Petition — Founding Church of Scientology v. United States

-

Supreme Court, U.S,

F]LED

1 FER 2 1978

| ——- RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

“77-1090

a

FOUNDING CHURCH OF SCIENTOLOGY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

DAVID M. BROWN

433 North Camden Drive

Suite 900

Beverly Hills, California 90210

(213) 550-7460

PHILIP J. HIRSCHKOP

HIRSCHKOP & GRAD, P.C.

108 North Columbus Street

Post Office Box 1226

Alexandria, Virginia 22313

(703) 836-6595

Attorneys for Petitioners

Washington, O.C. - THHGL PRESS + (202) 638.4621

(t)

TABLE OF CONTENTS

eo LG rere a eee ee ee 2

SEF ccc cc er dacccnaseessecseces 2

QUESTIONS PRESENTED ......cccccccccces 3

CONSTITUTIONAL PROVISIONS AND

CD CEU WUUE ccc cece cates seneces 4

STATEMENT OF THE CASE ......cccccccces 5

REASONS FOR GRANTING THE WRIT ........ 9

GES occ cee cee ee ee ee essenseones 20

TABLE OF CITATIONS

Cases:

Andresen v. Maryland, 427 U.S. 463 (1976) ..... passim

Buckley v. Valeo, 424 U.S. 1 (1976) ........... 14

Coolidge v. New Hampshire, 403 U.S.

GEE GRRE ED occ cee reece eseeooceceves 18

In Re Search Warrant Dated July 4, 1977

for Premises at 2125 S Street, Northwest,

Washington, D.C., 436 F.Supp. 689

SUEUD 660 6-0 6666s 0666004669560 060005 passim

Marcus v. Search Warrants, 367 U.S.

if) are rrr ree ft se 8, 10, 12

Marron v. United States, 275 U.S.

2). rrr rrrrer rT? Tr cr ee 13

Roaden v. Kentucky, 413 U.S. 496 (1973) ....... 12

Stanford v. Texas, 379 U.S. 476 (1965)

beeeeeseeeeees 8, 10, 12, 13, 15

United States v. Calandra, 414 U.S.

fi... err rrrryrry rT STrrrrrerer sr 16

United States v. Chadwick, ——— U.S. ——-,

fe PPT erereecerreree 18

United States v. United States Dist. Ct.,

fo SF errr Te Tere 10, 12

(ii)

Cases, continued: Page

United States v. Various Documents, etc.,

U.S.D.C. C.D. Cal., No. 77-2565-MML ........ 5

Statutes:

United States Constitution, Amendment One ...... passim

United States Constitution, Amendment Four ...... passim

ee SE eg ee te eee ee ils « 3

Rule 41(e), Federal Rules of Criminal

SY. 460 c Oke 640 06S a 8-56 na eae ok 4,7,8

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

FOUNDING CHURCH OF SCIENTOLOGY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioner, The Founding Church of Scientology,

respectfully prays that a Writ of Certiorari issue to

review the Opinion and Judgment of the United States

Court of Appeals for the District of Columbia Circuit.

l

2

OPINIONS BELOW |

The per curtam Opinion of the Court of Appeals, as

yet unreported, was filed December 1, 1977, and

appears as APPENDIX A. The Opinion was modified by

Orders dated December 8, 1977, and January 9, 1978,

and these Orders appear as APPENDICES B and C,

respectively. The supplemental Opinions on Suggestion

for Rehearing En Banc consisting of a statement of

Circuit Judge Wright, joined by Chief Judge Bazelon

and Circuit Judge Leventhal, and a statement of Circuit

Judge Robinson, with whom Circuit Judge McGowan

concurred, as yet unreported, were filed January 4,

1978, and appear as APPENDIX D.

The Opinion [“Memorandum and Order”’] of the

District Court is reported at 436 F. Supp. 689 (July 27,

1977) and appears as APPENDIX E.!

JURISDICTION

The Judgment of the Court of Appeals was entered

on December 1, 1977. Petitioner timely filed a Petition

for Rehearing, which was denied on January 4, 1978. A

copy of the Order denying said petition appears as

APPENDIX F. The mandate of the Court of Appeals

was issued on December 7, 1977, upon the govern-

ment’s Motion for Immediate Issuance, but was recalled

by an Order filed December 9, 1977, as directed by an

Order issued December 8, 1977 by the Chief Justice of

this Court.

