Petition for Writ of Certiorari — Bagley v. United States

90-125) | Firev

NO. 9O0— ‘}' JUL 18 1998

- ANIOL, JR.

CLERK

IN THE i |

7

UNITED STATES SUPREME COURT

OCTOBER TERM, 1990

HUGHES ANDERSON BAGLEY, JR.,

Petitioner,

ee” ore

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

AND APPENDIX

FRANCIS L. GOODWIN

Baron, Sar, Goodwin, Gill,

Lohr & Jarman

” Attorneys for Petitioner

_ 750 Pierce Street

tt Sioux City, Iowa 51101

Phone: (712) 277-1015

ae oo

QUESTION PRESENTED

I

Whether one who has been the victim

of an unconstitutional search and seizure

is entitled to the expungment of all rs

records created as a result of that

Constitutional violation?

PARTIES TO THIS ACTION

The only parties to this action are

those named in the caption of the case.

= ii -

TABLE OF CONTENTS

ITEM:

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITION

THE OPINION BELOW

JURISDICTION

STATEMENT

JURISDICTION BELOW

REASONS FOR GRANTING THE WRIT:

I

THE OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH

CIRCUIT DENYING EXPUNGEMENT OF

RECORDS WHICH WERE DIRECTLY AND

SOLELY THE RESULT OF AN UNCONSTI-

TUTIONAL SEARCH AND SEIZURE IS IN

CONFLICT WITH THE OPINIONS OF OTHER

CIRCUITS ON THE ISSUE OF THE RIGHT TO

EXPUNGMENT OF RECORDS RESULTING

- 111 -

A F NTENTS - NTINUED

ITEM: PAGE:

FROM ILLEGAL SEARCHES AND SEIZURES.

II

THE ISSUE OF THE RIGHT OF ONE 11

WHO HAS BEEN THE VICTIM OF AN

ILLEGAL SEARCH AND SEIZURE TO

THE EXPUNGMENT OF ALL RECORDS

WHICH RESULT FROM THAT CONSTI-

TUTIONAL VIOLATION IS AN IMPORTANT

FEDERAL QUESTION WHICH HAS NEVER

BEEN SETTLED BY THIS COURT.

III

THE OPINION BELOW WILL LESSEN 15

THE DETERRENT EFFECT OF THE EXCLU-

SIONARY RULE IN THE EIGHTH CIRCUIT

BECAUSE REFUSING TO REQUIRE EXPUNGMENT

OF ALL RECORDS RESULTING FROM UNCON-

STITUTIONAL SEARCHES AND SEIZURES ALLOWS

— _

- Iv-

TABLE OF CONTENTS - CONTINUED

ITEM: PAGE :

POLICE OFFICERS TO RETAIN SUBSTANTIAL

BENEFITS FROM_THEIR ILLEGAL CONDUCT.

en 6 6 a0 ees ee: eleve me

CERTIFICATE OF SERVICE ..... 28

TA F CONTENTS - APPENDIX

ORDER OF THE UNITED STATES 1-18

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF IOWA DENYING EXPUNG-

MENT, DATED FEBRUARY 3, 1989

OPINION OF THE UNITED STATES 19-25

COURT OF APPEALS FOR THE EIGHTH

CIRCUIT AFFIRMING THE DISTRICT

COURT, DATED MARCH 14, 1990

ORDER OF THE UNITED STATES 26

COURT OF APPEALS FOR THE EIGHTH

CIRCUIT DENYING REHEARING, DATED

APRIL 19, 1990

- Yo

TABLE OF AUTHORITIES

SUPREME COURT CASES

Carter v. Greene County, 396

U.S. 320, 90 S. Ct. 518, 24 L.

Ed. 2d §49

James v. Illinois, fF .

110 S. Ct. 648, L. Ed. 2d

(1990)

Louisiana v. United States, 380

U.S. 154, 85 S. Ct. 817, 13 L.

2d 709 (1965)

Mapp v. Ohio, 367 U.S. 643, 81

S. Ct. 1684, 6 L. Ed. 2d 1081

(1961)

One 1958 Plymouth Sedan v.

Pennsylvania, 380 U.S. 698,

85 S. Ct. 1246 (1968)

Peters v. Hobby, 349 U.S. 331,

75 S$. Ct. 790, 99 L. Ed. 1129

Rodgers v. Lodge, 458 U.S. 613,

Ed.

24

21,

19,

21

10,

12

14

26

20

11,

TA A T = T

CASE: PAGE:

102 S. Ct. 2570, 73 L. Ed. 20d 1012

(1982)

ilver i 23

States, 251 U.S. 385, 40 S. Ct.

182, 64 L. Ed. 319

Swann v. Char lotte-Meck lenberg 13

Board of Education, 402 U.S. 1,

92 S. Ct. 1267

Terry v. Ohio, 392 U.S. 1, 88 26

S. Ct. 1868, 20 L. Ed. 2d 889

(1968)

United States v. Calandara, 15, 16

414 U.S. 338, 94 S. Ct. 613, 38

L. Ed. 2d 561 (1974)

Wong Sun v. United States, 371 23

U.S. 471, 83 S. Ct. 407 (1963)

APPEA A

Chatain v. Kelley, 510 F. 2d 10

1232 (D.C. Cir. 1975)

- vii -

CASE:

Diamond v. United States, 649

F. 2d 496 (7th Cir. 1981)

Doe v. United States, 859 F.

