Opposition Brief — Nescco, Inc. v. United States

| 9a the Suprewe Court of the United States

OCTOBER TERM, 1986

.

- NESCCO, INC., AND BALARAMA’S ENTERPRISES,

“ING, PETITIONERS

v.

- rk _ *. “ee

°

UNITED STATES OF AMERICA

)

ON PETITION FOR.A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

‘ Department of Justice

Washington; D.C. 20530

(202) 633-2217

\\ p?

TABLE OF AUTHORITIES

Cases: Page

Andresen V. Maryland, 427 U.S. 463 (1976) ........ 5, 6, 7,9

Milliman v. Minnesota, 774 F.2d 247 (8th Cir.

EPIRA SRSA SIRS cr ee) na or 9

United States v. Abrams, 615 F.2d 541 (1st Cir.

SERA RIN en. 9

United States v. Gomez-Soto, 723 F.2d 649 (9th

Cir.), cert. denied, 466 U.S. 977 (1984) ............. 9

United States v. Jacob, 657 F.2d 49 (4th Cir.

1981), cert. denied, 455 U.S. 942 (1982) ............. 9

United States v. Johnson, 690 F.2d 60 (3d Cir.

1982), cert. denied, 459 U.S. 1214 (1983) ............ 9

United States v. Pollock, 726 F.2d 1456 (9th Cir.

| ERR SH 2h REA NS ST ga recat 2 I 8

United States vy. Roche, 614 F.2d 6 (1st Cir. 1980) .. 9

United States v. Wuagneux, 683 F.2d 1343 (11th

Cir. 1982), cert. denied, 464 U.S. 814 (1983)...... 9

Constitution and Statutes:

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(1)

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-883

‘NESCCO, INc., AND BALARAMA’S ENTERPRISES,

INC., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioners contend that a search warrant executed

by the Food and Drug Administration (FDA) vio-

lated the Fourth Amendment’s requirement of par-

ticularity.

1. This case arose out, of the FDA’s investigation

of petitioners, who allegedly were manufacturing and

marketing cocaine substitutes in violation of 21

U.S.C. 331(a) and (k). Section 331 prohibits the

following acts:

(1)

2

(a) The introduction or delivery for introduc-

tion into interstate commerce of any * * * drug

* * * that is misbranded.

* * * * *

(k) * * * the doing of any * * * act with

respect to, a * * * drug * * *, if such act is done

while such article is held for sale (whether or

not the first sale) after shipment in interstate

commerce and results in such article being * * *

misbranded.

In the FDA’s view, marketing cocaine substitutes

without specifying the active ingredients of the sub-

stances (see 21 U.S.C. 352(e) (1) (A) (ii) ), or with-

out providing adequate directions for the use of the

substances (see 21 U.S.C. 352(f)(1)), constitutes

the misbranding of drugs, in violation of Section 331.

In 1983, the State of California enjoined petitioner

Balarama’s Enterprises, Inc., from manufacturing,

packaging, marketing, selling, or distributing Benzo-

caine, Lidocaine, Tetracaine, and Procaine—anes-

thetic drugs often diverted to illegal use as cocaine

substitutes (Pet. App. A5). The injunction had little

practical effect, however, as the FDA learned when

an employee of Balarama’s, arrested for possession

of cocaine, was found with roughly 2000 leaflets from

Balarama’s entitled “Cocaine.” Each leaflet stated

that the product advertised was a synthetic substitute

for cocaine. Jd. at A5-A6. The FDA obtained a copy

of petitioner’s catalogue, which listed many items for

sale as incense with commercial names suggesting

that the incense was to be used as a cocaine substi-

tute. Some of the products even bore a label stating,

“if ingested or inhaled, may cause stimulation.” Jd.

at A6. An agent of the FDA placed orders with and

ee

3

received from Balarama’s some of these cocaine sub-

stitutes (id. at A8).

To further its investigation, the FDA in 1984 de-

cided to search Balarama’s principal place of busi-

ness, as well as a warehouse leased in the name of

NESCCO, which the FDA had learned operated as

an alter ego of Balarama’s (Pet. App. A9). Based

on affidavits by an FDA inspector detailing the infor-

mation the FDA possessed regarding Balarama’s ac-

tivities, the FDA obtained warrants to search both

premises.’ Items 1 through 14 in the search war-

rants listed 14 different drugs that were used as co-

caine substitutes (see id. at A15-A16, A18-A19).

Item 15 (id. at A16, A19-A20) provided for the

seizure of:

All other articles of drug (which include com-

ponents of drugs); labeling for drugs; orders

for drugs received in the mail and any checks or

money orders contained therein; records of or-

ders for drugs received by telephone; receiving

-and shipping records for drugs and drug mate-

rials; all other reeords, including telephone rec-

ords and computerized records, which may re-

flect the purchasing, ordering, sale, repacking,

distribution, or other disposition of drugs; checks

from U.P.S. for C.0.D. shipments of drugs; per-

sonal or business correspondence relating to the

purchasing, ordering, sale, repacking, distribu-

tion, or other disposition of drugs; and other

fruits and instrumentalities of crimes which are

evidence of violations of, or in violation of, 21

U.S.C. 331(a) and (k).

