In re SEARCH WARRANT DATED JULY 4, 1977, FOR PREMISES AT 2125 S STREET,
NORTHWEST, WASHINGTON, D. C.
Appeal of UNITED STATES.
In re SEARCH WARRANT DATED JULY 4, 1977, FOR PREMISES AT 2125 S STREET,
NORTHWEST, WASHINGTON, D. C.
Appeal of FOUNDING CHURCH OF SCIENTOLOGY.
Nos. 79-2138, 79-2176.
United States Court of Appeals,
District of Columbia Circuit.
Argued Dec. 9, 1980.
Decided Oct. 2, 1981.
As Amended Oct. 30, 1981.
Proceeding was instituted on motion of church to return property seized from
its files. The United States District Court for the District of Columbia,
William B. Bryant, Chief Judge, 436 F.Supp. 689, granted church's motion,
and Government appealed. The Court of Appeals, 572 F.2d 321, vacated
order. On remand, the United States District Court for the District of
Columbia, William B. Bryant, J., held that seizure of documents was
unconstitutional. Appeal was taken. The Court of Appeals, MacKinnon, Circuit
Judge, held that decision of district court holding that search resulted in
unconstitutional general seizure and ordering suppression of all seized
documents except stolen ones was not supported by substantial evidence in
record and was clearly erroneous.
Judgment accordingly.
Wald, Circuit Judge, filed an opinion in which Robinson, Circuit Judge,
concurred.
[1] CRIMINAL LAW
In light of testimonial evidence presented in challenge to search and seizure,
district court was clearly erroneous in ruling that testimony describing
general operation of search justified finding that search and seizure was
unconstitutional. U.S.C.A.Const.Amend. 4.
[2] CRIMINAL LAW
In challenge to search and seizure, finding that purported admissions of
government attorneys meant that search was beyond limits of warrant was clearly
erroneous. U.S.C.A.Const.Amend. 4.
[3] CRIMINAL LAW
A search cannot be justified by criminality evidenced in seized documents, but
when law officer sees incriminating document clearly tied to items designated
in warrant, there is no justification for suppressing it.
[3] SEARCHES AND SEIZURES
A search cannot be justified by criminality evidenced in seized documents, but
when law officer sees incriminating document clearly tied to items designated
in warrant, there is no justification for suppressing it.
[4] SEARCHES AND SEIZURES
Officers with the search warrant for certain items could seize other items in
plain view that were clearly tied to crime alleged in warrant.
[5] SEARCHES AND SEIZURES
In challenge to search, record failed to support district court's conclusion of
willfully overbroad seizure on basis of independent evaluation of seized
documents before court. U.S.C.A.Const.Amend. 4.
[6] SEARCHES AND SEIZURES
In challenge to search, district court's reliance on Government's inventory of
documents seized did not support finding of unlawful general seizure since
inventory contained only title and at most one sentence general description of
each document seized and did not purport to show why document was seized or to
identify search warrant item under which it was taken and district court was
unable to show that even significant portion of documents were seized
unlawfully. U.S.C.A.Const.Amend. 4.
[7] SEARCHES AND SEIZURES
Affidavits supported probable cause to search all offices from which documents
were seized by government agents.
[8] SEARCHES AND SEIZURES
In light of character of crime described in affidavit, i.e., an elaborate and
ongoing conspiracy to collect stolen documents, and of highly organized nature
of record-keeping system of church stealing documents, and practice of keeping
files so officials could use them, magistrate acted reasonably in concluding
there was probability that documents reliably reported to repose at the church
headquarters three months before would still be there.
[9] SEARCHES AND SEIZURES
When government agents broke open doors during search, they did not violate the
statute governing breaking doors or windows for entry or exit during search, in
light of persistent obstructionist behavior by officials of church whose
premises were being searched plus their subsequent failure to provide keys.
[10] SEARCHES AND SEIZURES
District court did not err in denying a church an evidentiary hearing in which
to test veracity of allegations and affidavit filed in support of warrant to
search church premises.
