk food stamp transactions. Two journals
volunteered by an employee revealed bulk food stamp
transactions and documented that Kim’s bought food
stamps at a discount to face value from at least 19
restaurants in return for wholesale food products, that
Kim’s redeemed the food stamps through three grocery
stores, and that Kim’s deposited checks from the grocery
stores into its bank accounts. See id. at 187-188. Kim’s
then sold the illegally obtained food stamps for 90-92 cents
7
to the Wang-Chen Partnership’s sham grocery stores, and
the sham grocery stores paid with checks drawn on the
stores’ bank accounts. Id. at 35.
II.
A.
Kim’s argues that the District Court erred in refusing to
suppress evidence obtained in the search of its premises
because the warrant was not supported by probable cause
and did not particularly describe the items to be seized. The
government counters that the warrant was supported by
probable cause and that, in any event, the "good faith"
exception to the exclusionary rule, adopted in United States
v. Leon, 468 U.S. 897 (1984), applies. Under Leon, if a
motion to suppress evidence obtained pursuant to a
warrant does not present a Fourth Amendment argument
that should be decided in order to provide instruction to
law enforcement or to magistrate judges, it is appropriate
for a reviewing court to turn "immediately to a
consideration of the officers’ good faith." Id. at 925. In this
case, we do not think that Kim’s probable cause and
particularity arguments "involve . . . ‘novel question[s] of
law whose resolution is necessary to guide future action by
law enforcement officers and magistrates,’ " United States v.
Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992) quoting
Illinois v. Gates, 462 U.S. 213, 264 (1983), and we therefore
turn directly to the good faith issue. See, e.g ., United States
v. Taylor, 119 F.3d 625, 629 (8th Cir. 1997); United States
v. Zayas-Diaz, 95 F.3d 105, 112 (1st Cir. 1996); United
States v. Cancelmo, 64 F.3d 804, 807 (2d Cir. 1995);
Satterwhite, 980 F.2d at 320.
B.
Under Leon, suppression of evidence "is inappropriate
when an officer executes a search in objectively reasonable
reliance on a warrant’s authority." United States v.
Williams, 3 F.3d 69, 74 (3d Cir. 1993). The Supreme Court
developed the exclusionary rule to deter unlawful police
conduct. Leon, 468 U.S. at 906. However, where law
8
enforcement officers act in the "objectively reasonable belief
that their conduct d[oes] not violate the Fourth
Amendment," "the marginal or nonexistent [deterrent]
benefits produced by suppressing evidence obtained in
objectively reasonable reliance on a subsequently
invalidated search warrant cannot justify the substantial
costs of exclusion." Id. at 918, 922. Therefore, if an officer
has obtained a warrant and executed it in good faith, "there
is no police illegality and thus nothing to deter." Id. at 921.
To determine the applicability of the good faith exception
to the exclusionary rule, we ask "whether a reasonably well
trained officer would have known that the search was illegal
despite the magistrate’s authorization." United States v.
Loy, 191 F.3d 360, 367 (3d Cir. 1999) quoting Leon, 468
U.S. at 922 n.23. The fact that an officer executes a search
pursuant to a warrant typically "suffices to prove that an
officer conducted a search in good faith and justifies
application of the good faith exception." United States v.
Hodge, 246 F.3d 301, 308 (3d Cir. 2001) citing Leon, 468
U.S. at 922. Nevertheless, we have identified four narrow
situations in which an officer’s reliance on a warrant is not
reasonable:
(1) when the magistrate judge issued the warrant in
reliance on a deliberately or recklessly false affidavit;
(2) when the magistrate judge abandoned his judicial
role and failed to perform his neutral and detached
function;
(3) when the warrant was based on an affidavit"so
lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable;" or
(4) when the warrant was so facially deficient that it
failed to particularize the place to be searched or the
things to be seized.
Id. quoting Williams, 3 F.3d at 74 n.4 (citation omitted).
In the present case, Kim’s does not contend that the
affidavit contained deliberately or recklessly false
information or that the Magistrate Judge abandoned her
judicial role. Instead, Kim’s relies on the third and fourth
exceptions noted above and maintains that the affidavit was
9
so lacking in indicia of probable cause and so lacking in the
requisite particularity as to render official belief in the
warrant’s legality entirely unreasonable. In order to come
within these exceptions, Kim’s must show, not just that the
Magistrate Judge erred in issuing the search warrant at
issue, but that the Magistrate Judge’s error was so obvious
that a law enforcement officer, without legal training,
should have realized, upon reading the warrant, that it was
invalid and should thus have declined to execute it.
III.
A.
Kim’s contends that the affidavit was so lacking in indicia
of probable cause that the officers who executed the
warrant should have realized that it was invalid.
Specifically, Kim’s asserts that "[a]lthough the affidavit to
support the search warrant application was detailed with
respect to the alleged scheme by the grocery stores and the
Chinese restaurants to fraudulently redeem food stamps, it
provided almost no information linking those activities to
Kim’s." Appellant’s Brief at 35-35. Kim’s also contends that
even if the officers could have reasonably thought that the
information in the affidavit provided probable cause that
Kim’s premises once contained evidence of the illegal
scheme, any reasonable officer should have realized that
the information was stale by the time the warrant was
issued.
A magistrate judge may find probable cause when,
viewing the totality of the circumstances, "there is a fair
probability that . . . evidence of a crime will be found in a
particular place." Gates, 462 U.S. at 238. When a warrant
is issued and later challenged, a deferential standard of
review is applied in determining whether the magistrate
judge’s probable cause decision was erroneous. The
reviewing court inquires whether there was "a‘substantial
basis’ for finding probable cause," Hodge, 246 F.3d at 305
quoting United States v. Jones, 994 F.2d 1051, 1054 (3d
Cir. 1993), as "after-the-fact scrutiny by courts of the
sufficiency of an affidavit should not take the form of de
10
novo review." Gates, 462 U.S. at 236."[T]he resolution of
doubtful or marginal cases in this area should be largely
determined by the preference to be accorded to warrants."
