Petition — Forster v. United States

Bupreme Court, U

C &

FILED

J

‘

DEC 2 1978

i

{ MICHAE, R8DAK, JR. CLERK’

In the Supreme Court a

OF THE

United States

Octoser TERM, 1978

) No. 78-885

Marcarito O. Romero,

Petitioner,

VS.

Unitep States oF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

WituraM L. OsterRHOoUDT

Sincer & OsTERHOUDT

1632 Union Street

San Francisco, California 94123

Paut M. Hupr

Hupr, Bium & PoLiak

7316 Mission Street

Daly City, California 94014

Attorneys for Petitioners.

BOWNE-PERNAU WALSH © 1045 SANSOME ST. ¢ S.F.,CA 9411! © (415) 981-7882

SUBJECT INDEX

Opinions below

Jurisdiction

Questions presented for review

Statement of the case ..

Reasons for granting the writ

1.

bo

The opinion below is in conflict with ae court’s dsehdde

in Elkins v. United States, in effect resurrecting the

“Silver Platter Doctrine” overruled in that case

The decision below involves an important and sensitive

question of Federal-State relations which should be con-

sidered by this court

The decision below involves an important constitutional

question concerning application of the exclusionary rule

following a conceded — of an illegal search and

NIN ii re eh oe tka hee eerste te ies ot

To the extent that in aide a leptin’ rather hen

an actual independent source to satisfy the Wong Sun

test, the decisions below are in conflict with decisions of

the Courts of Appeals for the Second, Fifth and Sixth

EF a RT te ga Tae Pia a nl Sa Re aa

Conclusion

10

ii

TABLE OF AUTHORITIES CITED

Cases

rage

Damitz v. United States, 495 F.2d 50 (9th Cir. 1974) 9

Elkins v. United States, 364 U.S. 206 (1960) 2, 6, 7, 8, 12

Fitzpatrick v. New York, 414 U.S. 1050, 94 S. Ct. 554 (1973) 14

Kerr v. California, 374 U.S, 23 (1963) )

Preston v. United States, 376 U.S. 364 (1964) 12

Stone v. Powell, 429 U.S. 465 (1976) 9

United States v. Calandra, 414 U.S. 338 11

United States v. Griffin, 502 F.2d 959 (1974) 13

United States v. Houltin, 525 F.2d 943 (1976) 14

United States v. Janis, 428 U.S, 433 (1976) 8, 11

United States v. Paroutian, 299 F.2d 486 (1962) 14

Walder v. United States, 347 U.S. 62 (1954) 1]

Weeks v. United States, 232 U.S. 383 (1914) ll

Wong Sun v. United States, 371 U.S. 471 (1963) 3,13

Constitutions

United States Constitution:

Fourth Amendment a 3,50

Rules

Federal Rules of Appellate Procedure:

Rule 35 Z

Rule 40(a) 2

Statutes

18 U.S.C, Section 371 6

18 U.S.C. Section 2314

28 U.S.C. Section 1254(1) 2

Texts

74 Colum. L, Rev. 88 (1974) 13

In the Supreme Court

OF THE

United States

Ocroser TERM, 1978

No.

Marcaritro O, Romero,

Petitioner,

Vs.

Unrtrep States oF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Petitioner MARGARITO O, ROMERO respectfully prays

that a Writ of Certiorari issue to review the judgment of

the United States Court of Appeals for the Ninth Circuit

entered in this proceeding on August 16, 1978,

OPINIONS BELOW

A Memorandum Decision of the District Court for the

Northern District of California is appended hereto as

Appendix A.

2

The opinion of the Court of Appeals, not yet reported,

appears as Appendix B to this petition. The order of the

Court of Appeals, dated November 3, 1978, denying peti-

tioner’s petition for a rehearing appears as Appendix C,

JURISDICTION

The judgment of the Court of Appeals for the Ninth Cir-

cuit was entered on August 16, 1978. On August 31, 1978,

a petition for rehearing and a suggestion of the appropri-

ateness of an en banc hearing were filed, pursuant to Rules

40(a) and 35 of the Federal Rules of Appellate Procedure.

The petition for rehearing was denied, and the suggestion

rejected, on November 3, 1978; and this petition for cer-

tiorari was filed within thirty days of this ruling. This

Court’s jurisdiction to review the case on petition for cer-

tiorari rests upon 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether evidence seized by state officers in violation

of petitioner’s federal constitutional rights, and thereafter

acquired by federal officers from the state pursuant to a

federal search warrant, should have been excluded from

petitioner’s federal criminal trial under the rule of Elkins

v. United States, 364 U.S. 206.

2. Whether federal acquisition of petitioner’s illegally

seized documents from a cooperating state prosecutor who

had been ordered by a state court judge to return them

to petitioner was so repugnant to the principles of federal-

ism as to require federal suppression of the evidence.

3. Whether application of the Fourth Amendment ex-

clusionary rule is required where the evidence against peti-

3

tioner was initially discovered through federal exploitation

of an illegal state seizure, notwithstanding the fact that

actual physical possession of the evidence was taken pur-

suant to an eventual federal search warrant served on the

state district attorney.

4. Whether, in applying the “independent source” test

of Wong Sun v. United States, 371 U.S. 471, a District

Court may substitute a hypothetical for an actual inde-

pendent source by invoking the so-called “inevitable discov-

ery” doctrine.

STATEMENT OF THE CASE

In February of 1975 petitioner was engaged in the busi-

ness of buying precious metals at the M. O. Romero Metal

Company in San Bruno, California, At that time the South

San Francisco Police Department began investigating alle-

gations that petitioner and his former partner, Hugo For-

ster, had been receiving stolen gold. (Reporter’s Transcript

[hereafter cited as “R.T.”] 74.) Shortly thereafter the San

Mateo ofhice of the FBI assigned an agent to the case, and

a joint federal-state investigation was conducted (R.T. 87).

On May 5, 1975, state officers, acting on a search warrant

issued by a Municipal Court judge, entered petitioner’s

place of business and seized all of his business records,

embracing over 50,000 documents. These documents were

housed in a police garage where they were examined for

evidence of criminal conduct (R.T. 100-101). It was con-

ceded by the government in the courts below that the state

search warrant, and the seizure thereunder, was unlawful

under federal constitutional standards (R.T. 47, 48, 72, 172,

174; Memorandum decision of the District Court, n. 1).

4

Following the state seizure, BI officials decided that the

documents “had to be checked out,” requiring additional

manpower (R.T. 150), Aecordingly two agents from the

San I[rancisco field office were assigned to the case. In

August of 1975 these agents spent approximately a week

going over the documents in the police garage (R.T. 110,

154). ’vom this examination they learned of all of the trans-

actions which were eventually included in the federal indict-

ment, and the witnesses (alleged sellers of stolen gold) to

these transactions (R.T. 156-157).

Meanwhile a state prosecution had been initiated by

grand jury indictment. On March 30, 1976, the Superior

Court for San Mateo County granted petitioner’s motion

to suppress, ruling that the state search warrant was a

general warrant, “constitutionally overbroad as to the de-

scription of the property to be seized.” (Clerk’s Transcript

Vol. I, 196.) By the time of this ruling the vast majority

of the seized documents had been returned to petitioner.

Those remaining, which were intended for use in the state

prosecution, had been removed to the office of the deputy

district attorney handling the case.

kollowing the suppression order petitioner sought return

of these papers, but the district attorney delayed returning

them. Meanwhile, Detective Singleton, the South San Fran-

cisco police officer who had prepared the defective state

warrant, advised BI Agent Capps, who had examined the

documents following the state seizure, of the state court’s

ruling (R.T. 112), and that the evidence was going to be

returned pursuant to that ruling (R.T, 160),

5

On April 26, 1976, the parties to the state action

appeared before the presiding judge to compel return of

the documents held by the district attorney. When no

agreement was reached as to the form of a return order,

the matter was set over for hearing on April 28 before

Judge Haverty, who had granted the motion to suppress

(C.T. 187). Also on April 26, Agent Capps applied to a

United States Magistrate for a search warrant authorizing

seizure of the documents from the office of the deputy

district attorney. This application had been prepared by

Capps with Singleton’s assistance (R.T. 130). The Magis-

trate, who was not advised of the history of the case or

of the state suppression order, issued the federal warrant

on the same day.

When the parties to the state action appeared before

Judge Haverty on April 28, 1976, Agent Capps and an

Assistant United States Attorney were present. The latter

advised the judge, in chambers, of the existence of a

federal warrant for the documents, “to be exeeuted imme-

diately” (C.T. Vol. III, 454). According to an affidavit

submitted by the Assistant United States Attorney in the

District Court proceedings, the judge “expressed no objec-

tion” when so advised (Id. at 454:30-32). Following that

discussion, however, Judge Haverty took the bench and

“directed return of [the documentary evidence to its]

rightful owners” (C.T. Vol. I, 187:18-21, affidavit of peti-

tioner’s state counsel). The deputy district attorney, how-

ever, immediately thereafter turned the documents over

to the FBI agents pursuant to the federal warrant.

