Appendix — Founding Church of Scientology v. United States

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7~ Supreme Court, U $7 %

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If FILED

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FEB 2 1978

m_ WICHAEL RODAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No ?7-1090

FOUNDING CHURCH OF SCIENTOLOGY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

rO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPENDIX FOR THE PETITIONER

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

Alexandnia, Virginia 22313

(703) 836-6595

Attorneys for Petitioners

ES Le.

Wastungton, O.C. + THIEL PRESS - (202) 638.452!

(:)

TABLE OF CONTENTS

APPENDIX A—Opinion, United States Court of

Appeals for the District of Columbia Circuit,

PE Ec US pew eek ede edoceeseabénaser

APPENDIX B—Order, United States Court of

Appeals for the District of Columbia Circuit,

DR a BETE oc cc tcecsceesshoetescoare

APPENDIX C-—Order, United States Court of Appeals

for the District of Columbia Circuit, January 9,

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APPENDIX D—Opinions on Suggestion for Rehearing

En Banc, United States Court of Appeals for the

District of Columbia Circuit, January 4, 1978 ......

APPENDIX E—Memorandum and Order, United States

District Court for the District of Columbia, July

(ee sere errrrrer reer eee ee eee ee ee

APPENDIX F—Order, United States Court of Appeals

for the District of Columbia Circuit, January 4,

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APPENDIX G—Order, United States Court of Appeals

for the District of Columbia Circuit, January 9,

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APPENDIX A

[Filed Dec 1 1977]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1793 September Term, 1977

In Re: Miscellaneous #77-6151

Search Warrant Dated July 4, 1977,

for Premises at 2125 S Street,

Northwest, Washington, D.C.

BEFORE: MacKinnon and Robb, Circuit Judges;

Markey, Chief Judge, US Court of Customs and

Patent Appeals*

JUDGMENT

This cause came to be heard on the record on appeal

from the order of the United States District Court for

the District of Columbia and was argued by counsel. On

consideration of .the foregoing, for reasons which appear

in the attached per curtam opinion, it appears to the

Court that the warrant for the search of the premises at

2125 S Street, Northwest, Washington, D.C. dated July

4, 1977 is indistinguishable in practical effect from the

warrant upheld by the Supreme Court in Andresen v.

Maryland, 427 U.S. 463 (1976); that the warrant states

with sufficient particularity the things to be seized; that

Item 162 of this warrant does not render the warrant a

general warrant within the meaning of the Fourth

*Sitting by designation pursuant to Title 28 U.S.C. §293(a).

2a

Amendment; and that the warrant does not leave to the

executing officers impermissible discretion; it is there-

fore

ORDERED by this Court that the July 27, 1977

decision of the United States District Court for the

District of Columbia that the warrant in this case is a

general warrant in contravention of the Fourth

Amendment and therefore invalid is reversed; and, it is

FURTHER ORDERED by the Court that the July

27, 1977 order of the District Court is vacated in its

entirety; and, it is

FURTHER ORDERED by the Court that the case is

remanded to the District Court for consideration of the

other grounds alleged for invalidating the warrant not

considered by the District Court, specifically, that the

search was conducted in a manner that constituted a

violation of the Fourth Amendment, that the agents

employed unnecessary force in violation of 18 U.S.C.

§ 3109; and that the warrant was stale.

Per Curiam

For The Court:

/s/ George A. Fisher

GEORGE A. FISHER

Clerk

Date: December 1, 1977

Opinion for the Court Per Curiam

3a

[Will be printed at a later date]

[ Filed DEC 1 1977]

UNITED STATES COURT OF APPEALS

for the District of Columbia Circuit

No. 77-1793

IN RE:

SEARCH WARRANT DATED July 4, 1977,

for Premises at 2125 S Street, Northwest

Washington, D.C.

Appeal from the United States District Court

for the District of Columbia

(D.C. Misc. 77-0151)

Argued November 18, 1977

Decided December 1, 1977

Hamilton P. Fox, li, Attorney, Department of

Justice with whom Earl J. Silbert, United States

Attorney, Carl S. Rauh, Principal Assistant United

States Attorney, Henry F. Schuelke, Ill, Executive

Assistant United States Attorney, John A. Terry, Brian

Shaughnessy, Raymond Banoun and Judith Hetherton,

Assistant United States Attorneys were on the brief, for

appellants.

Philip J. Hirschkop, with whom John D. Grad and

Earl Dudley were on the brief, for appellee.

ta

Before: MacKINNON and ROBB, Circuit Judges, and

MARKEY,* Chief Judge, United States Court of

Customs and Patent Appeals

Opinion for the Court Per Cunam

PER CURIAM: Following a search and seizure by the

Government of numerous documents pursuant to a

search warrant, on motions of the Church of

Scientology the tnal court granted (1) a protective

order against the use by the Government of certain of

the documents in certain civil litigation between the

parties, and (2) ordered the return of the property

seized. The latter order which directed the return of the

seized property was construed by the court to involve

“lijn effect...a motion to suppress” (Appellant’s

Appendix, 5) and on that basis the Government has

appealed therefrom under 18 U.S.C. §3731.' The

*Sitting by designation pursuant to Title 28 U.S.C. §293(a).

'18 U.S.C. §3731 provides:

An appeal by the United States shall lie to a court of

appeals from a decision or order of » district courts

suppressing or excluding evidence or requiring the return of

seized property in a criminal proceding, [sic] not made after

the defendant has been put in jeopardy and before the ver-

dict or finding on an indictment or information, if the United

States attorney certifies to the district court that the

appeal is not taken for purpose of delay and that the

evidence is a substantial proof of a fact material in the

proceeding.

The appeal in all such cases shall be taken within thirty

days after the decision, judgment or order has been

rendered and shall be diligently prosecuted.

The provisions of this section shall be liberally construed

to effectuate its purposes.

Ree

. eee

5a

statute directs such appeals to be diligently prosecuted

and pending grand jury proceedings are being held in

abeyance awaiting the decision on this appeal. Accord-

ingly, we have expedited the argument on the appeal

and our decision as well.

In our view of the controversy the validity of the

order of the District Court directing the return of the

seized property turns on a single issue, t.e., whether the

trial court was correct when it construed the search

warrant to be a “general warrant” prohibited by the

Constitution.

The principal issue in this case thus turns on whether

the warrant is overbroad and constitutes a general

warrant because of the reference to the crime of

“conspiracy” as set forth in item 162 of the affidavit

for the search warrant (App. 32-76), and in the search

warrant (App. 22-31). The search warrant in designating

the “concealed certain property” that the “Federal

Bureau of Investigation” was “commanded _ to

search ...and seize” stated “(See attached Description

of property).”” The attachment entitled “Description of

Property” consisted of 7-% typewritten pages (App.

33-40) which very specifically described and designated

a great many items to be seized if found on the

designated premises. There were 162 separately enumer-

ated items so described. In mos? instances each item

referred to a document on a singie subject specified by

type, date, subject and other relevant data such as the

author or addressee. A few items were stated more

broadly, but generally none of the fivst 161 items,

except item 155, is attacked for any alleged lack of

specificity or particularity. The “Description” incorpo-

rated the extensive affidavit attached to the affidavit

for the Search Warrant. It is item 162 that is the

ba

principal subject of attack by the appellee and which

furnished the principal basis for the ruling by the trial

court. As set forth in the Search Warrant item 162

appears in the following context:

... there is now being concealed certain property,

namely

(See attached Description of Property)

(App. 22).

DESCRIPTION OF PROPERTY

* * *

162. 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.

(App. 31, emphasis added).

The reference in the search warrant to the

“accompanying affidavit” incorporated the 33-page

“Affidavit in Support of Search Warrant” (App. 42-74)

that was attached to the “Description of Property”

(App. 33-41), all of which was appended to the regular

“Affidavit for Search Warrant,” Form A.O. 106 (Rev.

Apr. 1973) (App. 12). The affidavit was executed by

Robert Tittle, Special Agent, Federal Bureau of

Investigation.

The trial court in its Memorandum construed item

162 and stated:

I hold that the grant of authority [by 162] to the

agents to search for and seize any evidence of

conspiracies to steal government property and to

obstruct justice amounted to a “general warrant”

and therefore contravened the Fourth Amend-

7a

ment’s guarantee against unreasonable searches and

seizures. I am not persuaded that the Supreme

Court’s recent decision in Andresen v. Maryland,

427 U.S. 463 (1976), is to the contrary.

(App. 6).