Jones, 994 F.2d at 1057-58, quoting United States v.
Ventresca, 380 U.S. 102, 109 (1965).
B.
We are not persuaded that the affidavit in this case was
so deficient in probable cause as to render reliance on it
unreasonable. On the contrary, we view the affidavit as
making a substantial showing of probable cause on which
it was objectively reasonable for the officers to rely. See
Hodge, 246 F.3d at 309 citing Williams, 3 F.3d at 74. The
affidavit provided great detail regarding a complex food
stamp fraud and money laundering scheme that had been
extensively investigated by experienced officers. Specifically,
the affidavit provided information that the Wang-Chen
Partnership was engaged in a multi-million dollar scheme
under which the Partnership purchased food stamps at a
discount and redeemed them through " ‘bogus’ grocery
stores." JA at 107. As noted, undercover agents sold food
stamps to the Wang-Chen Partnership, and these stamps
were later redeemed by some of these groceries. The
investigation showed that these stores did little legitimate
business, but a review of the bank records of five of the
stores demonstrated that they had collectively redeemed
more than $12,000,000 in food stamps since April 1994. Id.
at 108. The proceeds from the redemption of the food
stamps were withdrawn from the grocery stores’ bank
accounts by check, and all of "the grocery stores. . . made
checks payable to a common set of wholesale food
companies," including Kim’s. Id. at 109, 161. The amount
of the checks "far exceeded the value of any food inventory
that the stores may have purchased." Id. at 109.
The affidavit stated that Kim’s received $1,305,302 in
payments from these "sham" grocery stores. Id. at 162.
These payments could not have been payments for
groceries because, as the affidavit clearly sets forth, these
stores sold few if any groceries. Therefore, the simple fact
that Kim’s cashed checks from grocery stores implicated in
the food stamp trafficking scheme is strong evidence that
11
Kim’s was also involved in the scheme. It is therefore
apparent that the affidavit "was not a ‘bare bones’
document" and that the officers’ reliance on the search
warrant was objectively reasonable. Loy, 191 F.3d at 369.
C.
In arguing that the affidavit in this case was woefully
lacking in indicia of probable cause, Kim’s places great
weight on the following passage in the affidavit:
[W]holesale food companies that are engaged in food
stamp trafficking and money laundering . . . maintain
records of their legitimate business activity both at
their commercial locations and at private residences to
which they have access. These records include receipts,
invoices, lists of business associates, records of
telephone numbers, delivery schedules, ledgers,
financial statements, cash receipt, disbursement, and
sales journals, and correspondence. This information is
relevant because it shows the extent to which the
businesses have been engaged in legitimate commerce.
JA at 119 (emphasis added).
Pointing to this passage, Kim’s argues that the"affidavit
demonstrate[s] that the government was seeking evidence of
legitimate business, . . . [and] a search warrant should only
issue when there is probable cause to believe that .. .
evidence of a crime will be found in a particular place."
Appellant’s Brief at 26 (italics in original). This argument is
unpersuasive.
As previously stated, the affidavit provided substantial
reason to believe that Kim’s had received large amounts of
money from grocery stores that conducted little or no
business. This information provided probable cause to
believe that Kim’s ordinary books and records would not
contain entries showing legitimate grocery purchases by
and deliveries to these sham stores, and the absence of
such entries would tend to show that the checks issued by
these stores to Kim’s were for other than legitimate
purposes. We therefore see no problem with this passage in
the affidavit, and we hold that there is no ground for
12
suppressing the fruits of the search of Kim’s premises due
to lack of probable cause.
D.
Kim’s next argues that suppression is called for because
the information in the affidavit relating to Kim’s was stale.
The search warrant was executed on September 11, 1997,
and the affidavit showed that Kim’s began a relationship
with the Wang-Chen Partnership in 1994 and continued to
engage in financial transactions with the Partnership
through October 25, 1996. JA at 108-09, 162-64. We reject
the argument that this 11-month gap rendered the
information in the affidavit so clearly stale that reasonable
officers could not have believed that the warrant was valid.
Where "an activity is of a protracted and continuous
nature, ‘the passage of time becomes less significant.’ "
United States v. Tehfe, 722 F.2d 1114, 1119 (3d Cir. 1983)
quoting United States v. Johnson, 461 F.2d 285, 287 (10th
Cir. 1972). Furthermore, where the items to be seized are
created for the purpose of preservation, as are business
records, the passage of time is also less significant. See
United States v. Williams, 124 F.3d 411, 421 (3d Cir. 1997).
In the present case, as noted, the relationship between
Kim’s and the Partnership was of considerable duration,
and the warrant authorized a search for standard
categories of business records. Businesses typically retain
such records for an extended period of time -- certainly for
more than 11 months. For these reasons, we hold that it
was objectively reasonable for the executing officers to
believe that the evidence supporting the search warrant
was not stale.5
_________________________________________________________________
5. Kim’s argued that the District Court improperly considered
information outside of the affidavit in its ruling that the affidavit
supported a finding of probable cause. Because we find that the warrant
was executed in good faith, we need not address this issue.
13
IV.
A.
Kim’s contends that the warrant in this case was a
"general warrant" and so plainly lacked the requisite
particularity concerning the items to be seized that official
reliance on it was unreasonable. The Fourth Amendment
provides that "no Warrant shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized." The Fourth Amendment does not
prohibit searches for long lists of documents or other items
provided that there is probable cause for each item on the
list and that each item is particularly described.
