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ibl UF THE CLcnK

NO. 29)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

JOSEPH EMILE SISSLER

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

VOLUME I

STUART R. SHAFER (P-25599)

REID AND REID

One Business & Trade Center

200 Washington Square, North

Lansing, Michigan 48933-1384

(517) 487-6566

Attorneys for Defendant-

Petitioner

APPENDIX - VOLUME I

TABLE OF CONTENTS

Appendix A

Decision of United States Court

of Appeals (6th Cir. June, 1992) .. 1-34

Appendix B

Judge Benjamin F. Gibson's

JUNG BS, 1990 Opinion ..ccccc&seccees 35-55

Appendix C

Judge Benjamin F. Gibson's

MMGUSS 30, 1991 GBAMNIOM .ccesecceces 56-77

Appendix D

| ee Te TT eee ee TET ee eee Tee 78-80

Appendix E

ee er 81

Appendix F

Judge Gibson's October 10, 1990

Order Reopening Proofs ............ 82-88

Appendix G

Judgment in a Criminal Case ....... 89-90

Appendix H

Hon. Benjamin F. Gibson's

October 7, 1991 Opinion & Order.... 91-93

Appendix I

Hon. Benjamin F. Gibson's

OSCowmer 14, 1992 GOEGOE «cccccecceccs 94-95

Appendix J

Affidavit for Search Warrant

and Search Warrant ..ccccccccccsece 96-111

Appendix K

FBI Agent Langkos' Testimony .....112-115

APPENDIX A

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES

OF AMERICA,

Plaintiff-Appellee,

On Appeal from the

United states

District Court for

the Western District

of Michigan

JOSEPH EMILE

SISSLER,

Defendant-Appellant.

J

Before: GUY and BOGGS, Circuit Judges;

and RONEY, Senior Circuit

Judge. *

PER CURIAM. The defendant in this

marijuana possession case appeals from the

district court's denial of his motion to

suppress evidence obtained from a search of a

home in which he was a guest. We affirn.

* Honorable Paul H. Roney, United States Court

of Appeals for the Eleventh Circuit, sitting

by designation.

App. e

This appeal arises out of the execution

of a warrant to search a house owned by Robert

Baldori in vkemos, Michigan. Baldori, a

professional musician and attorney shared the

house with his girlfriend, Kelly Boyle. At

the time of the search, Baldori, Boyle, and

their overnight quest, the defendant Joseph

Sissler, were in the house.

On January 12, 1990, four days before the

search was carries out, an FBI agent obtained

an anticipatory warrant from a federal

magistrate to search Baldori's house. The

warrant was contingent on an informant, Jim

Joseph, successfully completing the delivery

of police supplied marijuana to Baldori at his

home, pursuant to an agreement between Joseph

and Baldori. The warrant authorized the

police to seize marijuana, scales, proceeds of

marijuana sales in the form of U.S. currency,

records of marijuana transaction, records of

assets purchased with marijuana proceeds,

——— TT

App. 3

satety deposit box keys, and phone numbers of

marijuana suppliers and customers.

Joseph delivered 88 pounds of marijuana

to Baldori late on the evening of January 15,

1990. While Joseph was inside, Sissler

arrived in a car bearing Virginia tags and

entered the house. Neither the officers nor

Joseph were expecting anyone to arrive, and

Sissler was unknown to the authorities.

Joseph emerged from the house shortly after

midnight and confirmed that he had delivered

the marijuana to Baldori. He had not spoken

with Sissler.

Approximately 24 local and federal

officers then executed the warrant and

searched the house for more than 5 hours. The

police combed the entire house and opened

containers, including Sissler's briefcase and

overnight bag. The officers recovered the

marijuana delivered by Joseph, seized large

amounts of currency from Sissler's overnight

bag and elsewhere, and arrested Baldori and

Fup epee 8

Sissler. They also selved records belonging

to Baldori. The selzure included 500 computer

disks, as well as three personal computers,

two printers, and a modem. Some of the local

officers also seized sexually explicit

photographs and slides of Kelly Boyle.

An IRS agent and officers from a local

forfeiture unit also participated in the

search. They seized records, some dating back

to 1969, in an apparent attempt to determine

Baldori's net worth. The forfeiture unit also

seized a fax machine.

During the search, the officers separated

Sissler and Baldori, warned Sissler of his

Miranda rights, and questioned him. In

response to these questions, Sissler indicated

that he had intended to use the cash found in

his overnight bag to buy marijuana from

Baldori.

One week later, a federal grand jury

charged Sissler with attempting to possess

marijuana with intent to distribute. He moved

App. 5

to suppress his statement an? the evidence

seized from Baldori's house. Atter the

district court denied the motion, Sissler

entered a conditional guilty plea to the

attempted possession charge.

Meanwhile, state authorities were

investigating the conduct of some of the local

officers who has participated in the search.

This investigation led a state prosecutor to

charge two of the officers with criminal

offenses.

Sissler moved to reopen the suppres ion

hearing, and the district court granted the

motion, limiting the hearing to the issue of

whether of officer had flagrantly disregarded

the scope of the warrant. At the reopened

suppression hearing, Sissler called several of

the officers who had been charged or were

being i:ivestigated by the state prosecutor.

Each of these officers refused to testify

about his role i’. the search and invoked the

Fifth Amendment privilege against self-

App. 6

incrimination.

At the conclusion of the reopened

suppression hearing, the district court again

denied Sissler's motion to suppress the fruits

of the search. This appeal followed.'

Il.

Sissler first argues that his

Confrontation Clauses rights were violated

when several of the officers who had

participated in the search invoked the

privilege against self-incrimination when

Sissler called them to testify during the

suppression hearing. He maintains that the

officers' refusal to testify deprived him of

his right to confront adverse witnesses.

As an initial matter, the government

concedes that Sissler has a Confrontation

Clause right to examine any witness who gives

"damaging" testimony against him, even if

' After denying Sissler's renewed motion

to suppress, the district court sentenced

Sissler to 57 months imprisonment but allowed

him to continue his bond pending the outcome

of this appeal.

App. 7

Sissler called the witness to testify. See

Chambers v Mississippi, 410 U.S. 248, 298

(1973). However, the government points out

that the officers who asserted the privilege

gave no testimony of any kind against Sissler

at the suppression hearing.

Even if we were to agree with Sissler

that the officers who declined to answer the

questions were somehow witnesses against hin,

we would not hold that their silence violated

his Confrontation Clause rights. The Sixth

Amendment does not compel the government to

produce all witnesses competent to testify,

see Unites States v Moore, 954 F.2d 379, 381

(6th Cir. 1992), nor does it compel government

witnesses who do testify to waive their

testimonial privileges, see McCray Vv Illinois,

386 U.S. 300, 314 (1967).

Finally, we observe that the Supreme

Court has rejected Confrontation Clause

challenges to the use of incompetent testimony

during suppression hearing. See United States

a

App. 8 ’

v Matlock, 415 U.S. 164, 175 (1974); McCray, |

386 U.S, at 314; see also United States v

Boyce, 797 F.2d 691, 693 (8th Cir. 1986) ("the

right of confrontation does not apply to the

same extent at pretrial suppression hearing as

it does at trial"). The Court has repeatedly

explained that "{t]he right to confrontation

is basically a trial right." Barber v Page,

390 U.S.~ 719, 725 (1968).; see also

Pennsylvania v Ritchie, 480 U.S. 39, 52 (1987)

(Powell, J.); California v Green, 399 U.S.

149, 157 (1970).

Accordingly, we hold that Sissler's Sixth

Amendment rights were not violated when

several officers invoked the Fifth Amendment

privilege against self-incrimination during

the suppression hearing.

iit.

Sissler argues that the search violated

his rights under the Fourth Amendment.

Specifically, he contends that: (1) probable

cause was absent at the time the magistrate

cenit abit |

App. 9

issued the anticipatory search warrant; (2)

the police failed to execute the warrant

within the time specified; (3) the search

warrant did not authorize the police to open

his overnight bag and briefcase; (4) the

search warrant was unconstitutionally

overbroad; and (5) the police flagrantly

disregarded the terms of the warrant and

conducted a general search.

We must first determine whether Sissler

has standing to raise all of these arguments.

The district court concluded that Sissler was

an overnight guest and, as such, has standing

to challenge the search of the Baldori home.

The government concedes that Sissler was an

overnight guest and has standing to challenge

the search of his personal belongings and his

"guests quarters" at the Baldori residence,

but argues that he lacks standing to attack

the search of the rest of the house.

The Supreme Court recently considered the

Fourth Amendment standing of overnight guests

App. 10

in Minnesota v Olson, 495 U.S. 91 (1990). In

Olson, the Court held that the defendant's

"status as an overnight guest is alone enough

to show that he had an expectation of privacy

in the home that society is prepare to

recognize as reasonable." Id., 495 U.S. 96-97.

The Court further elaborated:

That the guest has a host who has

ultimate control of the house is not

inconsistent with the guest having a

legitimate expectation of privacy.

The houseguest is there with the

permission of his host, who is

willing to share his house and his

privacy with his guest. It is

unlikely that the quest will be

confined to a restricted area of the

house; and when the host is away or

asleep, the guest will have a

measure of control over the

premises.

Id. at 99 (Emphasis added).

Olson contains no language to support the

governments argument that an overnight guest

obtains a privacy interest only in his guest

quarters.* On the contrary, a natural reading

The governments reliance on Rakas v

Illinois, 439 U.S. 128 (1978), is misplaced.

In Rakas, the Court held that a car passenger

has no legitimate expectation of privacy in

App. 11

of Olson suggest that an overnight guest's

privacy interest in a home is not limited

unless the host restricts the guest's

movement. See United States v Osorio, 949 F.2d

38, 41 (2d Cir. 1991) (holding that overnight

guests had standing to challenge search of

entire premises absent proof that host

restricted guest's movements) .

Since the government does not point to

any evidence that Baldori limited Sissler's

movement about the house, we conclude that

Sissler had standing to challenge the search

of the entire house. We now turn to Sissler's

specific Fourth Amendments arguments.

A.

Sissler maintains that the magistrate

the car's glove compartment. Id. at 148-89.

In dicta, the Court explained that a "casual

visitor" to a home has no standing to

challenge the search of the basement he has

never seen. Id. at 142. In Olson, the Court

carefully explained its holding in Rakas and

held that an overnight guest, unlike a casual

visitor on the premises, has a privacy

interest in his host's home. Olson, 495 U.S.

at 97-89.

App. 12

lacked probable cause when he issued the

anticipatory search warrant four days before

Joseph delivered the marijuana to Baldori's

home. This claim requires us to review the

information available to the magistrate at the

time he issued the warrant.

On January 10 and 11, Joseph, wearing a

transmitting devise and a tape recorder, met

with Baldori to negotiate the sale of

approximately 100 pounds of marijuana. On

January 11, Baldori told Joseph that he could

not take delivery until January 15. The state

police then made arrangements to provide

Joseph with marijuana for delivery on January

15. On January 12, FBI Agent Dennis Langkos

sought and obtained the anticipatory warrant

at issue in this appeal. Langkos' affidavit

contained the information obtained from

Joseph, as well as other information. The

warrant was expressly conditional on Joseph

successfully delivering marijuana to the

Baldori home. Sissler argues that no probable

App. 13

cause for the search existed until Joseph

actually delivered the marijuana late on the

evening of January 15. He maintains that the

issuance of the anticipatory warrant allowed

the authorities to manufacture probable cause

after obtaining the warrant.

Sissler relies heavily on the decision in

United States v Hendricks, 743 F.2d 653, 654-

55 (9th Cir. 1984), cert. denied, 470 U.S.

