United States v. Robert J. Scios A/K/A Robert Schwartz

ROBB, Circuit Judge,

dissenting:

I concur in the views expressed by Judge MacKinnon and add a few words.

When this case was before the panel of which I was a member, in 1976, I thought the “fruit of the poisonous tree” doctrine did not require the suppression of Massa’s testimony. I reasoned that the basis of this exclusionary rule is that it deters police misconduct, and that the nature of the police conduct in each case is the decisive factor in judging whether unlawful searches and seizures will be deterred. It seemed to me that exclusion of Massa’s testimony could have no deterrent effect because the FBI agents who seized the Scios folder had acted in good faith and their conduct was at most marginally unlawful.

My theory became untenable in 1978 when the Supreme Court decided United States v. Ceccolini, 435 U.S. 268 , 98 S.Ct. 1054 , 55 L.Ed.2d 268 (1978). In that case the Court listed the factors which made the witness Hennessey’s testimony admissible:

The evidence indicates overwhelmingly that the testimony given by the witness was an act of her own free will in no way coerced or even induced by official aüthority as a result of Biro’s discovery of the policy slips. Nor were the slips themselves used in questioning Hennessey. Substantial periods of time elapsed between the time of the illegal search and the initial contact with the witness, on the one hand, and between the latter and the testimony at trial on the other. While the particular knowledge to which Hennessey testified at trial can be logically traced back to Biro’s discovery of the policy slips, both the identity of Hennessey and her relationship with the respondent was well known to those investigating the case. There is in addition, not the slightest evidence to suggest that Biro entered the shop or picked up the envelope with the intent of finding tangible evidence bearing on an illicit gambling operation, much less any suggestion that he entered the shop and search with the intent of finding a willing and knowledgeable witness to testify against respondent. Application of the exclusionary rule in this situation could not have *979 the slightest deterrent effect on the behavior of an officer such as Biro. The cost of permanently silencing Hennessey is too great for an even-handed system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect.

Id. at 1062.

In the case before us (1) we cannot say that Massa’s testimony was the act of his own free will, in no way coerced or even induced by official authority. He was threatened with jail if he remained silent; (2) the papers obtained in the search at the Scios office were used by the agent who questioned Massa; (3) the identity of Massa as a witness and his relationship with Scios were not known to the investigators until the leads obtained by the search were exploited; (4) it cannot be said that when Scios invited the agents into his office they entered with no intention of finding tangible evidence. In short, the evidence in our case negatives most of the factors upon which the Supreme Court relied in its Ceccolini decision. The Supreme Court did say “no mathematical weight can be assigned to any of the factors which we have discussed.” Id. I cannot believe however that the only two affirmative factors found in this case — the lapse of time and the nature of the police conduct — can outweigh all the negative factors which are present.

Reflection has led me to reexamine the premises upon which the District Court’s conclusions were based. These premises were (1) the warrant for the arrest of Scios was invalid because unsupported by probable cause and (2) assuming that the warrant was valid, seizure of the file folder was unlawful.

In my opinion the affidavit supporting the warrant does establish probable cause to believe that Scios was responsible for the taps on the telephone lines of “Your Pharmacy, Inc.” On its face the affidavit sets out the following facts: The attorney for the drugstore, Forrester, asked Scios to investigate the financial losses being suffered by the store. Scios replied that he “didn’t do this kind of thing, but was primarily a ‘wiretapper, bugger and camera surveillance man.’ ”. Forrester said he could not employ Scios but he referred him to the owner of the store, Judge Norton. Subsequently Norton hired Scios and paid him “by a check drawn to another name”. Thereafter the taps on the lines of “Your Pharmacy, Inc.” were found by telephone linemen. In the course of the resulting investigation a telephone conversation took place between Scios and an FBI agent posing as a father concerned about his daughter’s association with an undesirable man. Although guarded in his remarks Scios plainly indicated that he was prepared to investigate the matter by means of wiretaps, and he at least intimated that he had done similar work for “Your Pharmacy, Inc.” In my judgment these facts are enough to support a reasonable belief that Scios was the man who placed the taps at “Your Pharmacy, Inc.”

As for the seizure of the file folder, I agree with Judge MacKinnon that it was valid within the principle of Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969). The wire rack holding the folder was in plain view within six feet of Scios when he was arrested, and I think a search incident to the arrest could include an examination of the contents of the file folder. There was no rummaging through desk drawers or closets, but a mere riffling of the protruding index tabs of the files in the open rack. See United States v. Patterson, 447 F.2d 424 (10th Cir. 1971); United States v. Sheard, 154 U.S.App.D.C. 9, 14 , 473 F.2d 139, 144 (1972), cert. denied, 412 U.S. 943 , 93 S.Ct. 2784 , 37 L.Ed.2d 404 (1973). The momentary presence of an agent between Scios and the file, at the time it was seized, did not mean that it had not been within his immediate control before the seizure. The file was on top of a credenza, directly to the right of where Scios was sitting at his desk, and not more than six feet away; and obviously the agent could not examine it without coming between Scios and the credenza. The search for evidence was not invalidated merely because the act of making it placed the evidence beyond the prisoner’s reach.

*980 I would reverse the order of the District Court.