2d 1334 (8th Cir. 1988)

McLeod v. United States, 385

F. 2d 734 (Sth Cir. 1967)

Paton v. LaPrade, 524 F. 2d 862

(3rd Cir. 1975)

Tarlton v. Saxbe, 507 F. 2d

1120 (0.C. Cir. 1974)

United States v. Bagley, 899

F. 2d 707 (8th Cir. 1990)

United States v. Linn, 513

F. 2d 925 (10th Cir. 1975),

cert denied, 423 U.S. 836

United States v. McMains,

540 F. 2d 387 (8th Cir. 1976)

United States v. Schnitzer, 567

F. 20 536 (2nd Cir. )cert denied,

10

10

10

9

- viii -

CASE:

435 U.S. 907 (1978)

RT CA

Th v j

Department Of Transporation,

547 F. Supp. 274 (S.D. Fla. 1982)

STATUTES

18 U.S.C. Section 3231

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

Title 28 U.S.C. Section 1291

Title 42 U.S.C. Section 1983

RULES OF COURT

Supreme Court Rule 13.1

11

eS

- 1 -

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEAL3 FOR THE

EIGHTH CIRCUIT

Petitioner HUGHES ANDERSON BAGLEY,

JR. petitions for a writ of certiorari to

review the judgment of the United States

Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The Order of the district court (App.

1-18) was not reported. The opinion of

the Court of Appeals (App. 19-25) is

reported at 899 F. 2d 707 (8th Cir. 1990).

The Court of Appeals denied rehearing on

April 19, 1990 (App. 27).

JURISDICTION

The Order of the Court of Appeals

denying rehearing was entered on April 19,

1990. This petition has been filed within

the ninety days permitted by Rule 13.1.

-

“se

The jurisdiction of this Court is invoked

under Title 28 U.S.C. Section 1254(1).

The Constitutional provisions relevant to

this Petition are the Fourth Amendment

prohibition against unreasonable searches

and seizures and this Court’s prior

decisions holding that Constitutional

violations must be remedied to the maximum

extent possible.

STATEMENT

1.) On January 22, 1984, as the

result of a warrantless search of a

briefcase belonging to Petitioner, Iowa

authorities seized two handguns and

obtained information all of which were

sub sequently used as the sole basis for

an indictment.

2.) After the search was held

illegal, the government moved to dismiss

the indictment. Petitioner then moved to

— 2

expunge all records which resulted from

the illegal search on the basis that they

were the resuit of a Constitutional

violation and that he was entitled to

expungment as a remedy for that violation.

The district court denied relief and the

United States Court of Appeals for the

Eighth affirmed, United States v. Bagley,

899 F. 2d 707 (1990).

While recognizing that it had the

inherent power to order expungment, the

district court reasoned that expungment is

a remedy which is to be granted only in

“extreme circumstances” and that it had a

Guty to appiy a “baiancing test", ona

case-by-case basis, in which it weighed

the government’s interest in keeping

records to further effective law

enforcment against the privacy interests

of the individual (App. 5-7). In

reviewing “the equities in the case at

i

bar”, the district court found that even

though Petitioner had been indicted solely

on the basis of the fruits of an illegal

search, it was not persuaded that the

“extreme remedy” of expungment was

appropriate (App. 9-10). It based its

decision on its findings that Petitioner

had not charged that there had been

harassment, that the exclusionary rule is

itself an “extreme remedy” applied by few

courts outside of the United States, that

Petitioner’s record is “not pristine” and

that Petitioner had already received a

remedy for the Constitutional violation in

the form of suppression (App. 11-13).

3.) The Court of Appeals denied

Petitioner’s appeal, holding that the

power to expunge criminal records was a

“narrow one” which was infrequently used

and that this case presented no "extra-

ordinary” circumstances warranting

= a

expungment (App. 20-21). The Court of

Appeals adopted the district court’s

balancing test wherein the government’s

interest in keeping criminal records is

weighed against the individual’s right to

privacy (App. 21). The Court of Appeals

expressed the opinion that the records of

Petitioner’s arrest were “valuable law

enforcement records” and that the adverse

consequences to Petitioner from the

records were minimal (App. 22). It

further found that expungment was not

appropriate because the illegal search and

seizure did not effect Petitioner’s

indictment, Petitioner was clearly not

innocent and he had already had his remedy

for the Constitutional violation when the

district court suppressed the use of the

illegally seized evidence prior to trial

(App. 22-23).

The Court of Appeals also found that

—

Petitioner’s failure to claim he was the

victim of harassment or to show that the

government might misuse the records in the

future or that he was likely to suffer

some other future adverse consequence

prevented expungment (App. 23-24).

In so holding, the Court of Appeals

did not address the issue, although it

had been squarely presented in Petit-

ioner’s briefs, of whether one whe has

been the victim of a Constitutional

violation is entitled to a remedy which as

nearly as possible erases all traces of

the violation. Like the district court,

the Court of Appeals failed to distinguish

between requests for expungment which are

the result of mere acquittals or

dismissals and those requests which result

from a Constitutional violation.

JURISDICTION BELOW

a a

The district court’s jurisdiction was

founded in Title 18 U.S.C. Section 3231,

which grants original jurisdiction over

all offenses against the United States.

It is also suggested that the district

court had jurisdiction of the issue of

expungment pursuant to its general

equitable powers and pursuant to the

United States Constitution. The Court of

Appeals’ jurisdiction was founded in Title

28 U.S.C. Section 1291, which grants the

power to review final orders of the

district court.