In reaching such conclusion we find that the district

court gave an overbroad construction to the search

warrant, improperly interpreted the relevant offenses,

ignored a significant part of item 162 and gave an

unduly restrictive interpretation to the Supreme Court

decision in Andresen v. Maryland, supra.

First, as to the overbroad construction of the search

warrant. As stated in its holding, set forth above, the

district court held that the search warrant granted

“authority to the agents to search for and seize any

evidence of conspiracies to steal government property

and to obstruct justice....” Such construction is

patently incorrect. It ignores completely the following

language which limits the breadth of item 162:

“.. which facts recited in the accompanying affidavit

make out.” (App. 31, emphasis added). The recited

facts and designations of property and offenses impose

particular limits upon the search warrant and that was

the purpose of the italicized statement. This, the trial

court did not consider. Properly construed the warrant

only authorizes a search and seizure of evidence of the

particular conspiracies to steal government property and

‘to obstruct justice that are described in the “accom-

panying affidavit.”

Without exhaustively describing these conspiracies and

offenses, and the relevant “fruits, instrumentalities and

evidence” (App. 31, 40) thereof that are described and

particularized in the “Description of Property” and the

“accompanying affidavit,” the conspiratorial and ob-

8a

struction offenses that may be the subject of the

authorized search and seizure, because they are

designated and particularized in the affidavit and search

warrant, are the following: (1) Conspiracy to steal

government property from: (a) the office of the United

States Attorney in the U.S. Court House, Washington,

D.C., and more particularly from the office of

“Assistant United States Attorney Nathan Dodell”’

(App. 41, 52); (b) the office of Staff Attorney Paul

Figley, Department of Justice, Washington, D.C. (App.

41, 48, 50); (c) the Internal Revenue Service

(identification cards) (App. 42) and possibly other

documents; and (d) by unlawfully breaking and entering

such offices and the offices of Interpol maintained in

the U.S. Treasury Department in Washington, D.C.

(App. 49). (2) Conspiracy to obstruct justice: (a) by

illegally obtaining from opposing parties in litigation

“documents relating to Scientology-instituted Freedom

of Information Act suits against, inter alia, the Central

Intelligence Agency, the Drug Enforcement Administra-

tion, [the U.S.] Customs [Service], Interpol and the

Defense Communications Agency” (App. 50); (b) by

engaging in illegal eavesdropping (App. 46); (c) by

perjury and subornation of perjury committed, inter

alia, by Henning Heldt, Greg Willardson, Duke Snider,

Michael James Meisner, Richard Weigand, Gerald

Bennett Wolfe (App. 57-61) and others;* most of

whom occupy managerial positions with the Church of

Scientology in Washington, D.C. and Los Angeles,

California (App. 75, 76).

2 Anyone who aids, abets, counsels, commands, induces,

procures or wilfully causes another to commit an offense in

violation of any U.S. statute is guilty as a principal of the crime

so committed. 18 U.S.C. §2.

9a

The allegations referred to above, in connection with

the conspiracy offenses, also include allegations of facts

which particularize the specific substantive offenses of

theft of government property (18 U.S.C. §641) and

obstruction of justice (18 U.S.C. §'503). |

In addition to all the foregoing a separate part of the

affidavit for the search warrant, extending over 11

typewritten pages, is devoted to setting forth in

particular detail the “Nature and Location of Document

Files Maintained by the Church of Scientology” (App.

63-73). This part of the supporting affidavit names

names, describes documents, gives dates, describes their

contents, and indicates where in the organization’s

offices they might be found. It also describes their size,

the titles under which they might be found in the files,

the extent of the relevant files, the meaning of certain

titles, such as “‘program files’”’ (App. 64), “operations

(files) (App. 64); “government special bank” (App. 64)

and that “two file systems [are maintained] consisting

of covertly and overtly obtained documents” (App. 64).

Of particular importance is the particular reference to

the “confidential file of the Deputy Guardian for

Intormation (U.S.) [of the Church of Scientology]”

which allegedly contains “reports written by the [U.S.]

Central Intelligence Agency in South American (in

particular Ecuador and Boiivia) concerning Interpol

agents believed to be involved in drug dealings” (App.

.65). Some of the documents which were particularized

“included some programs directed against government

agencies” (App. 65). The files and filing system at the

office designated in the search warrant 2125 S Street

N.W., Washington, D.C., was also described and

particularized (App. 72).

10a lla

A significant part of the affidavit also particularizes

the stolen documents by specifying their source and the

subject matter to which they relate:

Items 138-147 are documents relating to the

case of Church of Scientology of California v.

Energy Research and Development Administra-

SOURCE OF DOCUMENTS tion, Civil Action No. 76-11R.

Items 1-99 lists documents stolen (and copied), (App. 41).

from the office of Assistant United States

The last h of the affidavit makes further

Attorney Nathan Dodell, United States Attor- oS Pe. °

ifi m i ... Which fact ited

ney’s Office for the District of Columbia. pune anne re were woes he A —

in the accompanying affidavit make out....” (App.

Items 100-148 lists documents stolen (and copied) 40, 31).

from the office of Staff Attorney Paul Figley,

Department of Justice, Washington, D.C.

Items 100-122 are documents relating to the

case of Church of Scientology of California v.

United States Department of Justice, CV

74-3550-F.

Items 123-127 are documents relating to the

case of Church of Scientology of California v.

Kelly, Civil Action 74-906.

Items 128-130 are documents relating to the

case of Church of Scientology of California v.

Postal Service, Civil Action 75-2004-R.

Items 131-132 are documents relating to the

case of Church of Scientology of California v.

State Department, Civil Action 75-2832 AAH

Items 133-134 are documents relating to the

case of Church of Scientology of California v.

Alcohol, Tobacco and Firearms, Civil Action

75-1699 RFP.

Items 135-136 are documents relating to the

case of Church of Scientology of California v.

Department of State, Civil Action 75-2562E.

Item 137 is a document relating to the case of

Church of Scientology of California v. Depart-

ment of Transportation, Civil Action No.

75-3482.

Based on the foregoing, affiant submits that

there is probable cause to believe that, from 1974

through 1976, officials of the Church of Scientol-

ogy in Los Angeles, California and in Washington,

D.C., conspired to steal documents from the

Government of the United States by means of the

burglary of U.S. Government offices and theft by

operatives of the Church in the employ of the U.S.

Government; that documents belonging to the

United States Government were stolen pursuant to

that conspiracy; that copics of such stolen

documents are secreted in the files of the Church

of Scientology in Los Angeles, California, and

Washington, D.C.; that subsequent to the confron-

tation between Messrs. Meisner and Wolie and

agents of the F.B.I. on June 11, 1976, officials of

the Church of Scientology conspired to obstruct

justice by preparing a false response to expected

-inquiries of Meisner and Wolfe by law enforcement

authorities and federal grand juries; that plans,

scenarios and directives were committed to writing

in furtherance of this conspiracy; that such

writings are secreted in the files of the Church of

Scientology in Los Angeles, California, and Wash-

ington, D.C.; that the objects of this latter

conspiracy were met in part before a Grand Jury

of the United States District Court for the District

12a

of Columbia on June 10, 1977; that, thereafter a

summary of Wolfe’s Grand Jury testimony was

prepared by him in furtherance of the objectives

of this latter conspiracy; and that copies of that

summary are secreted in the offices of the Church

of Scientology in Los Angeles, California, and

Washington, D.C. (Appellant’s App. 73.)

It is apparent from the “Memorandum and Order” of

the trial court that it interpreted the reference in the

search warrant to “conspiracies” to refer to “conspira-

cies to steal government property and to obstruct

justice” (Appellant’s App. 6). We agree. However, we

strongly disagree with the statement that the affidavit

and search warrant were therefore general and not

sufficiently particularized to pass constitutional muster.

As outlined briefly above, the supporting documents

went into great particularity not only as to the relevant

documents and their location but also as to the

particular offenses that the property sought was

designed to prove. These offense are not “amorphous”

— they are specific, particularized and according to the

affidavit supported by reams of hard documentary

evidence as well as by sworn statements of some of the

alleged conspiractors and principals in the conspiracy

and substantive offenses.

We agree with the District Court that the searches

and seizures can only be conducted after a showing of

... probable cause, supported by Oath or Affirma-

tion, and particularly describing the place to be

searched and the person or things to be seized.