"The particularity requirement ‘makes general searches
. . . impossible.’ " United States v. Christine, 687 F.2d 749,
752 (3d Cir. 1982) quoting Marron v. United States, 275
U.S. 192, 196 (1927); see also, e.g., Stanford v. Texas, 379
U.S. 476, 510 (1965). A general warrant authorizes"a
general, exploratory rummaging in a person’s belongings."
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). In
order for a warrant to be invalidated as general, it must
"vest the executing officers with unbridled discretion to
conduct an exploratory rummaging through [defendant’s]
papers in search of criminal evidence." Christine, 687 F.2d
at 753. As we noted in Christine, examples of general
warrants are those authorizing searches for and seizures of
such vague categories of items as " ‘smuggled goods,’ "
" ‘obscene materials,’ " " ‘books, records, pamphlets, cards,
receipts, lists, memoranda, pictures, recordings and other
written instruments concerning the Communist Party of
Texas,’ " " ‘illegally obtained films,’ " and " ‘stolen property.’ "
Id. (citations omitted).
We have contrasted a "general warrant" with a warrant
that is simply overly broad. An overly broad warrant
"describe[s] in both specific and inclusive generic terms
what is to be seized," but it authorizes the seizure of items
as to which there is no probable cause. Christine, 687 F.2d
at 753-54. An overly broad warrant, however, can be cured
by redaction, that is, by "striking from [the] warrant those
14
severable phrases and clauses that are invalid for lack of
probable cause or generality and preserving those severable
phrases and clauses that satisfy the Fourth Amendment."
Id. at 754. Evidence seized pursuant to an overly broad
warrant need not be suppressed if the good faith exception
applies.
B.
Contrary to Kim’s argument, the warrant here was
neither general nor so plainly in violation of the
particularity requirement that the executing officers could
not have reasonably trusted in its legality. Although the
scope of the warrant was certainly extensive, the warrant
was not general. The warrant authorized a search for and
seizure of the following :
1) Receipts, invoices, lists of business associates,
delivery schedules, ledgers, financial statements,
cash receipts, disbursement, and sales journals,
and correspondence.
2) Computers, computer peripherals, related
instruction manuals and notes, and software in
order to conduct an off-site search for electronic
copies of the items listed above.
JA at 179, 181. The warrant thus "describ[ed] in . . .
inclusive generic terms what is to be seized." Christine, 687
F.2d at 753. It did not vest the executing officers with
"unbridled discretion" to search for and seize whatever they
wished. Id. It was indubitably broad, but it was not
"general."
Moreover, we think that reasonable officers could have
easily believed that the warrant was not even overly broad
with respect to the categories of items to be seized. To be
sure, the warrant authorized a search for and the seizure of
entire categories of legitimate business records, but it is
critical to keep in mind that a principal purpose of the
warrant was to prove a negative, viz., that Kim’s had not
engaged in legitimate business transactions with the sham
groceries from which Kim’s had received large cash
payments.
15
The previously quoted passage from the affidavit, which
Kim’s attacks, shows why there was probable cause to seize
the categories of business records covered by the warrant.
This passage stated:
[W]holesale food companies that are engaged in food
stamp trafficking and money laundering . . . maintain
records of their legitimate business activity both at
their commercial locations and at private residences to
which they have access. These records include receipts,
invoices, lists of business associates, records of
telephone numbers, delivery schedules, ledgers,
financial statements, cash receipt, disbursement, and
sales journals, and correspondence. This information is
relevant because it shows the extent to which the
businesses have been engaged in legitimate commerce.
JA at 119 (emphasis added). In other words, if Kim’s had
engaged in legitimate business transactions with the
grocery stores in question -- if, for example, it had sold
them groceries -- its "receipts, invoices, lists of business
associates, records of telephone numbers, delivery
schedules, ledgers, financial statements, cash receipt,
disbursement, and sales journals, and correspondence"
would have evidenced such transactions. And if evidence of
such legitimate transactions was missing from Kim’s
"receipts, invoices, lists of business associates, records of
telephone numbers, delivery schedules, ledgers, financial
statements, cash receipt, disbursement, and sales journals,
and correspondence," it was reasonable to infer that no
such legitimate transactions had occurred. But in order to
show that evidence of such transactions was lacking, it was
necessary to examine all of Kim’s "receipts, invoices, lists of
business associates, records of telephone numbers, delivery
schedules, ledgers, financial statements, cash receipt,
disbursement, and sales journals, and correspondence" --
at least for the relevant period of time. Consequently, a
reasonable officer could easily have believed that the
breadth of the warrant in this case was justified. 6
_________________________________________________________________
6. It is also important to keep in mind that the warrant was issued, not
only to search for evidence of food stamp fraud, but also to search for
evidence of money laundering and conspiracy to commit money
16
The dissent contends that the warrant was plainly flawed
because it was not "limited . . . to documents bearing some
relation to Kim’s transactions with the targeted grocery
stores or the individuals known to be participants in the
fraud" and because it did not specify "the generic types of
crimes, i.e., food stamp trafficking or money laundering, to
which the items designated for seizure pertained." Dissent
at 27. However, this argument simply overlooks the fact
that the investigation in this case sought to prove a
negative (that Kim’s had not engaged in legitimate sales to
the sham groceries). In order to show that no such sales
had occurred, it was necessary to search for and seize all
of the files in which a record of such transactions would
have been kept. Searching for and seizing only those
records that positively showed illicit transactions would not
have sufficed. For this reason, it was objectively reasonable
for the executing officers in this case to believe that the
warrant properly authorized a search for and seizure of the
categories of Kim’s business records that the warrant set
out.