In the federal suppression hearing the deputy district

attorney, Mr. Pierpoint, testified that he had told Agent

6

Capps, a few days prior to April 28, 1976, that he would

not turn over the suppressed documents without a war-

rant, for fear he would be held in contempt by the Superior

Court if he did so (R.T. 95-97).

Petitioner moved to suppress in the District Court. The

court denied the motion, finding that the federal search

warrant, and the affidavit in support thereof, were the

product of the preexisting federal investigation, and were

not tainted by the unlawful state search. While conceding

that the earlier federal examination of the documents in

state custody was an “exploitation” of the state illegality,

the court (1) held that the exclusionary rule should not

be applied; and (2) coneluded that the information learned

through that examination “would have” inevitably have

been discovered pursuant to the eventual federal warrant.

Following this ruling petitioner waived jury trial and the

case was submitted to the court on stipulated facts. Peti-

tioner was convicted on eight counts alleging interstate

transportation of stolen gold (18 U.S.C, § 2314), and one

count charging conspiracy (18 U.S.C. § 371).

A divided panel of the Court of Appeals affirmed. The

majority distinguished Elkins v. United States, 364 U.S.

206 (1960), on the ground that, in this case, federal aequi-

sition of the evidence from the state was pursuant to an

independently valid federal warrant. Senior Cireuit Judge

Merrill, dissenting, found Elkins indistinguishable from

the instant case, and further found the federal acquisition

under these circumstances “repugnant to principles of

federalism.”

7

REASONS FOR GRANTING THE WRIT

1. THE OPINION BELOW IS IN CONFLICT WITH

THIS COURT’S DECISION IN ELKINS V. UNITED

STATES, IN EFFECT RESURRECTING THE ‘‘SIL-

VER PLATTER DOCTRINE’’ OVERRULED IN

THAT CASE.

In this case petitioner’s documents were seized by state

officers in a search which concededly violated federal

constitutional as well as state standards. Federal officers

examined the seized documents and found evidence of

wrongdoing. Thereafter a state court judge, finding the

seizure illegal, ordered the evidence suppressed and re-

turned to petitioner. Instead of returning it, the state

prosecutor turned it over to the FBI pursuant to a fed-

eral search warrant served upon his office.

In Elkins v. United States, 364 U.S. 206 (1960), this

Court overruled the “silver platter doctrine” under which

evidence illegally seized by state officers could be handed

over to federal officers and was then admissible in a fed-

eral criminal trial. Since Elkins it has been established

that evidence seized by state officers in violation of a

defendant’s Fourth Amendment rights may not be used

to convict him in a federal criminal trial. Yet, we submit,

that is precisely what was done in this case.

The District Court, and a majority of the panel on

appeal, sought to distinguish Elkins on the ground that,

in this ease, the federal acquisition was pursuant to a

federal warrant which was itself untainted by the state’s

illegality. We are unable to find authority for this dis-

tinction in Elkins, or in any other reported decision. In

8 e

fact the federal acquisition from the state in Elkins was by

way of a search warrant, issued after a state suppression

order. This Court’s opinion did not attribute any signifi-

cance to this fact. There is no indication that the independ-

ent validity, or invalidity of the warrant, if viewed in iso-

lation, played any part in the decision. The crucial fact,

found unacceptable by the Court, was the acquisition itself.

As the dissent below points out, the state, having illegally

seized petitioner’s documents, was in no position to con-

sent to a federal taking of the papers. Neither, we submit,

was it in a position to hand them over pursuant to warrant

without offending the Elkins rule.

The decision below is entirely inconsistent with Elkins,

and signals nothing less than a return to the “silver platter

doctrine” abandoned in that case. We recognize that

eighteen years have passed since Elkins was decided, and

the Court may wish to reexamine its vitality in the light

of subsequent decisions considering the exclusionary rule

in the federal-state context. E.g., United States v. Janis,

428 U.S. 433 (1976). It may be that federal and state prose-

cutors and law enforcement officials, seeking guidance in

this sensitive area, would welcome such a review. In any

event, the decision below cannot be reconciled with the

law as it presently exists, and certiorari should be granted

to resolve this conflict.

2. THE DECISION BELOW INVOLVES AN IMPOR-

TANT AND SENSITIVE QUESTION OF FED-

ERAL-STATE RELATIONS WHICH SHOULD BE

CONSIDERED BY THIS COURT.

We have set forth, in the Statement of the Case, the

manner in which the federal government acquired physical

9

possession of petitioner’s documents from the state. Con-

ceptually, the district attorney as of April 28, 1976, held

these papers illegally, subject only to the Superior Court’s

order that they be returned to their rightful owners. With-

out informing the federal magistrate of this fact, see

Damitz v. United States, 495 F.2d 50 (9th Cir. 1974),

federal agents sought and were granted a warrant author-

izing seizure of the documents from the district attorney.

The district attorney had requested the warrant to protect

himself against a possible contempt citation. His duty,

however, was not to seek protection for himself; it was

to carry out his obligations to the Superior Court under

whose sole authority he continued to possess the evidence.

His conduct, encouraged and promoted by federal agents,

unquestionably frustrated and defeated the order of the

Superior Court that the suppressed documents be returned

to their rightful owners.

This Court has stated that “a healthy federalism depends

upon the avoidance of needless conflict between state and

federal courts.” Kerr v. California, 374 U.S. 23, 31 (1963).

Few actions, we submit, are more likely to produce such

conflict than a process whereby state orders are frustrated

and defeated in the manner disclosed here, a procedure

entirely inconsistent with the respect accorded state court

suppression rulings by this Court in Stone v. Powell, 429

U.S. 465 (1976).

Senior Cireuit Judge Merrill, in his dissent below, con-

cluded that:

10

“Permitting seizure under these circumstances serves

to frustrate the state in carrying out its high purpose

and the United States should not be a party to such

frustration.

* . * *

“The fact that some state officers may be willing to

cooperate with federal officials in frustrating the state

purpose (as was apparently the case here) cannot

affect the result. Where suppression is ordered the

state duty is clear and a knowing disregard of that

duty by state officers does not serve to wipe it out

or justify a federal disregard of it.”

We respectfully urge the Court to grant certiorari to

consider this important question of federal-state relations,

and to provide future guidance to state and federal prose-

cutors in similar circumstances.

3. THE DECISION BELOW INVOLVES AN IMPOR.

TANT CONSTITUTIONAL QUESTION CONCERN-

ING APPLICATION OF THE EXCLUSIONARY

RULE FOLLOWING A CONCEDED EXPLOITA-

TION OF AN ILLEGAL SEARCH AND SEIZURE.

The FBI first learned of all of the transactions eventu-

ally charged in the federal indictment when, in August

of 1975, two agents spent approximately a week examining

the documents in cooperation with the state officers who

had seized them. At that time the documents were unlaw-

fully held, having been seized by state officers pursuant

to an invalid warrant.’

‘We do not contend, or intend to suggest, that the FBI was aware

at the time of this examination, that the state seizure was unlawful.

See Opinion of the Court of Appeals, n. 1. The state court suppres-

sion order was not until March 30, 1976, some seven months ie.

11

The District Court agreed that this prolonged, detailed

examination constituted an “exploitation” of the state’s ille-

gality, but nevertheless declined to suppress, concluding

that the Fourth Amendment’s exclusionary rule should not

be applied. In language adopted by the majority on appeal,

the court reasoned that the “potential for intrusive police

conduct” in examining evidence seized by another jurisdic-

tion was insufficient to justify application of the exclusion-

ary rule, and that “collateral policy considerations” mili-

tated against such application.

We submit that the court’s treatment of this question is

clearly inconsistent with established constitutional prin-

ciples. The exclusionary rule, first announced in Weeks v.

United States, 232 U.S. 383 (1914) remains a cornerstone

of judicial concern for the privacy interests of the citizens.

In certain contexts, where the issue has been whether the

rule should be expanded, United States v. Calandra, 414

U.S. 338; Unitea States v. Janis, supra, or applied in a way

which would shield perjury, Walder v. United States, 347

U.S. 62 (1954), the Court has engaged in a process of bal-

ancing the deterrent value of the rule against the policy

encouraging receipt of all relevant evidence. But no such

situation is presented here. Contrary to the trial court’s

view, petitioner did not ask it to “expand” the exclusionary

rule “to encompass even untainted evidence where neces-

sary to discourage egregious police conduct.” This charae-

terization of the evidence as “untainted” simply ignores the

court’s fully supported finding that the agents’ examination

of the evidence was an exploitation of the prior illegality.