' Both in the Court of Appeals and in the District Court, these

proceedings are entitled “In Re Search Warrant Dated July 4,

1977, for Premises at 2125 S Street, Northwest, Washington,

D.C.”

3

Thereafter, the Chief Justice having vacated his prior

Order, petitioner moved the Court of Appeals to stay

reissuance of the mandate pending Petition for Writ of

Certiorari to the United States Supreme Court, which

motion was granted on January 9, 1978, “to the extent

that the Clerk is directed not to reissue the mandate in

the case prior to February 13, 1978,” and a copy of

said Order appears as APPENDIX G.

The jurisdiction of this Court is invoked pursuant to

18 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the search warrant herein constitutes a

forbidden general warrant in violation of the Fourth

Amendment, viewing the warrant in the light of the

guarantees of religious liberty, freedoms of speech and

press, and freedom of association contained in the First

Amendment, where, as here:

(a) the warrant commands a search of the files,

records and papers of a religious organization for

undescribed “evidence (at this time unknown) of the

crimes of conspiracy, obstruction of justice and theft of

governmcnt property...which facts recited in the

accompanying affidavit make out;”

(b) the warrant, on its face admittedly fails to

particularly describe the files, records and papers to be

seized, but is allegedly “cured” by “incorporating” into

the warrant its supporting thirty-three page narrative

affidavit, which affidavit also fails to particularly

describe the property to be seized, fails to describe

unambiguously the offenses alleged, and is so lengthy,

complex and unclear as to place no meaningful limits

on the discretion of the twenty-five or so executing

+

officers, all contrary to this Court’s decision in

Andresen v. Maryland, 427 U.S. 463, 478-484 (1976).

CONSTITUTIONAL PROVISIONS AND

RULES INVOLVED

The pertinent provisions of the First and Fourth

Amendments to the Constitution and Rule 41(e) of the

Federal Rules of Criminal Procedure are as follows:

First Amendment of the United States Constitu-

tion:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

Fourth Amendment of the United States Constitu-

tion:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants 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.

Rule 41(e), Federal Rules of Criminal Procedure:

(ec) Motion for Return of Property. A person

aggrieved by an unlawful search and seizure may

move the district court for the district in which

the property was seized for the return of the

property on the ground that he is entitled to

lawful possession of the property which was

illegally seized. The judge shall receive evidence on

any issue of fact necessary to the decision of the

5

motion. If the motion is granted the property shall

be restored and it shall not be admissible in

evidence at any hearing or trial. If a motion for

return of property is made or comes on for

hearing in the district of trial after an indictment

or information is filed, it shall be treated also as a

motion to suppress under Rule 12.

STATEMENT OF THE CASE

The search warrant here involved [App.”? 22-31] was

issued by a United States Magistrate on July 4, 1977,

upon the affidavit of a special agent of the Federal

Bureau of Investigation [App. 42-74]. The warrant was

executed on July 8, 1977, over a ten hour period, at

the premises of The Founding Church of Scientology -

Washington, D.C. by some twenty-five F.B.I. agents.

The government has conceded that, of the massive

number of documents seized from the Church, “certain

documents ... should not have been seized” and that

“approximately half of the documents will be re-

turned. ...” 436 F. Supp. at 698. For example, draft

legal pleadings and attorney-client correspondence were

seized from the Church’s legal files.

The warrant directed the search of file cabinets on

the fourth floor of the building that houses the

Church’s Washington, D.C. offices, and commanded the

2 ADD.” refers to the Appendix filed in the Court of Appeals.

30n the same day, two identically worded search warrants

were executed at two Church of Scientology premises in Los

Angeles, California by 134 Federal Bureau of Investigation

agents. Seized were some 20,000 Church documents containing

more than 100,000 pages. See, United States v. Various

Documents, etc., U.S.D.C. C.D. Cal., No. 77-2565-MML [Cross-

appeals to the Court of Appeals for the Ninth Circuit pending] .

6

seizure of 162 listed items or categories of items. Item

162 directs the seizure of:

Any and all fruits, instrumentalities and evidence

(at this time unknown) of the crimes of

conspiracy, obstruction of justice and theft of

government porperty [sic] in violation of 18 U.S.