REASONS FOR GRANTING THE WRIT

I

THE OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

DENYING EXPUNGMENT OF RECORDS WHICH

WERE DIRECTLY AND SOLELY THE RESULT

OF AN UNCONSTITUTIONAL SEARCH AND

« §-=

SEIZURE IS IN CONFLICT WITH THE OPIN-

IONS OF OTHER CIRCUITS ON THE ISSUE OF

THE RIGHT TO EXPUNGMENT OF RECORDS

RESULTING FROM ILLEGAL SEARCHES AND

SEIZURES.

Despite the fact that Petitioner

clearly raised the issue in both the dist-

rict court and on appeal, both courts

below failed to directly address the issue

of whether the fact that the records which

are the subject of this Petition are the

direct and proximate result of a

Constitutional violation requires that

they be treated differently from records

which result from a criminal charge which

is merely dismissed or in which there is

an acquittal but in which the records were

not created as the result of a Consti-

tutional violation. Rather, relying on

Doe v. United States, 859 F. 2d

1334 (8th Cir. 1988) and United States yv.

— 2

McMains, 540 F. 2d 387 (8th Cir. 1976) the

Court of Appeals found that expungment

was not appropriate because this case

presents no “extraordinary circumstances”

and that the power to expunge criminal

records is a narrow one. Relying on

United States v. Linn, 513 F. 2d 925 (10th

Cir.) cert denied, 423 U.S. 836 (1975),

the Court of Appeals also found that

expungment is normally reserved for

“extreme cases”. Relying on United States

v. Schnitzer, 567 F. 2d 536 (2nd Cir.

1977), cert denied, 435 U.S. 907 (1978)

and Linn, supra, the Court of Appeals

also found that requests for expungment

are to be weighed on a case by case basis

with consideration being given to the

government’s need to maintain records to

assist in effective law enforcement.

None of the cases relied on by the

courts below involved records which were

- 10 -

solely and completely and indisputably the

result of a Constitutional violation.

Because it is undisputed that all of the

records in issue exist directly and solely

because of a Constitutional violation, the

Eighth Circuit arrived at a result which

places it in conflict with several other

federal Circuit Courts of Appeals, al! of

which have found that a violation of a

federal Constitutional right is in itself

cause for expungment of records which

result from that violation. See Diamond

v. United States, 649 F. 2d 496, 499 (7th

Cir. 1981); McLeod v. United States, 385

F. 2d 734, 749 (5th Cir. 1967); Tarlton v.

Saxbe, 507 F. 2d at 1120, n. 2 (D.C. Cir.

1974) Chatain v. Kelley, 510 F. 2d 1232,

1235-36 (D.C. Cir. 1975), citing Peters v.

Hobby, 349 U.S. 331, 75 S. Ct. 790, 99 L.

Ed. 1129. See also, Paton v. LaPrade, 524

F. 2d 862, 869 (3rd Cir. 1975) (when

ee Y. oom

considering request for expungment, it is

appropriate to consider the tainted manner

in which the records were acquired);

Thompson v. United States Department of

Transportation, 547 F. Supp. 274, 282

(S.D. Fla. 1982) (same).

This Court should grant certiorari to

resolve this conflict among the Circuits.

II

THE ISSUE OF THE RIGHT OF ONE WHO HAS

BEEN THE VICTIM OF AN ILLEGAL SEARCH

AND SEIZURE TO THE EXPUNGMENT OF ALL

RECORDS WHICH RESULT FROM THAT CON-

STITUTIONAL VIOLATION IS AN IMPORTANT

FEDERAL QUESTION WHICH HAS NEVER BEEN

SETTLED BY FHIS COURT.

It appears that this Court has only

addressed the issue of expungment of

unconstitutionally compiled records on one

occassion, in Peters v. Hobby, 349 U.S.

- 12 -

331, 75 S. Ct. 790, 99 L. Ed. 1129 (1955).

In Peters, this Court found that, where

records were the result of a consti-

tutional violation involving denial of due

process, the victim of that violation was

entitled to their expungment as his

remedy :

“There only remains for consideration

the question of relief. Initially

petitioner is entitled ... He is

further entitled to an order

directing the respondent members of

the Civil Service Commission to

expunge from its records any ruling

that Petitioner is barred from

federal employment ...”. (emphasis

added).

Peters v. Hobby, supra, 349 U.S. at

348-349, 75 S. Ct. at 799.

While this Court has not previously

addressed the issue of the remedy due one

= $2 =

who has been the victim of an illegal

search in terms of the right to expungment

of records resulting from that Consti-

tutional violation, the principle that one

who has been the victim of a Consti-

tutional violation is entitled to a remedy

which will, in so far as possible, restore

him to the position he would have been in

without the violation is well established

in this Court’s case law. Once the

violation of a Constitutional right has

been shown, then, as this Court found in

Carter v. Greene County, 396 U.S. 320,

340, 90 S. Ct. 518, 24 L. Ed. 2d 145, 154,

citing Louisiana v. United States, 380

U.S. 145, 154, 85 S. Ct. 817, 13 L. Ed. 2d

709, 715, courts have “not merely the

power, but the duty to render a decree

which will so far as possible cure the

harm done.” See also, Swann v, Char-

lotte-Ecklenberg Board of Education, 92 S.

-~ 14 -

Ct. 1267, 1276, 402 U.S. 1, 15-16.

The issue of whether one about whom

records are created solely as the result

of an illegal search is entitled to

expungment as a remedy for the violation

of his Constitutional rights is an

important federal question which this

Court has not, but should, resolve

because, as this Court has said when

discussing the nature and scope of the

remedy required once it has —

established that a Constitutional

violation has occurred:

“Where “a constitutional violation

has been found, the remedy does not

“exceed” the violation if the remedy

is tailored to cure ‘the condition

that offends the constitution’”

{authority]”

Rogers v. Lodge, 458 U.S. 613, 628, 102 S.