The evidence, therefore, was tainted and, in the absence

of an independent source, the exclusionary rule should have

12

applied of its own force. The District Court was not, we

submit, at liberty to invoke “collateral policy considera-

tions” to defeat application of the rule. Surely this would

be clear if the initial unlawful seizure had been by federal,

rather than state officers. Under Elkins, supra, the fact that

two jurisdictions were involved here is of no constitutional

significance. As this Court has emphasized, the situation

tuust be viewed as if the initial intrusion had been by fed-

eral oflicers. Preston v. United States, 376 U.S. 364, 366

(1964).

We respectfully submit that the decisions below involve

significant constitutional issues concerning the exclusion-

ary rule, which should be settled by this Court.

4. TO THE EXTENT THAT THEY PERMIT A HYPO-

THETICAL RATHER THAN AN ACTUAL INDE.-

PENDENT SOURCE TO SATISFY THE WONG

SUN TEST, THE DECISIONS BELOW ARE IW

CONFLICT WiTH DECISIONS OF THE COURTS

OF APPEALS FOR THE SECOND, FIFTH AND

SIXTH CIRCUITS.

There was, in the District Court’s decision, a second

prong for its holding that the FBI agents’ August 1975

examination of petitioner’s illegally seized documents did

not require suppression. In addition to its conclusion that

application of the exclusionary rule was inappropriate in

the circumstances ,the court held that suppression was pre-

cluded by the fact that the same information learned by

the agents through that exploitation “would have” become

available under the eventual federal search warrant. The

court’s actual language was as follows:

13

“While evidence derived through exploitation of the

state’s unlawful seizure is clearly subject to sup-

pression, Elkins v. United States, supra, such evidence

would inevitably have been discovered pursuant to ma-

terials subsequently seized under the federal warrant,

and is therefore admissible.”

In support of this assertion the court cited, inter alia, a

note in 74 Colum. L. Rev. 88 (1974), entitled “The Inevi-

table Discovery Exception to the Constitutional Exclusion-

ary Rules.”

Thus we respectfully disagree with the statement of the

majority on appeal that the District Court did not “signifi-

cantly rely upon this doctrine as a basis for its opinion.”

(Opinion of the Court of Appeals, p. B-6, n. 4.) Having con-

cluded that the agents’ examination of petitioner’s papers

was an exploitation of the prior illegality, and in the ab-

sence of any showing of an actual source for the information

independent of that examination, the District Court’s re-

liance on a purely hypothetical “independent source” was

significant.

Such reliance was also misplaced. In fact courts have

consistently rejected efforts to substitute possibilities for

actualities in applying the “independent source” test of

Wong Sun v. United States, 371 U.S. 471 (1963). In United

States v. Griffin, 502 F.2d 959, 961 (1974) the Sixth Cirenit

held that:

‘*The assertion by police (after an illegal entry and

after finding evidence of crime) that the discovery

was ‘inevitable’ because they planned to get a search

warrant and had sent an officer on such a mission,

14

would as a practical matter be beyond judicial review.

Any other view would tend in actual practice to emas-

culate the search warrant requirement of the Fourth

Amendment.”

In United States v. Paroutian, 299 F.2d 486 (1962) and

United States v. Houltin, 525 F.2d 948, 949 (1976), the

Second and Fifth Cireuits respectively rejected in toto the

“inevitable discovery” concept, and doubt as to its validity

has been expressed in this Court:

“([]t is a signuicant constitutional question whether

the ‘independent source’ exception to admissibility of

fruits, Wong Sun, supra, ... encompasses a hypo-

thetical as well as an actual independent source.” ’itz-

patrick v. New York, 414 U.S, 1050, 1051, 94 8. Ct. 554,

555 (1973) (Mr. Justice White, dissenting from denial

of certiorari).

Petitioner’s research has disclosed no case applying this

doctrine in circumstances like this, where there was nothing

even remotely “inevitable” about the federal search war-

rant when the FBI examination actually occurred,

We submit that the Court should grant certiorari to set-

tle an apparent conflict among the circuits, and to resolve

this significant constitutional question.

15

CONCLUSION

For the reasons advanced herein, petitioner respectfully

prays that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Ninth

Circuit.

Dated December 1, 1978.

Respectfully submitted,

WituraM L. Osternouptr

Srncer & OsteRHOUDT

Paut M. Hupr

Hurr, BLum & PoLiak

By WiuuiaM L., OstrerHoupr

Attorneys for Petitioner.

(Appendices Follow)

Appendices

~ Ll... LL eee

APPENDIX A

In the United States District Court

for the Northern District of California

United States of America, |

Plaintiff,

vs. No. CR-76-610 RFP

MEMORANDUM

Defendant 1: Hugo Forster, OF DECISION

Defendant 2: Margarito O. Romero,

heb nnsins

Defendants Hugo F. Forster and Margarito O. Romero

are before the court upon an indictment charging them

with nine counts of interstate transportation of stolen

gold, and one count of conspiracy. The indictment, returned

on October 13, 1976, alleges that between January, 1973,

and March, 1975, the defendants shipped substantial quan-

tities of stolen gold from the Northern District of Califor-

nia to Chicago, Illinois.

By the instant motions, defendant seeks (1) to suppress

evidence seized pursuant to a search warrant; (2) to dis-

miss the charges against them due to claimed constitutional

and statutory speedy trial violations arising out of pre-

indictment delay; and (3) to dismiss the indictment because

of defects in the grand jury process.

On March 8, 1977, this court denied defendants’ motions

to suppress and dismiss. The instant opinion will constitute

the court’s memorandum of decision for the March 8, 1977,

order, setting forth the reasons why we have determined

defendants’ motions to be without merit.

A.2

FACTUAL BACKGROUND

The investigation leading ultimately to the instant indict-

ment was initiated by Detective Singleton of the South

San Francisco Police Department in February, 1975, The

affidavit in support of the federal search warrant recites

that Officer Singleton received information that employees

of a precious metals refinery had been stealing gold, and

that such gold had been sold to defendant Romero who ‘ul-

timately shipped it interstate. At the time of the alleged

transactions, Romero was operating the M. O. Romero

Metal Company, while defendant Forster operated a simi-

lar firm named Hugo F. Forster and Company. Until June,

1974, Romero and Forster were partners in a firm known

as R & F Metals Co.

After an initial investigation, Officer Singleton contacted

the Federal Bureau of Investigation, San Francisco Di-

vision, and a joint state and federal investigation into

the activities of Romero and Forster commenced. State

and federal authorities frequently exchanged information

within their possession, and otherwise cooperated closely

throughout the investigation of defendants.

Ultimately, Officer Singleton applied to the San Mateo

Municipal Court for a search warrant directed to the per-

son, automobile and business office of defendant Romero,

describing the property to be seized in broad terms, as

“lbJusiness records, telephone stubs, check{s] and check

stubs, receipts for sales and purchases, and other stolen

items consisting of gold, silver, and other precious metals.”

This warrant was executed by an officer of the South San

Franciseo Police Department on May 5, 1975. A similar

warrant was executed against Forster on June 26, 1975,

A-3

Romero was arrested by state authorities on May 5,

1975, while Forster was arrested on June 18, 1975. Both

were subsequently indicted for state offenses by a San

Mateo County grand jury. Federal authorities continued

their investigation, part of which involved examining the

materials which had been seized from defendants by the

state.

On March 30, 1976, the Superior Court for San Mateo

County granted defendants’ motion to suppress the evi-

dence seized pursuant to the state search warrants, on the

ground that the warrants failed to particularly describe

the items to be seized. The prosecution thereafter dismissed

all charges against defendant Forster, and all but one

count against Romero.

Following the ruling of the Superior Court, counsel for

defendants and the district attorney disagreed as to the

wording of a proposed order to return the items seized. This

dispute was ultimately resolved at an April 28, 1976, hear-

ing of the Superior Court, who then issued the return order.

Before return of the evidence could be effected, however,

federal agents seized the evidence pursuant to a federal

search warrant, issued by a federal magistrate on April

26, 1976, and directed to the office of the district attorney.

The federal warrant was sought with the consent of the

district attorney, and both the Superior Court and counsel

for defendants were apprised at the April 28, 1976, hearing

of the issuance and impending execution of the federal

warrant.

A-4

Defendant's motion to suppress seeks to exclude from

evidence the material seized pursuant to the federal war-

rant, and the fruits thereof. Defendants’ speedy trial motion

seeks dismissal of criminal charges by virtue of prejudice

from the delay between the date of the state arrest to the

time of the federal indictment. Finally, defendants attack

the indictment itself as being subject to numerous defects

in the grand jury process, .