Kim’s contends that the warrant violated the particularity
requirement because it did not restrict the search and
seizure to documents concerning transactions that
occurred during the time period of the illegal food stamp
trafficking scheme. In a similar vein, the dissent argues
that the warrant, at most, should have covered documents
from the period 1994 to 1997 and not for the period 1984
to 1993. Dissent at 26. This argument, however, does not
provide a ground for suppressing the evidence supporting
the judgment of forfeiture.
_________________________________________________________________
laundering and that these latter offenses include the use of the proceeds
of food stamp fraud in a variety of different ways. See 18 U.S.C. S 1956
(a)(1). For example, the knowing use of any of the funds (more than $1.3
million) that Kim’s received from the sham groceries to further the illegal
scheme or to conceal the origins of the funds might constitute a violation
of the money laundering statute. See 18 U.S.C. S 1956 (a) and (c). A
transaction as seemingly innocent on its face as the purchase of
groceries to be supplied to a restaurant in exchange for fraudulently
obtained food stamps might qualify, and there was thus probable cause
to search for and seize broad categories of records.
17
The warrant at issue here was tantamount to one
authorizing a search for records for the years 1984, 1985,
1986, etc. through 1997. If the dissent is correct that the
warrant should not have covered documents from 1984 to
1993, that flaw renders the warrant overly broad, not
general. The inclusion of the period from 1984 to 1993 did
not "vest the executing officers with unbridled discretion to
conduct an exploratory rummaging through [defendant’s]
papers in search of criminal evidence." Christine, 687 F.2d
at 753. Rather, the inclusion of those years simply
authorized a search for documents as to which there may
not have been probable cause. Under our decision in
Christine, the proper remedy for this putative defect was
simply to excise the years for which there was no probable
cause. At most, the lack of time restrictions meant that the
warrant was overly broad, not general. Kim’s could have,
but did not, move for redaction of the warrant on this
ground. (Redaction is unlikely to have helped Kim’s since
one would expect that the documents upon which the
government relied to show that bank funds in question
were involved in the illegal scheme would fall within the
time period of the scheme.) In any event, the absence from
the warrant of a provision limiting the search and seizure
to documents pertaining to the time period of the scheme
did not make the warrant "so facially deficient" "as to
render official belief in its [legality] entirely unreasonable."
Hodge, 246 F.3d at 308. Accordingly, the Leon exception to
the exclusionary rule precludes suppression of evidence on
this ground.
In Massachusetts v. Sheppard, 468 U.S. 981 (1984), the
companion case to Leon, the Supreme Court applied the
good faith doctrine to a case in which a warrant had been
invalidated because it was overly broad. See also United
States v. Kepner, 843 F.2d 755, 763 (3d Cir. 1988). In
Sheppard, the police wished to search the residence of the
boyfriend of a murder victim. The supporting affidavit
specified that police wanted to search the defendant’s
residence for "[a] fifth bottle of amaretto liquor, 2 nickel
bags of marijuana, a woman’s jacket that has been
described as black-grey (charcoal), possessions of[the
victim], similar type wire and rope that match those on the
body of [the victim], or in the above [Thunderbird]. [A]
18
[b]lunt instrument that might have been used on the
victim. Men’s or women’s clothing that may have blood,
gasoline, burns on them. Items that may have fingerprints
of the victim." Id. at 985 (quoting the affidavit). The police
sought the warrant on a Sunday and were thus unable to
obtain the appropriate warrant form. The investigating
detective found a warrant form used in another county for
searches for controlled substances and brought the warrant
to the judge. After reading the affidavit, the judge agreed to
authorize the requested warrant and made necessary
changes to the controlled substance warrant form in order
to tailor it to the case at hand. However, the judge failed to
change the directory portion of the warrant, which
authorized a search for "any controlled substance, article,
implement or other paraphernalia used in, for, or in
connection with the unlawful possession or use of any
controlled substance . . . ." Id. at 987 n.2 (quoting the
warrant form). The warrant was thus overly broad.
The Supreme Court held that the Leon exception to the
exclusionary rule applies where executing officers
reasonably believe that a search is authorized by a warrant
that is too broad. The Court observed that a police officer
is not required to question a judge who has just advised
him that the warrant he possesses authorizes him to
conduct the requested search; as the exclusionary rule was
developed to "deter unlawful searches by police,[and] not to
punish the errors of magistrates and judges," suppression
is inappropriate. Sheppard, 468 U.S. at 990 quoting Gates,
462 U.S. at 263 (White, J., concurring in judgment).
The absence of limiting dates in the warrant in the
present case is, at worst, similar to the defect in the
warrant in Sheppard. The officers in the present case
conducted a lengthy investigation; they reviewed numerous
bank transactions; they painstakingly assembled all of the
information collected during the investigation, presented it
to a neutral and detached Magistrate Judge, and then
revised the affidavit and re-presented it to the Magistrate
Judge, who found probable cause to issue a warrant.
The members of the Magistrate Judge corps are highly
qualified. They are chosen based on merit by the District
Court, and competition for Magistrate Judge positions is
19
keen. Magistrate Judges typically have more experience
with issues involving warrants than any other judicial
officers. The Magistrate Judge in this case believed that the
warrant was proper and thus issued it. When a Magistrate
Judge has made such a determination, law enforcement
officers, who are rarely attorneys, are entitled to rely on the
Magistrate Judge’s judgment, except in rare circumstances,
such as where the warrant is so plainly defective in form
that even a lay officer could not believe in good faith that
the warrant was proper. That narrow circumstance is not
present here, and we therefore hold that suppression is not
justified.
V.
A.