Ct. 2570, 2575, 73 L. Ed. 2d 1012 (1982).

II!

THE OPINION BELOW WILL LESSEN THE

DETERRENT EFFECT OF THE EXCLUSIONARY

RULE BECAUSE REFUSING TO REQUIRE

EXPUNGMENT OF ALL RECORDS RESULTING

FROM UNCONSTITUTIONAL SEARCHES WILL

ALLOW POLICE OFFICERS TO RETAIN SUB-

STANTIAL BENEFITS FROM THEIR ILLEGAL

CONDUCT .

In refusing to order expungment, the

Court of Appea's stated that the records

which were concededly compiled solely as

the result of an unconstitutional search

“represent valuable law enforcement

records.” and that “The unlawful seizure

of the weapons discovered in Bagley’s

briefcase did not affect Bagley’s

indictment, United States v. Calandara,

414 U.S. 338, 343-345 (1974).” The

panel’s reliance on Calandara for the

proposition that Petitioner is not

— 2

entitled to expungment because the grand

jury was now precluded from using the

illegal evidence to bring the indictment

is misplaced. As this Court explained

in Calandara, 414 U.S. at 348-355, 94 S.

Ct. at 620-623, the exclusionary rule is

not applied to grand jury investigations

because its purpose would not be signific-

antly furthered by its application in that

context because the mere obtaining of an

indictment with no hope of conviction is

not likely to foster police misconduct,

and because its application there would be

detrimental to the grand jury’s effective

functioning. This Court specifically went

on to point out, however, see note 10,

that grand jury considerations aside, the

victim of an illegal search has remedies

which include a suit under Title 42 U.S.C.

Section 1983 for damages and for return of

illegally seized property. Calandara,

- 17 -

therefore, is not authority for the

proposition that Appellant is not entitled

to the remedy of expungment which he seeks

here.

The Court of Appeals went on to find

that, because the exclusionary rule is a

deterrent to unlawful searches and

seizures, Petitioner received his Fourth

Amendment remedy when the district court

suppressed the illegally seized firearms.

It also held that while “mistaken and

unlawful”, the officers’ actions were not

in “flagrant disregard” of the Fourth

Amendment.

While Petitioner would suggest that

there is nothing mutually exclusive about

the application of the exclusionary rule

to deter police misconduct and the

availability of other remedies as well,

such remedies being available for the

violation of any Constitutional right, the

~ eS

Court of Appeals also missed the mark when

it overlooked the fact that the consider-

ations which favor the exclusionary rule

would be furthered by the expungment

sought here and that, in fact, allowing

police officers to retain information

which results from Constitutional viol-

ations is likely to lessen the deterrent

effects of the exclusionary rule.

The Court of Appeals’ opinion will

tend to lessen the effect of the exclus-

jionary rule because it allows police

officers to reap a valuable benefit from

their illegal conduct by tetting tnem

retain, perhaps for such later use as

articulable grounds for street stops and

probable cause for future warrant

applications, intelligence information

derived from their illegal conduct. In

order to understand the ramifications of -

the panel’s opinion, a brief discussion of

- 19 -

the rationale supporting the exclusionary

rule +s in order.

In One 1958 Plymouth Sedan v. Common-

wealth Of Pennsylvania, 380 U.S. 698, 700,

85 S.Ct. 1246, 1250 (1968), this Court

said:

“,.as Mr. Justice Bradley pointed out

in Boyd, a forfeiture proceeding is

aguiasi-criminal in character. Its

object, like a criminal proceeding,

is to penalize for the commission of

an offense against the law.”

the nature of a forfeiture pro-

ceeding, so well described by Mr.

Justice Bradley in Boyd, and the

reasons which lead the Court to hold

that the exclusionary rule of Weeks

v. United States, supra, is

obligatory upon the States under the

Fourteenth Amendment, so well

—

articulated by Mr. Justice Clark in

Mapp, support the conclusion that the

exclusionary rule is applicable to

forfeiture proceedings such as the

one involved here.

Plymouth Sedan, supra, 380 U.S. at 702, 85

S. Ct. at 1251.

The similarities between the motiv-

ation for police officers to attempt to

effectuate forfeitures, that is to punish

what they see as bad conduct, and their

motivation to obtain information which

becomes, under the opinion belcw,

permanently enshrined in police records,

is quite obvious. In discussing the

reasons why the exclusionary rule should

apply in forfeiture proceedings, the

Eighth Circuit itself has said that

evidence used to support the forfeiture

must be obtained from an independent,

lawful investigation wholly untainted by

- 21 -

the illegality which resulted in the

original seizure. United States v.

$85,000, 671 F. 2d 293, 296-297 (8th Cir.

1982). As the Court of Appeals explained

there, at note 6, citing Plymouth Sedan,

Supra, the application of the exclusionary

rule to forfeiture proceedings is a

natural extension of the deterrent purpose

first found to justify applying the rule

to the states in Mapp v. Ohio, 367 U.S.

643, 81 S. Ct. 1684. 6 L. Ed. 2d 1081

(1961). Because the motivations which

would foster ijllegal searches were it not

for the exclusionary rule’s application to

forfeiture proceedings are also largely

present if the police are allowed to

maintain information in the form of

records which are derived from illegal

searches, the opinion below will serve

to deprive the rule of much of its

deterrent effect because police officers

= 92 +

would obtain what most of them would

perceive to be substantial benefit as the

result of their illegal conduct - a bank

of information which they may use to

foster future investigations, possibly

including citation of that information in

future search warrant applications.