Code §§ 371, 1503 and 641 which facts recited in

the accompanying affidavit make out.

The supporting affidavit consists of a thirty-three

page narrative which concludes by alleging that there is

probable cause to believe that, from 1974 throush

1976, executives of the Los Angeles, California and

Washington, D.C. Churches conspired to “steal’’*

documents from the federal government; that docu-

ments were in fact “stolen;” that copies of the

documents are contained in the Church files in the two

cities; that some officials of the Church conspired to

obstruct justice Sy preparing a false response to

expected inquiries of two implicated Church members

by law enforcement authorities and federal grand juries;

that a false response was in fact given to a grand jury

by one member; and that writings evidencing the

alleged conspiracy to obstruct justice are located in the

Church files in the two cities [App. 73]. No

indictments have been returned as a result of the

foregoing allegations.

Two additional conspiracies to obstruct justice are

thought to be alleged in the affidavit, as interpreted by

the Court of Appeals in its Opinion herein® [ APPEN-

* Actually, despite repeated use of the phrase “stolen

documents” in the affidavit, the only factual allegations in the

affidavit refer to documents removed, copied and then returned

to government files.

These are identified as (2)(a) and (b) in the Opinion.

7

DIX A, p. 8a], although the affiant did not conclude

that probable cause exists to believe these offenses were

committed nor, accordingly, did the Magistrate make

any such findings.

Among the 162 items listed in the search warrant

were approximately. 150 specifically described docu-

ments which for the most part, however, are nowhere

mentioned in the sworn affidavit.

While the search was still in progress, the Church

commenced these proceedings in the District Court,

initially seeking to restrain the search and to impose a

protective order sealing all documents seized, principally

on the ground that the warrant was a general warrant.

This motion was denied by the District Court without

reaching the merits. The Church subsequently moved

for return of all property seized, pursuant to Rule 41(e)

of the Federal Rules of Criminal Procedure. In Re Search

Warrant Dated July 4, 1977 for Premises at 2125 S

Street, Northwest, Washington, D.C., 436 F. Supp. at

692 (1977).

On July 27, 1977, the District Court issued its

Memorandum and Order, 436 F. Supp. 689 (APPEN-

DIX E), concluding that the warrant herein is, on its

face, an unconstitutional general warrant vesting

virtually unlimited discretion in the executing officers

as to which papers and files of the Church they deem

to be “evidence” of the conspiracies alleged, or thought

to be alleged, in the affidavit in support of the warrant.

The District Court, cognizant of “the need for

increased sensitivity in cases in which religious organiza-

tions are involved,” [436 F. Supp. at 693] concluded

that Item 162 of the warrant “authorized — if indeed it

did not direct — agents of the F.B.I. to examine

carefully and completely the contents of every

document in the fourth-floor files of the Church and to

8

make ad hoc, on-the-spot decisions as to which of those

documents constitute evidence of conspiracy... .” 436

F. Supp. at 694.

Noting the breadth of the substantive law of

conspiracy, the District Court reasoned:

For unless the contents of any particular docu-

ment rendered it manifestly criminal, the decision

whether to seize it was complicated by the

subjective considerations attending the law of

conspiracy. In effect, each agent had _ been

delegated authority to consider the relevance of

the documents according to his own subjective

standards as to what evidences the conspiracies

suggested by the affidavit.... 436 F. Supp. at

698.

The per curiam Opinion of the Court of Appeals

{APPENDIX A] was filed, as aforesaid, on December 1,

1977. The Court of Appeals vacated the orders of the

District Court granting relief pursuant to F.R. Crim. P.,

Rule 41(e), the Court of Appeals concluding “[o]n the

authority of Andresen v. Maryland, 427 U.S. 463,

478-484,” that the warrant “is not a general warrant

and is valid” [APPENDIX A, p. 16a]. Andresen is the

only decision cited in the Court of Appeals Opinion —

there is no mention of First Amendment concerns nor

the relevant decisions of this Court in such cases as

Stanford v. Texas, 379 US. 476 (1965) and Marcus v.

Search Warrants, 367 U.S. 717 (1961).

Although the Church’s Suggestion for Rehearing En

Banc was denied, as aforesaid, five Judges of the Court

of Appeals, other than the members of the panel which

rendered the Opinion, stated their reasons for not

requesting rehearing en banc [APPENDIX D].