Kim’s final argument is that the officers who executed the
warrant violated the Fourth Amendment by seizing all
documents written in Chinese, regardless of content,
without first determining whether the documents fell within
one of the categories specified in the warrant that violated
the Fourth Amendment. Kim’s contends that the
government should have been required to send a person
who was able to read Chinese to the scene of the search in
order to determine whether documents written in Chinese
fell within the warrant’s scope. Because these arguments
raise important Fourth Amendment questions that are not
specifically governed by binding precedent, we address the
Fourth Amendment issues before turning to the Leon good
faith exception. See Leon, 468 U.S. at 925.
B.
The affidavit in this case explained how the agents
planned to deal with the problem of documents written in
Chinese. The affidavit stated:
We anticipate that some of the records on the premises
to be searched will be recorded in a chinese dialect.
The government will attempt to assign an agent who is
fluent in at least one chinese dialect to the search
20
teams. It may nonetheless be impossible to screen
foreign language documents for relevance on the
premises either because they are in a dialect unknown
to our agents or because we are unable to staff the
search location with a chinese speaking agent. We will
seize all records that we cannot read. After these
records have been reviewed by someone familiar with
the dialect used, all records not described in this search
warrant shall be returned.
JA at 176-77 (emphasis added). According to the
government’s brief, the warrant for the search of Kim’s was
one of 23 arrest and search warrants that were executed at
the same time by approximately 180 federal and state law
enforcement officials, approximately ten of whom spoke
Chinese. Appellee’s Br. at 41 n.3. No officer able to speak
Chinese was sent to Kim’s. Id. Thus, if the agents who
executed the warrant at Kim’s proceeded as stated in the
affidavit, they seized all documents written in Chinese. The
government represents in its brief that all of the seized
documents written in Chinese "fell into one of two
categories of documents specified by the warrant: invoices
and ledgers," id. at 40-41, and in view of the scope of the
warrant, this may well be true. However, the point is not
conceded by Kim’s and the record as it now exists
apparently does not show whether or not the government’s
representation is true.
C.
The affidavit in this case did not provide probable cause
for the seizure of all documents in Chinese, and the
warrant did not authorize the seizure of all such
documents. This does not mean, however, that the
government was necessarily required to send an agent who
was able to read Chinese to Kim’s to assist in the execution
of the warrant. "The general touchstone of reasonableness
which governs Fourth Amendment analysis . . . governs the
method of execution of the warrant," United States v.
Ramirez, 523 U.S. 65, 71 (1998) (citation omitted), and
there are plainly circumstances in which it is reasonable to
execute a warrant for documents in a foreign language (or
for technical records) without the assistance of an officer
21
who is capable of understanding the materials sought.
Reasonableness is determined "by assessing, on the one
hand, the degree to which [a search or seizure] intrudes
upon an individual’s privacy and, on the other, the degree
to which [the search or seizure] is needed for the promotion
of legitimate governmental interests." Wyoming v. Houghton,
526 U.S. 295, 300 (1999) (citation omitted). If, for example,
there is an urgent need to execute a warrant for documents
written in a language that relatively few people in the
jurisdiction can read, it may be reasonable to proceed
without the assistance of someone able to read the
language. If officers were obligated in such a situation to
wait until someone who is able to read the language can be
found and assigned to assist with the search, vital evidence
could be lost, and as we will explain, there are alternative
means of minimizing the intrusion on privacy that
immediate execution of the warrant would produce. Thus,
Kim’s suggestion that an agent who is able to read the
language must always be assigned to the team executing
the warrant is unreasonable.
At the same, we do not embrace the suggestion that
executing officers may always "seize all records that [they]
cannot read." If officers who are able to read the language
in question are readily available, the failure to assign such
an officer to assist in executing the warrant may be
unreasonable. Furthermore, even if there is a sufficient
reason not to assign such a person, the warrant must still
be executed in a reasonable manner. The privacy of those
whose Fourth Amendment interests are affected by the
search should not be infringed to a greater degree than is
reasonably necessary to serve the legitimate interests of law
enforcement.
One reasonable way of proceeding is outlined in the
Model Code of Pre-Arraignment Procedure S SS 220.5
(1975), which recommends that where "documents to be
seized cannot be searched for or identified without
examining the contents of other documents, . . . the
executing officer shall not examine the documents but shall
either impound them under appropriate protection where
found, or seal and remove them for safekeeping pending
further proceedings . . . ." Id. at S 220.5(2). Promptly
22
following the removal or impoundment of the documents,
an executing officer should "report the fact and
circumstances of the impounding or removal to the issuing
official. As soon thereafter as the interests of justice permit,
and upon due and reasonable notice to all interested
persons, a hearing shall be held before the issuing official
. . . at which the person from whose possession or control
the documents were taken . . . may appear . . . and move
(a) for the return of the documents . . . in whole or in part,
or (b) for specification of such conditions and limitations on
the further search for documents to be seized as may be
appropriate to prevent unnecessary or unreasonable
invasion of privacy." Id. at S 220.5(3). This adversary
hearing enables the moving party to request that certain
procedures be used to "prevent excessive invasions of
privacy." Note to Model Code of Pre-Arraignment Procedure
S SS 220.5; see also United States v. Tamura, 694 F.2d 591,
595-97 (9th Cir. 1982). These procedures may include
conducting the search in the presence of counsel, allowing
the moving party to demonstrate that certain files or
portions of intermingled documents could not possibly fall
within the scope of the search warrant, or requiring that
the search be conducted by a special master. See id.
D.