U.S. Const. amend. IV. However, we agree with the

finding of the United States Magistrate that the

affidavit did show probable cause and described the

“place to be search and the...things to be seized”

13a

with the required particularity. The trial court Memo-

randum admits: “To be sure, the affidavit provided the

agents with substantial guidance as to what to look for”

(App. 17), but it gets off the track when it concludes:

“For there is nothing ‘particular’ about conspiracy”

(App. 15). In the context of thts search warrant and

the conspiracies it refers to this is an erroneous

conclusion — the two conspiracies here specified were

described in great particularity. See text, supra. We thus

do not agree with the further findings of the trial court

that the warrant “[permitted] seizure of anything at

all” (App. 17), and “‘invited the agents to seize any

document in the Church’s files that struck their fancy”

(App. 9).

The trial court also finds the warrant to be overbroad

because:

As a practical matter [it constitutes] ...a direc-

tive to seize “evidence at this time unknown” of

conspiracy [which amounts to] ...a “wild card”

permitting seizure of anything at all.

(App. 17). This, however, is an overbroad interpretation

of the warrant. The warrant, in item 162, only

authorizes

Any and all fruits, instrumentalities, and evidence

(at this time unknown) of the crimes of

conspiracy, obstruction and theft of government

property ... which facts recited in the accompany-

ing affidavit make out. |

(App. 31). Thus, as pointed out in the forepart of this

opinion, the italicized language imposes a very great

degree of particularity and specificity to all the offenses

described and to the evidence, fruits and instrumentali-

ties that may be seized. But the important feature

about the questioned language in item 162 is that it

l4a

follows identically the language which the Supreme

Court in Andresen v. Maryland, supra found was not

overbroad in the context of the offenses there

designated. Precisely, Andresen holds that the warrant

did not become “fatally general because it followed an

exhaustive list of particularly described documents with

the phrase ‘together with other fruits, instrumentalities

and evidence of crimes at this [time] unknown.’ ” 427

U.S. at 479.

A cursory comparison indicates that the questioned

language here is more precise tha[n] that in Andresen, in

that it is limited by the facts concerning the offenses

which are made out by the recitations in the

accompanying affidavit. Also, the offenses here de-

scribed do not suffer in comparison with the offense

concerning the crime of false pretenses surrounding

“Lot 13T” that was involved in Andresen. In that

decision the search was upheld for evidence of “intent

to defraud and knowledge of [the] falsity” of the

allegedly false representations. 427 U.S. at 483. The

limitation of the present warrant to the designated

crimes ‘“‘which facts recited in the accompanying

affidavit make out” is every bit if not more specific and

particularized than the warrant in Andresen.

A further question is raised as to item 155. Item 156

should also probably be included. These items provide:

155. A Guardian Order generally identified as

“Snow White”’.

156. Any and all Guardian Orders issued pursuant

to the Guardian Order generally identified as

“Snow White” which would be identified by the

mention of “Snow White”’.

15a

(App. 39). These may be referred to as the “Snow

White” files. In connection therewith, on this appeal,

the Church contended at oral argument:

This warrant, if it’s upheld by the court [on its

Snow White items] authorized the FBI to seize all

of the legal files of the Church of Scientology, all

of its litigation files, all of its correspondence to

counsel, all of its pleadings, all of its proposed

pleadings, all of its records.

In this connection, the warrant should not be construed

that broadly. While the warrant may have supported a

claim to examine the “Snow White” file, just as a

warrant to search a house for a murderer would not

authorize seizing the contents of the house, the

Government cannot retain “all the legal files of the

Church of Scientology” but only those in the “Snow

White” category that constitute the particularized

“Guardian Orders”, possibly including general orders in

the “Snow White” phase of the Church’s operations,

and material in such files that constitute “fruits,

instrumentalities and evidence...of the [stated]

crimes... which facts recited in the accompanying

affidavit make out.” (App. 39-40).° If any of the

3We have made a cursory examination of the material seized

in Washington, D.C. Without going into any detail concerning

such material we note it includes (1) apparently original

documents from the Internal Revenue Service, (2) copies of

Central Intelligence Agency documents marked “Secret”, and (3)

a file on “Bugging”, and another on locksmithing, in addition to

a great deal [of] other material.

We do not find any of the cases cited by counsel in his letter

of November 16, 1977 to be contrary to the above holding.

United States v. Katz, 238 F. Supp. 689, 695 (S.D.N.Y. 1965)

ordered the return of an automobile that the government sought

to forfeit and retain as evidence. The court found that no

[footnote continued]

l6a

documents seized in the search by the agents exceed

the bounds of the search warrant they should be

returned, but the “fruits, instrumentalities and evi-

dence”’ that were seized, and that are relevant to the

particularized offenses and which are specifically

referred to in the affidavit and search warrant, should

be delivered to the government forthwith for use in

connection with the grand jury proceedings. Our order

nerein does not restrict the right of the court to

consider and determine whether any specific document

may have been seized outside the authority of the

search warrant as construed in this opinion.

On the authority of Andresen v. Maryland, 427 U.S.

463, 478-484 (1975), we hold that the search warrant

in this case is not a general warrant and is valid. The

“evidentiary’’ reason had been shown for requiring the retention

of the auto and that it had not supported its forfeiture claim.

The court also denied the motion to suppress evidentiary use of

other evidence seized in the search. This supports the conclusion

we reach that some seized material may be retained while other

material may not be retained. United States v. Bell, 120 F. Supp.

670 (D.D.C. 1954), also involved a forfeiture and was decided on

procedural grounds. As for Neen v. United States, 386 F.2d 953,

956 (headnote 5) (10th Cir. 1967), and Goodman v. United

States, 369 F.2d 166, 168 (9th Cir. 1966), neither are relevant

to our disposition of the case. As for the citation to WRIGHT,

FEDERAL PRACTICE AND PROCEDURE, CRIMINAL at 676,

the citation is generally irrelevant, but it does point out that

when a motion to suppress is granted, normally the “property

must be returned” but not where the property is “otherwise

subject to lawful detention.” This would negate that part of the

court's order that directed the return to the Church of stolen

government property or material that had been improperly copied

from government documents. Certainly such material is “subject

to detention” by the Government.

l7a

order requiring the return of the property is thus

vacated.*

Order accordingly.

*The search warrant is clearly limited to a search for evidence

relating to the crimes of theft of government property,

obstruction of justice and a conspiracy to commit such crimes.

There is nothing in the nature of the crime of conspiracy as

proscribed by 18 U.S.C. $371 that prevents a magistrate from

issuing a search warrant to seize evidence that such crime has

been committed. In fact, conspiratorial crimes are conducted

with more secrecy than many other crimes and search warrants

that seek evidence of conspiracy, and otherwise meet the

required standards, may extend to all relevant evidence of that

crime. Otherwise, alleged conspirators would occupy a special

protection from prosecution that is not available to other

accused persons. The same may be said of search warrants

seeking relevant evidence of obstruction of justice. Neither of

these offenses possess any special immunity that would protect

them from being ferreted out by proper search warrants secking

relevant evidence. While these offenses may have certain

subjective elements, like the criminal intent in Andresen v.

Maryland, supra, the evidence that proves such subjective

elements may be objective, tangible and constitute clear proof.

This appears to be a case where, if the documents described and

particularized in the affidavit and search warrant, live up to their

description, the crimes of conspiracy to steal government

property and to obstruct justice and such substantive offenses,

would be practically proved, amorphous intent and all, merely by

introducing the documents themselves with testimony as to

where they were found.

18a 19a

APFENDEX B “but not necessarily to seize its entire contents”

| Filed Dec 8, 1977]

Per Curiam

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

For the Court:

/s/ George A. Fisher

George A. Fisher

Clerk

No. 77-1793

September Term, 1977

Misc. 77-0151

IN RE:

SEARCH WARRANT DATED July 4, 1977,

for Premises at 2125 S Street, Northwest

Washington, D.C.

Before: | MacKINNON and ROBB, Circuit Judges, and

MARKEY,* Chief Judge, United States Court of

Customs and Patent Appeals

ORDER

It is ORDERED by the Court, sua sponte, that the

opinion filed on December 1, 1977, is hereby amended as

follows:

Page 12, line 22, of the opinion, after the word ao

“file” and before the comme. imecst: *Sitting by designation pursuant to Title 28, U.S.C. §293(a).

