Opposition Brief — Russell v. United States

Supreme Court, U.S.

FILED

No. 92-165 SEP 30 1992

OFPICR OF THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1992

30BBY RUSSELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

JAMES A. BRUTON

Acting Assistant Attorney General

ROBERT E. LINDSAY

ALAN HECHTKOPF

GAIL BRODFUEHRER

Attorneys

Department of Justice

Washington, D.C. 20530

~

(202) 514-2217

QUESTION PRESENTED

Whether the good-faith exception to the exclusionary

rule was properly applied where the magistrate who

issued the search warrant inadvertently failed to attach

to the warrant a list of the items to be seized.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases: |

Center Art Galleries-Hawau, Inc. v. United States, 875

EN I BUD ooo conn ccanvunenencascnvaserassseaxeneussasavnss &, 9

Massachusetts v. Sheppard, 468 U.S. 981 (1984) ............ 4,6,7

United States v. Anderson, 851 F.2d 384 (D.C. Cir. 1988),

cert. denied, 488 U.S. 1012 (1989) .................cscsessscseesees 7

United States v. Crozier, 777 F.2d 1376 (9th Cir. 1985) ... ~

United States v. Fuccillo, 808 F.2d 173 (st Cir.), cert.

eT en ED ss cnadcddaastasaabavscovanexsoveasne Fs

United States v. Leary, 846 F.2d 592 (10th Cir. 1988) ..... &

United States v. Leon, 468 U.S. 897 (1984) ............ eee. 4, 6,8

United States v. Luk, 859 F.2d 667 (9th Cir. 1988) .......... 9g

United States v. Maxwell, 920 F.2d 1028 (D.C. Cir.

(SL ck Sal A ley OR ODS EEE RE ODE 7,9

United States v. Spilotro, 800 F.2d 959 (9th Cir. 1986) ... a]

United States v. Stubbs, 873 F.2d 210 (9th Cir. 1989) ..... 8

Statutes:

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(ITT)

In the Supreme Court of the Ginited States

OCTOBER TERM, 1992

No. 92-165

BoBBY RUSSELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 9-16)

is reported at 960 F.2d 421. One of the opinions of the

district court is reported at 649 F. Supp. 1402.

JURISDICTION

The judgment of the court of appeals was entered on

April 28, 1992. A petition for rehearing was denied on

May 28, 1992. The petition for a writ of certiorari was

filed on July 23, 1992. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Pursuant to a plea agreement in which he reserved

the right to appeal the denial of his motion to

suppress evidence, petitioner was convicted of one

count of conspiracy to defraud the United States, in

violation of 18 U.S.C. 371; one count of using a false

social security number, in violation of 42 U.S.C.

408(g)(2); and two counts of making a false tax return,

in violation of 26 U.S.C. 7206(1). He was sentenced to

ten years’ imprisonment and ordered to pay a $200,000

fine. The court of appeals affirmed.

1. After petitioner was indicted in the United

States District Court for the Northern District of

Mississippi, he filed a motion to suppress evidence

seized in a warrant-authorized search of his office and

residence. The motion alleged that the warrant was

facially defective because it faited to include an

attachment describing the items to be seized.

After a hearing, the district court denied petition-

er’s motion to suppress. 649 F.. Supp. 1402 (N.D. Miss.

1986); Pet. App. 10. The evidence at the suppression

hearing showed the following: On August 20, 1986,

Internal Revenue Service Special Agent James Baker

applied for a search warrant before a United States

magistrate. Baker’s affidavit in support of his

application for a search warrant included a list of the

particular documents and items to be seized. There

was insufficient space on the face of the warrant form

to include the list of items to be seized, so the list was

intended to be appended as an attachment to the

warrant. Pet. App. 11 n.4.

When Baker applied for the warrant, he presented

the complete application to the magistrate. The

magistrate questioned Baker specifically about the

list of items to be seized. On the basis of Baker’s

5)

affidavit, the magistrate found probable cause, and he

authorized the search warrant. Pet. App. 11; 649 F.