9

The statement of Circuit Judge Wright, in which

Chief Judge Bazelon and Circuit Judge Leventhal

joined, expressed the view that rehearing en banc would

merely cause “unnecessary delay in this litigation” and

that “the case should now be passed on to the Supreme

Court” [APPENDIX D, p. 26a].

Circuit Judge Robinson, joined by Circuit Judge

McGowan, found rehearing en banc unnecessary only

by straining to find limited precedential value in the

panel opinion [APPENDIX D, pp. 26a-29a]. °

REASONS FOR GRANTING THE WRIT

1. The case herein presents issues of exceptional

importance, going to the very core of the precious

liberties secured by the First and Fourth Amendments

to the United States Constitution. It is no exaggeration

to say that the Opinion of the Court of Appeals strikes

at the heart of our constitutional heritage by

resurrecting the general warrant as a permissible

instrument of governmental authority to be used against

a controversial religious organization. The Court of

Appeals Opinion, if left standing, sounds the death

knell for the constitutional protection against general

warrants in the precise context in which the prohibition

was born centuries ago.

Circuit Judges Robinson and McGowan stated that, in their

view, although the “panel’s opinion is not entirely clear,” they

“do not view it as a negation of the time-honored principle that

the pivotal question is not whether a court in hindsight can find

in the warrant a curb on the power to search but rather whether

at the time of execution an officer reasonably and likely would

take the warrant as authority for unbridled rummaging.”

(Emphasis supplied.) [APPENDIX D, p. 28a] With due respect,

petitioner believes the panel’s opinion quite clearly negates this

time-honored principle.

10

The Court of Appeals Opinion upholds the constitu-

tional validity of a search warrant, held by the District

Court below to constitute an impermissible general

warrant, to search the offices and files of a religious

organization for, inter alia, “[a]ny and all fruits,

instrumentalities, and evidence (at this time unknown)

of the crimes of conspiracy, obstruction of justice and

theft of government property ... which facts recited in

the accompanying affidavit [consisting of 33 pages]

make out.” The foregoing holding of the Court of

Appeals eviscerates the Fourth Amendment’s prohibi-

tion of general warrants, while completely ignoring the

principle established in decisions of this Court that the

protection against general warrants is to be accorded

the most scrupulous attention where, as here, the

warrant is directed at a religious organization or other

entity or property presumptively entitled to the

protection of the First Amendment. Marcus v. Search

Warrants of Property, 367 U.S. 717 (1961); Stanford v.

Texas, 379 U.S. 476 (1965). See also, United States v.

United States Dist. Ct., 407 U.S. 297, 313-314 (1972).

The July 8, 1977 raids on The Founding Church of

Scientology by some 25 Federal Bureau of Investigation

agents in Washington, D.C. and 134 agents in Los

Angeles, all empowered to search for “evidence (at this

time unknown)” of conspiratorial crimes so confusingly

described that the Court of Appeals found offenses

alleged even beyond those identified by the affiant, are

raids on a religious group of a magnitude unparalleled

in American history. Never before have so many

government agents descended upon the private internal

files of a church with so little guidance respecting the

scope of the authorized search and seizure.

——

—<

11

A.

The Court of Appeals Opinion rejects the conclusion

of the District Court that the search warrant herein is

an impermissible general warrant solely by relying on

the superficial similarity between the search warrant

here and the one upheld in Andresen v. Maryland, 427

U.S. 463 (1976). Before discussing the crucial distinc-

tions between the warrant involved in Andresen and the

warrant here, it is vital to emphasize that the Andresen

warrant implicated no First Amendment concerns. The

Andresen warrant was directed at the business offices of

a lawyer suspected of perpetrating a real estate swindle.

The Andresen warrant directed a search for and the

seizure of evidence relevant to the crime of false

pretenses with respect to one designated lot, Lot 13T in

a designated subdivision. See, 427 U.S. at 480-482. The

documents seized pursuant to the warrant in Andresen

could be identified on their face as involving real estate

transactions concerning “Lot 13T” without subjective

evaluations of their contents. The warrant here is directed

at a religious organization and authorizes a search of the

files and records of the Church for, inter alia, presently

unknown evidence of the “crimes of conspiracy, obstruc-

tion of justice and theft of government property,” des-

cribed only by reference to the thirty-three page affidavit

in support of the warrant.