[11] FEDERAL COURTS
Church abandoned its claim that certain individual documents were illegally
seized during a search where, for reasons of its own, church seemed to take an
all or nothing approach and persistently failed to proffer any evidence to
support a claim to return of individual documents.
[12] FEDERAL COURTS
A party's persistent failure to pursue a claim is grounds to conclude it has
abandoned it.
*118 **75 Appeals from the United States District Court for the District
of Columbia (D.C. Miscellaneous Action No. 77-0151).
Michael W. Farrell, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S.
Atty., John A. Terry, Raymond Banoun, Judith Hetherton and Steven C. Tabackman,
Asst. U. S. Attys., Washington, D. C., were on the brief for appellant in No.
79-2138 and cross-appellee in No. 79-2176.
Philip J. Hirschkop, Alexandria, Va., with whom Victor M. Glasberg and Leonard
S. Rubenstein, Alexandria, Va., were on the brief for appellee in No. 79-2138
and cross-appellant in No. 79-2176.
Albert P. Blaustein and Jay A. Sigler were on the brief for amici curiae, pro
se., urging that the search warrant and search were constitutionally invalid.
Nadine Strassen was on the brief for amicus curiae American Civil Liberties
Union, urging that the Court hold that the search warrant and search were
unconstitutionally general.
Before ROBINSON, Chief Judge, MacKINNON and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge MacKINNON.
Separate opinion for the Court filed by Circuit Judge WALD.
Chief Judge ROBINSON concurs in the opinion filed by Circuit Judge WALD.
**76 *119 PER CURIAM:
Judge MacKinnon files an opinion in which Chief Judge Robinson and Judge Wald
concur, except with respect to Part III, B (entitled "The Bases of the District
Court's Decision"), Part X (entitled "The Remand to Consider the Return of
Individual Documents"), and the Conclusion. Judge Wald files a separate
opinion in which Chief Judge Robinson concurs. Judge Wald's opinion, and Judge
MacKinnon's opinion, except for Part III, B, Part X, and the Conclusion,
together constitute the opinion of the court. The district court's order is
reversed and the case remanded for further proceedings consistent with the
opinion of the court.
So ordered.
MacKINNON, Circuit Judge:
In this appeal we again consider legal challenges by the Founding Church of
Scientology (hereinafter, Scientology) to a July 8, 1977 search and seizure by
agents of the Federal Bureau of Investigation (FBI) on the premises of the
Scientology's Washington, D. C. headquarters. The search, conducted pursuant
to a warrant, was for documentary evidence of a conspiracy by, inter alia,
Scientology officials and agents to steal documents from government
offices. Upon the motion of Scientology under Fed.R.Crim.P. 41(e) for
return of property "unlawfully seized," [FN1] the district court, while
rejecting Scientology's other challenges to the search and seizure, ruled that
the agents had engaged in a general seizure violative of the Fourth Amendment
and ordered the suppression and return of all 567 of the documents seized.
Both sides appealed, and the court stayed its order pending the government's
appeal. We now affirm in part and reverse in part, holding that the record
does not support the conclusion that the agents executed a general seizure and
that Scientology's other challenges to the search and seizure are also without
merit. While we reiterate our prior holding that Scientology is entitled to
the return of items seized outside the warrant, we note that Scientology has
shown the illegal seizure of no item that the government has not already agreed
to return.
FN1. Rule 41 provides in part:
(e) Motion for Return of Property. A person aggrieved by an unlawful
search and seizure may move the district court ... for the return of the
property on the ground that he is entitled to lawful possession of the
property which was unlawfully seized.... If the motion is granted the
property shall be restored and it shall not be admissible in evidence at
any hearing or trial.
Several months after the motion for return was filed a number of
Scientology officials were indicted, making the motion in effect a
Fed.R.Crim.P. 12 motion to suppress. See note 2 infra.