As has already been noted, this Court

has long since determined that the purpose

of the exclusionary rule is furthered by

its application to forfeiture proceedings

because of their quasi-criminal nature.

It is beyond dispute that the Fourth

Amendment to the United States Const-

itution absolutely guarantees the

Petitioner the right to be free from

unreasonable searches and seizures, a

right which would lose much meaning if the

victim of an illegal search is not given

the right to so far as possible have

himself returned to the position he was in

- 23 -

prior to the violation of his rights.

The only constitutionally permissible

resolution of the situation here, a

Situation which came into existance solely

as_a result of iliegal police conduct, is

full and complete application of the

exclusionary rule, including denying the

police any derivative benefit, even in the

form of records or intelligence

information, from their constitutional

violation. Wong Sun v. United States, 371

U.S. 471, 484-485, 83 S. Ct. 407, 415-416

(1963). As this Court expiained there:

“,..The exclusionary prohibition

extends as well to the indirect as

the direct products of such

invasions. © Silverthorn Lumber Co. vy

United States, 251 U.S. 385, 40 S.

Ct. 182, 64 L. Ed. 319. Mr. Justice

Holmes, speaking for the Court in

that case, in holding that the

~ % -

government might not make use of

information obtained during an

unlawful search to subpoena from the

victims the very documents illegally

viewed, expressed succinctly the

policy of the broad exclusionary

rule:

“The essence of a provision forbidd-

ing the acquisition of evidence in a

certain way is not that merely

evidence so acquired noi} not be

used before the Court but that it

hall 11. [authority]

(emphasis added)

The ciose link between the policy

considerations governing application of

the exclusionary rule in criminal cases

and the policy considerations which should

apply to the expungment which Petitioner

seeks is readily apparent. As this Court

has so recently said in James v. Illinois,

- 25 -

U.S

110 S. Ct. 648, 651 i.

Ed. 2d ____ (1990) when it determined that

the exclusionary rule does not permit the

use of illegally obtained evidence to

impeach a defense witness:

""“There is no gainsaying that

arriving at the truth is a

Fundamental goal of our legal

System.” [authority]. But various

constitutional rules limit the means

by which government may conduct this

search for truth in order to promote

other values embraced by the Framers

n her i thr h r ion’

history. Ever since its inception,

t ] xc ludi Yidenc in

vi i f the Four A n

r ni inci mo

f ing law

conduct. ...[Wlithout it the

nsti ional rantee again

Terry v, Ohio, 392 U.S. 1, 12, 88S.

Ct. 1868, 1875, 20 L. Ed. 2d 889

(1968), quoting Mapp v. Ohio, 367

U.S. 643, 655 81 S. Ct. 1684, 1691,

6 L. Ed. 2d 1081 (1961). Try

Applying those considerations here,

it is apparent that the purposes of the

exclusionary rule would be furthered and

that police misconduct would be deterred

at relatively smal! cost to society Dy

ordering the expungment sought. A rule

which permits use of even derivative

fruits of an illegal search in the form of

records which can be used to further

future enforcement proceedings would be an

outright encouragement to the police

lawlessness which the exclusionary rule is

designed to deter because it would allow

police to obtain a large portion of their

- 27 -

objective by illegally searching and

seizing and then using the information

gained to further later investigations.

CONCLUSION

For all of the above stated reasons,

the Court should grant the requested writ

of Certiorari to review the opinion of the

Eighth Circuit Court of Appeals denying

expungment of records which resulted

solely from an unconstitutional search.

DATED this 16th day of July, 1990.

Respectfully submitted,

/S/

Francis L. Goodwin

Baron, Sar, Goodwin, Gill,

Lohr & Jarman

Attorneys For Petitioner

750 Pierce Street

Sioux City, IA 51101

- 28 -

Phone: (712) 277-1015

CERTIFICATE OF SERVICE

I hereby certify that I have served

two (2) copies of the above and foregoing

on counsel for the opposing party by

depositing same in the United Stats mail,

with postage prepaid, addressed to:

Office of the Solicitor General

U. S. Department of Justice

Washington, D.C. 20530

DATED this 16th day of July, 1990.

/S/

Francis L. Goodwin

App. - 1

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

UNITED STATES OF AMERICA, )

) CR86-4025

Plaintiff, )

) ORDER

v. )

)

HUGHES ANDERSON BAGLEY, JR., )

)

Defendant. )

This matter is before the court on

defendant’s resisted motion for an order

directing expungment of records and on

defendant’s resisted motion to compel

return of illegally seizéd property.

After careful consideration of the parties

briefs and arguments made at a hearing

held in this case, the court hereby denies

defendant’s motions.

The genesis of this case was the

arrest of defendant under indictment

charging him with illegal receipt, as a

felon, of firearms shipped and transported

Ane. = &

in interstate commerce in violation of 18

U.S.C. Sec. 922(h)(1), 924(a) and (2). By

an Order of this court, upon motion by

defendant, evidence consisting of the

firearms in question was suppressed as the

fruits of an illegal search and seizure.

The United States subsequently dismised

its case against defendant.

I. Motion for Order Directing

Expungment of Records.

Defendant is now before this court

asking that a broad category of records

pertaining to this matter be destroyed.

Specifically, defendant seeks expungment

of the following documents:

1. All transcripts and stenographic

notes of grand jury proceedings taken as

a result of the unlawful search of

defendant’s briefcase on January 22, 1984.