Supp. at 1404. The magistrate signed the warrant and

gave Baker the relevant documents to be served on

petitioner when the warrant was executed. Gov’t C.A.

Br. 5-6. As a result of an apparent oversight on the

part of the magistrate’s staff, however, the list of

items to be seized was not attached to the warrant.

Pet. App. 11 n.4.

Baker conducted the search the following day.

During the search, Baker posted a copy of the list of

items to be seized, and a computerized inventory was

made of all items actually seized. Pet. App. 11-12. At

the conclusion of the search, Baker served petitioner

with a copy of the warrant—without the attachment

specifying the items to be seized—and a copy of the

inventory of seized items: /d. at 12. At that time,

Baker realized that the attachment was missing, but

he assumed that it had been omitted from petitioner’s

copy of the warrant because the magistrate had

earlier ordered the file in the case sealed. Gov’t C.A.

Br. 8-9. Baker believed that the warrant was valid so

long as the copy of the warrant in the magistrate’s

file included the attachment specifying the items to

be seized. [bid.

On the basis of those facts, the district court found

that both the magistrate and Baker understood the

search to be limited to those items specified in

Baker’s affidavit, even though the warrant did not

incorporate the affidavit by reference and did not

include the attachment specifying the items to be

seized. 649 F. Supp. at 1404, 1407. The court also

found that Baker “sought and executed the warrant in

good faith,” and that “his actions were objectively

reasonable in executing the warrant authorized by

the United States magistrate.” Jd. at 1408. Ac-

NN eee

4

cordingly, the court held that the good-faith exception

to the exclusionary rule applied in this case and

rendered the seized evidence admissible. Jd. at 1407

(citing Massachusetts v. Sheppard, 468 U.S. 981

(1984)).

2. Petitioner then filed a supplemental motion to

suppress, relying on an affidavit from Internal Rev-

enue Service Special Agent William Gibson. Gibson’s

affidavit stated that he met with Baker on the night

before the search and was shown a copy of the search

warrant. Gibson stated that he told Baker that the

warrant did not contain a list of items to be seized.

Pet. App. 12 n.6.

The district court rejected petitioner’s supplemen-

tal motion. The court found that there was nothing in

the record, including Gibson’s affidavit, to indicate

that Baker acted other than in good faith. Pet. App.

12 n.6.

3. The court of appeals affirmed. Pet. App. 9-16.

Noting that the parties agreed that the warrant was

defective, the court turned to the question whether

the good-faith exception to the exclusionary rule was

applicable on the facts of this case. Jd. at 13. The

court explained that “the exclusionary rule should

not be applied to suppress evidence if the evidence was

obtained by officers acting in objectively reasonable

reliance on a subsequently invalidated search war-

rant.” Jd. at 13-14 (citing United States v. Leon, 468

U.S. 897 (1984), and Massachusetts v. Sheppard, 468

U.S. 981 (1984)). Analogizing this case to Sheppard,

in which the Court declined to suppress evidence

where “the judge, and not the police officers, * * *

made the critica! mistake,” the court of appeals stated

that “[iJn this case, we likewise see nothing to be

gained by laying fault for this apparent clerical error

at Baker’s feet.” Pet. App. 14-15.

5

The court of appeals specifically rejected petition-

er’s claim that Gibson’s affidavit evidenced a lack of

good faith on Baker’s part. Observing that “the facts

show that Baker understood that the search and

seizure was limited to the premises and items listed

in the affidavit, and that the scope of the intended

search and seizure was not exceeded,” the court

concluded that the Gibsen affidavit did not render

clearly erroneous the district court’s finding that

Baker acted in good faith. Pet. App. 12 n.6.