1006 (1985), in which the Ninth Circuit stated

that an anticipatory warrant is valid only if

the contraband is on a "sure course" to the

place to be searched. The court held that the

suitcase containing cocaine was not on a sure

course to the defendant's home at the time the

warrant was issued because there was no

assurance that the defendant would pick up the

suitcase at the airport or that he would take

it home if he did pick it up. Id. At least

two other circuits have adopted the sure

course standard employed by the Ninth Circuit.

See United States vy Nixon, 918 F.2d 895, 903

App. 14

n.6 (1ith Cir. 1990); United States v Goodwin,

854 F 2d. 33, 36 (4th Cir. 1988);

The government points to United States v

Garcia, 882 F.2d 699, 702-03 (2d Cir.), cert.

denied, 493 U.S. 943 (1989), in which the

Second Circuit upheld an anticipatory warrant

contingent upon an informant's controlled

delivery of cocaine to the defendant's home.

The court held that an anticipatory warrant is

valid in such a situation so long as there is

probable cause to believe that the contraband

will be on the premises at the time the search

is executed. Id., 882 F.2d at 703.

We had earlier reached the same

conclusion at the Garcia court in a case

involving the mailing of a package containing

heroin. United States v Lowe, 575 F.2d 1193

(6th Cir.), cert denied, 439 U.S. 869 (1978).

In Lowe, we upheld the use of an anticipatory

warrant so long as "there is probable cause to

believe that [the contraband] will be there

when the search warrant is executed." Id, 575

-—_

App. 15

F.2d at 1194.

We need not decide whether the police

must show that the contraband is on the sure

course or whether they need merely establish

probable cause to believe that it will be at

the place to be searched. The anticipatory

warrant in this case is valid under either

standard.

At the time the warrant was issued, the

police controlled the marijuana that was

eventually delivered to Baldori. Joseph, an

informant working for the government, had

arranged to deliver it to Baldori's home on

January 15. ‘These undisputed facts support a

finding that the marijuana was on a sure

course to Baldori's home at the time the

warrant was issued. As the Ninth Circuit

acknowledged in Hendricks, a controlled

delivery by the government can satisfy the

' requirement that the contraband be on a sure

| course to the place to be searched. 743 F.2d

App. 16

at 655.3

We find that there was sufficient

assurance that marijuana would be delivered to

Baldori's home to satisfy both the sure course

and probable cause standards. Accordingly, we

hold that the magistrate validly issued the

warrant.

B.

Sissler next argues that the authorities

failed to execute the warrant within the time

specified. The warrant commanded the officers

to search Baldori's home "upon the delivery of

marijuana." (App 680). Sissler compiains that

the agent did not execute the warrant until

3sissler argues that the sure course

requirement is satisfied only in the

contraband is in the mail. The Hendricks

court listed a mailing as an example of a

controlled delivery satisfying the sure course

requirement. 743 F.2d at 655. The court never

suggested that the warrant would have been

valid only if the suitcase had been mailed to

Hendricks; instead, the warrant was invalid

because there was no assurance that Hendricks

would pick up the suitcase and return to his

home. Id By contrast, the affidavit for the

warrant in this case stated that Joseph would

deliver the marijuana to Baldori's house.

App. 17

more that two hours after Joseph arrive with

' the marijuana.

The government points out that the

warrant was not executed for several hours

because the officers waited until Joseph left

the house before executing the warrant. The

officers could not be sure that delivery

actually had occurred until Joseph came out

without the marijuana. The officers executed

the warrant shortly after Joseph emerged.

_ Accordingly, we find that the officers

: executed the warrant "upon the delivery" of

| the marijuana in a timely manner.

Cc.

Sissler argues that the officers lacked

| probable cause to open his briefcase and

| overnight bag. The officers found the

| briefcase in Baldori's recording studio and

the overnight bag in the office. Inside the

overnight bag, the officers discovered

prescription medication in Sissler's name and

$130,000 in cash. The briefcase contained

,

App. 18

$1,120 in cash.

A warrant that authorized officers to

search a home also authorized them open

containers that might contain items which in

the scope of the warrant. United States v

Ross, 456 U.S. 798, 821 (1982); United States

v Calarco, 668 F.2d 920, 921 (6th Cir. 1982).

However, “special concerns may arise when

visitors are present on the premises." United

States v Gray, 814 F.2d 49, 51 (lst Cir.

1987).

In Gray, the First Circuit refused to

exclude evidence found in a jacket during the

execution of a search warrant because the

police did not know that the jacket belonged

to a visitor when they began to search it.

Id.2 In this case, the district court found

that the searching officers did not know who

owned the overnight bag and briefcase until

after they had opened them. Since there is no

evidence that this factual finding is clearly

erroneous, we concluded that the officers did |

ee mee

App. 19

| not violate the Fourth Amendment by opening

Sissler's bag and briefcase.‘

Even if we were to find that the officers

knew or should have known that Sissler owned

the bag and briefcase, we would find that

these items were within the scope of the

warrant. An item belonging to a visitor may

be searched if there is a relationship between

the visitor and the place. See United States

vy Giwa, 831 F.2d 538, 544-45 (5th Cir. 1987)

(upholding search of overnight visitor's bag);

Gray, 814 F.2d at 51 (upholding search of

| visitors property found inside residence where

| a late-night drug deal had just occurred).

| Conversely, if there is no reason to suspect

| that a person found on the premises is

‘Sissler argues that the officers should

have realized that the overnight bag was his

and stopped searching when they found a pill

bottle bearing his name. Even assuming that

the discovery of the pill bottle would have

obligated the officers to close the bag, there

is no indication in the record that the

officers discovered the pill bottle before

they found the cash.

sierra

|

App. 20

connected with a crime or is anything more

than a casual visitor, the police may not

search his or her belongings. See United

States v Robertson, 833 F.2d 777, 784 (9th

Cir. 1987); United States v Micheli, 487 F.2d

429, 432 (1st Cir. 1973).

Sissler arrived late at night while a

major drug deal was occurring. He was an

overnight guest, not a mere visitor.

Therefore, he was sufficiently connected to

the home to fall within the scope of the

warrant.

D.

Sissler contends that the search warrant

was facially overbroad. Specifically, he

argues that the warrant failed to identify the

items to be seized with sufficient

particularity. We review search warrant

overbreadth claims de novo. United States v

Gahagan, 865 F.2d 1490, 1496 (6th Cir.), cart

denied, 492 U.S. 918 (1989).

The Fourth Amendment requires that search ©

5

App. 21

warrants describe the items to be searched for

and seized with particularity so that the

warrant does not authorize the police to

conduct a general rummaging search. Andresen

v Maryland. 427 U.S. 463, 480 (1976). The

degree of specificity required varies with the

type of item sought, but a description is

valid if it is as specific as the

circumstances permit. United States v Henson,

848 F.2d 1374, 1383 (6th Cir. 1988), cert

denied, 488 U.S. 1005 (1989). At an

“irreducible minimum, a proper warrant must

allow the executing officer to distinguish

between items that may and may not be seized."

United States v Leary, 846 F.2d 592, 602 (10th

Cir. 1988).

The search warrant in this case

authorized the officers to search for and

seize: (1) marijuana; (2) scales used to weigh

marijuana; (3) proceeds of marijuana sales in

the form of U.S. currency; (4) records of

marijuana transactions; (5) records of assets

App. 22

purchased with the proceeds of marijuana

transactions; (6) safety deposit box keys; and

(7) phone and address books containing names,

addresses, and phone numbers of marijuana

customers and suppliers.

Sissler argues that the third, fourth,

and fifth items are overbroad. He points out

that the warrant contained no guidelines to

tell the executing officers how to distinguish

currency that come from marijuana transactions

from the currency. Consequently, the police

seized all the currency on the premises,

including $130,000 from Sissler's bag, $1,200

from Sissler's briefcase, and $550 from

Sissler's money belt, $143 from Sissler's

wallet, and more that $17,00 from other

locations in the house. °

Although the seizure of all the currency

is troubling, Sissler does not explain how a

"The seizure included $1,030 in Canadian

currency which belonged to Boyle. The

government concedes that seizure of the

Canadian currency was beyond the scope of the

warrant.

App. 23

,

‘more detailed warrant would have allowed the

officers to distinguish marijuana proceeds

from other currency. Since there was probable

/cause to believe that there would be marijuana

| proceeds on the premises and since a more

specific description was not possible, we

concluded that the description of the currency

lin the warrant was not overbroad. See Henson,

848 F.2d at 1383.

Sissler argues that the descriptions of

I records of marijuana transactions and assets

_ purchased with marijuana proceeds are

overbroad. The affidavit supporting the

warrant provided evidence that Baldori had

| been selling marijuana since early 1989, but

‘the warrant did not command the officers to

limit their search to recent records. The

Se sae

police seized some of Baldori's records dating

back more than 20 years.

The absence of a time limitation does not

make a warrant overbroad if the magistrate is

unable to specify an appropriate time frame.

i

App. 24

See United States v Shilling, 826 F.2d 1369

(4th Cir. 1987), cert denied, 484 U.S. 1043

(1988). However, when there is information

available to limit a search for records, the

warrant is overbroad if it contains no such

limitations. See United States v Cardwell,

680 F.2d 75, 78 (9th Cir. 1982) (reversing

conviction where overbroad warrant contained

no time limitation).

Assuming, without deciding, that the

records potion of the warrant was facially

overbroad, the normal remedy is to sever that

potion of the warrant for the portions that do

pass constitutional muster. United States v

Blakeney, 942 F.2d 1001, 1027 (6th Cir. 1991),

cert denied, __—a'eU.S. ~ sz, «112 «S. Ct. 881

(1992); Cardwell, 680 F.2d at 78. Since none

of the records seized pertained to Sissler,

the suppression of items seized pursuant to

the arguably overbroad portions of the warrant

would provide him with no relief. Sissler's

requested remedy, suppression of all items

App. 25

seized in the search, would be appropriate

only if the entire warrant were overbroad.

Cardwell, 680 F.2d at 78-79. Accordingly, we

find that the warrant was not facially

overbroad as to the evidence to the introduced

against Sissler.®

E.

Sissler and amicus, the American Civil

Liberties Union, contend that the evidence

from the search must be suppressed because the

police exceeded the terms of the warrant by

indiscriminately seizing items that were

outside the scope of the warrant. Sissler and

the ACLU argues that the officers conducted

the search with flagrant disregard for the

*’Sissler also argues that the search was

a pretext to allow agents from the IRS and the

state forfeiture unit to enter the home.

Sissler cites to no authority supporting his

Claim that the Fourth Amendment bars state

police and IRS agents from accompanying FBI

agents during the execution of a federal

search warrant. However, those accompanying

agents are bound by the terms of the search

warrant.

App. 26

limitations of the warrant.’ This claim

requires us to review in some detail the items

that were seized from the Baldori house.

We begin with the electronic equipment.

The search warrant return indicates that the

officers seized three computers, two printers,

a modem, a fax machine, and several disk

drives. The language of the search warrant

does not appear to support the seizure of any

of these items.

The government argues that the officers

needed to seized the computers because drug

records could have been stored in their

internal memories. Accepting this contention

as true, the government does not explain why

’The ACLU also claims that some of the

officers were completely ignorant of the

warrant's limitations and that there ignorance

converted the search into an unconstitutional

general search. See United States v Heldt,

668 F.2d 1238, 1261-62 (D.C. Cir. 1981), cert

Genied, 456 U.S. 926 (1982). Our review of

the record reveals that, although some of the

officers has an expansive view of the search,

there is no evidence that the officers were

completely ignorant of the contents of the

warrant.

.