The Court of Appeals failed even to consider the

First Amendment considerations inherent in such a

warrant, notwithstanding this Court’s admonitions that

the Fourth Amendment requirement that search

warrants must particularly describe the things to be

seized is to be given the strictest adherence where a

search warrant is aimed at an entity or property

presumptively entitled to First Amendment protection.

12

See, Marcus v. Search Warrants of Property, 367 U.S.

717, 732 (1961) [warrants to seize “obscene materials”

unconstitutional — “the warrants gave the broadest

discretion to the executing officers; they ... left to the

judgment of each of the many police officers involved

the selection of such magazines as in his view

constituted ‘obscene ... publications.’”]; Stanford v.

Texas, 379 U.S. 476, 486 (1965) [search warrant

directing seizure of “books, records, pamphlets, cards,

receipts, lists, memoranda, pictures, recordings and

other written instruments concerning the Communist

Party of Texas” held general warrant]. The latter

decision stressed the vital importance of the Fourth

Amendment’s requirement that search warrants particu-

larly describe the things to be seized when the things

are books or records ordinarily entitled to First

Amendment protection. “‘No less a standard could be

faithful to First Amendment freedoms.” Stanford v.

Texas, 379 U.S. 476, 481 (1965). See also, Roaden v.

Kentucky, 413 U.S. 496, 502 (1973).

This Court frequently has noted the close historical

and conceptual relationship between the First and

Fourth Amendments. “Historically the struggle for

freedom of speech and press in England was bound up

with the issue of the scope of the search and seizure

power.” Marcus v. Search Warrants of Property, 367

U.S. 717, 724 (1961). Indeed, the unlimited and

abusive power to search was first directed in England at

nonconforming religious groups. “In Tudor England

officers of the Crown were given roving commissions to

search where they pleased in order to suppress and

destroy the literature of dissent, both Catholic and

Puritan.” Stanford v. Texas, 379 U.S. 476, 482 (1965).

In United States v. United States Dist. Ct., 407 U.S.

297 (1972), this Court cautioned that:

EE et Tee Eee

13

History abundantly documents the tendency of

Government—however benevolent and benign its

motives—to view with suspicion those who most

frequently dispute its policies. Fourth Amendment

protections become the more necessary when the

targets of official surveillance may be _ those

suspected of unorthodoxy in their political beliefs.

407 U.S. 297, 314.

In the present case, the government predictably

argues that the files and records of the Church of

Scientology are not themselves entitled to First

Amendment protection and insists that the search

warrant here was directed merely at the written

evidence of conspiratorial crimes.’ However, the

relevant point is not whether a _ highly trained

government attorney or judge could exercise an

informed discretion in deciding which Church records

constitute evidence of the conspiracies described in the

affidavit, but rather whether the critical language in this

search warrant sufficiently circumscribed the discretion

of some 25 Federal Bureau of Investigation agents in

searching through the files and records of a church. The

simple fact is that the broad language of this search

warrant permits even the seizure of literature describing

the doctrines of the Church on the theory that Church

7There is no claim that the files of the Church here are akin

to the “books and records” of an “unlawful enterprise’’ like the

illegal liquor business in Marron v. United States, 275 U.S. 192,

198-199 (1927). See, Stanford v. Texas, 379 U.S. 476, 485, n.

16 (1965). The affidavit makes no claim that the Church of

Scientology is not a bona fide religious organization, nor could

any such claim legitimately be made. Moreover, the Church of

Scientology is widely noted for its sponsorship of social reform

programs throughout the United States and by these contribu-

tions as well as by its religious aims, the Church fulfills a vital,

traditional, and indispensable role within our society.

14

doctrine allegedly encourages illegal conduct of the kind

described in the search warrant affidavit (and, indeed,

the government itself made the latter argument in one

of its briefs filed in the Court of Appeals [Reply Brief

for Appellant, p. 9, fn. 8] — the same argument

appears in the affidavit seeking the search warrant.

{App. 43, fn. 1]).