20a

APPENDIX C

| Filed Jan 9, 1978]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1793

September Term, 1977

Miscellaneous #77-0151

IN RE:

SEARCH WARRANT DATED July 4, 1977,

for Premises at 2125 S Street, Northwest

Washington, D.C.

BEFORE: MacKinnon and Robb, Circuit Judges; and

Markey*, Chief Judge, U.S. Court of Cus-

toms and Patent Appeals.

ORDER

Upon consideration of the motion of the Founding

Church of Scientology for leave to inspect documents and

for other relief, of the government's opposition thereto

and of movant’s reply, and it being asserted that the first

two sentences in footnote 3 of the opinion of this Court

*Sitting by designation pursuant to Title 28 U.S.C. §293(a).

2la

filed in this case on December 1, 1977 refer to some doc-

uments which are not indexed in the warrant return, it is

ORDERED by the Court that the Opinion for the

Court, filed December 1, 1977, is hereby amended by the

deletion of the first two sentences in footnote 3 thereof,

on pages 12-13 of the printed slip opinion, for the reasons

set forth in the attached memorandum of this Court filed

herein this date, and it is

FURTHER ORDERED by the Court that the motion

of the Founding Church of Scientology for leave to in-

spect documents and for other relief, is denied, in accord-

ance with the attached memorandum of this Court, filed

herein this date.

Per Curiam

For the Court:

/s/ George A. Fisher

GEORGE A. FISHER

Clerk

22a

No. 77-1793

Inre: Search Warrant Dated

July 4, 1977, for Premises at

2125 S Street, Northwest,

Washington, D.C.

MEMORANDUM

The Founding Church of Scientology has moved this

court for leave to inspect the doc[u] ments obtained in a

search conducted pursuant to the subject search warrant

of July +, 1977 for the premises at 2125 S Street, North-

west, Washington, D.C. These documents, which are con-

tained in eight medium-sized paper boxes, are now in the

possession of this court as part of the record in this case.

Movant contends that the opinion of this court of De-

cember 1, 1977 referred in two sentences of footnote 3

to some documents which are not indexed in the warrant

return; that these documents, which the opinion stated

were “in addition to a great deal of other material,” were

referred to by the Government in its pleadings filed with

the United States Supreme Court in opposition to the

application of the Founding Church of Scientology to

stay the mandate; that movant has filed a petition for re-

hearing and/or suggestion for appropriateness of rehear-

ing en banc in this court; and that said documents will

be in part a subject of further litigation. Insofar as said

documents may be a subject of further litigation, the

motion to inspect them should be addressed to and con-

sidered by the District Court on remand. Movant also

asserts that, because of the two sentences of footnote 3,

inspection of the documents referred to is necessary in

order to enable it to further develop its defenses. How-

23a

ever, the two sentences which were placed in footnote 3,

that movant refers to, were not necessary to this court’s

decision and the decision of this court on December 1,

1977 was concerned solely with the facial validity of the

search warrant inasmuch as the District Court “‘consid-

ered [movants] memoranda and oral arguments with re-

spect to the warrants facial validity” and found the war-

rant to be “overbroad on its face.’ (Emphasis added.)

With the decision of the District Court being thus based

on the facial invalidity of the warrant the content of the

documents seized is irrelevant to the case in its present

posture. For the foregoing reasons the court, sua sponte,

strikes the first two sentences of footnote 3 from its opi-

nion. The motions to inspect said documents, and to

direct the Government to deliver to the Church’s counsel

a copy of the documents held, are denied. The movant

may renew its motions when the case is again before the

District Court.

24a

APPENDIX D

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S. App. D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1793

IN RE: SEARCH WARRANT DATED JULY 4, 1977,

for Premises at 2125 S Street, Northwest

Washington, D.C.

Supplemental Opinions on Suggestion for Rehearing

En Banc

(D.C. Mise. 77-0151)

Filed January 4, 1978

BEFORE BAZELON, Chief Judge; WRIGHT, MCGOWAN,

TAMM, LEVENTHAL, ROBINSON, MACKINNON,

Ross and WILKEY, Circuit Judges

ORDER

The suggestion for rehearing en banc filed by appellee

Founding Church of Scientology, having been transmitted

to the full Court and no Judge having requested a vote

with respect thereto, it is

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

2 25a

ORDERED by the Court en banc that appellee’s afore-

said suggestion for rehearing en banc is denied.

Statement of Circuit Judge WRIGHT, in Which Chief

Judge BAZELON and Circuit Judge LEVENTHAL Join, as to

Why He Does not Request a Vote on the Suggestion for

Rehearing En Bane, is attached.

Statement of Circuit Judge ROBINSON, with Whom Cir-

cuit Judge MCGOWAN Concurs, as to Why He Does Not

Request a Vote on the Suggestion for Rehearing En Banc,

is attached.

Statement of Circuit Judge WRIGHT, in Which

Chief Judge BAZELON and Circuit Judge LEVENTHAL

Join, as to Why He Does not Request a Vote on the

Suggestion for Rehearing En Banc

WRIGHT, Circuit Judge: In its most recent case con-

sidering the constitutionality of a search warrant the

Supreme Court stated:

General warrants, of course, are prohibited by the

Fourth Amendment. “[{T]he problem [posed by the

general warrant] is not that of intrusion per se, but

of a general, exploratory rummaging in a person’s

belongings. . . . [The Fourth Amendment addresses

the problem] by requiring a ‘particular description’

of the things to be seized.” Coolidge v. New Hamp-

shire, 403 U.S. 448, 467 (1971). This requirement

“‘makes general searches . . . impossible and pre-

vents the seizure of one thing under a warrant de-

scribing another. As to what is to be taken, nothing

is left to the discretion of the officer executing the

warrant.’” Stanford v. Texas, 379 U.S. 476, 485

(1965), quoting Marron v. United States, 275 USS.,

at 196.

Andresen v. Maryland, 427 U.S. 463, 480 (1976) (empha-

sis added). The search warrant which the panel of this

court upheld in this case directed the seizure of

3 26a

‘ajny and all fruits, instrumentalities, and evidence

‘at this time unknown) of the crimes of conspiracy,

obstruction of justice and theft of governmental

[property| in violation of 18 U.S.C. §§$ 371, 1503

and 641 which facts recited in the accompanying

affidavit make out.

Appellant’s Appendix at 40.

The panel here predicated its decision upholding the

warrant squarely on the Supreme Court’s opinion in

Andresen. Thus the question presented in this case is

whether “nothing [was] left to the discretion of the offi-

cer executing the warrant.” Since it is clear that the

parties will ask the Supreme Court to review whatever is

decided at this level in this case, in the interest of reduc-

ing unnecessary delay in this litigation, I think the case

should now be passed on to the Supreme Court.

Statement of Circuit Judge ROBINSON, with Whom

Circuit Judge MCGOWAN Concurs, as to Why He

Does Not Request a Vote on the Suggestion

for Rehearing En Banc

ROBINSON, Circuit Judge: The warrant under scrutiny

directed seizure of 161 designated items and of

{ajny and all fruits, instrumentalities, and evidence

(at this time unknown) of the crimes of conspiracy,

obstruction of justice and theft of governmental

[property] in violation of 18 U.S.C. §§ 371, 1503

and 641 which facts recited in the accompanying

affidavit make out.’

The District Court, denominating the latter call “a ‘wild

card’ permitting seizure of anything at all,”? reasoned

‘ Appellant’s Appendix 40, quoted in In re Search Warrant

Dated July 4, 1977, No. 77-1793 (D.C. Cir. Dec. 1, 1977),

at 4.

*In re Search Warrant Dated July 4, 1977, 436 F.Supp.

689, 698 (D.D.C. 1977).

~~?

4 27a

that it communicated to executing officers permission to

search for and seize anything arguably related to any

and all violations of the three enumerated statutes * and

thus was tantamount to an unconstitutional general war-

rant.* The panel, on the other hand, read the warrant as

reasonably instructing officers to search only for evidence

of seven specific criminal incidents alleged in the affidavit.’