$

é

3

/

3

;

3

3

4

5

App. 27

the police also needed to seize printers,

modems, and disk drives.

As to the fax machine, the government

maintains that it was not responsible for the

seizure because a state forfeiture team seized

it. We disagree. Since the local officers

entered the house under the federal warrant

and had no independent authority to seize

items not covered by the federal warrant, we

must consider everything seized as part of the

same search. See United States v Medlin, 842

F.2d 1194, 1197 (loth Cir. 1988). We also

observed that a federal agent prepared the

warrant return that listed the fax machine.

Detective Early, from the state

forfeiture unit, testified that he seized the

fax machine because the unit was interested in

any item that appeared to be new. A grand

piano and a stereo were spared because them

appeared to be old.

Second, the officers seized $1,030 in

Canadian currency. Boyle testified that she

App. 28

had earned the money working in Windsor,

Ontario. The warrant authorized the seizure

of only U.S. currency.

Third, the officers seized records that

fell outside the scope of the warrant. The

testimony of officers who participated in the

search indicated that the house was cluttered

with poorly organized records and that the

officers seized only 10 percent of the

records.

We agree with the government and the

district court that, under those

circumstances, the agents need not read each

individual document to determine whether it

falls within the warrant. See Henson, 848

F.2d 1383. It is therefore inevitable that

the officers will seize some documents that

are outside the scope of the warrant,

particularly since Baldori kept voluminous

records relating to his legal and musical

careers on the premises.

Detective Early testified that most of

App. 29

| the records he seized, some dating back to

| 1969, were taken in an attempt to establish

'Baldori's net worth. The warrant did

authorize seizure of records showing purchases

“made with marijuana proceeds, but did not

| authorize the officers to seize all of

| sateeek te financial records to establish his

net worth. The intentional seizure of those

documents goes far beyond the terms of the

warrant.

Fourth, the officers seized more than 30

intimate photographs and slides of Boyle. The

government concedes that the photos and slides

are not covered by the warrant. The officer

or officers who took the slides and photos did

not list them on the search warrant return.

Two officers have been charges in state court

with illegally taking items during the

search.®

®SSissler's brief repeatedly calls

attention to the fact that’ some of the local

police officer held a slide show at the police

station to display Boyle's nude photos. While

we agree that this conduct is outrageous, it

ne

App. 30

We observe that the evidence

incriminating Sissler, the cash found in his

overnight bag and briefcase, was within the

scope of the warrant. In United States v

Lambert, 771 F.2d 83, 93 (6th Cir.), cert

denied, 474 U.S. 1034 (1985), we stated that

the unlawful seizure of items outside of the

scope of the warrant normally does not require

the suppression of evidence lawfully seized.

However, we went on to explain that "[a]}-

flagrant disregard for the limitations of a

search warrant might make an otherwise valid

search an impermissible general search

requiring the suppression of all evidence

seized during the search." Id, 771 F.2d at 93.

The government cites several cases in

which courts have found that officers who

exceeded the scope of a warrant did not act in

is irrelevant to our analysis. The slides are

relevant only because there were seized

illegally during the search.

App. 31

flagrant disregard to the warrant.’ Sissler

points out that in those cases the officers

seized items, typically records, not covered

by the warrant while searching for similar

items that were within the scope of the

warrant.

Sissler argues that the facts in this

case are similar to those considered by the

Tenth Circuit in Medlin, In Medlin, federal

officers obtained a warrant to search for

firearms in the defendant's home. Local

officers accompanied the federal officers and

seized 667 items of allegedly stolen property.

"See United States v Lambert, 887 F.2d

1568, 1572 (11th Cir. 1989) (inadvertent

seizure of records unrelated to drug

trafficking); Henson, 848 F.2d at 1383

(inadvertent seizure of records to fraud

scheme); Shilling, 826 F.2d at 1369 (seizure

of file cabinet of documents, only some of

) which were relevant) United States v Crozier,

777 F.2d 1376, 1381 (9th Cir, 1985)

(inadvertent seizure of irrelevant records) ;

States v Whitten, 706 F.2d 1000, 1010

(9th Cir. 1983) (seizure of boxes of letters

and documents taken for later review), cert

denied, 465 U.S. 1100 (1984) Heldt, 668 F.2d

1260-69 (seizure of documents not covered by

warrant).

a

App. 32

The Tenth Circuit upheld the suppression of

all evidence, including the firearms,

concluding that the officers flagrantly

disregarded the limitations of the warrant by

searching for and seizing the allegedly stolen

property. Medlin, 842 F.2d at 1199; see also

United States v Rettig, 589 F.2d 418, 423 (9th

Cir. 1978) (ordering suppression of all

evidence where police conducted general

search).

We agree that the récord established that

some of the officers apparently engaged in

egregious misconduct while searching the

Baldori home. Unlike the defendants in Medlin

and Rettig, however, Sissler's rights were not

violated by the misconduct. All of the

property seized from him was within the scope

of the warrant. Thus, even if we were to find

that the officers searched Baldori's home in

flagrant disregard of the warrant's scope, we

would find that the officers did not violate

Sissler's rights. We believe deterrence would

App. 33

not be served by allowing Sissler to benefit

from the alleged violation of Baldori's and

Boyle's Fourth Amendment rights. Cf. Medlin,

842 F.2d at 1200 (finding exclusion of legally

seized weapons serves deterrence where

officers violated defendant's rights by

illegally seizing hundreds of items).

Accordingly, we affirm the district court's

denial of Sissler's motion to suppress.

IV.

Sissler finally argues that the statement

he made to the officers must be suppressed.

Sissler concedes that the interrogating

officers read him Miranda right, that the

Signed a consent form acknowledging his

rights, and the he agreed to talk with the

officers before he made the incriminating

statement. The testimony of the interrogating

officer indicates that Sissler engaged in a

wide-ranging conversation for approximately

two hours until he indicated that he wished to

speak with an attorney. The interrogation

App. 34

then stopped.

We find no evidence in the record to

support Sissler's claim that the officers

coerced him into making the incriminating

statements. Instead, the evidence indicates

that Sissler voluntarily waived his Miranda

rights and agreed to talk with officers."

We affirm the district court's refusal to

suppress Sissler's statements.

AFFIRMED.

“Sissler appears to argue that this

statements were involuntary because he was

ill at the time. However, a statement is

involuntary for constitutional purposes only

if it is the product of official coercion

Colorado v Connelly, 479 U.S. 157, 167 (1986).

APPENDIX B

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App. 35

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF File No. 1:90-CR-12

AMERICA,

Plaintiff, Hon. Benjamin F.

Gibson

Vv.

JOSEPH EMILE SISSLER, OPINION

Defendant.

INTRODUCTION

This matter is before the Court as a

result of the defendant's motions to suppress

incriminating statements and contraband.

After conducting hearings regarding these

motions on March 15, April 20, and May 24,

1990, the Court denies the motions for the

reasons stated below.

FACTS

On January 16, 1990, at approximately

12:00 A.M., between 15 to 25 federal and local

App. 36

law enforcement officials executed a federal

anticipatory search warrant, see generally 2

W. LaFave, Search and Seizure § 3.7(b) (2d ed.

1987), at the home and recording studio of

Robert Baldori in Okemos, Michigan. The

warrant authorized the search of the premises

and its surrounding cartilage for marijuana, ‘

marijuana paraphernalia, record of drug |

transactions and proceeds from marijuana sales

in the form of U.S. currency. As a result of

Fete t

the search, a number of items, including

approximately 88 pounds of marijuana, were

seized by the police.

Present at the time of the raid was the

defendant, John Sissler, a resident of

Virginia and an overnight guest of Baldori's.

During the course of the search, at least two

officers searched an overnight travel bag

belonging to defendant Sissler. The search of

the overnight bag revealed in excess of

$130,000.00 in U.S. currency. The currency,

travel bag, and a briefcase and its contents

App. 37

were seized from the defendant.

The defendant was advised of his Miranda

rights and executed a "boilerplate" form

indicating that he understood his rights and

was willing to talk to police. Government's

Exh. 1. He was interviewed in the recording

studio located on the first floor of the house

by two officers. Aside from a brief period of

time following the initial entry to the

residence, the defendant was not handcuffed.

From the testimony given at the suppression

hearing, the interrogation of the defendant

was conducted in a gentlemanly fashion.

During the course of his interview with

police, the defendant made several

incriminating statements. Following the

discovery of the contraband and the confession

of the defendant, he was arrested for

attempting to possess with the intent to

distribute approximately 100 pounds of

marijuana.

Sissler seeks to Suppress both the

App. 38

contraband and the statements. He argues that

there was not probable cause to issue a search

warrant. The defendant also argues that the

warrant was overly broad and did not authorize

the search of his briefcase and overnight bag.

He also argues that the interrogating officers

continued to question him despite repeated

requests by him for an attorney and that his

statements were involuntary and the result of

police coercion.

ANALYSIS

1. SEARCH OF THE BALDORI RESIDENCE

The defendant argues that the warrant

authorizing the search of the Baldori

residence was not supported by probable

cause.' He also argues that even if the

search warrant was supported by probable

cause, it was drafted in an overly broad

manner and did not authorize the search of his

overnight bag. The Court rejects both

contentions.

App. 39

A. Probable Cause

In Illinois v. Gates, 462 U.S. 213

(1983), the Supreme Court rejected the "two-

pronged" test of Agquilar-Spinelli* in favor of

a "totality-of-the-circumstances" approach to

determine the reliability of the information

given by an informant. Id. at 238. See

Spinelli v. United States, 393 U.S. 410

(1969); Aquilar v. Texas, 378 U.S. 108 (1964).

Under Gates, the task of the issuing

magistrate is to make a practical, common

sense decision whether, given all the

circumstances set forth in the affidavit

before him, including the "veracity" and the

"basis of knowledge" of the informant, there

is a fair probability that evidence of a crime

will be found in the place to be searched.

Gates, 462 U.S. at 238. Furthermore, a

reviewing court is simply to ensure that the

magistrate had a substantial basis for

concluding that probable cause existed. ta.

at 238-39. After reviewing the affidavit in

App. 40

support of the request for a search warrant,

the Court concludes that the magistrate had

probable cause to issue the warrant.

The affidavit clearly establishes that

the informant clearly had first-hand, personal

knowledge of Baldori's involvement with

marijuana. It states that the informant, who

appears to be some sort of "middleman" or

marijuana broker, had previously sold large

amounts of marijuana to Baldori. The

informant further states that all of the

marijuana he sold to Baldori during 1989 came

from the same supplier. The informant states

that he would be contacted by his supplier

whenever he had marijuana available. The

informant would then pass this information on

to Baldori and arrange a sale. According to

the informant, the marijuana purchased by

Baldori had always been shipped to the Lansing

area by automobile and that the driver was

employed by his supplier. Furthermore, once

the marijuana reached the Lansing area, he

App. 41

would take possession of it and make further

delivery arrangements with Baldori. Finally,

the Court notes that at the time these

statements were made by the informant, a

shipment of marijuana which the informant says

was intended to be delivered to Baldori had

been seized by police authorities in the

Little Rock, Arkansas area and the informant's

supplier and a driver associated with the

supplier had been arrested.

The information contained in the

affidavit also clearly establishes the

informant's truthfulness. The Court notes

that the informant advised Baldori in a

conversation following the arrests in Little

Rock, Arkansas that marijuana was available

from his regular supplier.? The affidavit

also states that the two men, ina

conversation taped by police officials, later

discussed the terms of the sale and made

arrangements for the delivery of the marijuana

to Baldori once it reached the Lansing area.

App. 42

This chain of events and conduct of Baldori is

consistent with the other information provided

by the informant and establishes his

credibility.