I. PRIOR PROCEEDINGS
According to the affidavit filed in support of the July 4, 1977 search warrant
that is the subject of this proceeding, the offenses that caused the warrant to
be issued were committed in connection with Scientology's tax exemption as a
religious institution under the Internal Revenue laws. In support of this
objective Scientology set out to obtain government documents
by (valid) FOIA (Freedom of Information Act) actions and covert scientology
operations against various United States agencies; those documents gathered
through legitimate, non-covert channels are marked "FOI" and those obtained by
covert actions are marked "non-FOI". (The distinction is noted so that Church
officials can be certain which documents can safely be disclosed for public
purposes.) Covertly obtained documents are those obtained either through
outright burglaries or theft by Scientology agents who work for government
agencies.
Affidavit of FBI Special Agent Robert Tittle ("the Tittle Affidavit"),
reprinted in Joint Appendix (JA) at 61 (emphasis added).
A further allegation in the supporting affidavit states:
In December, 1975 Cindy Raymond, the Collections Officer within
(Scientology's) Deputy Guardian for Information, U.S. *120 **77 Office,
developed a "program" calling for covert operations designed to obtain Interpol
documents regarding the Church of Scientology contained in files held by
government agencies. That program was developed in response to the general
directive contained in Guardian Order (GO) 1634 composed and disseminated by
the Guardian Office World-Wide. All documents not turned over to the Church by
the government pursuant to an FOIA request were to be covertly obtained by
agents of the Church, according to the Raymond program. That program was to be
implemented in the District of Columbia either by burglarizing the targeted
office or by placing a secure Scientology agent on the staff of the targeted
government attorney. This agent would have access to the attorney's files and
would xerox the sought-after documents and turn them over to Meisner, who
supervised the activities of all Scientology covert agents in Washington, D. C.
(Id.) (JA 47-48) (Footnote omitted) (Emphasis added).
The warrant directed the search of a fourth floor suite in Scientology's
Washington, D. C. headquarters at 2125 S Street, N.W. The warrant contained
162 descriptions of property. Items 1-99 list documents stolen and copied from
the office of an Assistant United States Attorney. Items 100-148 list
documents stolen and copied from a Justice Department attorney. Items 149-161
list other stolen documents and internal documents of Scientology alleged to
set forth Scientology's plan to purloin government documents. Item 162,
finally, authorized the agents to seize:
162. Any evidence (at this time unknown) of the crimes of conspiracy,
obstruction of justice and theft of government property in violation of 18
U.S. Code ss 371, 1503 and 641 which facts recited in the accompanying
affidavit make out.
(JA 39, emphasis added). The reference to the "accompanying affidavit"
effectively incorporated a 33-page "Affidavit in Support of Search Warrant" (JA
42-74) that was attached to the warrant's "Description of Property" (JA 33-
41). The affidavit was signed by FBI Agent Robert Tittle and was based on the
disclosure of Michael Meisner, who claimed to have participated personally with
other Church officials in a conspiracy to burglarize government offices.
The district court originally held that the search warrant constituted a
"general warrant" violative of the Fourth Amendment guarantee against
unreasonable searches and seizures. Such ruling relied principally on a claim
that Item 162 did not sufficiently particularize the offenses. In Re Search
Warrant, Dated July 4, 1977, 436 F.Supp. 689 (D.D.C.1977). On appeal to this
court we reversed, In re Search Warrant, 572 F.2d 321 (D.C.Cir.1977), ruling
that the district court "gave an overbroad construction of the search warrant,
improperly interpreted the relevant offenses, ignored a significant part of
item 162 (the reference to the "accompanying affidavit"), and gave an unduly
restrictive construction to the Supreme Court decision in Andresen v.
Maryland, (427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976))." We also held
that the magistrate properly found probable cause to have been shown for the
search. Id. at 323-24. Our judgment accordingly reversed the decision of
the district court, vacated the 1977 order in its entirety and remanded the
case to the district court for consideration of other grounds alleged for
invalidating the warrant that had not been considered by the district court at
the initial hearing. The other grounds were (1) that the manner of the search
constituted a violation of the Fourth Amendment, (2) that the agents employed
unnecessary force in violation of 18 U.S.C. s 3109; and (3) that the warrant
was issued on stale allegations of fact. 572 F.2d at 328. We also noted at
that time that
If any of the documents seized in the search by the agents exceed the bounds
of the search warrant they should be returned, but the "fruits,
instrumentalities and evidence" that were seized, and that are relevant to the
particularized offenses and which are specifically referred to in the affidavit
and search warrant, *121 **78 should be delivered to the government
forthwith for use in connection with the grand jury proceedings. Our order
herein does not restrict the right of the court to consider and determine
whether any specific document may have been seized outside the authority of the
search warrant as construed in this opinion.