Thus construed, the warrant in the panel’s view was ade-

quately particularized, as judged by the standards of the

Supreme Court’s recent decision in Andresen v. Maryland.°

Whether the panel correctly appraised a prudent offi-

cer’s understanding of the language of this warrant is

3 Id. at 694, 697. See also United States v. Burch, 432 F.

Supp. 961, 963 (D. Del. 1977). The District Court explained:

The warrant in this case authorized—if indeed it did

not direct—agents of the FBI to examine carefully and

completely the contents of every document in the fourth-

floor files of the Church and to make ad hoc, on-the-spot

decisions as to which of those documents constitute evi-

dence of conspiracy—an amorphous and open-ended

crime that, as discussed below, has since its conceptual

inception perplexed commentators and courts alike. In

my view this warrant—addressed as it is to the crime of

conspiracy—invited the agents to seize any documents

in the Church’s files that struck their fancy.

436 F.Supp. at 694.

‘The Fourth Amendment provides in part that “no war-

rant shall issue” unless “particularly describing the place to

be searched, and the person or things to be seized.”

‘In re Search Warrant Dated July 4, 1977, supra note 1,

at 5-6. The panel concluded that the authorization in this

warrant is nearly identical to that approved by the Supreme

Court in Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737,

49 L.Ed.2d 627 (1976). In re Search Warrant, supra note

1, at 11. The District Court, however, felt that in context

the challenged language, though similar, likely conveyed a

different message. See note 3 supra.

* See note 5 supra.

D 28a

surely not an issue rising to en bane caliber.“ And though

the panel’s opinion is not entirely clear, I 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.” Nor is it argued that the magistrate reason-

‘See Fed. R. App. P. 35(a).

~ Andresen V. Maryland, supra note 5, 427 U.S. at 493, 96

S.Ct. at 2754, 49 L.Ed.2d at 650 (Brennan J., dissenting) ;

see id. at 480-481, 96 S.Ct. at 2748, 49 L.Ed.2d at 642 (ma-

jority opinion), quoting Coolidge v. New Hampshire, 403

U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 LEd.2d 564, 583

(1971) (one of two main objectives of the Fourth Amend-

ment warrant requirement is to assure that “searches deemed

necessary should be as limited as possible,” and the warrant

achieves that goal only by directing executing officers to the

particular things to be seized), and quoting also Stanford v.

Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 512, 18 L.Ed.2d 431,

437 (1965), in turn quoting Marron v. United States, 275

U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 281, 237 (1927)

(“[t]he requirement that warrants shall particularly de-

scribe the things to be seized makes general searches under

them impossible and prevents the seizure of one thing under

a warrant describing another’; “[a]s to what is to be taken,

nothing is left to the discretion of the officer executing the

warrant”). See also United States v. United States District

Court (Keith), 407 U.S. 297, 316, 92 S.Ct. 2125, 2136, 32 L.

Ed.2d 752, 765 (1972), quoting Leach v. Three of King’s

Messengers, 19 How.St.Tr. 1001, 1027 (1765) (“‘[i]t is not

fit,” said Mansfield, ‘that the receiving or judging of infor-

mation should be left to the discretion of the officer. The

magistrate ought to judge and should give certain directions

to the officer.’ ’’).

Thus, it is not enough that the parameters the magistrate

intends to place on the scope of the search would bring it

within constitutional bounds. Nor is it enough that a re-

viewing court is able to read the warrant as not necessarily

6 29a

ably could have defined the items subject to seizure with

greater particularity and thus have “minimize[d] unwar-

ranted intrusions upon privacy.” * Therefore, because the

panel opinion rests squarely upon its quasi-factual inter-

pretation of the total context of this warrant, I think

rehearing en banc would be unjustified. The mere inclu-

sion in futur. warrants of language that in isolation is

similar or identical to that under review in this case

would not necessarily immunize those warrants from chal-

lenges that they authorized overbroad searches.

chartering an impermissible search. The executing officers

themselves must know at the outset how far they are licensed

to go in their pursuit of evidence.

* Andresen V. Maryland, supra note 5, 427 U.S. at 482 n.

11, 96 S.Ct. at 2749 n.11, 49 L.Ed.2d at 643 n.11.

30a

APPENDIX E

| Filed July 27, 1977]

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Miscellaneous No.: 77-0151

In re:

Search Warrant Dated

July 4, 1977, for Premises

at 2125 S Street, Northwest,

Washington, D.C.

MEMORANDUM AND ORDER

On July 8, 1977, agents of the Federal Bureau of In-

vestigation (FBI) executed a search warrant on the

premises of the Founding Church of Scientology, Wash-

ington, D.C.' Issued on the strength of a lengthy affi-

davit alleging that certain Church officials had conspired

“to steal documents from the Government of the United

States by means of the burglary of U.S. Government

offices and theft by operatives of the Church in the em-

ploy of the U.S. Government” and to obstruct justice by

“preparing a false response to expected inquiries . . . by

! Another search was conducted the same day at the Church’s

offices in Los Angeles, California. | am concerned here only with

the propriety of the search conducted in the District of Columbia.

3la

law enforcement authorities and federal grand juries,’

the warrant directed the agents to file cabinets located in

the rear of the fourth floor of the building that houses

the Church’s Washington offices. There, the affiant stated

he had probable cause to believe, the agents would find

copies of the stolen documents as well as written plans,

scenarios, directives and a summary of grand jury testi-

mony prepared in furtherance of the alleged conspiracies.

The warrant directed the agents to leave no stone un-

turned. It identifies 148 documents and files allegedly

stolen from government offices. It also lists as appropri-

ate for seizure the summary of grand jury testimony and

12 other documents and categories of documents that the

government apparently believes constitute evidence of

the alleged conspiracies. Finally, item number 162 of the

warrant authorizes the agents to seize:

Any and ali fruits, instrumentalities and evidence (at

this time unknown) of the crimes of conspiracy, ob-

struction of justice and theft of government por-

perty [sic] in violation of 18 U.S. Code § §371,

1503 and 641 which facts recited in the accompany-

ing affidavit make out.

While the FBI agents were conducting the search the

Church filed a motion in this Court seeking to restrain

them from doing so and to impose a protective order seal-

ing all documents seized, primarily on the ground that

the warrant was overbroad on its face in violation of the

Fourth Amendment to the United States Constitution.

The Church argued in addition that should the contents

of some of the seized documents be disclosed to repre-

sentatives of the numerous federal agencies with which

2 Affidavit in Support of Search Warrant at 32. The affidavit

discusses these allegations in ccusiderable detail.

32a

it is presently involved in civil litigation, its attorney-

client privilege would be violated and its litigation pro-

spects irreparably damaged. This Court denied the mo-

tion without reaching the merits of the Church’s con-

tentions. On July 11 the Church renewed its request for

a protective order; with the consent of the United States

Attorneys responsible for the criminal investigation, an

order was entered prohibiting disclosure of the seized

materials to attorneys for or employees of agencies in-

volved in civil litigation with the Church. The order was

to remain in effect for ten days.

The Church has now moved for retur’ of the property

seized from its Washington files on July 8. Rule 41(e),

Fed. R. Crim. P. In effect this is a motion to suppress.

Id. The Church asserts four grounds for invalidating the

seizure: The warrant was overbroad — br “general” — on

its face; the agents conducted the search in a manner vio-

lative of the Fourth Amendment; the agents employed

unnecessary force in violation of 18 U.S.C. § 3109; and

any probable cause that might have been established by

the affidavit had grown stale by the time it was executed.

Having considered the memoranda filed by representa-

tives of the Church and of the government and heard their

oral arguments with respect to the warrant’s facial valid-

ity, I find I need go no further. I hold that the grant of

authority to the agents to search for and seize any evi-

dence of conspiracies to steal government property and

to obstruct justice? amounted to a “general warrant”

and therefore contravened the Fourth Amendment’s

31t should be noted that item 162 of the warrant appears to

permit seizure of evidence of any conspiracy. I reject such a con-

struction, however, in light of the emphasis in the affidavit on the

two types of conspiracies I have mentioned.

“Sa

guarantee against unreasonable searches and seizures. I

am not persuaded that the Supreme Court’s recent deci-

sion in Andresen v. Maryland, 427 U.S. 163 (1976), is

to the contrary.

I

The Fourth Amendment to the Constitution provides:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able 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. (Emphasis added.)

The Fourth Amendment serves to prevent both unjusti-

fied and arbitrary interferences with personal security

and property.* In the first instance the amendment is de-

signed to ensure that the government cannot interfere

with a person’s security unless it has a good reason for

doing so. The particularity requirement ensures as well

that the government cannot conduct a search indiscrimi-

nately, as by rummaging through a person’s belongings

in search of any evidence of any crime whatsoever. It

accomplishes this end in two ways. First, it leaves to a

neutral judicial officer the initial decision as to what can

be seized. Second, it circumscribes the permissible

4 See generally Amsterdam, Perspectives On the Fourth

Amendment, 58 Minn. L. Rev. 349, 410-12 (1974).