In the present case, the record is insufficient to
determine whether the Fourth Amendment was violated as
a result of the seizure of documents in Chinese. Although
the government’s brief makes representations relating to
the need to execute the warrant at Kim’s without assigning
an officer able to read Chinese, it does not appear that the
present record supports those representations. Moreover, it
does not appear that the record reveals whether any
documents that did not fall within the scope of the warrant
were taken from Kim’s. If no such documents were taken,
then there was no violation of the Fourth Amendment. If
such documents were taken and retained, there may or
may not have been a violation.7 And if there was a violation,
_________________________________________________________________
7. There might not be a violation if a cursory examination of such
documents to determine whether they fell within the scope of the
warrant revealed that they evidenced criminal activity. Of course, the
handling of the documents up to the point of examination would also
have to comply with Fourth Amendment requirements.
23
there may or may not be grounds for reversing the
judgment of forfeiture.
Because of these gaps in the record, we believe that it is
advisable to vacate the judgment of forfeiture and remand
to the District Court for further proceedings. On remand,
Kim’s should identify any documents that were taken in the
search and do not fall within any of the categories of
documents set out in the warrant. If any such documents
are identified, the government should be given the
opportunity to establish either that the seizure of these
documents was permitted by the Fourth Amendment or
that the Leon exception to the exclusionary rule precludes
suppression.8
VI.
For the reasons explained above, we reject Kim’s
arguments relating to probable cause and particularity.
However, because of gaps in the present record relating to
the seizure of documents written in Chinese, we vacate the
judgment of forfeiture and remand to the District Court for
further proceedings concerning this issue only.
_________________________________________________________________
8. We express no view on the question whether the good faith exception
would apply here if a Fourth Amendment violation is found.
24
AMBRO, Circuit Judge, dissenting:
The Kim’s warrant was so lacking in particularity that no
reasonably well-trained officer could execute it in good
faith. Thus, I respectfully dissent.1
The Fourth Amendment requires that a warrant describe
with particularity the place to be searched and the things
to be seized. Coolidge v. New Hampshire, 403 U.S. 443, 467
(1971). To pass constitutional muster, specificity"[a]s to
what is to be taken" is necessary so that "nothing is left to
the discretion of the officer executing the warrant." Marron
v. United States, 275 U.S. 192, 196 (1927). Moreover, when
a warrant is "so facially deficient--i.e. , in failing to
particularize the place to be searched or the things to be
seized--that the executing officer cannot reasonably
presume it to be valid," the good faith exception to the
exclusionary rule is inapplicable. United States v. Leon, 468
U.S. 897, 923 (1984).
I. The Kim’s warrant lacked constitutionally
required specificity.
The Kim’s warrant was so inexact that the executing
officers could not have reasonably presumed its validity. It
allowed the seizure of the following items:
Receipts, invoices, lists of business associates, delivery
schedules, ledgers, financial statements, cash receipt,
disbursement, and sales journals, and correspondence.
Computer, computer peripherals, related instruction
manuals and notes, and software in order to conduct
an off-site search for electronic copies of the items
listed above.
This warrant vested the executing officers with carte
blanche to seize all documents -- even those written in
Chinese -- regardless whether the agents knew what the
_________________________________________________________________
1. I agree with the majority that the record is inadequate to resolve Kim’s
argument with respect to the seizure of documents written in Chinese.
In my opinion, however, that issue would not be reached, as all the
evidence taken from Kim’s should be suppressed due to the
constitutionally defective warrant in this case.
25
documents were or how they related to the investigation. By
doing so, the Government ignored its burden of drafting the
Kim’s warrant as specific as possible based on the
information available at the time of the search. United
States v. American Investors of Pittsburgh, Inc., 879 F.2d
1087, 1106 (3d Cir. 1989). Here, that limiting information
would have included Kim’s alleged time period of
involvement and criminal activity.2
A. The warrant should have been limited to Kim’s
alleged dates of involvement.
As noted by the majority, the warrant did not qualify its
generic list of business records by providing a description of
the relevant time period under investigation. While the
allegations pertaining to Kim’s took place exclusively in
1996, and while those that pertained to the partnership at
large occurred from 1994 to 1997, the warrant bestowed
license to forage through any records found at Kim’s, even
those dating from its opening in 1983 through 1994, a
period during which there is no suggestion on the record
before us that Kim’s conducted anything but legitimate
business. By itself, this deficiency resulted in an
unconstitutionally broad warrant. United States v. Ford,
184 F.3d 566, 576 (6th Cir. 1999) ("Failure to limit broad
descriptive terms by relevant dates, when such dates are
available to the police, will render a warrant overbroad.").
In defending this omission, the majority asserts that "[a]t
most, the lack of time restrictions meant that the warrant
was overly broad, not general." Maj. Op. at 18. Controlling
case law suggests otherwise. A general warrant is one
authorizing "a general exploratory rummaging in a person’s
belongings." Coolidge, 403 U.S. at 467. For example,
Stanford v. Texas, 379 U.S. 476 (1965), involved a general
warrant. There, the warrant authorized the seizure of
"books, records, pamphlets, cards, receipts, lists,
memoranda, pictures, recordings and other written
_________________________________________________________________
2. Based on the information contained in its affidavit, the Government
also could have limited the search and seizure to documents bearing
some relation to Kim’s transactions with the targeted grocery stores or
the individuals known to be participants in the fraud.
26
instruments concerning the Communist Party of Texas." Id.
at 486. The warrant here--which contained no limitations
as to the time period, transactions, activities, or crimes
involved--is not even as specific as that in Stanford, which
was found to be unconstitutionally general.
B. The warrant should have been limited to Kim’s
alleged criminal activity.
Further, the warrant could have specified the generic
types of crimes, i.e., food stamp trafficking or money
laundering, to which the items designated for seizure
pertained. United States v. George, 975 F.2d 72, 77 (2d Cir.