2. All copies of interviews conducted

as a result of the unlawful search of

App. - 3

as a result of the unlawful search of

defendant’s briefcase on January 22, 1984.

3.) All copies of the indictment in

this case.

4.) Al? copies of warrants and

detainers issued for defendant as a result

Of the indictment in this case.

5.) All references to the indictment

in this case in defendant’s Federal Bureau

of Investigation "rap sheet” or

“computerized criminal history” maintained

by the Federal Bureua of Investigation.

6.) All pleadings filed in this case.

7.) All transcripts or stenographic

notes of hearings held in this case.

8.) All orders issued in this case

except the order Cirecting expungment of

records.

9.) All records of the make, model,

serial number, cajiiber or description of

items seized on January 22,1984, including

App. - 4

copies in the possession of the office of

the United States Attorney for the

Northern District of Iowa, the United

States Department of Justice, the United

States Parole Commission, the Bureau of

Alcohol, Tobacco and Firearms, the

Plymouth County Sheriff’s Office, the Iowa

Division of Criminal Investigation, and

any such references contained in the

personal notebooks of the officers

involved in the illegal search.

10.) Any other records by whatever

agency they are maintained, resulting from

tne illegal search of defendant’s

briefcase on January 222, 1984.

Defendant argues that expungment of these

records is appropriate because they were

all produced as a direct result of of a

— we

constitutional violation. The United

States resists, stating that legitimate

App. - 5

government interests militate in favor of

retention of records.

The law is well established that the

federal courts have inherent power to

expunge criminal records when necessary to

preserve basic legal rights. See United

States v. McMains, 540 U.S. [sic] 387, 389

(8th Cir. 1976). No federal statute

addresses the issue now before the court.

Rather, the power to order expungment of

criminal records lies within the equitable

discretion of the court, and relief is

usually granted only in “extreme circum-

stances." See United States Vv. Schnitzer,

567 F. 2d 536, 539 (2nd Cir. 1977), cert

denied, 435 U.S. 907 (1978). Under this

approach, the court has a duty to apply a

balancing test by which it weighs the

government interest and [sic] effective

law enforcement against the privacy

interest of the individual. See Schnitzer,

App. - 6

567 F. 2d at 539; United States v. Rosen,

343 F. Supp. 804, 806 (S.D. N.Y. 1972).

This court must apply this balancing test

on a case-by-case basis. See Diamond v.

United States, 649 F. 2d 496, 498 (7th

Cir. 1981); United States v. Linn, 513 F.

2d 925, 927 (10th Cir.) cert denied, 423

U.S. 836 (1975).

The Schnitzer court elaborated upon

the competing interests, setting forth in

greater detail some of the factors that

this court should consider in reaching its

decision. The Schnitzer court-noted that:

“TRjetaining and preserving arrest

records serves the important function of

promoting effective law enforcment.

Such records help to meet the

“compelling public need for the

acquisition, preservation, and exchange

of identification procedure.” United

States

vy. Seasholtz, 376 F. Supp. 1288, 1290

(N.D. Okla. 1974).

Schnitzer, 567 F. 2d at 539. In contrast,

the Schnitzer court emphasized that “an

arrest record alone can create serious

adverse consequences for those who have

been arrested in the past, notwithstanding

the ultimate disposition of the case.”

Schmnitzer, 567 F. 2d at 539. Further,

“CE]ven if no direct economic loss is

involved, the injury to an individual’s

reputation may be sbetennial. Economic

losses themselves may be both direct and

serious. Opportunities for schooling,

employment, or professional licenses may

restricted or nonexistent as a

consequence of the mere fact that an

arrest, even if followsd by an acquittal

or complete exoneration of the charges

involved.”

App.- 8

Menard v. Mitchell, 430 F. 2d 486, 490

(D.C. Cir. 1970) (footnotes omitted).

While weighing the equities in

determining the appropriateness of

expungment, the court must be cognizant

that the power to expunge is “a narrow

one, usually exercised in cases of illegal

prosecution or acquittals and is not to be

routinely used.” Uni tates v ins,

540 F. 2d at 390. See also Schnitzer, 567

F. 2d at~-539 ("“([T]he power to expunge ‘is

& narrow one, and should not be routinely

used whenever a criminal prosecution ends

in an acquittal, but should be reserved

for the unusual or extreme cases.’”),

citing United States v. Linn, 513 F. 2d at

927. The Schnitzer court provided four

examples of cases in which courts have

found expungment of records appropriate:

“([W]here procedures of mass arrest

- rendered judicial determination of

App. - 9

probable cause impossible: where the

court determined the sole purpose of the

arrest was to harass civil rights

workers; where the police misused

~@«

police records to the detriment of the

defendant; or where the arrest was

proper but was based on a statute later

declared unconstitutional.”

Schnitzer, 567 F. 2d at 540 (citations

omitted.

These cases should be compared with

others in which the courts found

expungment inappropriate. In Schnitzer,

for example, the court noted that

Schnitzer’s arrest and indictment were

legal, but the dismissal of the indictment

did not concede the innocence of the

defendant. See Schnitzer, 567 F. 2d at

540. Finding that the indictment was

dismissed because the Prosecutor did not

App. - 10

believe he could establish Schnitzer’s

guilt beyond a reasonable doubt, the court

denied the defendant’s motion for

expungment of the records, noting that he

had not shown that his records have been

released or were subject to potential

misuse. See Schnitzer, 567 F. 2d at 540.