572 F.2d at 327.
II. THE REMAND
In response to the district court's request for help in limiting its task on
remand, the government indicated by marking on its documents inventory an "R"
for each document that the government explained that it was willing to return.
These "return items" were those it did not plan to use in any pending criminal
proceeding.[FN2]
FN2. Simultaneously with the search of appellant's Washington offices on
July 8, 1977, FBI agents executed two search warrants for the search of
Scientology's offices in Hollywood, California. A motion for return of the
property seized in that search was denied in two separate opinions by the
United States District Court for the Central District of California.
Church of Scientology v. United States, No. CV-77-2565-MML (C.D.Cal. April
4, 1978); Church of Scientology v. United States, No. CV-77-2565-MML
(C.D.Cal. July 5, 1978). Appellant's appeal from that decision was
dismissed as interlocutory and nonappealable. Church of Scientology v.
United States, 591 F.2d 533 (9th Cir. 1979).
Meanwhile, on August 15, 1978, a grand jury in the District of Columbia
indicted eleven officials or agents of Scientology on multiple charges
including conspiracy to steal federal property and to obstruct justice.
The defendants moved to suppress the evidence seized in the California
search, the Government having agreed that in the case under indictment it
would use only the California evidence, and no evidence from the Washington
search, pending the outcome of the instant litigation. On September 13,
1979, the District Court denied the motions to suppress. United States v.
Hubbard, et al., Cr. No. 78-0401 (D.D.C.). On October 26, 1979, the
defendants were found guilty on various counts after a stipulated trial,
and were subsequently sentenced to terms of imprisonment and fines.
Appeals from those convictions are now pending in this Court.
In addition, on August 15, 1977, appellant filed a civil suit in the
District Court against the Department of Justice and other parties,
including the participating FBI agents, seeking damages as a result of the
Washington search and seizure. Founding Church of Scientology v. Kelley,
Civil Action No. 78-0107 (D.D.C.). Proceedings in that case were stayed by
order of the court on December 28, 1977, pending final decision in the
instant litigation.
The court subsequently held a two day hearing, at which it heard the testimony
of fourteen witnesses called by Scientology. Among these were four of the
fifteen FBI agents who conducted the search and seizure. Allowing very little
opportunity for cross-examination by the government, the court, with
Scientology counsel, inquired of these agents the reasons for their seizure of
particular documents. The court made plain, however, that it was interested
only in those documents that the government had agreed to return.[FN3] And in
fact all but one of the approximately thirty documents that were marked for
identification and before the court during the hearing were return items.[FN4]
Despite the government's insistence that the return items were properly
seized, [FN5] the court ruled that the *122 **79 government had admitted
that the return items were "innocuous," [FN6] and then chose to define
"innocuous" as "meaning they have no criminal connotation." (JA 14).
FN3. See, e.g., JA at 360-61.
FN4. See infra at p. 22.
FN5. "MISS HETHERTON (AUSA) ... Also, your Honor, I would like to say that
we have never maintained or stated that these documents that we are
returning, which I am the one who reviewed and decided which ones should be
returned-that they are totally irrelevant and that they are not in fact
corroborative of the affidavit. We filed a pleading with your Honor,
Memorandum in Support of Evidentiary Objection, and in that Footnote 1, we
stated that these documents that we're returning are documents that we
don't intend to use. We don't need them in a criminal prosecution, but a
review of them in fact will reveal, as the testimony of the agents has
revealed, that they in fact were specific documents, on some occasions,
within the first 161 items. That others of them are plainly corroborative
of the affidavit (incorporated by reference in item 162). And counsel (for
the Church) continually represents to this Court that we have said that
they're totally without any evidentiary value or something of that nature.