A search warrant which, as here, directs agents to

scrutinize every paper in a Church’s files also threatens

the associational privacy of Church members, innocent

of suspicion of wrongdoing, whose names appear on

documents in Church files. See, Buckley v. Valeo, 424

U.S. 1, 96 S. Ct. 612, 632-633, 637-638 (1976). Even

the unintentional seizure of innocuous Church papers

with no nexus to criminal activities necessarily involves

“compelled disclosure [which], in itself, can seriously

infringe on privacy of association and belief guaranteed

by the First Amendment.” Buckley v. Valeo, 424 U.S.

1, 96 S. Ct. at 656 (1976) and decisions there cited.

The threat that innocent members of a Church

unpopular with the government may find their names

and communications disclosed by seizure under a

broadly worded search warrant must inevitably chill the

adherents’ rights to religious liberty, freedom of

expression, and freedom of association.

Here, far more than in Andresen, there are “grave

dangers inherent in executing a warrant authorizing a

search and seizure of a person’s papers.”’ Here, far more

than in Andresen, “responsible officials, including

judicial officials, must take care to assure that [such

searches] are conducted in a manner that minimizes

unwarranted intrusions upon privacy.”” Andresen uv.

Maryland, 427 U.S. 463, 482, n. 11 (1976).

15

Petitioner’s fears are hardly imaginary, as_ the

government itself concedes that papers were erroneously

seized and that about half should be returned. See, 436

F. Supp. at 698. The particularity of description found

in the present warrant by the Court of Appeals

apparently was not found by the officers who executed

this warrant. See, Stanford v. Texas, 379 U.S. 476, 485

(1965).

The Church makes no claim of any blanket immunity

from a properly obtained and executed search warrant

that does in fact particularly describe the things to be

seized, interpreting the latter requirement consistent

with the interests protected by the First Amendment.

But such vital First Amendment concerns cannot, it is

submitted, simply be ignored as in the Opinion of the

Court of Appeals. For if the Church of Scientology

may be subjected to a search by a horde of Federal

Bureau of Investigation agents carrying warrants direct-

ing them to search for unknown evidence of conspiracies

to “steal” government documents and obstruct justice,

the same procedures may be employed against the

offices of Cathclic Archdioceses, or the national offices

of the Democratic and Republican parties. The Court of

Appeals Opinion would permit, for example, a search

warrant directed at the offices of any religious

organization or political party commanding the search

for and seizure of files and records constituting

presently unknown evidence of a conspiracy to make a

campaign contribution in violation of federal campaign

practices laws. If the prospect of 25 Federal Bureau of

Investigation agents armed with such a_ warrant,

rummaging through the national headquarters of a

major political party or church for ten hours in search

of undescribed evidence of such a conspiracy seems

far-fetched, it is only because such an _ oppressive

16

exercise of governmental authority is not likely to be

directed against a major political party or church.®

In addition to overlooking all of the relevant First

Amendment considerations outlined above, the Court of

Appeals Opinion entirely misconstrues the Fourth

Amendment holding of Andresen v. Maryland, supra,

and gives Andresen a reading so expansive that, if left

undisturbed, will result in the virtual elimination of the

Fourth Amendment’s requirement that search warrants

particularly describe the property to be seized. The

Opinion implicitly concedes that the language of Item

162 in the search warrant herein is impermissibly broad

and general on its face unless Item 162 is read, as the

Opinion does read it, as incorporating the entire

thirty-three page supporting affidavit. The Opinion

holds that if Item 162 of the search warrant is

construed as incorporating the supporting affidavit in its

entirety, then the language of Item 162 [“‘evidence (at

this time unknown) of the crimes of conspiracy,

obstruction of justice and theft of government

property ... which facts recited in the accompanying

affidavit make out”] is rendered sufficient particular-

ized to satisfy the requirements of the Fourth

Amendment.

8wWhile the crimes alleged in the affidavit are serious, they do

not involve violence or the threat of violence, nor is the Church

as an entity accused of being akin to a criminal enterprise. Under

these circumstances, it is surprising — to say the least — that the

government elected to seek the documents it believed existed in

the Church files by means of a search warrant rather than a

subpoena duces tecum with its attendant procedural safeguards.

See, United States v. Calandra, 414 U.S. 338, 346 (1974).