The Court believes that the testimony of

the informant provided the magistrate with a

substantial basis for concluding that there

was probable cause to find marijuana at the

Baldori residence once it was delivered by the

informant. Id. at 238-39. Other testimony

contained in the affidavit clearly establishes

that there was probable cause for the

magistrate to believe that marijuana

paraphernalia, records, and currency from

marijuana transactions would be located there

as well. Therefore, the Court concludes that

the magistrate properly issued the search

warrant at issue in this case.

B. Overbreadth

Sissler also argues that the warrant was

overly broad and dic i10t authorize the search

of his overnight bag. Defendant correctly

App. 43

argues that a search warrant should contain

objective standards by which the executing

officers can differentiate between items

subject to seizure and those objects not

subject to seizure. E.g., United States v.

McLaughlin, 851 F.2d 283, 285 (9th Cir. 1988).

Since the warrant at issue in the present case

did not contain specific guidelines to assist

the officers in determining what currency

found at the Baldori residence was proceeds

from drug transactions, defendant argues that

the warrant did not authorize the search of

his overnight bag and briefcase.

The meritlessness of this argument is

readily apparent. This Court cannot conceive

of and the defendant does not recommend a set

of guidelines that would permit police to

determine whether currency found during a

search is the result of a drug transaction by

simply observing the money. Rather, the Court

believes that the creation of such guidelines

are impossible.

an

App. 44

Moreover, the Court notes that, as a

general rule, police officers are entitled to

search any container found within premises

lawfully subject to search if there is reason

to believe that the contraband sought pursuant

to the warrant can be found in the container.

United States v. Ross, 456 U.S. 798, 820-21

(1982). Thus, the mere fact that the

briefcase and overnight bag belonged to

Sissler, rather than Baldori, does not

insulate them from search or seizure under

this doctrine. E.g., United States v. Giwa,

831 F.2d 538, 543-45 (5th Cir. 1987).

However, if at the time the law enforcement

officials executed the warrant, the

circumstances were such that the officers

either knew or should have known that the

container searched was owned by a "mere

visitor" or "passerby" otherwise unconnected

with the premises, the search may be

considered a personal search outside the scope

of the search warrant authorizing the search

ee

App. 45

of the premises. Id. See also United States

v. Robertson, 833 F.2d 777, 78384 (9th Cir.

1987): United States v. Gray, 814 F.2d 49, 51

(lst Cir. 1987); 2 W. LaFave, Search and

Seizure § 4.10(b) (2d ed. 1987).

From the testimony given at the

suppression hearing, the Court concludes that

the police were entitled to search the

briefcase and overnight bag belonging to the

defendant. There is insufficient evidence

before the Court to support a finding that the

police should have known that these items

belonged to a "mere visitor" or "passerby," a

status that may not accurately describe the

relationship of the defendant to the Baldori

residence given the facts of the present case.

Giwa, 831 F.2d at 545; Gray, 814 F.2d at 51.

From the testimony at the suppression hearing,

it is readily apparent that both the overnight

bag and briefcase were nondescript, generic

items and could not be readily identified as

the defendant's prior to being searched.

App. 46

Since it is reasonable to conclude that a

briefcase or overnight bag could contain

marijuana, currency, paraphernalia or records

of marijuana transactions, the police were

permitted to search these items pursuant to

the search warrant.

2. REQUESTS FOR COUNSEL

The defendant maintains that the

incriminating statements he made are

inadmissible since he had repeatedly attempted

to invoke his Fifth Amendment right to

counsel. The Court concludes to the contrary.

The Fifth Amendment requires that when a

person requests an attorney during a custodial

interrogation, all questioning must cease

until an attorney is present, unless the

individual subsequently initiates the

conversation with the authorities. E.g.,

Edwards v. Arizona, 451 U.S. 477 (1981). This

principle is a "rigid prophylactic rule."

Smith v. Illinois, 469 U.S. 91, 95 (1981).

Courts are required "to give a broad, rather

Poet

App. 47

than a narrow interpretation to a defendant's

request for counsel." Michigan v. Jackson, 475

U.S. 625, 633 (1986). These standards apply

even if the defendant's request for counsel is

equivocal. E.g., Towne v. Dugger, 899 F.2d

1104, 1106-07 (11th Cir. 1990); Norman v.

Ducharme, 871 F.2d 1483, 1486 (9th Cir. 1989).

If an ambiguous request for counsel is made,

further questioning must be limited to

clarifying the request until it is so

clarified. Towne, 899 F.2d at 1107; Norman,

871 F.2d at 1486.

At the suppression hearing, defendant

Sissler testified that he made several

requests for an attorney during the course of

his interrogation. He stated that he inquired

of the two interrogating officers at the

beginning of the questioning whether they felt

he needed an attorney and received no answer.

Sissler also maintained that he repeated this

question several times as the interrogation

progressed and on each occasion received no

App. 48

response. Finally, the defendant testified

that he shouted in the direction of Baldori

that he needed an attorney on several

occasions.

However, the record of the suppression

hearing indicates a lack of evidence that

would corroborate the defendant's testimony. |

The record reveals that the two interrogating

officers, during both direct and cross-

examination, unequivocally maintained that no :

question concerning the need for counsel was

asked by the defendant until the end of the

interrogation. At that point, the testimony

of both officers indicates that the

questioning was stopped as is required by

Miranda and its progeny. Their testimony also

makes no mention of the defendant shouting in

the direction of Baldori. Furthermore, there

is no evidence in the record, aside from the

testimony of the defendant, that would cast

doubt on the testimony given by the officers.

Given the lack of corroborating testimony

App. 49

to support the defendant's testimony and the

steadfast manner in which the officers refused

to contradict or retract their direct

testimony on cross-examination, the Court

concludes that the defendant made no attempt

to invoke his right to counsel until the

conclusion of the interrogation. Accordingly,

the Court concludes that no violation of the

defendant's Fifth Amendment right to counsel

occurred as a result of his interrogation.

3. VOLUNTARINESS OF THE STATEMENTS

Sissler also maintains that his

incriminating statements were involuntary and

in violation of the due process clause of the

Fifth Amendment. The Court concludes that the

defendant's argument is meritless.

The test for voluntariness of a

confession is whether, in light of the

totality of the circumstances, exerted

pressures have overborne the will of the

accused. Schneckloth v. Bustamonte, 412 U.S.

218, 225-26 (1973); United States v. Murphy,

App. 50

763 F.2d 202, 205 (6th Cir. 1985); cert.

denied. 474 U.S. 1063 (1986). A reviewing

court must consider both the conduct of the

police in extracting the statements from the

accused and the effect that conduct had on the

defendant. Miller v. Fenton, 474 U.S. 104,

116 (1985). However, in the absence of police

conduct casually related to the confession,

there is no basis for concluding that a

confession is involuntary. Colorado v.

Connelly, 479 U.S. 157 (1986).

Sissler maintains that his confession was

involuntary for a number of reasons. His

testimony at the suppression hearing indicates

that he felt intimidated due to the large

number of police officers present at the

Baldori residence and the fact that a large

number of these officers possessed weapons.

Sissler's testimony also suggests that he felt

intimidated since he had seen Baldori talking

to police officials in an adjacent room. His

testimony also provides that he felt ill at

ow

App. 51

the time of the interrogation and was taking a

prescription medication to combat the flu.

‘Finally, he argues that his confession was the

result of implied promises of benefit for

cooperating with the authorities.

The Court believes that this testimony

does not establish that the confession was

involuntary. The mere presence of a large

number of officers and the interrogation of

another suspect in an adjacent room cannot be

considered police misconduct. Norman, 871

F.2d at 1487. Furthermore, the fact that the

defendant may have been suffering from the flu

at the time of his interrogation does not make

his confession involuntary since the evidence

presented to the Court at the suppression

hearing indicates that the defendant was

coherent and alert during his questioning.

E.g., United States v. Yunis, 859 F.2d 953,

962-64 (D.C. Cir. 1988). There is simply no

evidence before the Court that would even

Suggest that the defendant's mental faculties

App. 52

were impaired as a result of his illness at

the time of the interrogation. Id. Moreover,

the defendant's contention that his confession

was the result of an improper promise is

without merit. The testimony of both the

defendant and the interrogating officers

indicates that the officers encouraged the

defendant to continue the interrogation. On

several occasions, statements suggesting that

the defendant could benefit himself by

cooperating with the authorities were made by

the interrogating officers. However, the

testimony also indicates that no specific

promises of leniency were made to the

defendant and that the issue of cooperation

was not discussed until the defendant had

already incriminated himself. Statements made

by a defendant in the hope of leniency, as

opposed to a promise of leniency, are not

coerced. E.g., United States v. Fraction, 795

F.2d 12, 14 (3d Cir. 1986); Rachlin v. United

States, 723 F.2d 1373, 1377-78 (8th Cir.

App. 53

1983). Since there is no evidence of police

misconduct, the Court can only conclude that

the defendant's confession was given

voluntarily.

Finally, the Court notes that a variety

of topics were discussed during the course of

the defendant's interview. The testimony of

both the defendant and the interrogating

officers indicates that they freely and openly

discussed the Latin American policy of the

Bush Administration, the war on drugs, recent

magazine articles, the defendant's mother and

the defendant's employment with the National

Institute of Health. Furthermore, the record

indicates that the defendant is a college

graduate and has completed some post-graduate

work. He also has had prior experience with

the criminal justice system. These factors

buttress the Court's conclusion that the

defendant's confession was voluntary.

CONCLUSION

For the reasons stated above, the

App. 54

defendant's motions are denied.

BENJAMIN F. GIBSON

U.S. DISTRICT JUDGE

DATED: June 8, 1990

1.Since the defendant was an overnight

guest at the time the Baldori residence

was raided by police, he has standing to

challenge the validity of the search.

See Minnesota v. Olson, 58 U.S.L.W. 4464

(Apr. 18, 1990); Rawlings v. Kentucky,

448 U.S. 98 (1980).

2.Under the Agquilar-Spinelli test, a

magistrate, in determining whether the

information supplied by an informant was

sufficient to establish probable cause,

had to independently review both the

basis of the informant's knowledge and

the veracity or reliability of the

informant.

3.The informant slyly told Baldori that

the earlier shipment of marijuana, the

one seized by authorities in Arkansas,

was not delivered to him because the

informant's supplier rejected it due to

its poor quality. The marijuana actually

delivered to the Baldori residence

appears to have been supplied by law

enforcement officials in the Lansing

area.

App. 55

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF File No. 1:90-CR-12

AMERICA,

Plaintiff, Hon. Benjamin F.

Gibson

Vv.

JOSEPH EMILE SISSLER, ORDER

Defendant.

As a session of the Court held in and for

said District and Division, in the City

of Grand Rapids, Michigan, this 8th day

of June, 1990.

PRESENT: HON. BENJAMIN F. GIBSON,

U.S. DISTRICT JUDGE

In accordance with the Opinion dated

June 8, 1990, IT IS HEREBY ORDERED that

defendant Joseph Emile Sissler's motions to

suppress are DENIED.

IT IS SO ORDERED.

BENJAMIN F. GIBSON

U.S. DISTRICT JUDGE

a wr SSS ee ores

APPENDIX C

App. 56

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT DIVISION OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF File No. 1:90-CR-12

AMERICA,

Hon. Benjamin F.

Gibson

Plaintiff,

Vv.

JOSEPH EMILE SISSLER, OPINION

Defendant.

I.

This matter is before the Court as a

result of the defendant's renewed motion to

suppress evidence because of alleged

violations of his Fourth and Sixth Amendment

rights. Following four days of evidentiary

hearings and the submission of briefs by the

parties, the Court denies the motion for the

reasons given below.

Il.