That has not been our representation, and as long as counsel is going to
insist that that is relevant to anything that this Court has to decide, we
think that (the documents to be returned) should perhaps be maintained
before this Court, at least in the Court's custody until the proceedings
are over.
(JA 899-900) (Emphasis added).
FN6. The support cited by the district court for its conclusion that the
government considered the return items "innocuous" was as follows. An
Assistant United States Attorney (AUSA) told the district court on July 27,
1977 that the return items were those that "on closer examination (were)
found not to be relevant to the anticipated criminal proceedings." See JA
14 n.5. On August 12, 1977, another AUSA explained again that the return
items were those "which in the opinion of the prosecutors would not be used
in any criminal investigation." See id. at 15 n.4. The court then
said, "That is what they call innocuous documents?" The AUSA replied:
Innocuous or whatever adjectives are appropriate. I don't know. I see no
reason why documents which fall into that category cannot be returned.
(Id.)
Upon reviewing the testimony, several of the documents just mentioned, and the
summary descriptions found in the government's inventory, the district court
ruled that the agents of the United States illegally and unconstitutionally
executed the warrant and converted their seizure of documents into a general
exploratory seizure in violation of the Fourth Amendment and of 18 U.S.C. s
2234.[FN7] With respect to the inventory, the court stated:
FN7. 18 U.S.C. s 2234 provides:
Whoever, in executing a search warrant, willfully exceeds his authority or
exercises it with unnecessary severity, shall be fined not more than $1,000
or imprisoned not more than one year.
"(a) survey of the inventory of items seized by the F.B.I. agents reveals
that (the) selection procedures (they described in their testimony) led to the
seizure of several hundred documents-nearly half or more of the seizure-which
were not designated by the warrant; and by no stretch of the imagination
could they be regarded as within the designated categories of documents to be
seized."
(JA 14). The court elaborated:
the quantity of innocuous documents seized ... (was) not the determining
factor in ... concluding that the seizure is unreasonable. Rather, it is the
stark fact that they (the innocuous documents) were seized in spite of the fact
that they obviously were not included in any of the categories of items to be
seized as contained in the warrant, and thus in flagrant violation of the
statute (18 U.S.C. s 2234) which is designed to bolster the effectiveness of
the particularization requirement of the Fourth Amendment.
(JA 19) (Emphasis added).
The court's order directed the return of all materials seized in the July 8,
1977 search (except stolen items) and declared that these materials were to be
suppressed as evidence, and not admissible at any hearing or trial. (JA 19-
20). The court ruled against Scientology on "all other grounds." (JA 19).
On its appeal, the government contends that the district court erred as a
matter of fact in finding that the agents' seizure exceeded the scope of the
search warrant, and in any event erred as a matter of law in concluding that
the appropriate remedy would be return and suppression of every document
seized. On its cross-appeal, in addition to defending the district court's
finding of general seizure, Scientology argues that the search warrant was
facially invalid, that it was unsupported by probable cause, that any
allegations that did support the warrant were stale, that the agents' forcible
entry into rooms and file cabinets violated 18 U.S.C. s 3109 and requires
return of the documents, and that Scientology was entitled to an evidentiary
hearing to impeach the Tittle Affidavit. We discuss these contentions in turn.
III. THE CLAIM OF GENERAL EXPLORATORY SEIZURE
The finding that the agents "conducted a general seizure" (JA 14) appears to
have rested on the subsidiary findings that (1) the agents by their testimony
showed they were interpreting the search warrant in an impermissibly broad
fashion, (2) many of *123 **80 the "innocous documents" (those the
Government had agreed to return) were seized "in spite of the fact that they
obviously were not included in any of the categories of items to be seized as
contained in the warrant" (JA 19), and (3) the government's inventory of items
showed that "nearly half or more of the seizure" was obviously beyond the
bounds of the warrant. The court's ultimate finding cannot stand because its
subsidiary findings are not substantiated by the record. Before we address
these findings, we discuss the evidence concerning the general method of the
search.
