# Petition for Writ of Certiorari — Bagley v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 938

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2522%3A1. Public record. Not legal advice.