On January 16, 1990, at approximately

App. 57

12:00 A.M., between 15 and 25 federal and

local law enforcement officials executed a

federal anticipatory search warrant, see

generally 2 W. LaFave, Search and Seizure §

3.7(b) (2d ed. 1987), at the home and

recording studio of Robert Baldori in Okemos,

Michigan. The warrant authorized the search

of the premises and its surroundings for

marijuana, marijuana paraphernalia, marijuana

proceeds in the form of United States

currency, records of drug transactions,

records of assets purchased with the proceeds

of marijuana transactions, and records

identifying marijuana customers and suppliers.

Present at the time of the raid was the

defendant, John Sissler, a resident of

Virginia and an overnight guest of Baldori's.

As a result of the raid, defendant Sissler was

charged with one count of attempted possession

of marijuana with intent to distribute in

violation of Title 21 United States Code

Section 846(c) and one count of interstate

App. 58

travel in aid of racketeering in violation of

Title 18 United States Code Section 1952(a).

After holding evidentiary hearings on

March 15, April 20, and May 20, 1990, the

Court denied the defendant's motion to

suppress contraband seized during the raid and

incriminating statements made by him. United

States v. Sissler, No. 1:90-CR-12, slip op. at

12 (W.D. Mich. June 8, 1990). Following the

denial of his motion, defendant Sissler

entered a conditional plea of guilty to the

controlled substances charge in accordance

with Rule 11(a)(2) of the Federal Rules of

Criminal Procedure.' Shortly before his

scheduled sentencing, the defendant, citing

newly discovered evidence, moved to re-open

proofs on his suppression motion.

This motion was heard at the time

originally set aside for the defendant's

sentencing. The Court was informed that a

number of slides and photographs of Baldori's

girlfriend were taken from the premises and

App. 59

were shown at "stag office parties" by some of

the law enforcement officers involved in the

January 16, 1990, search of Baldori's

residence. It also learned that two local

officers involved in the search were the

subjects of a criminal investigation. This

evidence led the Court to grant a hearing on

the issue of whether the conduct of the

officers who executed the search warrant

exhibited a "flagrant disregard" for its

limitations.?

IIit.

In his renewed motion to suppress,

defendant Sissler has alleged a number of

violations of the Fourth Amendment. Each

alleged wrong is discussed separately below.?

A.

A criminal investigator from the Internal

Revenue Service was invited by an agent of the

Federal Bureau of Investigation to participate

in the execution of the warrant at the Baldori

residence. His presence has led the defendant

App. 60

to advance the incredulous argument that the

warrant served as a subterfuge for the

Internal Revenue Service.‘

The subterfuge characterization will

attach to a search where the reasons given for

it in the warrant and supporting documentation

were merely a pretext to gain access for some

other reason. 2 W. LaFave, supra § 6.7(d). A

quintessential example of this principle is

United States v. Sanchez, 509 F.2d 886 (6th

Cir. 1975), a case cited by the defendant in

support of his argument. In that case, agents

from the Bureau of Alcohol, Tobacco and

Firearms, acting on a tip that explosives were

present at the defendant's residence, assisted

local law enforcement officers in the

execution of their warrant authorizing a

search for controlled substances. Id. at 888.

The Sixth Circuit concluded that the federal

officials had impermissibly used the

opportunity to assist local police in the

execution of their warrant as a pretext for

App. 61

conducting a search for a type of evidence

separate and distinct from that sought by

their local counterparts. Id. at 889.

What the defendant chooses to ignore

though is that the warrant authorized the

seizure of the very evidence that would

interest the Internal Revenue Service. It

states that records of drug transactions and

records of assets purchased with marijuana

proceeds can be seized. Rather than having

two agencies seeking two distinctly different

types of property, as in Sanchez, the present

case involves several different agencies

seeking the same evidence. Therefore, the

Internal Revenue Service did not use its

invitation as a subterfuge to impermissibly

collect evidence and the Court rejects the

defendant's argument to the contrary.

B.

Defendant Sissler once again maintains

that the warrant was overly broad.*® He

correctly argues that a search warrant should

App. 62

contain objective standards that the executing

officers can use to differentiate between

items subject to seizure and those not subject

to seizure. -g., United States v.

McLaughlin, 851 F.2d 283, 285 (9th Cir. 1988).

Since the warrant allegedly did not contain

guidelines to assist the officers executing

it, the defendant argues evidence seized

pursuant to it should be suppressed.

The warrant executed at the Baldori

residence states that marijuana, marijuana

paraphernalia, marijuana proceeds in the form

of United States currency, records of drug

transactions, records of assets purchased with

the proceeds of marijuana transactions, and

records identifying marijuana customers and

suppliers may be seized. Some of the property

that was subject to seizure, marijuana,

marijuana paraphernalia and marijuana

proceeds, is by its very nature contraband.

When contraband is to be seized, the fourth

amendment only requires a general description

App. 63

of it. 2 W. LaFave, supra § 4.6(c).

If records and other documents are to be

seized, they should be described with a

greater degree of specificity because of the

potential for a very serious invasion into

personal privacy. Anderson v. Maryland, 427

U.S. 463, 482 n.11 (1976). However, warrants

simply authorizing the seizure of "records"

have been upheld if it was clear what type of

records were seizable and a more precise

description was not possible. E.g., United

States v. Storage Spaces Designated Nos. 8 &

49, 777 F.2d 1363, 1370 (9th Cir. 1985);

United States v. Wuagneux, 683 F.2d 1343,

1349-50 (11th Cir. 1982), cert. denied, 464

U.S. 814 (1983). Contrary to the defendant's

assertion, a warrant limiting the seizure of

records to those that were created after a

specific date or the like was not possible

because the police had no knowledge when

Baldori's alleged illicit activity commenced.

When determining whether a warrant meets the

’

App. 64

particularity requirements of the Fourth

Amendment, "[o]ne of the crucial Sacters « «

is the information available to the

government." United States v. Cardwell, 680

F.2d 75, 78 (9th Cir. 1982). Since more

specific information was not available to the

government, the general description "records"

meets the requirements of the Fourth

Amendment.

Cc.

Defendant Sissler argues that the police

officers executing the warrant at the Baldori

residence flagrantly disregarded its terms and

conducted an impermissible general search.

United States v. Henson, 848 F.2d 1374, 1383

(6th Cir.), cert. denied, 488 U.S. 1005

(1988); United States v. Lambert, 771 F.2d 83,

93 (6th Cir.), cert denied, 474 U.S. 1034

(1985). A flagrant disregard for a warrant's

limitations "might make an otherwise valid

search an impermissible general search

requiring the suppression of all evidence

iii

App. 65

seized during the search." Id. Given the

amount of evidence seized by the police that

was not mentioned by the warrant, the

defendant maintains that the Court can only

conclude that an impermissible general search

occurred. While the record supports the

contention that a large amount of evidence not

mentioned by the warrant was seized, it does

not support the conclusion that the police

conducted an impermissible general search. .

Among the evidence presented to the Court

at the suppression hearing was a videotape

taken by some of the officers involved in the

raid. Clutter and a seemingly endless

collection of papers were present throughout

those portions of the Baldori residence that

were videotaped.

Thousands of documents were taken from

the Baldori residence. Each document seized

by the police was not inspected to make

ee ee ee

certain that it was covered by the warrant.

Rather, two officers testified that if a file

App. 66

contained what appeared to be documents

covered by the warrant, it would be seized, in

its entirety, for further review. One of

these officers also testified that it would

have taken days to individually review each

document found during the search. Given the

clutter that was present at the Baldori

residence, there is every reason to believe

this representation.

Wholesale seizures of files motivated by

considerations of practicality are not a

"flagrant disregard" for the limitations of a

search warrant. Marvin v. United States, 732

F.2d 669, 674-75 (8th Cir. 1984); United

States v. Tamura, 694 F.2d 591, 597 (9th Cir.

1983). Clearly, a large number of the

documents seized by the police were not

mentioned by the warrant. It is equally clear

though that practical considerations, not a

desire to engage in indiscriminate "fishing,"

led to their seizure. Under the

circumstances, it would be unreasonable to

App. 67

hold that the law enforcement officials were

required to carefully review each

document in every file they uncovered.

Henson, 848 F2d at 1385. Rather, they were

only required to have a reasonable belief that

a file or collection of papers found in the

clutter contained records that were covered by

the warrant.

Furthermore, it is difficult to

characterize the seizure of documents from the

Baldori residence as a “wholesale seizure."

The testimony of law enforcement officers

suggests that the number of documents seized

by them represented only a small percentage of

the number of documents found at the Baldori

residence. One officer who assisted with the

seizure of documents estimated that fewer than

ten percent of the documents found by the

police were actually taken. Given the .

seemingly endless clutter present at the

Baldori residence, the Court is inclined to

agree with these statements.

fl laine eo oe

cree ee

App. 68

In addition to the large number of

documents, nearly five hundred computer disks

and a personal computer were also taken. Many

of the disks contained information whose

seizure was not authorized by the search

warrant. Law enforcement officers are

permitted to search any container found within

the premises if there is reason to believe

that the evidence sought vareuant to a warrant

is in it. United States v. Ross, 456 U.S.

798, 820-21 (1982). The police were permitted

to examine the computer's internal memory and

the disks since there was every reason to

believe that they contained records whose

seizure was authorized by the warrant.

Furthermore, the police were not obligated to

give deference to the descriptive labels

placed on the discs by Baldori. Otherwise,

records of illicit activity could be shielded

from seizure by simply placing an innocuous

label on the computer disk containing then.

The police also were not obligated to inspect

App. 69

the computer and disks at the Baldori

residence because passwords and other security

devices are often used to protect the

information stored in them. Obviously, the

police was permitted to remove them from the

Baldori residence so that a computer expert

could attempt to "crack" these security

measures, a process that takes some time and

effort.® Like the seizure of documents, the

seizure of the computer hardware and software

was motivated by considerations of

practicality. Therefore, the alleged carte

blanche seizure of them was not a "flagrant

disregard" for the limitations of a search

warrant. Marvin, 732 F.2d at 674-75; Tamura,

694 F.2d at 597.

Nevertheless, it does appear that several

items whose seizure cannot be justified on the

grounds of practicality were taken by law

enforcement officers. In addition to the

aforementioned photographs and slides of her,

some Canadian currency belonging to Mr.

App. 70

Baldori's girlfriend was taken. Some United

States currency found in a pair of pants and

money belt belonging to Mr. Baldori that

arguably was not proceeds from drug

transactions was taken as well. Furthermore,

a computer printer and a fax machine were

seized.’

However, the seizure of these items

cannot be considered the type of outrageous

conduct needed to support the conclusion that

the police flagrantly disregarded the terms of

a warrant. The behavior of the police who

searched tne Baldori residence cannot be

fairly compared to that exhibited by a local

police officer who seized 667 items that he

thought might have been stolen while assisting

federal officials with the execution of a

warrant. United States v. Medlin, 842 F.2d

1194, 1196, 1198-99 (10th Cir. 1988). See

also United States v. Rettig, 589 F.2d 418

(9th Cir. 1978). A search does not become

invalid simply because some items not

a

App. 71

mentioned by the warrant are seized. Lambert,

771 F.2d at 93. This is especially true

where, as in the present case, the items

outside the scope of the warrant are not going

to be used as evidence against the defendant.

Henson, 848 F.2d at 1383 (citing United States

v. Shilling, 826 F.2d 1365, 1369 (4th Cir.

1987), cert. denied, 484 U.S. 1043 (1988)).

Therefore, the Court holds that the officers

who executed the warrant at the Baldori

residence did not flagrantly disregard its

terms.

D.