MOTION TO SUPPRESS EVIDENCE

Defendants attack the federal search warrant on two pri-

mary grounds. First, they contend that the federal warrant

is the direct “fruit” of the unlawful state seizure, in that

the descriptive terms employed by the federal warrant,

making it adequately specific as to the items to be seized,

were derived from inspection of the seized documents them.

selves, Second, defendants argue that, even if the federal

warrant is not actually tainted by the state seizure, the

evidence must be suppressed as a matter of policy to dis-

courage the use by the federal government of evidence

unlawfully seized by the state.

The evidence fails to support defendants’ contention

that the necessary specificity in the federal warrant derives

from examination of the evidence produced from: the un-

lawful state seizure.’ The federal warrant was inore spe-

cific than the state warrant in two respects: first, it

limited the documents sought to the years 1971-1975; sec-

‘Upon a motion to suppress, the legality of the search conducted

by state officials is independently reviewed by the federal court.

Elkins v. United States, 364 U.S. 206 (1960). In the instant case,

all partics appear to concede that the state search warrant was

invalid.

A-5

ond, it specified seizure of business records evidencing

transactions with named business firms and individuals.

An examination of the affidavit attached to the state

search warrant reveals that the facts permitting adequate

specificity in the federal warrant were known prior to the

state seizure. The business firms and individuals named by

the federal warrant fall generally into three categories:

(1) the firms owned and operated by defendants; (2) in-

dividuals and entities from or to whom defendants allegedly

received or shipped stolen gold; and (3) those firms that

defendants listed on United States Treasury Department

Reports as their gold suppliers.

With one exception,’ each of the names specified in the

federal warrant, and the probable cause with respect to

them, was contained in the affidavit attached to the state

warrant, The state warrant thus could have been adequately

descriptive had state authorities bothered to specify these

names on the face of the state warrant itself. Similarly, by

essentially restating the facts recited in the state affidavit,

and thus known prior to the unlawful seizure, the federal

affidavit provided adequate untainted basis upon which to

derive the descriptive terms employed by the federal

warrant.

The dates specified in the federal warrant are simply the

years during which defendants operated their businesses,

and testimony before this court on February 22, 1977, estab-

*No reference to the “Motherlode Wood Company” appears in

the state affidavit. Testimony of Officer Singleton before this court

on February 22, 1977, however, established that this was another

name for one of the firms that was named in the state affidavit, and

that this information was known prior to the state search.

A-6

lished that this information was also known to state and

federal authorities prior to the unlawful state seizure.

Defendants urge the court to infer from the fact that the

seized documents were viewed by state and federal officers

prior to issuance of the federal warrant, 2nd from the fact

that the federal warrant encompassed riost of the docu-

ments found relevant by the state, that the unlawful state

seizure must have aided in the preparation of the federal

warrant. We are unwilling to draw such an inference in this

case, however, in view of the contents of the state affidavit,

which fairly supports the federal description, and in view

of the corroborative testimony taken at the February 22,

1977, hearing on defendants’ motion to suppress.

We therefore conclude that the evidence unlawfully seized

by the state was not utilized in the preparation of the fed-

eral affidavit or warrant.

Even if the federal warrant was not the fruit of the

unlawful state search, defendants contend that the evi-

dence seized thereby must nevertheless be suppressed. The

substance of defendants’ argument runs as follows. The

federal examination of unlawfully seized documents in

possession of the state prior to issuance of a federal war-

rant was an unlawful search. Allowing federal authorities

subsequently to cure such a search by obtaining a warrant

based upon information possessed before the illegal search

would be to insulate unlawful police conduct from judicial

sevutiny. Thus, defendants argue in essence that, even if

the evidence sought to be introduced is not strictly the

fruit of an unlawful search, the policy considerations

underlying the exclusionary rule demands exclusion of the

evidence to deter otherwise unreviewable police conduct.

A-7

By now it is well established that evidence unlawfully

seized does not thereby become “immune” from use by

law enforcement agencies. Rather, so long as the evidence

derives from a source independent of the prior illegality,

it may be admitted into evidence. Silverthorne Lumber Co.

uv. United States, 251 U.S. 385 (1920); Wong Sun v. United

States, 371 U.S. 471 (1963). In general, therefore, our

inquiry is limited to that which we have already resolved

against defendants, namely, whether the evidence sought

to be suppressed was gained through exploitation of a

Fourth Amendment violation.

A certain class of cases, however, prove somewhat anom-

alous under this approach. This is where the authorities

have sufficient information to secure a search warrant, but

prior to doing so they conduct an unlawful search either

to confirm their suspicions, or for some other purpose.

See, e.g., United States v. Griffin, 502 F.2d 959 (6th Cir.

1974); Krauss v. Superior Court, 5 Cal.3d 418 (1971).

Since the subsequently obtained warrant is based upon

information possessed prior to the unlawful search, it

escapes the taint; but the very possession of untainted

probable cause provides the police with carte blanche to

conduct unlawful searches prior to obtaining a warrant.

United States v. Griffin, supra, involved the unlawful

search and seizure of a dwelling by police, while other

officers secured a search warrant. Although a warrant

based upon previously obtained information was issued

and executed, the evidence was nevertheless suppressed.

Rejecting the government’s contention that the evidence

unlawfully seized would have been “inevitably discovered”

pursuant to the search warrant, the court concluded that

A-8

exclusion of the evidence was the only practical means of

deterring unlawful police conduct.

Krauss v. Superior Court, supra, reached the opposite

result. There, police had probable cause to obtain a war-

rant but prior to doing so conducted a warrantless search

to confirm their suspicions. The court concluded that the

evidence was admissible as based upon sources independ-

ent of the unlawful search. “To hold otherwise would go

beyond excluding evidence unlawfully obtained and in

effect grant petitioner immunity from prosecution because

of the officer’s collateral wrong.” 5 Cal.8d at 423. Cf.

Wayne v. United States, 318 F.2d 205, 209 (D.C. Cir.

1973) cert. denied 375 U.S. 860; United States v. Bravo,

403 F. Supp. 297 (S.D. N.Y. 1975).

In deriving the outer perimeters of the exclusionary

rule, courts have been guided largely by a reasoning

process which balances the deterrence value of excluding

a particular class of evidence against the policies in favor

of admitting all evidence relevant to the fact-finding proe-

ess. Thus the exclusionary rule, even as applied to the

direct fruits of unlawful police activity, has been cireum-

scribed in a variety of contexts in which the deterrence

principle alone might logically be deemed to apply.’ Anal-

ogously, the issue presented by Grifin and Krauss is

whether the rule ought to be expanded under certain cir-

cumstances to encompass even untainted evidence where

necessary to deter egregious police conduct.

*See e.g., United States v. Calandra, 414 U.S. 338 (1974); Harris

v. New York, 401 U.S. 222 (1971); Walder v, United States, 347

U.S. 62 (1954). The requirement of “standing,” Alderman v, United

States, 394 US. 165 (1969), and the doctrine of harmless error,

Chapman v. California, 386 U.S. 18 (1967) also derive in part from

these considerations.

A-9

Krauss and Griffin involve circumstances inviting inten-

tional and extensive violation of Fourth Amendment rights

through police practices without independent justification.

“ven were we inclined to apply the exclusionary rule in

the context of these cases, we would find the instant case

to be distinguishable.

Had the state’s seizure of defendants’ papers been law-

ful, federal examination of that evidence while in the

possession of the state would not have constituted an inde-

pendent “search” necessitating the execution of a search

warrant. See U.S. v. Gargvoeto, 476 F.2d 1009 (6th Cir.

1973), cert. denied 421 U.S. 987; U.S. v. DeBerry, 487 F.2d

448 (2d Cir. 1973); Gullett v. U.S., 387 F.2d 307 (8th Cir.

1967), cert. denied 390 U.S. 1044; U.S. v. Nugent, 389

F. Supp. 817 (W.D. Louisiana 1975); but Cf. U.S. v. Bir-

rell, 470 F.2d 118, 117 (2d Cir. 1972). This rule appears

largely designed to avoid complex procedural barriers to

cooperation between state and federal law enforcement

authorities. Its theoretical underpinning must be that

examination by another law enforcement agency is not

a sufficiently distinct intrusion into the defendants’ pri-

vacy to trigger the requirements of the Fourth Amendment.

While federal examination of documents unlawfully

seized by the state is clearly an “exploitation” of the

state’s unlawful seizure, the fruits of which are barred

from federal court, Elkins v. United States, 364 U.S. 206

(1960), whether such conduct prior to suppression by the

state court constitutes a federal “search,” and thus an

independent violation of the Fourth Amendment, is less

than clear. The analogy to Ayrauss and Griffin may fail

for this reason alone. In any event, it is evident that the

A-10

potential for intrusive conduet by police under the eir-

cumstances of the instant case is vastly less than sane-

tioned by Krauss and rejected by Griffin. See United States

uv. Bacall, 443 F.2d 1050, 1057 (9th Cir. 1971). Nor do we

believe that this procedure furnished a significant incentive

for the initial unlawful search by state authorities.