See also United States v. Linn, 513 F. 2d

at 928 (where jury acquitted defendant at

trial and defendant has shown no misuse of

records, expungment not justified.) 1/

Reviewing the equities in the case at

bar, the court is not persuaded that the

extreme remedy of expungment is warranted.

Bagley was indicted ‘based upon the fruits

of an illegal search

1The court is aware of the recent case

plaintiff provided the court, United

States v. Bagley, CR 77-330(V)D, Western

District of Washington (1988), in which

App. - 11

the district court ordered the limited

expungment of Bagley’s presentence report

because of government interference with

Bagley’s right to a fair trial. The court

is not persuaded by this case, however,

because the factual background of the case

is unknown, only one document was expunged

(unlike the broad expungment requested by

Bagley in this case), and because a

district court ruling in Washington state

over an issue left to the discretion of

the district court on a case-by-case basis

has no binding effect on this court’s

judgment even though it did involve the

same person now before this court.

- 5 -

and seizure. No harassment has been

charged or is apparent from the facts.

The police found Q9UNS aS a result of their

unconstitutional search, the possession of

which is illegal for a convicted felon.

App. - 12

The guns were suppressed as evidence

because they were obtained without a

warrant. The court must keep in mind that

the exclusionary rule is itself an extreme

remedy found in few courts of law outside

the United States. The court finds

nothing to distinguish this case from

every other case where suppression of a

key piece of evidence results in the

dismissal of the case. The court finds it

difficult to image that expungment, a

remedy to be used only in extreme

circumstances, should be exercised every

time a case is dismissed because ev idence

is suppressed. Defendant has cited no

case in which this has been done

previously by another court. The court

notes that Bagley’s record is not

pristine, therefore negating any argument

by defendant that these records alone will

tarnish his reputation. This court

App. - 13

Suggests that defendant’s remedy was

granted when the court Suppressed the

evidence at his criminal trial. Based

upon the above, the court hereby denies

defendant’s motion for an order directing

expungment of records.

II. Motion For Return of Illegally

Seized Property.

Defendant has also brought before

this court a motion for an order

compelling return of the evidence supp-

ressed in his criminal case, which

evidence was seized in violation of

defendant’s fourth amendment right

against illegal searches and seizures.

This motion is brought under rule 41(e) of

the Federal Rules of Criminal Procedure,

which reads in pertinent part:

- @-«

“A person aggrieved by an unlawful

search and seizure may move the district

App. - 14

court for the district in which the

property was seized for the return of

the property on the ground that he is

nti wf of the

property which was illegally seized.”

Fed. R. Crim. P. 41(e) (emphasis added).

The property defendant seeks to have

returned is a Smith and Wesson Model 629

revolver; a Colt Model Mark IV, .45

caliber automatic pistol; miscellaneous

ammunition; assorted personal property;

and a brown briefcase.

Defendant is a convicted felon. He

acknowledges that, in his status, he may

not lawfully possess firearms or

ammunition. See 18 U.S.C. Sec. 922(g9).

Because he recognizes this prohibition,

defendant has suggested that the court

order the property turned over to a third

party, possibly a licensed firearms

dealer, for sale with defendant to receive

the proceeds.

While this is a unique suggestion,

defendant cites no authority which holds

that allowing a person to retain the

economic benefit of possession, while

lacking actual possession, is not a

Violation of 18 U.S.C. Sec. 922(g). The

government, however, has cited no

authority to the contrary. Nevertheless,

this court finds that to allow defendant

to reap the economic benefit from

ownership of weapons and ammunition which

it is illegal for him ie onnenen would

make a mockery of the law. Therefore,

this court holds that defendant is not

entitled to the return of the guns and

ammunition, either to himself or to his

agents from which he seeks to gain the

economic benefit of possession, for

defendant has failed to demonstrate that

he is entitled to the legal possession of

Ann. - %

these items as required by

a

Fed. R. Crim. ©. 41(e). 2/ The court

finds, however, that under the Federal

Rules of Criminal Procedure, defendant is

entitled to return of his briefcase and

all other personal property to which he

has a lawful right of possession. By a

supplemental resistance filed by the

United States on February 2, 1989, the

government has notified the court that it

discovered marijuana in defendant’s

briefcase. Defendant is not entitled to

possession of a controlled substance.

Therefore, defendant shall not have a

right to possession of the weapons, the

ammunition, nor the marijuana.

Upon the foregoing:

IT IS THEREFORE ORDERED that the

defendant’s motion for an order directing

the expungment of records is hereby

EST PLL LLL

App. 17

denied.

IT IS FURTHER ORDERED that

defendant’s motion to compel return of

illegally seized property is hereby denied

as to the two handguns, the ammunition,

and the marijuana, but is granted as to

the briefcase and other personal property.

‘February 3, 1989.

/s Donald E. O’Brien

Chief Judge United

States District Court

2/ The defendant has further argued in

the alternative that he is entitled to

possesion of the weapons in question

because the government failed to comp ly

with rule 7(c)(2) of the Federal Rules of

Criminal Procedure dealing with

forfeiture. Defendant is incorrect,

however, in arguing that this provides him

App. - 18

with a basis for return of the property.

This case is not one of forfeiture, but

rather one where, because of the nature of

the property, defendant has no right to

possession. Rule 41(e) of the Federal

Rules of Criminal Procedure places upon

the defendant the burden of proving

entitlement to lawful possession. It is

because defendant is unable to prove

entitlement to lawful possession that this

court has denied him his motion to compe 1

return of his property.

