# Appendix — Shirokey v. City of Cleveland Heights

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 864

## Text

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1 Vt LO 1992
PT ar as <r
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1527%3A2. Public record. Not legal advice.