1 Petitioners have not challenged the court of appeals’

determination that the FDA established probable cause for

the search.

4

In executing the warrants at both premises, United

States marshals seized a large quantity of substances

that they believed were intended to be used as cocaine

substitutes. The marshals also seized business records

relating to transactions in those drugs. Pet. Supp.

App. A22, A24-A27. The business records were sub-

sequently returned (id. at A22). No criminal

charges are currently pending against petitioners (id.

at A21-A22).

b. On December 6, 1984, petitioners moved in dis-

trict court for return of the seized property that the

FDA had not already returned.? The district court

denied the motion, holding that the FDA had estab-

lished probable cause to believe that 21 U.S.C. 331 (a)

and (k) had been violated. The court concluded that

the magistrate “properly issued a warrant to search

for and seize items identical to those purchased by

the FDA agents, those lawfully observed by affiant,

and generic items for which objective articulable

standards were provided. The numerous items found

on the premises, whether specifically identified in the

warrant or clearly falling within the generic cate-

gory articulated in section 15 of that document, were

properly seized.” Pet. Supp. App. A22 (citation

omitted),

The court of appeals affirmed, holding that the

warrants were sufficiently particularized to meet con-

stitutional standards. The court noted that items 1

through 14 “consist of fourteen different items which

might be drugs identified by the names given in a

Balarama’s catalog sent to Agent Pierkarski. Such

descriptions are obviously sufficiently particularized”

(Pet. App. A10). The only remaining question was

2 The property retained by the FDA consisted of the drugs,

cartons, and labels listed in Pet. Supp. App. A24-A27 (id.

at A22).

5

whether item 15, which authorized the seizure of

drugs, labels, business records, and “other fruits and

instrumentalities of crimes which are evidence of vio-

lations of * * * 21 U.S.C. 331(a) and (k),” met the

Fourth Amendment standard of particularity.

While the court commented that the question was

a “close one” (Pet. App. A10), it held that the war-

rants as a whole satisfied the particularity require-

ment, The court initially noted that the statutory

limitation in item 15, restricting the search to the

fruits or instrumentalities of a violation of 21 U.S.C.

331, did not in and of itself provide a sufficient limi-

tation. In the court’s view, “where a statute provides

the only limitation on a search, the executing officers

are forced to interpret the statute in limiting their

search, a task they may be unqualified to perform.”

Pet. App. at All. The court held, however, that

item 15 must be considered in the context of the

framework set by items 1 through 14. Relying upon

Andresen v. Maryland, 427 U.S. 468, 480-482 (1976),

the court stated (7d. at A12) that

item 15 cannot be read in a vacuum and must

instead be construed in light of the presence of

items 1-14. Because items 1-14 provide a sample

of names of suspected misbranded drugs, we be-

lieve that they implicitly limited item 15’s other-

wise unbounded reference to all other drugs

(and labeling and paperwork relating to drugs)

to only those drugs with names of the same

nature as those identified in items 1-14.

The court further explained that the government

could not have specified the precise names of all the

drugs that were likely to be misbranded, since the

government would have no way of knowing all the

street names that could be used for the cocaine sub-

6

stitutes (Pet. App. Al8). The court concluded, there-

fore, that the warrants as a whole provided sufficient

guidelines for the officers serving the warrants and

thus were consistent with constitutional standards.

2. Petitioners contend that the Ninth Circuit’s

‘implied limitation” rule of particularity sanctions

the use of general warrants and is thereby incon-

sistent with the Fourth Amendment. In addition,

petitioners assert that the decision below creates a

conflict among the circuits.

a. Far from articulating a “novel standard” (Pet.

7) or one that is “freshly coined” (Pet. 6), the court

of appeals simply applied the approach used by this

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

There, state law enforcement officials carried out an

investigation of petitioner’s real estate settlement

activities. The officials procured search warrants for

petitioner’s offices, detailing various items to be seized

in connection with petitioner’s role in the conveyance

of Lot 13T, a particular parcel in a real estate devel-

opment project. While petitioner conceded that the

warrants were for the most part “models of particu-

larity” (427 U.S. at 479), he argued that they were

rendered fatally general by the addition of the phrase

“together with other fruits, instrumentalities and

evidence of crime at this [time] unknown.” That

phrase was included in the warrant at the end of a

comprehensive list of items to be seized. As in this

ease, the defendant in Andresen argued that the final

phrase should be read in isolation from the other

parts of the warrants, and that standing apart the

phrase would have permitted the seizure of items that

were evidence of any conceivable crime. This Court

rejected that argument. It held instead that the final

phrase should be read in context with the full text of

7

the warrants, which authorized the search for and

seizure of material relevant only to petitioner’s activ-

ities in connection with Lot 13T. So construed, the

Court held that the warrants comported with Fourth

Amendment standards of particularity. 427 U.S. at

479-482. :