The requirement that warrants shall particularly describe the

things to be seized makes general searches under them impossible

and prevents the seizure of one thing under a warrant describing

another. As to what is to be taken, nothing is to be left to the

discretion of the officer executing the warrant. Marron v. United

States, 275 U.S. 192, 196 (1927).

34a

bounds of the search itself; as a commonly-used example

illustrates, an officer executing a warrant could not rea-

sonably expect to find a stolen elephant in a kitchen

closet or in the drawer of a desk.

As particularity is required, so necessarily is generality

forbidden. Opposition to the so-called “general warrant”

has firm roots in the history of Anglo-American law. As

Justice Stewart has observed, writing for a majority of

the Supreme Court in Stanford v. Texas, 379 U.S. 476,

481-82 (1965):

These words [commanding a_particularized

description of the place to be searched and the

persons or things to be seized] are precise and clear.

They reflect the determination of those who wrote

the Bill of Rights that the people of this new Nation

should forever‘be secure in their persons, houses,

papers, and effects’ from intrusion and seizure by

officers acting under the unbridled authority of a

general warrant. Vivid in the memory of the newly

independent Americans were those general warrants

known as writs of assistance under which officers of

the Crown had so bedeviled the colonists. The hated

writs of assistance had given customs officials

blanket authority to search where they pleased for

goods imported in violation of the British tax laws.

They were denounced by James Otis as ‘the worst

instrument of arbitrary power, the most destructive

of English liberty, and the fundamental principles of

law, that ever was found in an English law book,’

because they placed ‘the liberty of every man in the

hands of every petty officer.’ The historic occasion

of that denunciation, in 1761 at Boston, has been

characterized as ‘‘perhaps the most prominent event

which inaugurated the resistance of the colonies to

the oppressions of the mother country. ‘Then and

there,’ said John Adams, ‘then and there was the

35a

first scene of the first act of opposition to the

arbitrary claims of Great Britain. Then and there the

child of Independence was born.’” Boyd v. United

States, 116 U.S. 616, 625 (1886).

Also it is significant, in considering the propriety of

seizure of a Church’s documents, that the First and

Fourth Amendments share at least in part a common

heritage.

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, 367 U.S. 717, 724 (1961). In

fact, unlimited power to search was first directed at non-

conforming 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 licera-

ture of dissent, both Catholic and Puritan.

Stanford v, Texas, supra, at 482.

I make reference to the First Amendment not to sug-

gest that overtones of religious persecution attend the

criminal investigation of the Church of Scientology, but

to make clear the need for increased sensitivity in cases

in which religious organizations are involved, irrespective

of the nature or gravity of the charges against them. Cf.

Stanford v. Texas, supra; Marcus v. Search Warrants,

supra.

The flaw I find in the warrant involved here is precisely

the evil that inheres in general warrants. The warrant in

this case authorized — if indeed it did not direct — agents

of the FBI to examine carefully and completely the con-

tents of every document in the fourth-floor files of the

Church and to make ad hoc, on-the-spot decisions as to

which of those documents constitute evidence of con-

36a

spiracy — an amorphous and open-ended crime that, as

discussed below, has since its conceptual inception per-

plexed commentators and courts alike. In my view this

warrant — addressed as it is to the crime of conspiracy —

invited the agents to seize any documents in the Church’s

files that struck their fancy. As the Supreme Court put it

in another context in Marcus v. Search Warrants, supra:

“The warrants gave the broadest discretion to the execut-

ing officers; they left to the judgment of each of the

mary police officers involved the selection of such maga-

zines as in his view constituted ‘obscene publications.’ ”

367 U.S. at 732. In the present context as well, the sweep

of that discretion is constitutionally intolerable.

Il

The government rests its case, and quarrels with the

analysis presented above, primarily on the authority of

Andresen v. Maryland, 427 U.S. 463 (1976). In fact, as

counsel for the government has indicated, the warrant in-

volved in this case was patterned after the one at‘issue in

Andresen. As 1 have suggested, I do not believe that

Andresen stands for the proposition that a warrant

authorizing search for evidence of particular conspiracies

comports with the particularity requirement of the

Fourth Amendment. Nevertheless, Andresen closely

resembles the present case in numerous respects and ob-

viously must be examined here.

Andresen can best be understood in the light of the Su-

preme Court’s earlier opinion in Warden v. Hayden, 387

U.S. 294 (1967). In Warden a majority of the Court

joined in abandoning the so-called ‘“‘mere evidence” rule,

which had prohibited seizure of items having only eviden-

tial value as distinguished from contraband, fruits and

instrumentalities of crime. Warden involved a “hot pur-

37a

suit,” warrantless search that culminated in retrieval not

only of a robbery suspect, weapons, and ammunition he

allegedly used, but also of clothing he allegedly wore

during the robbery, found in a washing machine in the

basement of his house. The Court was hard put, on the

facts of that case, to draw distinctions in terms of in-

terests the Fourth Amendment is designed to protect be-

tween the clothing, on the one hand, and the weapons

and ammunition, on the other. Chief Justice Warren and

Justice Fortas concurred in the result only, expressing

apprehension that abandonment of the “mere evidence”

rule was not only unnecessary but also likely to destroy

the Fourth Amendment’s prohibition against general

searches. 387 U.S. at 310-12. Justice Douglas dissented

vigorously on essentially the same ground. /d. at 312-25[.]

At the time of the Court’s decision in Warden, despite

some ambiguity it was generally assumed that the Fifth

Amendment stood as a bar to seizure of an individual’s

personal papers, as well as to compelled production of

such papers. E.g., Boyd v. United States, 116 U.S. 616

(1886). Warden, however, expressly left open the ques-

tion whether that was so. 387 U.S. at 303.

The Supreme Court apparently determined to resolve

much of this ambiguity in Andresen. It upheld a convic-

tion for the crime of “false pretenses” as defined by

Maryland law, see Md. Ann. Code, Art. 27, § 140 (1976),

over petitioner’s contentions that the Fifth Amendment

barred seizure of his personal business records and that

warrants authorizing searches for documents in his offices

were unconstitutionally general. The warrants at issue di-

rected seizure of certain specified “items pertaining to

sale, purchase, settlement and conveyance of lot 13,

block T, Potomac Woods subdivision, Montgomery

County, Maryland,” 427 U.S. at 480 n. 10, “together with

38a

other fruits, instrumentalities and evidence of crime at

this [time] unknown.” Jd. As does the Church here,

Andresen based his “generality” argument on the catch-

all phrase at the conclusion of each warrant. He con-

tended, according to the Court, that the ‘“other-fruits”’

clause permitted the executing officers to search for and

seize evidence of any crime.

After rejecting petitioner’s Fifth Amendment claim,

for reasons not germaine here, the Court began its Fourth

Amendment analysis by reaffirming the rule that:

General warrants, of course, are prohibited by

the Fourth Amendment. “[T] he problem [posed by

the general warrant] is not that of intrusion per se,

but of a general, exploratory rummaging in a per-

son’s belongings. . . . [The Fourth Amendment ad-

dresses the problem] by requiring a ‘particular de-

scription’ of the things to be seized. Coolidge v. New

Hampshire, 403 U.S. 443, 467 (1971). This require-

ment “ ‘makes general searches impossible and pre-

vents the seizure of one thing under a warrant des-

cribing another. As to what ts to be taken, nothing ts

left to the discretion of the officer executing the

warrant.’” Stanford v. Texas, 379 U.S. 476, 485

(1965), quoting Marron v. United States, 275 U.S.,

at 196.

Andresen v. Maryland, supra, 427 U.S. at 480 (emphasis

added). The Court then stated that, taken in context, the

challenged phrase must be read as authorizing only

the search for and seizure of evidence relating to

‘the crime of false pretenses with respect to Lot

ay

Id. (Citation omitted.) Since the warrants therefore ‘“‘did

not authorize the executing officers to conduct a search

for evidence of other crimes,” said the Court, they did

not run afoul of the particularity requirement. /d. at 481-

82 (Emphasis added.)

39a

Petitioner in Andresen had a second Fourth Amend-

ment claim, which pertained to documents referring to a

lot other than 13T that were seized pursuant to a clause

in the warrant authorizing search for “books, records,

documents, papers, memoranda and correspondence,

showing or tending to show a fraudulent intent, and/or

knowledge as elements of the crime of false pretenses. .. .”