Much of the defendant's voluminous brief

and supporting exhibits addresses the alleged

failure of local police officials to follow

their internal operating procedures and their

alleged violations of various provisions of

the Michigan State Constitution. What the

defendant forgets though is that the

compliance with the Fourth Amendment, not the

Michigan State Constitution and internal

App. 72

policies, is all that is required for the

seized evidence to be used against him.

United States v. Loggins, 777 F.2d 336, 338

(6th Cir. 1985). Therefore, this argument is

summarily rejected.

E.

The defendant also argues that the

conduct of the officers executing the warrant

was “so outrageous [that is shocks] the

universal sense of justice and, as such,

requires the dismissal of the indictment."

United States v. Arango, 853 F.2d 818, 82728

(11th Cir. 1988). The conduct of the officers

involved in the search of the Baldori

residence does not even begin to approach this

level.

IV.

At the suppression hearing, defendant

Sissler called one of the officers that was a

subject of the criminal investigation as a

witness. This officer invoked his Fifth

Amendment right not to incriminate himself.

App. 73

Because of the crucial role this officer

played in the execution of the search warrant,

defendant Sissler argues that he was denied

his Sixth Amendment right to confront the

witnesses against hin.

The Confrontation Clause of the Sixth

Amendment has long been read as securing

criminal defendants only the right to

adequately cross-examine adverse witnesses.

United States v. Owen, 484 U.S. 554, 557-59

(1988); California v. Green, 399 U.S. 149,

188 (1970) (Harlan, J., concurring). It has

not been read, for example, as giving criminal

defendants the right to force law enforcement

officials to reveal their confidential

informants. Cooper v. California, 386 U.S.

58, 62 n.2 (1967). Similarly, this Court

declines to hold that its guarantees are

abridged when a witness associated with the

Government declines to answer questions during

the defendant's direct examination.

Otherwise, defendants could simply manufacture

ese eneaeneanceneeenemm e

App. 74

violations of the Confrontation Clause by

calling witnesses who they know will invoke

their Fifth Amendment rights and calling them

crucial to their defense. It is inappropriate

for the defense to call a witness that it

knows will assert the Fifth Amendment right

against self-incrimination.® United States v.

Crawford, 707 F.2d 447, 449 (10th Cir. 1983);

People v. Dyer, 425 Mich. 572, 57677, 390

N.W.2d 645, 648-49 (1986). Acceptance of the

defendant's argument would foster such

unethical conduct. Therefore, the Court

—simply holds that the rights guaranteed by the

Confrontation Clause were not violated because

the officer did not testify against the

. defendant.

: Vv.

For the reasons stated above, the

defendant's motion to suppress is denied.

BENJAMIN F. GIBSON

U.S. DISTRICT JUDGE

DATED: August 30 , 1991

App. 75

1.The interstate travel charge was

dismissed pursuant to the plea agreement.

2.The defendant did not present this

argument to the Court in his initial

suppression motion because the supporting

evidence did not come to light until

sometime after the June 8, 1990 Opinion

and Order.

3.The Government maintains that Minnesota

v. Olson, 110 S. Ct. 1684 (1990), should

not read as permitting the defendant to

challenge the search of the Baldori

residence for documentary evidence

because an overnight guest is rarely

granted access to the portions of a home

where such evidence is kept. Since the

language in Olson discussing the standing

of an overnight guest is, as the

Government concedes, extremely broad, the

Court declines to base its resolution of

defendant Sissler's suppression motion on

this issue.

4.The defendant also argues that the

warrant was used as a subterfuge to seize

property for future forfeiture

proceedings. The defendant suggests that

a warrant specifically mentioning the

property to be forfeited is required for

their seizure under Michigan's Forfeiture

Statute, see Mich. Comp. Laws Ann.

§ 333.7522 (West 1981), and the Fourth

Amendment. Assuming the defendant is

correct, the unlawful seizure of property

for future forfeiture proceedings would

not require the suppression of all

evidence because the conduct of the law

enforcement officers who executed the

search warrant did not exhibit a flagrant

disregard for its terms. See infra Part

III-c.

App. 76

5.In the first suppression hearing held

in the spring of 1990, the defendant

argued that the warrant failed to give

objective guidelines articulating how to

distinguish currency from drug

transactions from other currency.

Stating that no such guidelines were

possible, the Court rejected the

argument.

6.The parties stipulated at the hearing

that a half-hearted attempt to "break"

some of the passwords was made.

7.Computer printers contain no internal

memory device. Moreover, they can be

used with a variety of computers. These

observations lead the Court to conclude

that the police should have used their

own printer when they reviewed the

computer hardware and software rather

than seizing Mr. Baldori's for that

purpose. Therefore, the Court declines

to uphold the seizure of this item on the

grounds of practicality.

The Government also invokes the

"plain view" doctrine to uphold the

seizure of the fax machine. It maintains

that items purchased with proceeds from

illicit activity may be seized under this

doctrine. The Court declines to consider

the merits of this argument.

8.It is also inappropriate for the

prosecution to engage in such conduct.

App. 77

UNITED STATES DISTRICT COURT

WESTERN DISTRICT DIVISION OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF File No. 1:90-CR-12

AMERICA,

Hon. Benjamin F.

Gibson

Plaintiff,

Vv.

JOSEPH EMILE SISSLER, ORDER

Defendant.

At a session of the Court held in and for

said District and Division, in the City

of Grand Rapids, Michigan, this 30th day

of August, 1991.

PRESENT: HON. BENJAMIN F. GIBSON,

U.S. DISTRICT JUDGE

In accordance with the Opinion dated

August 30, 1991, IT IS HEREBY ORDERED that

defendant Joseph Emile Sissler's renewed

motion to suppress is DENIED.

IT IS SO ORDERED.

BENJAMIN F. GIBSON

U.S. DISTRICT JUDGE

APPENDIX D

App. 78

APPENDIX D

UNITED STATES OF AMERICA

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. Case No. 1:90:CR:12

JOSEPH EMILE SISSLER, INDICTMENT

Defendant. Hon. Benjamin F. Gibson

/

Count 1

On or about January 15, 1990, in Ingham

County, in the Western District of Michigan,

Southern Division,

JOSEPH EMILE SISSLER,

defendant herein, did knowingly, willfully and

unlawfully attempt to possess with intent to

distribute approximately 100 pounds of

marijuana, a schedule I controlled substance.

App. 79

21 U.S.C. § 841 (a) (1)

21 U.S.C. § 846

COUNT 2

On or about January 15, 1990, in the

Western District of Michigan, Southern

Division,

JOSEPH EMILE SISSLER,

defendant herein, did travel in interstate

commerce from the State of Virginia to Ingham

County, in the Western District of Michigan,

with the intent to promote, manage, establish,

carry on and facilitate the promotion,

management, establishment and carrying on of

an unlawful activity, to wit: a business

enterprise involving the possession with

intent to distribute and distribution of

marijuana, a Schedule I controlled substance,

in violation of Title 21, United States Code,

Section 841 (a) (1), and thereafter did

perform and attempt to perform acts to

promote, manage, and carry on and facilitate

the promotion, management and carrying on of

_—

App. 80

said unlawful activity in that he attempted to

purchase, obtain and possess approximately 100

pounds of marijuana for distribution to others

as alleged in Count 1 of this Indictment.

18 U.S.C. § 1953 (a) (3)

A TRUE BILL

GRAND JURY FOREPERSON

JOHN A. SMIETANKA

United States Attorney

JOHN C. BRUHA

Assistant United States Attorney

APPENDIX E

tg

’

€

App. 81

APPENDIX E

The pertinent portions of the Plea Agreement

read as follows:

PLEA AGREEMENT

Now comes the United States of America,

by its attorneys, John. A. Smietanka, United

States Attorney for the Western District of

Michigan, and John C. Bruha, Assistant United

States Attorney, and the defendant, Joseph

Sissler, and his attorney, Stuart R. Shafer,

and agree as follows:

1. Defendant Joseph Sissler agrees to

enter a conditional plea of guilty...

xk

2. Defendant expressly reserves the

right, subject to approval of the court under

Rule 11(a) (2) of the Federal Rules of

Criminal Procedure, to appeal the denials of

his pre-trial motions to suppress evidence in

this case, and the government hereby consents

to the entry of such a conditional plea.

APPENDIX F

App. 82

APPENDIX F

The pertinent portions of the district court's

September 21, 1990 Opinion read as follows:

THE HONORABLE BENJAMIN F. GIBSON,

COURT'S OPINION

THE COURT: It's clear to the Court that

under certain circumstances a search warrant

may be quashed for the seizure of items not

mentioned in the search warrant if the conduct

of the police officers is egregious or

flagrant. Whether or not this is such a case,

I'm not prepared to say absent a full

development of the record.

If Mr. Shafer had represented to the

Court that the particular conduct of which he

was concerned was confined to the photographs

and slides, then the Court could make a

judgment as to whether or not those items were

sufficient to bring this case within the rule

set forth in the Lambert case. The Court

could make a judgment of whether or not the

conduct of seizing those items was flagrant.

App. 83

However, Mr. Shafer says that there is an

ongoing police investigation, which indicates

to the Court that at least the police

authorities believe that there is sufficient

conduct which justifies an investigation. The

Court is not confident that the information.

that is before the Court is all of the

information that is out there.

Further, it is appears that the

information that has come before the Court

regarding the conduct of the police in the

execution of this search warrant was

information that was -- some of which was

revealed subsequent to the suppression hearing

that we had. Some of this information came to

light in the context of information revealed

at hearings involving the forfeiture case as

it relates to Mr. Baldori.

Mr. Shafer has asked that the suppression

hearing be reopened so that he can present

information that is in the nature of newly

discovered evidence; that is to say, evidence

App. 84

that was not available to him or at least

evidence that was not known to him at the time

of the suppression hearing. The Court could

resolve the matter by assuming that the

representations that Mr. Shafer has made are

accurate and then based on those

representations, apply those facts to the law.

The Court is reluctant to do that because

there could be other information out there,

and that should be brought to the attention of

the Court. At least Mr. Shafer in the Court's

judgment should be given a chance to present

whatever information that he has relating to

the issue of conduct of the police officers

and also relating to the issue of the scope of

what was seized as it relates to the

limitations in the search warrant.

The court is concerned that since this is

a conditional plea, that the issue that --

that the issues that were decided in the

suppression hearing plus these issues would be

presented to the appellate court, 6th Circuit.

App. 85

The Court is also concerned that the 6th

Circuit would wish to have a factual basis

which would permit it to review the matter.

Given all of these circumstances, the

Court is going to grant the motion to permit

proofs to be reopened in connection with the

suppression hearing, confined to the issues at

hand; that is to say, the question of the good

faith of the police officers and the question

of whether or not other items beyond the scope

of the search warrant were seized in flagrant

disregard for the limitations set forth in the

search warrant.

The Court is of the opinion that the

matter is not waived. These issues are not

waived because of the nature of the

conditional pleas and also because of the fact

that there has been no sentence in the matter.

So we have a conditional plea, and you have a

matter that has not been finalized by the

sentence. An also the court is also swayed by

the fact that this is in the Court's judgement

App. 86

evidence that is indeed newly discovered or

evidence that was not reasonably available to

counsel at the time of the suppression

hearing.

xk*ke

I would entertain argument and law on the

principle issue of whether the search warrant

should be suppressed in light of seizure of

the additional evidence. It is not the

Court's position that in all cases there

should be a suppression. As a matter of fact,

it is the Court's position that the rule is

otherwise. And unless it's shown that the

conduct and/or the items seized are of such a

flagrant nature that would cause the Court to

quash the search warrant -- I Suppose there is

a set of facts out there that would cause the

Court to do that. I'm not prepared to say

that in this case we have such facts. All I

am saying is that the defendant should be

given an opportunity to present proofs as to

whether or not the conduct is flagrant to such

App. 87

an extent that the entire search warrant

should be quashed.