The court also rejected petitioner’s claim that

Baker’s reliance on the warrant was not objectively

reasonable. Pet. App. 15-16. The court pointed to

ample evidence in the record supporting the district

court’s finding that Baker acted in good faith,

including the facts that (1) Baker’s affidavit demon-

strated probable cause and described the premises to

be searched and the items to be seized; (2) neither

Baker nor the magistrate realized that the list of

items to be seized was missing from the warrant as

finally assembled; and (3) Baker and the magistrate

were aware of the limitations on the items to be

seized and acted accordingly. /d. at 15 n.10. There-

fore, the court concluded that the good-faith exception

to the exclusionary rule was applicable. /d. at 16.

ARGUMENT

1. Petitioner contends (Pet. 4-7) that the courts

below erred in concluding that the good-faith excep-

tion to the exclusionary rule governs this case. He

asserts that the exception is inapplicable because the

search warrant was facially deficient in that it failed

to particularize the items to be seized. He further

argues that Agent Baker failed to take reasonable

steps to determine the validity of the warrant.

6

Petitioner’s fact-bound claim does not warrant fur-

ther review.

The court of appeals correctly sustained the

district court’s finding that Agent Baker acted in

good faith in obtaining and executing the warrant.

The seized evidence was therefore properly held

admissible under this Court’s decisions in United

States v. Leon, 468 U.S. 897 (1984), and Massachusetts

v. Sheppard, 468 U.S. 981 (1984). In Leon, this Court

held that the exclusionary rule “cannot be expected,

and should not be applied, to deter objectively reason-

able law enforcement activity,” particularly when “an

officer acting with objective good faith has obtained a

search warrant from a judge or a magistrate and

acted within its scope.” 468 U.S. at 919, 920. In such

circumstances, the deterrent value of the exclusion-

ary rule is vitiated by the fact that “an officer cannot

be expected to question the magistrate’s probable-

cause determination or his judgment that the form of

the warrant is technically sufficient.” /d. at 921.

In Massachusetts v. Sheppard, the Court applied

the good-faith exception to a search warrant that, like

the warrant at issue in this case, insufficiently

described the items to be seized. In Sheppard, the

warrant incorrectly identified the items to be seized

as evidence of narcotics possession or use, when in

fact the items at issue were evidence of a murder. 468

U.S. at 986 & n.2. Relying on Leon, this Court re-

versed the suppression of the seized evidence, because

the Court “refuse[d] to rule that an officer is required

to disbelieve a judge who has just advised him, by

word and by action, that the warrant he possesses

authorizes him to conduct the search he has re-

quested.” Jd. at 989-990.

The same considerations that prompted this Court

to apply the good-faith exception in Leon and

7

Sheppard are present here. The record in this case

is replete with evidence supporting the findings of

both courts below that Agent Baker obtained and

executed the warrant in good faith. Baker prepared

an extensive affidavit that demonstrated probable

cause and described with particularity the premises

to be searched and the items to be seized. The

magistrate found probable cause to justify the search

and approved the description of the property to be

seized. At the outset of the search Baker posted a

copy of the list of items to be seized, and at the com-

pletion of the search he provided petitioner with a

computerized list of all the items that had been seized.

Most importantly, Baker confined the scope of the

search to the parameters of the affidavit. Thus, con-

trary to petitioner’s contention, Baker “took every

step that could reasonably be expected of [him].”

Sheppard, 468 U.S. at 989; see United States v.

Anderson, 851 F.2d 384, 388-389 (D.C. Cir. 1988), cert.

denied, 488 U.S. 1012 (1989); United States v.

Maxwell, 920 F.2d 1028, 1034 (D.C. Cir. 1990).

As the courts below concluded, the warrant in this

case was defective simply because the magistrate’s

staff failed to attach to the warrant form the list of

items to be seized, even though the list had previously

been prepared by the executing agent. Since “the

exclusionary rule was adopted to deter unlawful

searches by police, not to punish the errors of magis-

trates and judges,” Sheppard, 468 U.S. at 990, such a

clerical error does not require exclusion of the seized

evidence. /d. at 991."