1992) (refusing to apply the Leon good faith exception
because "a warrant not limited in scope to any crime at all
is so unconstitutionally broad that no reasonably well-
trained police officer could believe otherwise") (emphasis in
original). This defect is fatal, and distinguishes this case
from United States v. Conley, 4 F.3d 1200 (3d Cir. 1993),
which the Government cites for the proposition that the
warrant was not facially deficient. In Conley , our Court
reviewed a decision of the District Court to suppress based
on its finding that a search warrant for the premises of a
business which leased poker machines failed to establish
probable cause. On appeal, defendants maintained that the
warrant at issue was overbroad because it authorized the
seizure of
[a]ll video poker machines, keys for machines,
accounting records, all revenue records, employee
records, purchase orders from distributors and
manufactors [sic] of video poker machines, all records
showing poker machine locations and any and all
paraphernalia indicative of a gambling operation.
4 F.3d at 1204. Our Court rejected the argument, finding
that the warrant satisfied the particularity requirement of
the Fourth Amendment because it fairly limited the search
to items related to the illegal gambling operation under
suspicion. Id. at 1208.
In contrast, the Kim’s warrant did not so much as allude
to the illegal activity under investigation. An agent
reviewing and implementing the warrant on Kim’s would
27
have no basis to distinguish between business records and
receipts relating to suspected illegal conduct and those that
were altogether irrelevant and innocuous. The Kim’s
warrant did not meaningfully limit the intrusion into
personal privacy because it failed to direct the officers to
seize only items probative of crimes, here money laundering
and/or food stamp fraud. Cf. United States v. McClintock,
748 F.2d 1278, 1282-83 (9th Cir. 1984) (approving warrant
containing the language "any and all items referring to the
sale of diamonds and other gemstones which are evidence
of a violation of Title XVIII"); United States v. Dennis, 625
F.2d 782, 792 (8th Cir. 1980) (upholding a warrant which
called for seizure of "certain books and records (or items of
evidence) relating to the extortionate credit transaction
business"); Grimaldi v. United States, 606 F.2d 332, 337,
339 (1st Cir. 1979) (holding that the phrase "paraphernalia
used in the manufacture of counterfeit federal reserve
notes" was an adequate means of limiting the warrant).
The majority justifies the Government’s failure to include
a phrase limiting the warrant to the alleged criminal activity
because "the investigation in this case sought to prove a
negative (that Kim’s had not engaged in legitimate sales to
the sham groceries)." Maj. Op. at 17 (emphasis in original).
This position essentially endorses a fishing expedition
where the Government is allowed to seek evidence of
legitimate, not illegitimate, conduct.3 Further, this
"negative" proof argument contradicts the Supreme Court’s
dictate that before a search warrant may issue, the
magistrate judge must be satisfied that "there is a fair
probability that contraband or evidence of a crime will be
found in a particular place." Illinois v. Gates, 462 U.S. 213,
238 (1983) (emphasis added). Contrary to the majority’s
assertion, the Government can obtain a warrant only for
evidence suggesting illegal conduct, not for evidence, or a
dearth of evidence, suggesting legal conduct.
The majority exacerbates this misapprehension of law by
_________________________________________________________________
3. Ironically, the majority contradicts its own"negative" proof argument
by also stating that the Government seized the documents to prove a
positive, i.e., as actual direct evidence of a money laundering scheme.
Maj. Op. at 16 n.6.
28
stating that "in order to show that evidence of such
transactions was lacking, it was necessary to examine all of
Kim’s ‘receipts, invoices, lists of business associates,
records of telephone numbers, delivery schedules, ledgers,
financial statements, cash receipt, disbursement, and sales
journals and correspondence.’ " Maj. Op. at 16 (emphasis in
original). This argument essentially suggests that Kim’s was
"permeated with fraud," or was so extensively involved in
the scheme that it affected every level of its organization.
Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir. 1987).
However, the Government’s own brief and affidavit
undermine the majority’s analysis. A business does not
qualify as "permeated with fraud" if it is an actual
legitimate business which is merely involved in a particular
criminal activity for a finite period of time. United States v.
Kow, 58 F.3d 423, 428 (9th Cir. 1995). Here, the
Government itself acknowledges that Kim’s was first
established in 1983, over ten years prior to the business’
first alleged involvement in the scheme, and that during
1995 and 1996 Kim’s received only 13% of its total revenue
from the alleged scheme. Government’s Br. at 24. By all
accounts, Kim’s was a legitimate business even when it was
participating in the scheme. More importantly, there is no
evidence of its criminal involvement during the first twelve
years of its existence. Under these circumstances, Kim’s
does not qualify as an entity "permeated with fraud," and
thus, the majority errs by justifying a wholesale seizure of
all business records.
II. The Government took no steps to limit the scope
of the search and seizure.
In addition to its inadequate drafting, the Government
failed to undertake subsequent measures to limit the scope
of the search and seizure. The affidavit was not
incorporated into or attached to the warrant, and therefore
the affidavit cannot serve as a source of additional
specificity. See United States v. Johnson, 690 F.2d 60, 64
(3d Cir. 1982) (holding that where an affidavit is
incorporated by reference into the warrant, the affidavit can
cure the warrant’s lack of particularity).