- 8-

App. - 19

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 89-1304

United States of America, * Appeal From

* the United

Appellee, * States

* District

Vv. * For The

* Northern

Hughes Anderson Bagley, Jr.* District of

* Iowa

Appellant. *

Submitted: October 9, 1989

Filed: March 14, 1990

Before FAGG, Circuit Judge, HEANEY, Senior

Circuit Judge, and BEAM, Circuit Judge.

Hughes Anderson Bagley, Jr. appeals

from the district court’s denial of his

motions to expunge all records of his

arrest and indictment, and for the return

of illegally seized weapons. We affirm.

As part of an ongoing criminal

investigation, law enforcement officers

arrested Bagley and acquired a locked

briefcase from Bagley’s home. Without

App. - 20

obtaining a search warrant, the officers

opened the briefcase and discovered two

handguns inside. Bagley was later

indicted as a felon in receipt and

possession of firearms. Before trial on

the indictment, Bagley moved to suppress

the weapons claiming they were seized in

an illegal search, and the district court

granted his motion. The government then

dismissed the indictment, and Bagley

brought his motions for expungment and

return of the weapons.

we

Guided by well established prin-

ciples, we conclude’ Bagley’s case presents

no extra-ordinary circumstances warranting

expunction. See United States v. Doe, 859

F. 2d 1334, 1336 (8th Cir. 1988). The

district court has a narrow power to

expunge criminal records, United States v.

App. - 21

McMains, 540 F. 2d 387, 389-90 (8th Cir.

1976}, which is infrequently exercised,

United States v. Friesen, 853 F. 2d 816,

818 (10th Cir. 1988), and reserved for

unusual or extreme cases, United States v.

Linn, 513 F. 2d 925, 927 (10th Cir.), cert

denied, 423 U.S. 836 (1975). The district

court balances the government’s need to

maintain extensive records to aid in

effective law enforcement against the harm

to the individual of maintaining these

records by examining requests for expunct-—

ion ona case-by-case basis. United

States v. Schnitzer, 567 F. 2¢ 536, 539-

40 2nd Cir. 1977), cert denied, 435 U.S.

907 (1978); Linn, 513 F. 2d at 927. We

review the district court’s decision to

expunge under an abuse of discretion

. Standard. United States vy. International

Harvester Co., 720 F. 2d 418, 419 (5th

Cir. 1983), cert denied, 466 U.S. 939

ADD. - 22

(1984).

In our view, Bagley’s arrest

information and indictment represent

valuable law enforcement records, and the

adverse consequences to Bagley of

preserving the records are minimal. The

unlawful seizure of the weapons discovered

in Bagley’s briefcase did not affect

Bagley’s indictment, United States v.

Calandara, 414 U.S. 338, 343-45 (1974),

nor did the government concede Bagley’s

innocence in dismissing the indictment,

see Schnitzer, 567 F. 2d at 540. Indeed,

Bagley’s guilt is ciear apart from the

intervention of the exclusionary rule.

See Stone v. Powell, 428 U.S. 465, 490

(1976).

Because the exclusionary rule is a

deterrent to unlawful police conduct,

Bagley received his fourth amendment

remedy when the district court suppressed

App. - 23

Bagley’s weapons for trial purposes.

Calandara, 414 U.S. at 347. Although

mistaken and unlawful, the officers’

actions in this case were not taken in

flagrant violation

os 2 =

of the fourth amendment. See Menard yv.

Saxbe, 498 F. 2d 1017, 1023 (0.¢. Cir.

1974). Bagley does not claim he was the

victim of police harassment, see Linn, 513

F. 2d at 927-28, nor does he Suggest his

conviction was sought for illegal

purposes. United States v. Mcleod, 385 F.

2d 734, 749-50 (5th Cir. 1967). Further,

Bagley has failed to show the government

will misuse the retained records against

him, see Linn, 513 F. 2d at 928, or he

would suffer serious adverse consequences

if the government is permitted to maintain

the records. Schnitzer, 567 F. 2d at 539-

40.

App. - 24

We thus agree with the district court

that Bagley’s case is indistinguishable

“from every other case where the

suppression of a key piece of evidence

results in dismissal” of the indictment.

Like the district court, we “find [] it

difficult to imagine that expun[ction], A

remedy to be used in extreme circum-

stances, should be exercised every time a

case is dismissed because evidence is

suppressed.” We conclude the district

court did not abuse its discretion in

denying Bagley’s motion for expungment.

Bagley also sought return of the

weapons seized fromthe briefcase. A

person who is entitled to lawful

possession of illegally seized property

may move for the return of the seized

property. Fed. R. Crim. P. 41(e). AS a

convicted felon, Bagley cannot lawfully

possess the weapons. 18 U.S.C. 922(g)

App. - 25

(1988). Bagley concedes he is not

entitled to possession of the weapons, but

argues the weapons should be sold by a

third party with the proceeds remitted to

Bagley. Bagley’s argument is frivolous.

We agree with the district court "that to

allow [Bagley] to reap the economic

benefit from ownership of weapons [] which

it is illegal for him to possess would

make a mockery of the law.”

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

App. - 26

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 89-1304NI

United States of America, *

* Order

Appellee, * Denying

* Petition

Vv. * For Rehear-

* ing and

Hughes Anderson Bagley, Jr.,* Suggestion

* For Rehear-

Appellant. * ing En Banc

Appellant’s suggestion for rehearing

en banc has been considered by the court

and is denied by reason of the lack of a

majority of the active judges voting to

rehear the case en banc.

Petition for rehearing by the panel

is also denied.

April 19, 1990

Order entered at the direction of the

Court:

/S Robert D. St. Vrain

Clerk, U.S. Court of Appeals, Eighth

Circuit