Moreover, collateral policy considerations militate against

application of the exclusionary rule in this context. Before

utilizing evidence seized by the state, federal authorities

under such a rule would be obligated to conduct an inde-

pendent inquiry and evaluation into the lawfulness of a

state seizure. Where doubt as to legality persisted, federal

authorities would either have to suspend their investigation

until the completion of suppression proceedings, or seize or

subpoena the evidence while it was still the subject of pro-

ceedings before the state courts. We think that the effects

of the rule urged by defendants would be unduly burden-

some in either case, while only marginally protective of

rights secured by the Fourth Amendment.

We therefore conclude that this case is inappropriate for

application of the exclusionary rule.

The other grounds proffered by defendants for suppres-

sion of evidence do not necessitate an extended discussion.

We see no conduct of federal or state officials justifying ex-

+“

ercise of the court’s “supervisory power over the admin-

istration of e:.minal justice” to exclude evidence, Nor do

we view the government’s failure to inform the United

States Magistrate that the evidence to be seized had been

suppressed by the state as a basis for invalidating the war-

rant. Finally, the rationale of Stanford Daily v. Zurcher,

A-11

353 EF, Supp. 124 (N.D. Cal. 1972), af’d 74-3213 (9th Cir.,

February 2, 1977), is inapplicable to the facets of this case,

inasmuch as the warrant was executed upon the district

attorney with his prior knowledge and consent. We see no

reason to suppress evidence for failure of federal prosecu-

tors to obtain a subpoena under these circumstances,

Defendants’ motion to suppress evidence seized pursu-

ant to the search warrant issued by Magistrate Urdan on

April 26, 1976, is therefore denied.

As initially framed, defendants’ motion to suppress was

limited to the materials seized pursuant to the federal

search warrant. At the hearing on defendants’ suppression

motion, however, defense counsel indicated an intention to

expand their motion to suppress to encompass not only

evidence seized pursuant to the federal warrant itself, but

also any “fruit” of the pre-warrant federal examination

of evidence unlawfully seized by the state. Defendants did

not specify precisely what evidence they deemed to be so

tainted, but alluded generally to witnesses who were dis-

covered through use of information contained in the seized

documents,

While evidence derived through exploitation of the state's

unlawful seizure is clearly subject to suppression, Elkins

v. United States, supra, such evidence would inevitably

have been discovered pursuant to materials subsequently

seized under the federal warrant, and is therefore admissi-

ble. See Wayne v. United States, supra; United States v.

Seohnlein, 423 F.2d 1051 (4th Cir. 1970), cert. denied 399

U.S. 913; United States v. Schipani, 414 F.2d 1262 (2d Cir,

1969), cert. denied 397 U.S. 922; Note, “The ‘Inevitable

A-12

Discovery Exception to the Constitutional Exclusionary

Rules,” 74 Colum.L.Rey. 88 (1974). We do not understand

defendants to contend that the government discovered evi-

dence during its pre-warrant examination of materials in

the hands of the state that was not later available pursuant

to the federal warrant. Defendants’ motion to suppress is

therefore denied.

MOTION TO DISMISS FOR SPEEDY

TRIAL VIOLATIONS

Defendants raise three grounds for dismissal based upon

delay prior to their federal indictment: (1) that the date

of their state arrests should be deemed the initiation of fed-

eral prosecution, and that the interval between that arrest

and federal indictment requires dismissal; (2) that the

delay caused actual prejudice to defendants’ ability to pre-

sent their defense; and (3) that the Speedy Trial Act (18

U.S.C, §§ 38161 et seq.) requires dismissal. Each ground is

without merit.

The date of a state arrest does not trigger a defendant’s

speedy trial rights relative to federal charges subsequently

brought to prosecute a parallel federal offense. United

States v. Cordova, 5387 F.2d 1073 (9th Cir. 1976). We see

nothing about cooperation between state and federal au-

thorities in the investigation of defendants’ activity which

would operate to alter this rule. Finally, “[t]here is no in-

dication that the state arrest and prosecution constituted

‘a mere “temporary device” used to restrain [defendants]

until federal authorities might choose to proseeute. .. .’”

ld. at 1076, We therefore conclude that the federal prose-

cution of defendants was initiated only at the time defend-

ants were indicted on federal charges,

A-13

Pre-indictment delay resulting in actual prejudice to de-

fendants’ ability to conduct their defense would raise a due

process claim, see United States v. Marion, 404 U.S. 307

(1971), but we find no such prejudice here, Defendants

have suffered financially during the course of state and

federal proceedings, but there is no basis upon which to

conclude that defendants have been denied a fair trial. The

other claimed grounds of prejudice have little or nothing

to do with the element of delay.

Finally, defendants can state no basis for dismissal under

the Speedy Trial Act, inasmuch as the dismissal provisions

of that act do not go into effect until 1979. See United

States v. Cordova, supra, at 1075, fn. 1.

MOTION TO DISMISS BASED UPON

GRAND JURY PROCEEDINGS

Defendants raise numerous grounds for dismissal based

upon alleged defects in the grand jury process. We address

them in turn.

(1) The grand jury was not “misled” into believing that

it was receiving direct testimony rather than hearsay. Cf.

United States v. Estepa, 471 F.2d 1132 (2d Cir, 1972).

In any event the Ninth Circuit has not adopted E’stepa.

United States v. Chanen, et al., 76-2571 (9th Cir., February

3, 1977).

(2) The indictment may not be attacked on the basis

that the evidence before the grand jury did not furnish

probable cause. Costello v. United States, 350 U.S, 369

(1955); United States v. Basurto, 497 F.2d 781, 785 (9th

Cir. 1974). Although a complete absence of evidence might

serve to invalidate an indictment, see Costello v. United

A-14

Stales, supra at 364 (Burton J. concurring) and United

States v. Tane, 329 F.2d 848, 853-54 (2d Cir. 1964), we do

not find a complete absence of competent evidence here.

(3) Defendants complain of the prosecutor's failure to

present to the grand jury a letter by counsel for defendant

Forster containing what the defense viewed as exculpatory

evidence, A prosecutor has no duty to produce all evidence

in his possession tending to exculpate the defendant. See

Lorane v. United States, 396 F.2d 335 (9th Cir, 1968), cert.

denied 393 U.S. 933; UWS. v. Chanen, et al., supra. The

evidence sought to be presented did not clearly negate guilt

or undermine the authority of the grand jury to act, see

United States v. Mandel, 415 F. Supp. 1033, 1041-42 (D.

Md. 1976). In any event, much of what was contained in

counsel’s letter would not have been properly placed before

the grand jury, and we do not believe that the prosecutor

was obligated to edit it in order to isolate what might ap-

propriately have been presented,

(4) We find no basis upon which to conclude that the

prosecutor knowingly used perjured testimony to secure

indictments from the grand jury.

(5) We see no activity of the prosecutor which would

give rise to a colorable claim that the indictments were a

product of improper motives, Cf. United States v. DeMarco,

401 F. Supp. 505 (C.D. Cal. 1975).

(6) Defendants cite no authority for the proposition that

each element of the indictment must be specifically defined

for the grand jury, and we think that the grand jury was

adequately apprised of the nature of the charges by the

terms of the indictment itself.

A-15

For the foregoing reasons, defendants’ motion to dismiss

is denied.

Dated: March 21, 1977

/s/ Robert 8S. Peckham

United States District Judge

APPENDIX B

United States Court of Appeals

for the Ninth Cireuit

United States of America, 7

Plaintiff-Appellee,

Vs.

No. 77-2964

Margarito O, Romero, mat

Defendant-A ppellant.

United States of America, - OPINION

Plaintiff-A ppellee,

VS.

No. 77-2969

Hugo Frederic Forster,

Defendant-Appellant.

[Filed August 16, 1978]

Appeal from the United States District Court

For the Northern District of California

Before; MERRILL, Senior Circuit Judge; SNEED, Cir-

cuit Judge; and EAST,* Senior District Judge

MAST, Senior District Judge:

THE APPEALS:

Appellant Margarito O. Romero appeals her judgment of

conviction and sentence to custody on eight counts of violat-

ing 18 U.S.C. § 2314 (stolen gold transported in interstate

commerce) and one count of violating 18 U.S.C. § 3871 (con-

spiracy),.

Appellant Hugo Frederie Forster appeals his judgment

of conviction and sentence to custody on five counts of vio-

lating § 2314 and one count of violating § 371.

We note jurisdiction and affirm.

*Honorable William G. East, Senior United States District Judge

for the District of Oregon, sitting by designation,

B-2

The appeals were consolidated for hearing and disposi-

tion.