29
Further, Agents Thomerson and McElravy, the officers
who swore out the affidavit, failed to supervise the Kim’s
search and seizure. Their inaction distinguishes this case
from United States v. Kepner, 843 F.2d 755 (3d Cir. 1988),
which the majority cites for support without actual
discussion. In Kepner we upheld a warrant that authorized
the search and seizure of "documents, records, and
personal effects" of Thomas Kepner, a union official who
was the subject of a continuing investigation into labor
racketeering. The application and accompanying affidavit
used more specialized language than the warrant, alleging
probable cause to believe that a search of the condominium
would yield "clothing, documents, records, diaries, and
correspondence that establish [Kepner’s] use and control of
the condominium unit as well as his illegal receipt of
prohibited benefits." Id. at 762 (alteration in original). Even
though the search team in Kepner did not have a copy of
the affidavit handy, the lead agent who drew up the
affidavit carefully instructed his team as to the scope of the
search and "took responsibility for determining whether
every piece of seized evidence fell within the scope of the
warrant." Id. at 763-64. Comparable diligence was not
exercised here.
Similarly, the majority places considerable emphasis on
Massachusetts v. Sheppard, 468 U.S. 981 (1984), in which
the Supreme Court allowed the good faith exception to
proceed where a warrant was invalidated by a state
appellate court for failing to describe the "things to be
seized." Though the warrant in Sheppard authorized an
expansive search without specific description of the items
to be seized, the detective who prepared the affidavit and
secured the warrant made every effort to correct
inaccuracies in the form warrant, personally supervised the
search of Sheppard’s residence, and brought along a copy
of the affidavit to the search. Id. at 985-89. In other words,
the critical factor motivating the Supreme Court to
disregard the judge’s clerical oversight was the fact that the
officers "took every step that could reasonably be expected
of them." Id. at 989. In contrast, the officers here took no
steps to limit the search and seizure of Kim’s business
records.
30
More comparable is United States v. Leary, 846 F.2d 592
(10th Cir. 1988), where the Tenth Circuit affirmed a
suppression order on the grounds that the warrant was so
facially overbroad as to negate any claim of good faith. The
warrant in Leary, predicated on probable cause to believe
that the defendant had engaged in an illegal export
transaction, authorized the search of an export company
for
[c]orrespondence, Telex messages, contracts, invoices,
purchase orders, shipping documents, payment
records, export documents, packing slips, technical
data, recorded notations, and other records and
communications relating to the purchase, sale and
illegal exportation of materials in violation of the Arms
Export Control Act, 22 U.S.C. 2778, and the Export
Administration Act of 1979, 50 U.S.C. App. 2410.
846 F.2d at 594. The search generated twenty boxes of
business records, most unrelated to the investigation. See
id. at 594-95. The Court held that the warrant, which
"encompassed virtually every document that one might
expect to find in a modern export company’s office," was
facially deficient in light of the fact that the Government
had in its possession information that it could have used to
limit more precisely the description of the documents to be
seized. Id. at 600-02.
As in Leary, information was readily available to the
Government in this case to make the warrant’s description
of the records to be seized substantially more specific.
Instead, the Government rejected more precise language,
and the sweeping results speak for themselves: the
Government confiscated thirty-six boxes of documents, a
filing cabinet, two computers, twelve plastic bags containing
brown paper bags, and U.S. currency.
III. Suppression is the only appropriate remedy.
Finally, the majority misapplies the redaction remedy
endorsed in United States v. Christine, 687 F.2d 749, 759
(3d Cir. 1982). While conceding that the warrant should
have included time restrictions, the majority states that
Christine’s redaction concept may cure this defect by
31
authorizing a reviewing court to insert the relevant dates
into the Kim’s warrant. This reasoning stretches Christine
to the majority’s Procrustean bed by endorsing the
rewriting, not the redacting, of this unconstitutional
warrant. But as Christine makes clear, redaction does not
include inserting new terms into a warrant. Instead,"[b]y
redaction, we mean striking from a warrant those severable
phrases and clauses that are invalid for lack of probable
cause or generality and preserving those severable phrases
and clauses that satisfy the Fourth Amendment." Id. at 754
(emphases added). This definition does not include
redrafting a document to add time or criminal activity
limitations, especially when, as here, the warrant contained
no such "phrases and clauses" in the first place.
"Redaction is inappropriate when the valid portions of the
warrant may not be meaningfully severable from the
warrant as a whole." Id. When, as with the Kim’s warrant,
"no portion of the warrant is sufficiently particularized to
pass constitutional muster, then total suppression is
required." Kow, 58 F.3d at 427-28 (refusing to allow
redaction or apply the good faith exception when the
Government "did not limit the scope of the seizure to a time
frame within which the suspected criminal activity took
place" and failed "to describe . . . the specific criminal
activity suspected."); see Christine, 687 F.2d at 758 ("It is
beyond doubt that all evidence seized pursuant to a general
warrant must be suppressed."). Similar to the warrant in
Kow, no portion of the Kim’s warrant is limited by reference
to dates or criminal activity. In this situation, redaction is
not only inappropriate, it is wholly unfeasible.
IV. Conclusion
Any number of measures--limiting the warrant by
relevant time period, transactions, or criminal activities,
incorporating or attaching the affidavit, supervising the
search to limit the officers’ discretion--could arguably have
allowed this warrant to survive constitutional scrutiny. The
Government chose instead to draft a general warrant the
Fourth Amendment explicitly forbids. Further, "[w]hen the
Supreme Court announced the good faith exception in
Leon, it weakened the exclusionary rule, but it did not
32
eviscerate it. Good faith is not a magic lamp for police
officers to rub whenever they find themselves in trouble."
United States v. Zimmerman, 277 F.3d 426, 437-38 (3d Cir.
2002). Sensing that it was indeed in trouble, the
Government conceded at oral argument that the Kim’s
warrant "could have been written better, and should have
been written better." This admission is an understatement
of unconstitutional proportion. To sanction it nonetheless
lets Leon’s good faith exception swallow the Fourth
Amendment’s rule. I respectfully dissent.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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