' Petitioner points to Agent Gibson’s affidavit indicating

that, prior to conducting the search, Baker knew that the list

of items to be seized was missing from the warrant. Pet. 5.

Baker, however, was under the impression that the list of items

8

2. Petitioner contends (Pet. 5-7) that the decision

below is in conflict with the decisions of the First,

Ninth, and Tenth Circuits in Center Art Galleries-

Hawaii, Inc. v. United States, 875 F.2d 747, 750 (9th

Cir. 1989); United States v. Stubbs, 873 F.2d 210, 212

(9th Cir. 1989); United States v. Leary, 846 F.2d 592

(10th Cir. 1988); United States v. Fuccillo, 808 F.2d

178, 178 (st Cir.), cert. denied, 482 U.S. 985 (1987);

United States v. Spilotro, 800 F.2d 959, 968 (9th Cir. ~

1986); and United States v. Crozier, 777 F.2d 1376,

1382 (9th Cir. 1985). That contention is incorrect.

In each of the cases cited by petitioner, the courts

of appeals refused to apply the good-faith exception

when police officers relied on search warrants later

found to be impermissibly overbroad. Those courts

found that the search warrants were so facially

deficient in failing to particularize the things to be

seized that the executing officer could not reasonably

have presumed that the warrants were valid. Cf.

Leon, 468 U.S. at 923. In this case, by contrast, the

warrant was not so facially deficient as to make it

unreasonable for Agent Baker to presume that the

warrant was valid. The proposed warrant form

referenced an attachment listing the items to be

seized, and Baker included the referenced attachment

when he presented the warrant application to the

magistrate. The courts below found as a matter of

fact that neither the magistrate nor Baker realized

that the list of items to be seized was not attached to

the warrant as finally assembled and filed. -

to be seized was not required to be attached to the version of

the warrant served on petitioner so long as it was attached to

the warrant in the magistrate’s sealed file, and he believed that

the filed copy of the warrant contained an attached list of the

items to be seized. Gov’t C.A. Br. 25-26.

9

When Baker discovered that the list was not

attached to the warrant forms in his possession, he

assumed that the magistrate’s office-had not provided

him with the list because the magistrate had sealed

the file. Underlying that assumption was his reason-

able (though mistaken) belief that the attachment was

affixed to the version of the warrant in the magis-

trate’s file. Accordingly, the cases cited by petitioner

are inapposite, because in none of those cases did the

officers executing the warrant have reason to believe

that the requisite particularized list of items to be

seized was in fact attached to the warrant. Petitioner

has failed to demonstrate that any other court of

appeals would reach a different result on the unusual

facts of this case. Accordingly, no further review is

warranted.”

* Petitioner errs in contending (Pet. 6) that the Ninth

Circuit would have decided this case differently under the

authority of Center Art Galleries-Hawaii, Inc. v. United

States, supra. Petitioner points to language in Center Art

indicating that an affidavit cannot cure the overbreadth of a

warrant unless the affidavit is attached to and incorporated by

reference in the warrant, 875 F.2d at 750, but that language is

inapposite. In this case, the lower courts did not rely on

Baker’s unattached affidavit to cure the overbreadth of the

warrant; rather, they looked to the affidavit as further evi-

dence of Baker’s good faith. See United States v. Luk, 859

F.2d 667, 677 (9th Cir. 1988) (“although the [unincorporated]

affidavit cannot be used to cure the warrant’s overbreadth, the

possession of the affidavit when the officers conduct their

search * * * is evidence of good faith under Leon”); see also

United States v. Maxwell, 920 F.2d 1028, 1034 (D.C. Cir. 1990).

10

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JAMES A. BRUTON

Acting Assistant Attorney General

ROBERT E. LINDSAY

ALAN HECHTKOPF

GAIL BRODFUEHRER

Attorneys

SEPTEMBER 1992