17

While the incorporation of a lengthy, complex and

ambiguous affidavit into a search warrant may serve the

interests of administrative convenience, such incorpora-

tion hardly satisfies the Fourth Amendment’s require-

ment that a search warrant particularly describe the

things to be seized, and the decision in Andresen hardly

authorizes such a dangerous procedure. In the first

place, the Court in Andresen upheld the challenged

phrase in the search warrant by concluding that it was

“clear from the context” of the search warrant itself

that “the challenged phrase be read as authorizing only

the search for and seizure of evidence relating to ‘the

crime of false pretenses with respect to Lot 13T’”

[427 U.S. at 480-481]. The Court did not resort to

“incorporating” the supporting affidavit into the search

warrant in order to find the particularity missing from

the language of the warrant.

Secondly, if a search warrant containing an impermis-

sibly general description of the property to be seized

ever may be “cured” by incorporating the supporting

affidavit, the affidavit at least must contain the

specificity lacking in the warrant. Here, of course, there

is no claim that the property to be seized is particularly

described in the affidavit,? nor are the alleged offenses

even described with the particularity present in the

Andresen warrant.

The dangers inherent in the “incorporation” theory

of the Opinion are thus immediately apparent. The

search warrant in the present case was executed by

many Federal Bureau of Investigation agents (the

9 Indeed, the record below indicates that a great many of the

seized items were not specifically listed anywhere else, but were

apparently seized under the broad authority of section 162 of

the warrant.

18

identically worded warrants used to search the Church

premises in Los Angeles were executed by 134 agents)

and there is no evidence that each of them even

possessed a copy of the affidavit while executing the

warrant, much less that all of the executing officers had

familiarized themselves with the thirty-three page

narrative prior to conducting the search. But more

importantly, even if all the agents carried a copy of the

affidavit and were familiar with its contents, there is no

guarantee that each would understand precisely which

offenses are actually “made out” by the “facts recited”

in the affidavit — the Court of Appeals did not agree

with the affiant nor, presumably, with the Magistrate.

Much less can it be assumed that the agents would

know, without an excessive exercise of discretion,

which papers constituted evidence of the offenses

confusingly “made out,” since determination of which

papers constitute “‘evidence’’ depends upon the substan-

tive law of conspiracy, obstruction of justice, and

“theft” of government property.

The purpose of the constitutional requirement that a

search warrant particularly describe property to be

seized is, after all, to limit the discretion of the

executing officers so that the search does not

degenerate into exploratory rummaging. Coolidge v.

New Hampshire, 403 U.S. 443, 467 (1971); United

States v. Chadwick, U.S. ___, 97 S. Ct. 2476,

2482 (1977). This vitally important purpose cannot be

achieved by reliance upon “incorporation” of lengthy,

complex and ambiguous affidavits into search warrants

which are then distributed to large numbers of police

officers for execution. To expect that such a procedure

will result in confining the discretion of the executing

officers within narrow limits is not only wholly

unrealistic, but places an unreasonable burden upon the

— seth lh ld tn ele

19

officers themselves. For if this thirty-three page

affidavit may be incorporated into a search warrant in

order to explain the meaning of otherwise vague

language in the warrant, and then be delivered into the

hands of 159 agents in two cities for execution, so may

a 100 page affidavit be incorporated into a search

warrant and distributed to any number of officers, all

of whom will be expected to digest all the information

contained in the affidavit in order to decide whether

each document examined constitutes “presently un-

known evidence” of uncertain offenses. All of this

makes a mockery of the Fourth Amendment guarantee

against exploratory searches and seizures contained in

the requirement that search warrants particularly

describe the things to be seized. There is nothing in this

Court’s decision in Andresen v. Maryland, supra, even

remotely authorizing the “incorporation” doctrine as it

appears in the Court of Appeals Opinion.

20

CONCLUSION

For the forcgoing reasons, a Writ of Certiorari should

issue to review the Judgment and Opinion of the

United States Court of Appeals for the District of

Columbia Circuit.

Respectfully submitted,

DAVID M. BROWN

433 North Camden Drive

Suite 900

Beverly Hills, California 90210

(213) 550-7460

PHILIP J. HIRSCHKOP

HIRSCHKOP & GRAD, P.C.

108 North Columbus Street

Post Office Box 1220

Alexandnia, Virginia 22313

(703) 836-6595

Attorneys for Petitioners.