A. The Method of the Search
The testimony at the hearing on remand revealed that fifteen FBI agents
conducted the actual search which lasted 91/2 hours.[FN8] In preparation for
the search the agents attended several meetings to discuss and familiarize
themselves with the areas and documents described in the search warrant and
accompanying affidavit. They were instructed to confine themselves to these
areas and documents in their search. (JA 542-43). During the search each
agent carried with him a copy of the search warrant and its "Description of
Property" and could contact one of the three persons on the scene who carried
the supporting affidavit (JA 433, 484, 506, 651, 874). An Assistant United
States Attorney (AUSA) was outside the building in a car to advise the agents
on issues that might arise in the search, and on at least five occasions
guided agents in their interpretation of the warrant. (JA 504-14).
FN8. An additional ten agents were present outside the building.
During the search in the Fourth Floor suite specified in the warrant (JA 21)
the agents examined 93 file drawers, fourteen desks, three bookshelves and
numerous boxes and piles of loose documents. During the 91/2 hour search by 15
agents (142.5 total agent hours) they seized 567 documents, which just filled
two cardboard boxes measuring 18 inches by 18 inches by 12 inches (JA 204).
This averages out to less than four documents for each hour each agent
searched. Some documents that were originally seized by an agent were
ultimately rejected, during the progress of the search, by a supervising agent
and returned to the Church's files (JA 553-54). During the search Scientology
representatives were allowed to be present in each room and to take notes and
photographs. (JA 442-43, 464-72).
Richard Kimmel, the Scientology's Assistant Guardian for Information,
testified concerning the details of the search that he observed:
THE COURT: Well, are you telling me that the first agent who picked the
documents up just took each document as he came across and gave them to another
man?
THE WITNESS: No, not each document he came across, but from what I saw, each
one he felt would be relevant, he gave over.
(JA 467).
I made the assumption at the time that they (the searching agents) were
checking off against the warrant or the itemization of documents on the
warrant. (This indicates a specific search not a general search.)
Q. When you saw agents checking off against a list, did that list resemble
the "Description of Property" (JA 32-39) that I showed you previously?
A. As close as I could get, which was within five or ten feet, I think it
did.
In another situation, the agent going through the jacket would call off the
file number or file caption and the other agent with the itemization (the
Description of Property in the warrant) might call out what documents were to
be looked for in that particular jacket file. (Stronger testimony of a search
for documents particularized in the warrant could not be produced.)
(JA 484-86) (Emphasis added).
Representative of the FBI testimony about the general conduct of the search is
that of Special Agent Higgins:
*124 **81 I had a copy of the description of items in my hand and when I
looked through an item I just tried to recollect what the affidavit set out and
what the crimes were-and what the specific items were-and as I looked at the
document I just would flip through and see whether or not it seemed to conform
with what I was instructed to get pursuant to the search warrant, so I would
review, as I went through, as I wanted to be sure that what I was taking seemed
to be within the purview of the warrant.
(JA 550).
(1) This and other testimony satisfies us that there is no tenable claim on
this record that the agents were inadequately prepared or adopted a method of
search that amounted to the general rummaging operation that the constitutional
prohibition against general searches is meant to prevent. The agents were
extensively briefed, instructed, and supervised. The court did not find, and
there is no basis for finding, that the agents exceeded the geographical scope
of the warrant. We thus conclude that the district court was clearly erroneous
in ruling that the testimony describing the general operation of the search
justified a finding that the search and seizure were unconstitutional.
B. The Bases of the District Court's Decision
1. The Agents' Seizure of "Innocuous" Documents
Clearly the dominant basis of the district court's finding of a general
seizure was its construction that documents the government agreed to return
were "innocuous." The court's reasoning seems to have been that from a mere
reading of the description of the documents in the government's inventory, and
the government's offer to return many "innocuous" items, the court could
conclude that the entire search was beyond the limits of the warrant. On this
basis the court ruled the seizure invalid in toto to avoid "more and more
widespread abuse." (JA 17).