The usual remedy is that obviously those

things outside of the search warrant are

suppressed and are not admitted into evidence.

That's the usual procedure. But there is that

window that exists which permits the Court to

quash the entire search warrant if the conduct

is egregious or flagrant.

The court is not saying that in granting

the motion to reopen that these photographs

and/or slides are sufficient to constitute a

flagrant violation. They may be, and they amy

not be. It depends on the nature of the

slides and what was done with them and the

attitude of the police officers and the

circumstances that caused them to be seized

and whether or not they may be seized in any

event for other reasons apart from the search

warrant. That all has to be explored. But

beyond that, there may be other conduct that

the defendant should be able to present which

App. 88

would add to that conduct involving the

photographs.

The Court believes that the motion may

have at least been presented in good faith

because the police authorities are conducting

their own investigation of the matter

apparently. So the court will grant the

motion to reopen the suppression hearing to

pursue the issues that we have discussed on

the record here.

APPENDIX G

App. 89

APPENDIX G

The pertinent portions of the Judgment in a

Criminal Case, Case No. 1:90 CR 12 read as

follows:

UNITED STATES OF AMERICA

WESTERN DISTRICT OF MICHIGAN

UNITED STATES

OF AMERICA,

Plaintiff, Case No. 1:90-CR-12

Vv

JOSEPH EMILE SISSLER, Stuart Shafer

Defendant's Attorney

Defendant

THE DEFENDANT:

pleaded guilty to count one (1)

kx ke

Accordingly, the defendant is adjudged

guilty of such count(s), which involve the

following offense:

Title & Nature of Date Offense Count

Section Offense Concluded Number(s)

21 U.S.C. 846 & 851(a)(1) 1/15/90 1

Attempt Possession with Intent to Distribute

The defendant is sentenced as provided in

pages 2 through 4 of this judgment. The

App. 90

sentence is imposed pursuant to the Sentencing

Reform Act of 1984.

Count two (2) is dismissed on the motion of

the United States.

It is ordered that the defendant shall pay a

special assessment of $50.00 for count one (1)

which shall be due immediately.

x *& &

IMPRISONMENT

The defendant is hereby committed to the

custody of the United States Bureau of Prisons

to be imprisoned for a term of Fifty-Seven

(57) months.

xk & &

SUPERVISED RELEASE

Upon release from imprisonment, the defendant

shall be on supervised release for a term of

Three (3) years.

xk

APPENDIX H

App. 91

APPENDIX H

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES

OF AMERICA, File N. 1:90-CR-12

Plaintiff, Hon. Benjamin F. Gibson

Vv

MEMORANDUM OPINION

JOSEPH EMILE and ORDER

SISSLER,

Defendant.

At a session of the Court held in and for

said District and Division, in the City

of Grand Rapids, Michigan, this 7th day

of October, 1991.

PRESENT: HON. BENJAMIN F. GIBSON, U.S.

DISTRICT JUDGE

Defendant has brought an unopposed motion

for release pending appeal. To be granted

release, defendant must show that he is not

likely to flee the jurisdiction, that he does

not pose a danger to any other person or the

community, and that the appeal was not

interposed for purposes of delay. 18 U.S.C. §

App. 92

3143; F.R.A.P. Rule 9(c).

This Court finds that defendant meets

these criteria. Defendant has always appeared

at scheduled hearings, and he has strong

family and community ties. He works part time

at several jobs. For these reasons, the Court

finds that he is unlikely to flee the

jurisdiction. Defendant's crime was not one

of violence, and the drug tests administered

to him as required by his pretrial release

have all been negative. Therefore, the Court

find that he does not present a danger to

others or the community. Finally, tne issues

defendant raises on appeal are not frivolous.

Therefore, the Court finds that they were not

raised for the purposes of delay. Therefore,

defendant's motion for release pending trial

should be granted.

IT IS HEREBY ORDERED that defendant

Joseph Emile Sissler's motion for release

pending appeal is GRANTED.

App. 93

BENJAMIN F. GIBSON

U.S. DISTRICT JUDGE

Dated: October 7, 1991

APPENDIX I

App. 94

APPENDIX I

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES

OF AMERICA,

Plaintiff, HON. BENJAMIN F.

GIBSON

Vv File No. 1:90 CR 12

JOSEPH EMILE

SISSLER,

Defendant.

ORDER EXTENDING REPORT DATE

At a session of the Court held in and

for said District and Division in the

City of Grand Rapids, Michigan, this

day of September, 1992.

PRESENT: HON. BENJAMIN F. GIBSON,

DISTRICT JUDGE

This matter having come before the Court

pursuant to a Third Motion to Extend Time

filed by defendant, and the Court having

reviewed said motion herein and otherwise

being fully advised in the premises;

IT IS HEREBY ORDERED that defendant's

motion is GRANTED. The defendant is to report

App. 95

to the U.S. Marshal's in Grand Rapids,

Michigan on Friday, October 23, 1992 by 2:00

p.m.

IT IS SO ORDERED.

BENJAMIN F. GIBSON

DISTRICT JUDGE

APPENDIX J

App. 96

APPENDIX J

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

APPLICATION AND

AFFIDAVIT FOR

SEARCH WARRANT

Case No. 90-4M

In the Matter of

the Search of:

the premises known as 2719 E.

Mount Hope Rd. including curtilage

and outbuildings, Okemos, Michigan,

County of Ingham

kkk

ATTACHMENT

unknown quantity of marijuana; scales used to

weigh marijuana; proceeds of marijuana sales

in the form of U.S. currency; records of

marijuana transactions; records of assets

purchased with the proceeds of marijuana

transactions; safety deposit box keys; phone

numbers of marijuana customers and sources of

supply for marijuana.

kkk

AFFIDAVIT

Affiant, DENNIS LANGKOS, being duly

sworn, deposes and states the following:

1. Affiant is a Special Agent (SA) of the

Federal Bureau of Investigation (FBI) and has

—_—

App. 97

been so employed since July, 1972. Since

October, 1977, Affiant has been assigned to

the Lansing, Michigan Resident Agency of the

FBI and,since 1982, Affiant has been assigned

to investigate violations of Federal narcotics

laws.

2. Affiant avers that probable cause

exists to believe that on the premiss commonly

known as 2719 East Mount Hope Road, Okemos,

Michigan, said premises being the residence of

ROBERT (BOB) BALDORI and KELLY BOYCE and the

location of Lansing Sound Studios,

Incorporated, and Kelly Screen Printing, there

currently exists and unknown quantity of

marijuana; scales used to weigh marijuana;

proceeds of marijuana sales in the form of

U.S. currency; records of marijuana

transactions; records of assets purchased with

the proceeds of marijuana transactions; safety

deposit box keys; and phone and address books

containing the names, addresses and telephone

numbers of BALDORI'S marijuana customers and

App. 98

sources of supply for marijuana. Further it

is anticipated that during the evening hours

of Monday, January 15, 1990, there will exist

on the premises in excess 100 pounds of

marijuana and a sum of U.S. currency, the

intended us of which is to pay for said

marijuana. The probable cause is as follows:

3. SA GENE KROUCH of the FBI Office in

Little Rock, Arkansas, has advised the Affiant

that on December 2, 1989, FBI Agents in Little

Rock, Arkansas, arrested EDWARD KANE of

Boulder, Colorado, and ROGER SPAGNUOLO of

Lansing, Michigan. These arrests had taken

place after KANE had purchased 85 pounds of

marijuana which was then placed into an

automobile being driven by SPAGNUOLO. Ina

subsequent interview with FBI Agents,

SPAGNUOLO advised that he had driven to Little

Rock, Arkansas, at the request of JIM JOSEPH

of Lansing, Michigan, for the purpose of

picking up the marijuana which was to be

furnished to him by KANE. SPAGNUOLO was then

App. 99

going to drive the marijuana back to Lansing,

Michigan and deliver it to JOSEPH. For this

service, JOSEPH was to pay SPAGNUOLO a sum of

$2,000. SPAGNUOLO made JOSEPH aware of the

fact that he had implicated him (JOSEPH) in

the scheme and, subsequent to that, JOSEPH

traveled to Little Rock, Arkansas, for the

purpose of meeting with Federal authorities

regarding the’ matter in question. Ina

subsequent interview with FBI Agents, JOSEPH

admitted his role in the marijuana transaction

which had occurred on December 2, 1989, and he

also admitted four previous marijuana

transactions involving himself and KANE which

had occurred during 1989. Further, JOSEPH

stated that he had only one customer for all

of the marijuana which he had purchased from

KANE during 1989, that customer being BOB

BALDORI of Okemos, Michigan.

4. Further, SA KROUCH has advised the

Affiant that JOSEPH had entered into a plea

agreement with the UNITED STATES ATTORNEY'S

App. 100

OFFICE in Little Rock, Arkansas, and part of

this agreement included JOSEPH'S full

cooperation in matters remaining under

investigation, this cooperation to include his

assistance into the investigation of the

illegal drug activity of BOB BALDORI.

5. Affiant avers that on January 4, 1990,

Affiant and Detective Lieutenant PAUL WHITFORD

of the Michigan Department of State Police,

interviewed JIM JOSEPH at his residence

located at 2455 Aurelius Road, Apartment

number 5, Lansing, Michigan. During that

interview, JOSEPH advised that he has known

BOB BALDORI for approximately 20 years and

that, in the past, he had worked with BALDORI

in the music business. JOSEPH also advised

that since BALDORI became an attorney licensed

to practice law, BALDORI had represented him

on various civil matters. At the present

time, BALDORI is representing JOSEPH regarding

a traffic offense which allegedly took place

in Lansing, Michigan. JOSEPH also advised

App. 101

that, during the early part of 12989, through

personal conversations with BALDORI, he

learned that BALDORI is also in the business

of buying and selling marijuana.

6. Further, JOSEPH advised that when he

(JOSEPH) lived in Colorado, he had met ED

KANE, supra, and had purchased marijuana from

KANE in the past. JOSEPH advised that about

the same time that he had learned about

BALDORI's marijuana activities, KANE contacted

him and asked him if he wanted to buy some

marijuana. According to JOSEPH, BALDORI was

willing to purchase marijuana furnished to

JOSEPH by KANE and, as a result of this,

beginning in April or May of 1989, JOSEPH was

part of four marijuana transactions wherein

KANE furnished marijuana to JOSEPH, and JOSEPH

then sold the marijuana to BALDORI. A total

of approximately 400 pounds of marijuana was

involved in these four transactions with each

transactions totaling approximately 100 pounds

of marijuana. In addition JOSEPH has

App. 102

purchased small amounts of high quality

personal use marijuana from BALDORI during

1989.

7. Further, JOSEPH advised that the

method of operation for each and every one of

the before mentioned marijuana transactions

was exactly the same. On each occasion, KANE

would contact JOSEPH and advise him of the

weight of the marijuana that was being shipped

and of the estimated time of arrival. JOSEPH

would then contact BALDORI and advise him of

the information that had been received from

KANE. The marijuana was always delivered into

the Lansing area in an automobile being driven

by someone working for KANE. After JOSEPH

took possession of the marijuana, he would

then deliver the marijuana to BALDORI's

residence on East Mount Hope Road in Okemos,

Michigan. JOSEPH stated that the residence is

occupied by BALDORI and his girlfriend, KELLY

(Last Name Unknown). This residence is also

the location of a recording studio owed by

App. 103

BALDORI, Lansing Sound ee a

and it is also the location of a screen

printing business operated by BALDORI'S

girlfriend. JOSEPH stated that once the

marijuana was delivered to BALDORI, he weighed

the marijuana to make sure that the stated

weight was correct. JOSEPH stated that he

would then leave the residence and wait for a

call from BALDORI who would then inform him

that the money for the marijuana was ready to

be picked up. JOSEPH would then return to

BALDORI'S residence, pick up the money, and

then give the appropriate amount of money to

the runner, if he was still in town. BALDORI

would pay JOSEPH as early as an hour to two

hours after the marijuana had been delivered.