Id. at 481 n. 10. Apparently he contended that these

items were irrelevant to the charge concerning Lot 13T

and therefore should have been suppressed according to

Warden v. Hayden, supra. The Court disagreed, observing

that intent to defraud is an element of the crime of false

pretenses in Maryland and that it is well settled that

“proof of similar acts is admissible to show intent or the

absence of mistake.” Andresen, supra, at 483. Moreover,

said the Court,

Lot 13T and the other lot [about which evidence

was seized] had numerous features in common.

Both were in the same section of the. . . subdivi-

sion; both had been owned by the same person; and

transactions concerning both had been handled by

petitioner. Most important was the fact that there

were two deeds of trust in which both lots were

listed as collateral.

Id. at 484.

Ill

_ The government apparently would have me _ read

Andresen, in conjunction with Warden v. Hayden, as

sanctioning any warrant that directs the executing offi-

cers to search for “evidence of” a particular crime. The

logic of the government’s position is clear and, I admit,

parallels statements made by the Court in Andresen: If

the affidavit and warrant together identify in precise

40a

terms the crime believed to have been committed, and

the warrant directs the agents to search for ‘“‘evidence of”

that crime, then the agents have no discretion to search

for evidence of other crimes, and the particularity require-

ment is satisfied.

Were the government correct, the particularity require-

ment would be rendered a nullity. Hence I cannot believe

that the Court intended Andresen to be interpreted so

broadly, or so literally. For a warrant must satisfy both

the probable cause and particularity commands, not

simply the former: “[N]o Warrants shall issue, but upon

probable cause [to believe a particular crime has been

committed], . . . and particularly describing the place

to be searched and the persons or things to be seized.”

U.S. Const. amend IV (emphasis added). To say that

mechanical inclusion of the phrase “‘evidence of” in a

warrant automatically and necessarily renders it particu-

lar rather than general is to say, simply, that we no longer

prohibit general searches.

To be sure, searches for “‘evidence of” crimes are no

longer prohibited, and in Andresen the Court did validate

a warrant authorizing just that. This in no way means,

however, that the particularity requirement has been dis-

carded along with the “mere evidence” rule; rather, the

government can safely assume only that searches for par-

ticular evidence will be condoned. As the Court put it in

Warden,

if. . . rejection [of the “mere evidence” rule] does

enlarge the area of permissible searches, the intru-

sions are nevertheless made after fulfilling the prob-

able cause and particularity requirements of the

Fourth Amendment. .. .

387 U.S. 390 (emphasis added).

4la

Andresen must, I believe, be read in the light of the

Court’s reiteration of our historical proscription of gen-

eral warrants and the Court’s statement, derived from

numerous prior cases, that “/a]s to what ts to be taken,

nothing is left to the discretion of the officer executing

the warrant.”” 427 U.S. at 480 (emphasis added). I do

not take this statement literally to mean that the execut-

ing officer can make no determinations at all with respect

to what is to be seized. Such an application of the Court’s

language would require me to ignore the rule permitting

the executing officer to seize manifestly criminal objects

such as contraband that he encounters inadvertently in

plain view.© What I do take the Court to mean, however,

is that a neutral and detached judicial officer must in the

first instance ensure that strict standards exist to guide

the officer in his exercise of discretion. Evidently the

majority’ of the Court was satisfied that the judicial offi-

cer who issued the warrant in Andresen could reasonably

have concluded that a search for evidence pertaining to

the sale of a specific parcel of real estate — precisely and

unmistakably identified as “Lot 13T” — is sufficiently

circumscribed to comport with the rule against discre-

tionary searches and seizures. Presumably the agents

could readily determine whether a particular document

pertained to that lot simply by inspecting its contents in

a cursory fashion — that is, by keying on the magic words,

“Lot 13T.” Thus they could instantly seize — or elimi-

SE g., Alderman v. United States, 394 U.S. 165, 177 n. 10

(1969) (dictum); see also Amsterdam, supra note 4, at 358.

Whether documentary evidence in a person’s files can be en-

countered “inadvertently” is a question that is sure to arise. I

would have grave apprehensions about such an application of the

“plain view” doctrine.

7 Justices Brennan and Marshall each wrote a dissenting

opinion. 427 U.S. at 484; id. at 493.

42a

nate from their scrutiny — any document that on its

face did not relate to that property.®

Try as the government might; the same cannot be said

about a search for evidence of a conspiracy — irrespective

of the precision with which the underlying substantive

offense is described.? Indeed, because of the permissive

rules of evidence available to prosecutors seeking to prove

conspiracy, in this context especially the distinction the

government urges between impermissible searches for evi-

dence of any crime and permissible searches for evidence

of a particular crime is patently hollow. For there is noth-

ing “particular” about conspiracy. As counsel for the

Church points out, perhaps the best known statement in

our jurisprudence concerning the law of conspiracy was

that of Justice Jackson in Krulewitch v. United States,

336 U.S. 440 (1949):

The modern crime of conspiracy is so vague that

almost defies definition. Despite certain elementary

and essential elements, it also, chameleon-like, takes

on a special coloration from each of the many inde-

pendent offenses on which it may be overlaid: It is

always ‘predominantly mental in composition’ be-

cause it consists of a meeting of minds and an in-

tent.

81 must admit that the Court’s sanction of the seizure of evi-

dence of “intent” or “‘absence of mistake” casts some doubt upon

the issue involved here. However, the Court limited its sanction to

evidence of similar transactions that related closely and objectively

to Lot 13T, i.e., evidence pertaining to a second lot that was listed

as collateral together with Lot 13T in two deeds of trust. 427 U.S.

at 484. In so doing, the Court appeared to be embracing the

rationale I have espoused in the text. ,

9In the present case, one of the underlying substantive of-

fenses is obstruction of justice. That in itself is a rather amorphous

crime, and remains so despite the detail with which the alleged

plot is described in the affidavit.

43a

The crime comes down to us wrapped in vague

but unpleasant connotations. It sounds historical

undertones of treachery, secret plotting and vio-

lence on a scale that menaces social stability and

the security of the state itself... .

[E] ven when appropriately invoked, the looseness

and pliability of the doctrine present inherent

dangers which should be in the background of judi-

cial thought wherever it is sought to extend the doc-

trine to meet the exigencies of a particular case.

Id. at 446-47, 449. Inasmuch as conspiracy “‘almost defies

definition,” it is no surprise that the rules of evidence

that pertain to it are loose and pliable as well. This is so

principally because the underlying substantive offenses

do not limit the scope of relevant evidence that might be

introduced at trial. Rather, evidence of conspiracy could

also include evidence of any action taken by one of the

accused confederates — no matter how trivial or mani-

festly innocuous on its face — that might somehow be

connected to an agreement to commit the substantive

offenses, or be said to constitute an act in furtherance of

such an agreement. See, e.g., Wharton, Criminal Evidence,

§ 642 (13th ed. 1973). Thus “evidence of conspiracy” is

a virtually open-ended proposition.

It seems self evident then, in considering both the war-

rant and the affidavit supporting it, see Moore v. United

States, 461 F.2d 1236, 1238 (D.C. Cir. 1972), that the

agents in this case had no clear standard to guide their

exercise of discretion. Item 162 of the warrant author-

ized them to search for and seize “evidence at this time

unknown” of the two conspiracies outlined in the affi-

davits. Such evidence, quite clearly, is of a character

substantially different from the evidence involved in

44a

Andresen. In that case, subjective judgments by the

officers as to what may or may not be evidence were

narrowly confined by the objects of the search — docu-

ments pertaining to the sale of a specific parcel of real

estate, precisely identified as “Lot 13T.” Thus a search

for “unknown evidence”’ pertaining to a single real estate

transaction may be said to be particular in the sense that

the agents know essentially what they are looking for,

and definite limitations exist with respect to their exer-

cise of discretion as to what to seize. In the present case,

by contrast, despite the detail with which the alleged

conspiracies to burglarize government offices, steal

government property, and obstruct the criminal investiga-

tion are described in the affidavit, the potential fruits of

the search were limited only by the number of docu-

ments in the Church’s files. To be sure, the affidavit pro-

vided the agents with substantial guidance as to what to

look for. But neither the warrant nor the affidavit — nor

both construed together — placed practical limitations

upon their determinations respecting what to seize. For

unless the contents of any particular document rendered

it manifestly criminal, the decision whether to séize it

was complicated by the subjective considerations attend-

ing 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 affi-

davit. As a practical matter, therefore, a directive to seize

“evidence at this time unknown” of conspiracy is a “wild

card” permitting seizure of anything at all. In terms of

the damage done to the Church’s interest in freedom.

from unjustified, indiscriminate seizures, item 162 is in-

distinguishable from a warrant to seize evidence of “any

crime.”