The court of appeals in this case adopted a similar

tack. The court construed item 15 in the warrants,

which authorized the seizure of drugs, labels, and

paperwork, to refer only to the types of drugs listed

in items 1 through 14. Just as the language “to-

gether with other fruits, instrumentalities and evi-

dence of crime at this [time] unknown” in Andresen

was interpreted to be limited to evidence of the crime

of false pretenses with respect to Lot 13T, so the

search and seizure authorized in item 15 was limited

to cocaine substitutes of the type listed in items 1

through 14, along with the components and labels for

those drugs. The list of drugs in items 1 through 14

therefore provided the officers serving the warrants

with sufficient guidelines to determine which items to

seize.

The court of appeals properly noted that it would

be unrealistic to hold the government to a standard

of much greater precision. While the government

was aware of many of the street names used for co-

caine substitutes, the court found that government

agents could not have foreseen all the names that pe-

titioners might have given to the cocaine substitutes.°

* Petitioners point out (Pet. 12) that the affidavits in sup-

port of the search warrants named and referred to 57 differ-

ent product items while only 14 were listed in the warrants

themselves. Yet petitioners do not contest that the 14 drugs

listed were sufficient to apprise those serving the warrants

of the type of drug to be seized. Nor do they dispute that it

8

Thus, items 1 through 14 were as precise as they

could practically be, by providing a list of the most

common “chemical names and street-slang terminol-

ogy often associated with cocaine or cocaine substi-

tutes” (Pet. App. A18). As the Ninth Circuit has

previously observed, “[s]o long as officers can distin-

guish between legally and illegally possessed property

on the basis of objective, articulated standards, a

search warrant based on probable cause may direct

inspection of premises containing a generic class of

items, a portion of which are believed to be stolen or

contraband.” United States v. Pollock, 726 F. 2d

1456, 1466 (1984) .*

In sum, the Ninth Circuit correctly construed this

Court’s decision in Andresen to hold that an other-

wise overbroad authorization for a search is suff-

ciently particularized if, in the context of the entire

warrant, there are reasonably objective standards to

govern the executing officers’ search. As applied in

this case, the limitations contained in items 1 through

14, namely that the misbranded drugs be those in-

tended to be used as cocaine substitutes, provided the

requisite standards to satisfy the requirements of the

Fourth Amendment.

b. Nor does the court’s opinion, as petitioners sug-

gest (Pet. 9), give rise to a split among the circuits.

would have been impossible for the government to have pre-

pared a comprehensive list of the wide variety of merchandis-

ing names used to identify different cocaine substitutes.

* Petitioners assert (Pet. 13) that the marshals seized items

that were not similar to those enumerated in items 1 through

14. The warrants, however, also authorized the seizure of

the “components of drugs” and “labeling for drugs,” which

would include, inter alia, cutting and packaging agents of the

sort cited by petitioners. See Pet. Supp. App. A24-A27.

9

While petitioners are correct that some courts of ap-

peals have held that limiting a search to items that

are evidence of the violation of a certain statute is

generally not specific enough, see, ¢.g., United States

v. Gomez-Soto, 723 F.2d 649 (9th Cir.), cert. denied,

466 U.S. 977 (1984); United States v. Roche, 614

F.2d 6 (1st Cir. 1980), the cases cited by petitioner

do not hold that such searches violate the Fourth

Amendment if the rest of the warrant in effect pro-

vides standards circumscribing the discretion of the

searching officers. Indeed, the courts of appeals have

agreed with the Ninth Circuit in applying Andresen

so that “the ‘general’ tail of the search warrant will

be construed so as not to defeat the ‘particularity’ of

the main body of the warrant.” United States v.

Abrams, 615 F.2d 541, 547 (1st Cir. 1980). See also

Milliman v. Minnesota, 774 F.2d 247, 250 (8th Cir.

1985) (“Of course whether a warrant fails the par-

ticularity requirement cannot be decided in a vacuum.

The court will base its determination on such factors

as the purpose for which the warrant was issued, the

nature of the items to which it is directed, and the

total circumstances surrounding the case.”) (citation

omitted) ; United States v. Wuagneux, 683 F.2d 1348,

1349-1351 (11th Cir. 1982), cert. denied, 464 U.S. 814

(1983) ; United States v. Jacob, 657 F.2d 49, 51-52

(4th Cir. 1981), cert. denied, 455 U.S. 942 (1982) ;

United States v. Johnson, 690 F.2d 60, 64 (38d Cir.

1982), cert. denied, 459 U.S. 1214 (1983).

It is therefore respectfully submitted that the pe-

tition for a writ of certiorari should be denied.

CHARLES FRIED

Solicitor General

JANUARY 1987 ;

WX oU. S. GOVERNMENT PRINTING OFFiCcE; 1987 181483 40199