8. Further, JOSEPH advised that BALDORI

has advised him that he (BALDORI) his other

sources of supply for bulk quantities of

marijuana. JOSEPH also recalled that, on one

occasion, BALDORI contacted him and attempted

to place an order for 500 pounds of marijuana.

App. 104

JOSEPH was unable to fill this order because

KANE could not provide him with that much

marijuana at that time. On that occasion,

BALDORI advised JOSEPH that this marijuana was

for an old customer who lived somewhere int he

state of New York. JOSEPH does not know the

identities of any of BALDORI's customers.

9. Further, concerning the 85 pounds of

marijuana purchased by ED KANE on december 2,

1989, JOSEPH stated that this marijuana would

also have been delivered to BALDORI had

SPAGNUOLO not been arrested, and this would

have been the fifth marijuana transaction in

1989 which involved KANE, JOSEPH, and BALDORI.

JOSEPH added that BALDORI was very careful

about meeting new people and never wanted to

meet KANE. When JOSEPH failed to deliver the

85 pounds of marijuana to BALDORI, JOSEPH told

BALDORI that KANE had refused delivery of the

marijuana from his source of supply because of

very low quality.

10. On January 10, 1990, JOSEPH advised

App. 105

Affiant that he had been in contact with

BALDORI and had advised BALDORI that his

source of supply for marijuana in Colorado was

prepared to send a shipment of marijuana.

According to JOSEPH, BALDORI showed interest

in purchasing this marijuana.

a3. Affiant avers that during the

evening hours of January 10, 1990, JOSEPH's

person was searched and found to be void of

controlled substances. The passenger

compartment of JOSEPH'S vehicle was also

searched and found to be void of controlled

substances. The passenger compartment of

JOSEPH's vehicle was also searched and found

to be void of controlled substances. A Nagra

body recorder and a transmitting device were

then secreted on JOSEPH'S person and,

thereafter, JOSEPH was surveilled to BALDORI's

residence at 2719 East Mount Hope Road,

Okemos, Michigan. JOSEPH then met with

BALDORI and discussed the impending marijuana

transaction. BALDORI tentatively agreed to

ao

App. 106

accept delivery of approximately 100 pounds of

marijuana at a delivery price of $950 per

pound. JOSEPH advised BALDORI that it would

be possible to make the delivery as early as

Friday evening, January 12, 1990. BALDORI

also sold to JOSEPH one ounce of what he

purported to be high quality marijuana for a

purchase price of $240.00. At that time,

BALDORI advised JOSEPH that the usual selling

price for this marijuana was $300.00 per ounce

and that he estimated that he had enough of

this marijuana left to last until the

following Wednesday, which would be January

17, 1990.; At that time, BALDORI also

discussed whether or not he could line up his

customer(s) by Friday, so he could make a

quick turnaround on the marijuana and pay

JOSEPH. ;

12. On January 11, 1990, Detective

Lieutenant WHITFORD advised Affiant that he

had conducted a chemical field test on the

material purchased by JOSEPH from BALDORI the

App. 107

previous evening and that the results of this

test showed that the substance tested positive

for marijuana. WHITFORD further advised that

on January 11, 1990, he had been contacted by

JOSEPH who advised him that BALDORI advised

JOSEPH that he could not get his customers

lined up to take delivery until Monday,

January 15 1990. Further, BALDORI wanted more

than 100 pounds of marijuana if it could be

obtained, as BALDORI'S customer wanted more

than 100 pounds of marijuana. BALDORI had

also advised JOSEPH that he wanted to "cash

out" which, according to JOSEPH, means that

BALDORI would have the cash at his house

within one to two hours after the time that

JOSEPH delivered the marijuana to BALDORI at

2719 East Mount Hope Road.

33. Further, WHITFORD advised Affiant

that he had made arrangements to obtain

approximately 160 pounds of marijuana and that

this marijuana would be provided to JOSEPH

during the evening hours of January 15, 1990,

App. 108

and that thereafter, JOSEPH would make a

controlled delivery of marijuana to the

BALDORI residence.

14. On January 10, 1990, JOSEPH advised

Affiant that on previous occasions when he had

been in the BALDORI residence, he has observed

two scales. One of these scales is a small

triple beam balance scale which BALDORI uses

to weigh small quantities of marijuana, and

JOSEPH has also observed a larger bulk scale

which BALDORI uses to weight multi-pounds of

marijuana. JOSEPH has also observed in the

residence marijuana seeds which BALDORI was

germinating.

15. Affiant avers that from personal

experience investigating narcotics violations

for nearly eight years, he knows that

individuals involved in illegal drug

activities frequently maintain in their

residence keys for safety deposit boxes which

are used to conceal proceeds from drug

transactions, financial records showing the

a

App. 109

location and account numbers of bank utilized

to deposit the proceeds of drug transactions,

records reflecting the purchase and sale of

illegal drugs, records showing the acquisition

of assets purchased with drug proceeds,

telephone toll records showing long distance

telephone calls made to drug suppliers and

drug customers, and address and telephone

books showing the names, addresses and

telephone numbers of customers and sources of

supply.

16. Affiant avers that the most recent

telephone directory for the Lansing, Michigan,

area lists ROBERT BALDORI, 2719 Mount Hope

Road, Okemos, Michigan.

17. The property to be searched is an

L-shaped structure consisting of a two story

Single family residence which has attached to

it a single story recording studio, said

structure being of wood frame construction and

wooden exterior and curtilage. This property

is located immediately adjacent to and East of

App. 110

the Montessori School on E. Mt. Hope Road and

being approximately 75 yards west of the

intersection of Copperhill Drive and E. Mt.

Hope Road.

18. Affiant requests the issuance of an

anticipatory search warrant to be effective

upon the delivery of the requested marijuana

to 2719 E. Mt. Hope Road, Okemos, Michigan.

Affiant further requests authorization to

search at any time during the day or night,

since it is unknown at this time when both the

marijuana and the anticipated payment will be

at the location to be searched. ;

19. Affiant further sayeth not.

DENNIS W. LANGKOS,

Special Agent

Federal Bureau of

Investigation

The pertinent portions of the Search Warrant

read as follows:

I am satisfied that upon delivery of

marijuana to 2719 E. Mount Hope Rd.,

Okemos, Michigan, there will be

[approximately six (6) pre-printed words

are blackened out by magic marker]

probable cause to believe that the

property so described is being concealed

App. 111

on the person or premises above-described

. .« + YOU ARE HEREBY COMMANDED, upon

delivery of marijuana to 2719 E. Mount

Hope Rd., Okemos, Michigan, to search ...

(Emphasis Added).

kk

ATTACHMENT

unknown quantity of marijuana; scales used to

weigh marijuana; proceeds of marijuana sales

in the form of U.S. currency; records of

marijuana transactions; records of assets

purchased with the proceeds of marijuana

transactions; safety deposit box keys; phone

numbers of marijuana customers and sources of

supply for marijuana.

APPENDIX K

App. 112

APPENDIX K

Pertinent portions of Dennis Langkos'

Testimony taken on May 24, 1990 before the

Hon. Benjamin F. Gibson read as follows:

Q. What, if anything, did you do to verify

the information that Joseph gave you?

A. Concerning like what point?

Q. Any point.

A. I don't know if I can really answer that.

The suppression -- it pertains to the

suppression order. But I'll start to say

that, Number 1, the conversations that

occurred between Baldori and Joseph on the

night of January 10th to a certain extent

verified or corroborated what Joseph had

already told us.

Q. Did you put any of that into the search

warrant?

A. I think the affidavit speaks for itself.

Q. Well, I don't care what you think. Did

you put any of that into the search warrant?

A. Like what?

Q. Any verification or corroboration of

information that Joseph supplied you.

A. I would have to read the search warrant

and see how you define corroboration.

Certainly it does mention that the

conversations were tape-recorded and that

during those conversations there is mention of

this deal that they were making. Certainly

every detail of the conversation is not

i i

App. 113

—

mentioned in the affidavit.

Q. Okay. Isn't it true that you never put

in the search warrant affidavit what those

conversations were, only that Mr. Joseph was

wearing a tape recorder?

A. I think it is my recollection I put in

they came to an agreement concerning the

deli:sory of the marijuana.

Q. ‘wd you try to verify or corroborate any

information that Joseph supplied you

concerning the history of Baldori, his history

with Baldori?

[Objections]

THE COURT: Well, you may proceed in

connection with this matter.

MR. SHAFER: Thank you.

Q. Isn't truth that Joseph advised you that

—he -- the first deal he had with Baldori was

in April or May of 1989 for about a hundred

pounds?

A. I recall that.

Q. And that a runner stayed at the Knights

Inn in Pennsylvania and that Cane flew in and

stayed at the Knights Inn on West Saginaw.

[Objections]

Q. What if anything did you do to verify

that a runner stayed at the Knights Inn on

South Pennsylvania?

A. Number 1, Mr. Joseph did not know the

identify of the runner. We do know whether he

would have registered in his true name even if

we did.

App. 114

Likewise, as far as Mr. Cane, in my

dealings with the airlines, they do not keep

passenger lists for that length of time. And,

Number 2, we do not know, even if they did, if

he traveled under his true name. And in my

experience also, individuals do not always

register in their true names at hotels or

motels.

So your answer is: Basically did I check

that out? No. But the reason for it is the

probability of being successful or that coming

to fruition are just about nil. But, Number

1, Mr. Joseph didn't have the runner's

identity.

Q. Cane was cooperating with law enforcement

in Little Rock; isn't that correct?

A. No, not at that time. If he is now, I

don't know if he is or isn't.

Q. The answer is you made no effort to

corroborate that information?

A. I would like to qualify the answer

saying, Number i, the majority of his dealings

concerning these marijuana transactions with

the exception of Cane, which I've just

discussed and the runner, which I've just

@iscussed, Mr. Joseph alleged to be one-on-one

transactions. And certainly without going to

Mr. Baldori at that point, what else can you

try to verify and corroborate?

Q. He also advised you of a second deal in

June for about a hundred pounds where a runner

stayed at the Holiday Inn on South

Pennsylvania. Isn't that correct?

A. If that's what the affidavit says, yes.

Q. The affidavit doesn't say it. Whitford's

report says that.

App. 115

A. He could have said that, yes.

Q. What, if anything, did you do to

corroborate that?

A. My answer to that question would be the

same as to the answer on the first one, where

again you would not know the identity of the

runner. If we did, we do no know the identify

the runner used to register.

Q. And would your answer be the same with

respect to the information he provided for a

third deal of August and September of 1989?

A. That is correct.

Q. And for a fourth deal in October of 1989?

A. That is correct.

Q. Would it be correct that prior to having

him contact Baldori in this investigation, you

made no effort to corroborate or verify any of

the information he provided to you about

Baldori?

A. Some of the information I knew already.

[Counsel's comments]

THE COURT: Well, the record doesn't

reflect what information we're talking about.

Do you know, Witness, what information?

What information did you refer to?

THE WITNESS: Well, you know, he talked

about Baldori having a recording studio and

things like that; and, certainly I knew that

already. He said that Baldori was a

practicing attorney. I knew that already.