PROCEEDINGS IN THE DISTRICT COURT:

Roinero and Forster were jointly indicted on October 13,

1976, The charges under §§ 2314 and 371 covered the period

of November, 1973 through March, 1975. The District Court

denied the several motions of Romero and Forster for the

suppression of documentary evidence seized under federal

search warrants from the possession of state law enforce-

nent officers. The District Court also denied appellants’

motions for dismissal on the grounds of speedy trial viola-

tions and abuse of the grand jury process. Romero and

lorster were tried to the District Court without a jury

upon a stipulation of facts and the admission in evidence

of the various federally seized documents under illegal sei-

zure challenge. The judgments of conviction and sentences

to custody were duly entered. Romero and Forster are each

at liberty pending appeals.

FACTS:

During 1973, the United States Secret Service uncovered

information that R & F Metals (R & F), Romero and For-

ster’s metal processing business, was shipping gold, be-

lieved to have been stolen from a mine in Nevada, to Chi-

cago, Illinois. This information was subsequently provided

to the South San Francisco Police Department which had

been conducting its own investigation into R & F’s gold

business triggered by information from a local refinery.

In March, 1975, Detective Singleton of the South San

Francisco Police Department contacted the Federal Bureau

of Investigation (FBI), which then began its own investiga-

B-3

tion of R & F’s gold trafficking. The FBI investigation was

extensively pursued both on an independent basis and in

conjunction with state law enforcement authorities.

The South San Francisco Police Department executed

state search warrants upon the premises of Romero and

Forster on May 2 and June 17, 1975, respectively, and

seized all documents and records pertaining to the manner

in which they conducted their businesses. During August

and September, 1975, hearings were held in the state court

resulting in the prosecutor’s agreement to return all items

not deemed by him to be relevant to the prosecution, This

return was not fully accomplished until early 1976 after

contempt proceedings had been instituted by Romero and

Forster. Meanwhile, however, the police had segregated

the documents deemed to be relevant and moved them fron

the police garage to Detective Singleton’s office, Later,

when approximately 70 to 80 percent of the documents had

been returned to Romero and Forster, most of those docu-

ments retained were transferred from the police departinent

to the prosecutor’s office for use in the state prosecution.

In August, 1975 and before Romero and Forster had

filed their state court motions to suppress the evidence,’

the records, at that time still in the police garage, were

made available to the FBI and were examined by federal

agents in connection with their independent investigation.

Additionally, those documents found relevant by the police

and transferred to Singleton’s office were later re-examined.

‘Romero and Forster imply that the FBI was aware that the

documents they examined in August of 1975 had been illegally

seized, This allegation is incorrect; it was not until late August

and September, 1975, that Romero and Forster requested the return

of certain documents during preliminary state court motions.

B-4

On October 22, 1975, Romero and Forster were indicted

in the Superior Court for San Mateo County, California

for a variety of state offenses.

In late March of 1976, Judge Haverty of that Court

suppressed the state search warrants and seizure solely

on the ground that the warrants’ description of the items

to be searched for and seized was too broad.’ As a result

of this ruling, the majority of the case against Romero

and the entire case against Forster were dismissed,

On April 26, 1976, the FBI, under authorization of the

United States Attorney’s office, secured and executed three

federal search warrants for Romero’s home, Forster's

business office, and the office of the state prosecutor.®

The federal warrants were supported by affidavits which

contained no significant information which was not avail-

able to the FBI prior to the issuance and execution of

the state warrants. Detective Singleton aided in the prepa-

ration of the federal warrants and testified that he gave

the FBI only information known to him before the state

seizures.

Immediately prior to the execution of the federal war-

rants, the Assistant United States Attorney in charge

of the federal investigation met with Judge Haverty to

inform him of the pending search warrants for the state

prosecutor’s office, Romero’s home, and Forster’s business.

“The Government conceded below that the state seizures were

unlawful under federal constitutional standards.

‘The state prosecutor handling the case stated that if the federal

government wanted the documents in his possession, a search war-

rant for his office would be required as the documents were tech-

nically not in his possession in that he had been ordered by the

state court to return the records.

B-5

Judge Haverty expressed no objection to the procedure

to be utilized by the federal government in order to obtain

the records and he did not indicate that he believed seizure

pursuant to the federal warrants would violate the spirit

of his order suppressing the evidence. On April 28, 1976,

Judge Ilaverty ordered the records returned to their

rightful owners.

ISSUES ON REVIEW:

We deem the dispositive issues to be:

1. Did the District Court err in denying Romero’s and

Forster’s motions to suppress the evidence seized under

the federal warrants?

2. Were Romero and Forster denied the right to a

speedy trial in violation of the Sixth Amendment of the

United States Constitution or were they denied due process

by reason of prejudicial indictment delay in violation of

the Fifth Amendment of the United States Constitution?

3. Did the District Court err in failing to dismiss the

cause on grounds of abuse of the grand jury?

DISCUSSION:

I. Motion to Suppress the Fruits of the Federal Search

Warrant.

Romero and Forster contend that t!e evidence intro-

duced at trial is the direct “fruit” of the unlawful state

seizure and was discovered and utilized through a direct

exploitation of the illegal state seizure. As such, they

contend, it must be suppressed. Appellants also assert

that even if the federal warrant was not tainted by the

illegal state seizure, the evidence must nevertheless be

B-6

suppressed in order to effectuate the policy behind the

exclusionary rule; i.e., the deterrence of official misconduct.

See Stone v. Powell, 428 U.S. 465, 486 (1976); United

States v. Janis, 428 U.S. 488, 458-59 n.35 (1976).

In addressing the problem of whether the evidence

sought to be suppressed was gathered through exploita-

tion of an illegal search, the District Court, in a scholarly

and well analyzed memorandum, applied the legal standard

expressed in Wong Sun v. United States, 371 U.S, 471

(1963), and Silverthorne Lumber Co. v. United States,

251 U.S. 385 (1920),* and concluded:

“By now it is well established that evidence unlawfully

seized does not thereby become ‘immune’ from use by

law enforcement agencies. Rather, so long as the evi-

dence derives from a source independent of the prior

illegality, it may be admitted into evidence.”

We agree with that premise. In United States v. Cec-

colini, ...... U.S, ....... No. 76-1151 (March 21, 1978) (Slip

Op. pp. 5 & 6), the Court stated:

“The constitutional question under the Fourth Amend-

ment was phrased in Wong Sun... as whether ‘the

connection between the lawless conduct of the police

and the discovery of the challenged evidence has be-

come “so attenuated as to dissipate the taint.”’ Jd.

at 487, 491. The question was in turn derived from

the Court’s earlier decision in Nardone v. United

States, 308 U.S. 338, 341 (1939), where Mr. Justice

Frankfurter stated for the Court:

“*Tlere, as in the Silverthorne case, the facts im-

properly obtained do not “become sacred and inac-

‘Appellants’ complaints concerning the District Court’s asserted

reliance on the “inevitable discovery rule” are unfounded. In any

event, the District Court did not significantly rely upon this doctrine

as a basis for its opinon.

B-7

cessible. If knowledge of them is gained from an

independent source they may be proved like any

others, but the knowledge gained by the Govern-

ment’s own wrong cannot be used by it” simply

because it is used derivatively. 251 U.S. 385, 392.

“*In practice this generalized statement may con-

ceal concrete complexities. Sophisticated argument

may prove a causal connection between information

obtained through illicit wire-tapping and the Gov-

ernment’s proof. As a matter of good sense, how-

ever, such connection may have become so attenuated

as to dissipate the taint.’”

On the factual issue of the illegal action taken by the

state and any possible taint, the Distriet Court found:

“An examination of the affidavit attached to the state

search warrant reveals that the facts permitting ade-

quate specificity in the federal warrant were known

prior to the state seizure. ...

* . , Similarly, by essentially restating the facts re-

cited in the state affidavit, and thus known prior to

the unlawful [state] seizure, the federal affidavit pro-

vided adequate untainted basis upon which to derive

the descriptive terms employed by the federal war-

rant.” (J¢mphasis in original).

The District Court concluded therefrom “that the evidence

unlawfully seized by the state was not utilized in the

preparation of the federal affidavit or warrant.”

Viewing the evidence in the light most favorable to the

Government, Glasser v. United States, 315 U.S. 60 (1942),

we agree with the District Court’s findings that the federal

warrant was based on information obtained prior to the

-execution of the state warrant and was untainted by the

illegally seized evidence,

B-8

Romero and Forster assert that even if the evidence

seized under the federal warrant is found not to be the fruit

of the invalid state search, the evidence must nevertheless

be suppressed.® They contend that the federal warrant is

merely an attempt to cure a prior illegal search and that

policy considerations underlying the exclusionary rule de-

mand exclusion of the evidence to deter otherwise unreview-

able police conduct. .