45a

Under the circumstances of this case, the government’s

argument that the affidavit was sufficient to establish the

necessary particularity is on especially tenuous ground.

For the government concedes that “certain documents...

should not have been seized,” that indeed “‘approxi-

mately half of the documents will be returned. . . .”

Memorandum in Opposition To Motion For Return of

Property at 4. Though, as the government suggests, the

fact of improper seizure may not tpso facto demonstrate

an improper warrant, that fact certainly provides strong

indication that the agents themselves did not construe

the affidavit as limiting their discretion.

Moreover, even assuming arguendo that the govern-

ment’s broad interpretation of Andresen is the correct

one, I would still find it difficult to condone a warrant

authorizing search for and seizure of evidence of con-

spiracy “at this time unknown.” For unless the warrant

directed the executing officers to seize only evidence

objectively pertaining to specific acts of conspiracy

identified in the affidavit — as distinguished from evi-

dence of any potential act in furtherance of the con-

spiracies described — the officers would maintain their

license to rummage through the files and take whatever

they pleased. Indeed, even a warrant authorizing search

only for unknown documents pertaining to specific acts

of conspiracy would seem to suffer for want of particu-

larity. Execution of such a warrant, again, would vest in

the agents discretion to make difficult, subjective de-

terminations with respect to relevancy. Thus I must ad-

mit that I have serious doubts whether any warrant

authorizing search for and seizure of “documentary evi-

dence of conspiracy at this time unknown” could with-

stand constitutional scrutiny.

46a

lV

I recognize and share the Supreme Court’s concern

that the “complexity of an illegal scheme . . . not be used

as a shield to avoid detection when the State has demon-

strated probable cause to believe that a crime has been

committed and probable cause to believe that evidence of

this crime is in the suspect’s possession.”” Andresen, supra,

427 U.S. at 481 n. 10. At the same time, of course, a com-

plex legal scheme cannot be used as a shield from the

commands of the Fourth Amendment. Thus it may be

said that a far-flung criminal scheme — such as con-

spiracy — justifies an equally far-flung search for evidence

of that scheme. The Fourth Amendment, however, as the

Court has repeatedly recognized, commands more than a

justification for an intrusion into a person’s privacy. It

also commands that no such intrusion be executed in an

arbitrary, or indiscriminate manner. Thus steps must be

taken to ensure that the intrusion is confined to its justi-

fiable limits. This is so especially where searches for

documents are involved. ;

We recognize that there are grave dangers inherent

in executing a warrant authorizing a search and sei-

zure of a person’s papers that are not necessarily

present in executing a warrant to search for physical

objects whose relevance is more easily ascertainable.

. .. In both kinds of searches, responsible officials,

including judicial officials, must take care to ensure

that they are conducted in a manner that minimizes

unwarranted intrusions upon privacy.

Andresen, 427 U.S. at 482 n. 11. This rationale, it seems

to me, applies with still more force in a case involving a

search through a religious organization’s files.

47a

Once government agents have a search warrant in hand,

only the requirement that the warrant “particularly

describ[e] the place to be searched, and the persons or

things to be seized” serves to protect citizens from un-

justified interferences with personal security or property.

The particularity requirement — and nothing else — con-

fines the intrusion to its justifiable limits.'° "In Andre-

sen the Supreme Court evidently believed that the pre-

cision of the term “Lot 13T” was sufficient to accom-

plish that purpose. Here, however, there is no such preci-

sion. This is why the warrant cannot stand.

ORDER

Upon consideration of the foregoing assessment of the

challenged process, the Court ORDERS that the govern-

ment, forthwith:

1 Ohad the warrant authorized only seizure of items one through

161, for example, the resulting interference with the Church’s

privacy would have been narrowed considerably. First, the agents

could + ve removed from the Church’s files only the items listed

specifically in the warrant. Second, specification of the things to

be seized would have altered the search-process itself. Each of the

specified items has certain objective, readily identifiable earmark-

ings — name of author or addressee, date, title and the like. Thus

in one respect or another each item is similar to a document per-

taining to “Lot 13T.”” Presumably the Church has imposed some

system of order on its files, most likely by alphabetizing them.

The agents, then, could first have looked in the specific sections

of the files. in which the documents would most likely be found.

If perchance the agents succeeded immediately in locating the

documents sought, no justification would have existed to search

further, and no other documents could have been disturbed.

Assuming the files had no order whatever or the specified items

were randomly interspersed throughout them, the agents could

have inspected each document in the files in cursory fashion,

keying on the objective earmarkings specified in the warrant. Thus

the agents would not have had authority to consider and take with

them those secrets of the Church which should have been left

alone.

48a

(1) return to petitioner all material seized on July 8,

1977 in a search of its premises by agents of the Federal

Bureau of Investigation under color of authority of a war-

rant dated July 4, 1977;

(2) destroy any and all copies of such materials in its

possession or control and any and all fruits of the search

and seizure, including but not limited to notes, memo-

randa, correspondence, photographs or other materials

seized or any information otherwise gleaned during or as

a result of the search;

(3) retrieve any copies of any materials seized or any

fruits of the search and seizure which have been dissemi-

nated to any persons outside the Fraud Section of the

United States Attorney’s Office, including any copies of

such items or notes or memoranda concerning them made

by such persons;

(4) destroy all materials retrieved pursuant to para-

graph (3) of this order without making copies thereof or

notes concerning them; and

(5) report in detail in writing to this Court, with copy

to counsel for petitioner, on its compliance with the

terms of this order not later than one week from the date

hereof.

And it is further ORDERED

that execution of the above is stayed pending final resolu-

tion of this matter if the government elects to appeal;

otherwise its terms shall be effected automatically upon

expiration of the time allotted for filing notice of appeal.

In the interim the documents shall be impounded by

the Clerk.

/s/ William B. Bryant

Chief Judge

July 27, 1977

Date

49a

APPENDIX F

[Filed Jan 4, 1978]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1793 Misc. No. 77-0151

September Term, 1977

IN RE:

SEARCH WARRANT DATED July 4, 1977,

for Premises at 2125 S Street, Northwest

Washington, D.C.

BEFORE: MacKinnon and Robb, Circuit Judges;

and Markey*, Chief Judge, U.S. Court of

Customs and Patent Appeals.

ORDER

Upon consideration of the petition for rehearing filed

by appellee Founding Church of Scientology, it is

ORDERED by the Court that appellee’s aforesaid peti-

tion is denied.

Per Curiam

For the Court:

/s/George A. Fisher

GEORGE A. FISHER

Clerk

*Sitting by designation pursuant to Title 28, U.S.C. §293(a).

50a

APPENDIX G

[ Filed Jan 9, 1978]

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 77-1793

September Term, 1977

Miscellaneous #77-0151

IN RE:

SEARCH WARRANT DATED July 4, 1977,

for Premises at 2125 S Street, Northwest

Washington, D.C.

BEFORE: MacKinnon and Robb, Circuit Judges;

and Markey*, Chief Judge, U.S. Court

of Customs and Patent Appeals.

ORDER

Upon consideration of the motion of the Founding

Church of Scientology to recall the mandate and there-

after to stay its reissuance, filed December 12, 1977, of

the government’s opposition to said motion and of

movant’s reply thereto, and upon consideration of the

government's motion for immediate reissuance of the

*Sitting by designation pursuant to Title 28 U.S.C. §293(a).

— — ett ine

5la

mandate, filed December 16, 1977, and of the opposi-

tion of the Founding Church of Scientology to said mo-

tion, and the mandate having been returned to this Court

on December 12, 1977, it is

ORDERED by the Court that the motion of the

Founding Church of Scientology is granted to the extent

that the Clerk is directed not to reissue the mandate in

this case prior to February 13, 1978, and it is

FURTHER ORDERED by the Court that the motion

of the government for immediate reissuance of the man-

date is denied.

Per Curiam

For the Court:

/s/George A. Fisher

GEORGE A. FISHER

Clerk