In this vein, the District Court proceeded to evaluate the

potential for unlawful searches despite an independent fac-

tual basis for the search:

“A certain class of cases, however, prove somewhat

anomalous under this approach. This is where the au-

thorities have sufficient information to secure a search

warrant, but prior to doing so they conduct an unlaw-

ful search either to confirm their suspicions, or for

some other purpose.

“United States v. Griffin, [502 F.2d 959 (6th Cir.

1974) ], involved the unlawful search and seizure of a

dwelling by police, while other officers secured a search

warrant, Although a warrant based upon previously

obtained information was issued and executed, the evi-

dence was nevertheless suppressed. Rejecting the gov-

ernment’s contention that the evidence unlawfully

seized would have been ‘inevitably discovered’ pursu-

ant to the search warrant, the court concluded that ex-

clusion of the evidence was the only practical means

of deterring unlawful police conduct.

‘Romero and Forster’s contention that the FBI should have pro-

ceeded by way of a subpoena duces tecum rather than a search

warrant is unfounded, Zurcher v. Stanford Daily, 46 U.S.L.W. 4546

(U.S. May 31, 1978).

B-9

“Krauss v. Superior Court, [5 Cal.3d 418 (1971)],

reached the opposite result. There, police had probable

cause to obtain a warrant but prior to doing so con-

ducted a warrantless search to confirm their sus-

picions. The court concluded that the evidence was

admissible as based upon sources independent of the

unlawful search. ‘To hold otherwise would go beyond

excluding evidence unlawfully obtained and in effect

grant petitioner immunity for prosecution because of

the officer’s collateral wrong.’ 5 Cal.8d at 423. Cf,

Wayne v. United States, 318 F.2d 205, 209 [( D.C, Cir.),

cert. denied, 375 U.S. 860 (1963)]; United States v.

Bravo, 403 F. Supp. 297 (S.D. N.Y. 1975).

“In deriving the outer perimeters of the exclusionary

rule, courts have been guided largely by a reasoning

process which balances the deterrence value of exelud-

ing a particular class of evidence against the policies

in favor of admitting all evidence relevant to the fact-

finding process. Thus the exclusionary rule, even as ap-

plied to the direct fruits of unlawful police activity,

has been cirewnscribed in a variety of contexts in which

the deterrence principle alone might logically be

deemed to apply.’ Analogously, the issue presented by

Griffin and Krauss is whether the rule ought to be ex-

panded under certain circumstances to encompass even

untainted evidence where necessary to deter egregious

police conduct.

“Krauss and Griffin involve circumstances inviting

intentional and extensive violation of Fourth Amend-

ment rights through police practices without independ-

ent justification. Even were we inclined to apply the

exclusionary rule in the context of these cases, we

would find the instant case to be distinguishable,

B-10

“Had the state’s seizure of defendants’ papers been

lawful, federal examination of that evidence while in

the possession of the state would not have constituted

an independent ‘search’ necessitating the execution of a

search warrant. See U.S, v. Gargoeto [sic.], 476 F.2d

L009 (6th Cir. 1973), cert. denied 421 U.S. 987 [1975];

UWS. v. DeBerry, 487 F.2d 448 (2d Cir. 1973); Gullett

v. ULS., 3887 F.2d 3807 (Sth Cir, 1967), cert. denied 390

U.S. 1044 [1968]; U.S. v. Nugent, 389 F. Supp. 817

(W.D. Louisiana [sie.] 1975); but Cf. U.S. v. Birrell,

470 F.2d 118, 117 (2d Cir, 1972). This rule appears

largely designed to avoid complex procedural barriers

to cooperation between state and federal law enforce-

ment authorities. Its theoretical underpinning must be

that examination by another law enforcement agency

is not a sufficiently distinct intrusion into the defend-

ants’ privacy to trigger the requirements of the Fourth

Amendiment.

“While federal examination of documents unlawfully

seized by the state is clearly an ‘exploitation’ of the

state’s unlawful seizure, the fruits of which are barred

from federal court, Elkins v. United States, 364 U.S.

206 (1960), whether such conduct prior to suppression

by the state court constitutes a federal ‘search,’ and

thus an independent violation of the Fourth Amend-

ment, is less than clear. The analogy to Krauss and

Griffin may fail for this reason alone, In any event, it

is evident that the potential for intrusive conduct by

police under the circumstances of the instant case is

vastly less than sanctioned by Krauss and rejected by

Griffin. See United States v. Bacall, 443 F.2d 1050,

1057 (9th Cir, 1971). Nor do we believe that this pro-

cedure furnished a significant incentive for the initial

unlawful search by state authorities,

B-11

“Moreover, collateral policy considerations militate

against application of the exclusionary rule in this con-

text. Before utilizing evidence seized by the state, fed-

eral authorities under such a rule would be obligated

to conduct an independent inquiry and evaluation into

the lawfulness of a state seizure. Where doubt as to

legality persisted, federal authorities would either have

to suspend their investigation until the completion of

suppression proceedings, or seize or subpoena the evi-

dence while it was still the subject of proceedings be-

fore the state courts. We think that the effects of the

rule urged by defendants would be unduly burdensome

in either case, while only marginally protective of

rights secured by the Fourth Amendment.”

“See eg., United States v. Calandra, 414 U.S. 338

(1974) ; Harris v. New York, 401 U.S, 222 (1971); Wal-

der v. United States, 347 U.S, 62 (1954). The require-

ment of ‘standing,’ Alderman v. United States, 394

U.S. 165 (1969), and the doctrine of harmless error,

Chapman v. California, 386 U.S. 18 (1967) also derive

in part from these considerations.”

Nor does that rationale run afoul of Eliins where the

’

“silver platter” doctrine received its death knell.’ Elkins

held that “evidence obtained by state officers during a search

which, if conducted by federal officers, would have violated

the defendant's immunity from unreasonable searches and

seizures under the Fourth Amendment is inadmissible over

the defendant's timely objection in a federal criminal trial.”

‘The “silver platter” doctrine, a phrase conceived by Justice

Frankfurter in Lustig v. United States, 338 U.S. 74 (1949), referred

to the procedure whereby evidence illegally seized by state officers

could be admitted in federal court so long as federal officers did not

participate in the illegal seizure. If the state officers illegally seized

evidence and handed it over to the federal officers on a “silver

platter,” it was admissible.

B-12

Id. at 223. A federal warrant was issued in Elkins; how-

ever, it was directed to the bank where local officials had

placed the evidence for safekeeping. The affidavit in sup-

port of the federal warrant was founded upon the advice

and information received on a “silver platter” from state

officers after their illegal seizure. The Government never

claimed that the evidentiary use of the tape recordings in

question was justified under the force of the federal war-

rant, but only that such use was justified by the “silver plat-

ter” doctrine. The opinion in Elkins is silent as to the val-

idity or invalidity of the federal warrant and oniy holds

that federal officers in such a situation fall into the shoes of

the errant state officers and are subjected to the exclusion-

ary rule. The issue of the purity and viability of an inde-

pendent federal investigation and gathering of a factual

basis of probable cause for the issuance of a warrant was

not presented in Elkins as indeed there were none.

Here the Government makes no claim of lawful eviden-

tiary use of the evidence seized via the outdated “silver

platter” doctrine, but on the contrary, it claims lawful

usage of the evidence seized through the force of a valid

federal search warrant and seizure based on knowledge

from untainted evidence independently gathered and un-

related to the illegal state warrant and seizure thereunder.’

7An examination of the record in Elkins at the District Court level

discloses that while the state officers held possession of the evidence,

consisting of reels of wiretap recordings, they invited the federal

officers to listen to them. The federal officers did so. Thereafter the

state officers placed the tapes in a safe deposit box for safekeeping.

In Elkins, unlike here, the state court had not ordered a return of

the wiretap evidence to any person. In fact, neither Elkins nor co-

defendant Clark made any claim to the reels of wiretap recordings.

B-13

The Government's failure to inform the United States

Magistrate in its affidavit for the federal search warrant

that the evidence sought under the federal warrant had

been previously suppressed by the state court is not a

basis for invalidating the federal warrant.’ The state

warrants were held unlawful because they were general

warrants, “on their face constitutionally overbroad as to

the description of the property to be seized.” That in-

firmity did not go to a lack of factual establishment of

probable cause so, here, a lack of advice about the over-

broad state warrants was not material to the Magistrate’s

finding of probable cause. See generally United States v.

Hole, 564 F.2d 298 (9th Cir. 1977); United States v. Taxe,

540 F.2d 961 (9th Cir. 1976), cert. denied, 429 U.S. 1040

(1977); United States v. Damitz, 495 F.2d 50 (9th Cir.

1974).

II. Speedy Trial Rights.

Forster next raises various contentions relating to delay

prior to his federal indictment. As explained in Arnold v.

McCarthy, 566 F.2d 1377, 1381-82 (9th Cir. 1978):

“(There are] two separate safeguards against delay in

the different stages of the investigation and prosecu-

tion of a crime. In the pre-indictment or pre-arrest

stage delay is tested by the general proscriptions of

due process. . .. Pre-indictment delay is permissible

unless it violates ‘fundamental conceptions of justice

which lie at the base of our civil and political institu-

tions.’ Rochin v. California, 342 U.S. 165, 173...

(1952). [Citations omitted].

*Romero and Forster’s reliance on Younger v. Harris, 401 U.S. 37

(1971), and their contention that federal prosecution is barred by

collateral estoppel are meritless.

B-14

“But once a person becomes ‘accused’ the more strin-

gent requirements of the Sixth Amendment speedy

trial right apply. One becomes ‘accused’ when there is

‘either a formal indictment or information or else the

actual restraints imposed by arrest and holding to

answer acriminal charge ....’ United States v. Marion,

404 U.S. 307, 320... (1971). (Emphasis added). At

this stage, although standards are still imprecise, the

courts have been more willing to find delay to be

constitutionally impermissible.”

Forster contends that the date of his state arrest should

be deemed the initiation of federal prosecution because “a

federal prosecution could have taken place as early as the

state prosecution.” As we held in United States v. Cordova,

537 F.2d 1073 (9th Cir.), cert. denied, 429 U.S. 960 (1976),

the “speedy trial right under the Sixth Amendment [is|

not activated until the date of federal ‘accusation.

(Emphasis added). 7d. at 1075.

In United States v. Marion, 404 U.S. 307 (1971), the

Supreme Court, in dealing with a period of three years

between the occurrence of the alleged criminal acts and

the filing of the indictment, held that the defendants

became “accused” and that the Sixth Amendment protee-

tion attached upon the return of a federal indictment.

But the Court also ruled that “[i]nvocation of the speedy

trial provision ... need not await indictment, information,

or other formal charge.” Jd. at 321. Forster relies on,

inter alia, United States v. DeTienne, 468 F.2d 151 (7th

Cir. 1972), cert. denied, 410 U.S. 911 (1973), where the

Court stated that “{o]f course, if the crimes for which a

defendant is ultimately prosecuted really only gild the

charge underlying his initial arrest and the different

B-15

accusatorial dates between them are not reasonably ex-

plicable, the initial arrest may well mark the speedy trial

provision’s applicability as to prosecution for all the inter-

related offenses.” Jd. at 155. Such a situation was not

present in DeTienne nor is it to be found here, We agree

with the District Court’s conclusion that “the federal prose-

cution of defendants was initiated only at the time defen-

dants were indicted on federal charges.”

Lastly, we see no evidence indicating that Forster was

prejudiced in his ability to conduct his defense, The

District Court recognized the appellants had suffered

financially during the state and federal proceedings, but

found that “there is no basis upon which to conelude that

defendants have been denied a fair trial.” We agree,

Il. Grand Jury Proceedings.

Romero and Forster lastly argue that the grand jury

process was abused, They contend that the evidence sub-

mitted before the grand jury was insufficient to establish

probable cause, Addressing a similar contention in United

States v. Basurto, 497 ¥'.2d 781, 785 (9th Cir. 1974), we held

that:

“It is clear, however, that when a duly constituted

grand jury returns an indictment valid on its face, no

independent inquiry may be made to determine the

kind of evidence considered by the grand jury in mak-

ing its decision. Costello v. United States, 350 U.S, 359

... (1956). To do so would further invade the indepen-

dence of the grand jury.” See also United States v.

Iried, No. 77-8403 (9th Cir, May 12, 1978) at 1546-47,

We agree with the District Court’s statement that “[a]]-

though a complete absence of evidence might serve to inval-

idate an indictment, see Costello v. United States, supra

B-16

at 364 (Burton, J. concurring) and United States v. Tane,

329 F.2d $48, 853-54 (2d Cir. 1964), we do not find a com-

plete absence of competent evidence here.” Further, it is

well established that a grand jury may return an indict-

ment based solely upon hearsay evidence, Costello,

Secondly, Romero and Forster complain of the prose-

cution’s failure to provide the grand jury with a letter from

Forster’s counsel allegedly containing exculpatory evi-

dence, Contrary to the obligation imposed upon the prose-

cution at trial, the Government is not required to present

all evidence that might be exculpatory to a grand jury. See

Loraine v. United States, 396 F.2d 335, 339 (9th Cir.), cert.

denied, 393 U.S. 983 (1968); United States v. Chanen, 549

F.2d 1306 (9th Cir, 1977). Regarding the content of the

letter, the District Court ruled that “[t]he evidence sought

to be presented did not clearly negate guilt or undermine

the authority of the grand jury to act, see United States v.

Mandel, 415 F. Supp. 10338, 1041-42 (D. Md, 1976).” We

agree,

The separate judgments of conviction and sentences to

custody entered by the District Court on August 10, 1977

are each affirmed.

AFFIRMED,

United States v. Margarito O. Romero—No., 77-2964

United States v. Hugo Frederic Forster—No., 77-2969

MERRILL, Circuit Judge, dissenting:

I dissent from the judgment and from part I of the opin-

ion, | concur with parts Il and LIT, Even as to part I, I

agree with much of Judge Kast’s discussion. I have no quar-

B-17

rel with the ruling that the federal search warrants were

founded on information obtained from sources independ-

ent of any tainted examination of the materials improperly

seized by the state. I do not question the federal seizures

from Romero’s home or Forster’s business office of docu-

ments theretofore returned by the state, I do not contend

that the invalidity of the seizure conferred upon the seized

inaterials permanent immunity from seizure. Once sup-

pressed material is back in the hands of the defendants in

uly view it is once more subject to seizure, assuming that

the warrant under which it is seized is free from taint and

that the basis for the earlier suppression does not continue

to exist. My trouble with part I relates only to the search

of the office of the state prosecutor and the seizure of ma-

terials found there,

I review the facts briefly. State officers seized documents

from the defendants’ premises under a defective warrant.

The seized evidence was suppressed by court order, The

United States then secured a warrant (avoiding the state

defects) to search the quarters of the state prosecutor

where the suppressed evidence was to be found, The state

prosecutor refrained from returning the evidence until

federal seizure had been accomplished. In inmy judgment

the order of suppression carrying with it a duty on the part

of the state to return the seized documents, rendered those

documents immune from federal seizure so long as they

remained in the hands of the state officials,

To me this result is compelled by Elkins v. United States,

364 U.S, 206 (1960), 1 am unable to distinguish that case

B-18

as Judge East has done on the ground that the federal war-

rant there was not free from taint as were the warrants

here. The Supreme Court placed no reliance on that fact.

However, accepting arguendo that the rationale of Elkins

would permit a distinction on that ground, I still adhere

to my view that suppressed materials are immune from

federal seizure while they remain in the hands of the state.

I find it repugnant to principles of federalism to allow

the United Statees willy-nilly to search state offices and

seize from state officials materials held by them as evidence

in a state prosecution. Such sharing of evidence certainly

should be tolerated only when it comes with the state’s

consent and willing co-operation. When the state, under a

suppression order, is under a duty to return the evidence

it is in no position to consent to such a sharing. Permitting

seizure under these curcumstances serves to frustrate the

state in carrying out its high purpose and the United States

should not be a party to such frustration. This was made

clear in Elkins, where the Court stated:

“(When a federal court sitting in an exclusionary

state admits evidence lawlessly seized by state agents,

it not only frustrates state policy, but frustrates that

policy in a particulaly inappropriate and ironic way.

For by admitting the unlawfully seized evidence the

federal court serves to defeat the state’s effort to assure

obedience to the Federal Constitution.”

364 U.S. at 221.

The fact that some state officers may be willing to co-op-

erate with federal officials in frustrating the state purpose

(as apparently was the case here) cannot affect the result.

B-19

Where suppression is ordered the state duty is clear and a

knowing disregard of that duty by state officers does not

serve to wipe it out or justify a federal disregard of it.

I would reverse.

Charles M. Merrill

Circuit Judge

A ‘ ;

APPENDIX C

In the United States Court of Appeals

for the Ninth Circuit

}

United States of America,

Plaintiff-Appellee,

aa . No. 77-2964

Margarito O. Romero,

RDER

ns Aare 0

Before: MERRILL and SNEED, Circuit Judges,

and EAST, District Judge

In the above case Judges Sneed and East have voted to

deny the petition for rehearing and have recommended

rejection of the suggestion for a rehearing in bane. Judge

Merrill would grant rehearing and recommended rehearing

in bane.

The full court has been advised of the suggestion for

an in bane hearing and no judge of the court has requested

a vote on the suggestion for rehearing in banc, Fed.R.

App.P. 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing in bane is rejected.

The petition for stay of mandate is denied.