(2) We find the district court's analysis deficient. First, the statements
by the government attorneys, see notes 5 & 6 supra, did not amount to an
admission that the search warrant provided no support for the seizure of the
"innocuous" documents in the first place, and are no basis from which to
conclude that the "officers (agents) ... willfully exceed(ed) the scope of
their authority under (the) warrant ...." (JA 15) (Emphasis added). The
government was stating merely that the items to be returned were not necessary
to the then anticipated criminal prosecution, or were cumulative of other
evidence seized in the District of Columbia and at Scientology's headquarters
in California. See notes 5-6 supra. (JA 21, n. 1). In resting its finding on
its construction of the purported admissions of government attorneys the
district court was clearly erroneous and abused its discretion.
Second, we find the district court's conclusion of a general seizure is
unsupported by the testimony of the FBI agents of the reasons they seized
particular documents, by the testimony of Kimmel, or by an independent analysis
of the documents before the court.
The court first recited extracts from the testimony of agent Higgins that the
agents conducting the search "were told to try to get Guardian Orders-relating
to Guardian Order 1634." (J.A. 12). Higgins testified that if he "saw a
compliance report to that Guardian Order, to (his) understanding of the crimes
alleged, that seemed to establish a relationship to the item described in the
generalized kind of description of an item (in the warrant) that would be
pertinent." (Id.) This testimony does not support an inference of an
exploratory search. The affidavit in support of the search warrant reported
that Guardian Order "GO 1634 (Information Bureau activities re FOI), and
others" were "file folders ... (which) included some programs directed against
governmental agencies ..." (JA 63) (Emphasis added). And the warrant
authorized the seizure of items relevant to:
153. Guardian Order 1634.
*125 **82 154. Any and all Guardian Orders issued pursuant to Guardian
Order 1634 which would be identified as Guardian Order 1634-(number). (JA 38)
The rationale expressed in Higgins' testimony justified the seizures he made
of GO 1634 items under the instant search warrant.
(3) The second extract of Higgins' testimony related to the reasons he gave
for seizing "certain items that were labelled Snow White." With respect to
these items Higgins testified, "I would read the document over, and if it was
something of that nature and there was a word in there that more or less, or a
couple of words, or a phrase or paragraph in there that indicated that that
particular Snow White document pertained to what would be characterized as
overt (sic, should read "covert") activity, I would take it." (JA 12). Full
support for seizing such documents on such reasoning exists in the search
warrant and supporting affidavit which is incorporated in the warrant. The
search warrant commanded the agents to seize:
155. A Guardian Order generally identified as "Snow White".
156. Any and all Guardian Orders issued pursuant to the Guardian Order
generally identified as "Snow White" which would be identified by the mention
of "Snow White".
(JA 38). "Snow White" was also described in the supporting affidavit as one
of the programs directed against governmental agencies. (JA 63). The
illegality of the "Snow White" project was further substantiated by one of the
"Snow White" documents that was seized. That document bears date 27 March
1976, covers 4 pages and is entitled "GUARDIAN PROGRAM ORDER" a "secret-
program"; "Snow White". It "reports" that "an excellent BI (Bureau of
Information) success over the last year was the obtaining of non-FOI data ..."
(Emphasis added). The reference to "non-FOI," as disclosed above, referred to
documents that were "covertly" obtained from the government by burglary or
theft. (JA 61). See Tittle Affidavit, quoted at p. ----, supra. The same
"Snow White" document also states:
PLAN:
To obtain all the secret files on Scientology that are not obtainable on FOI
(Freedom of Information) lines ...
(JA 187). A search cannot be justified by the criminality evidenced in seized
documents, but when law officers seize an incriminating document, clearly tied
to items designated in the warrant, there is no justification for suppressing
it.
In further support of his seizure of items "related to Snow White," Higgins
explained:
Where I saw items that related to Snow White, I was working under the
presumption that we were seeking evidence of criminal conduct, when Snow White
is described in that affidavit as (the) main program directed against
governmental agencies-which means the main things that were not quite on the up
and up .... Because as I went over each document I read, understanding the
violations that were being alleged, and I sought to see whether or not Snow
White-that particular document that had Snow White on it-meant or related to
activities which would have appeared to be criminal. (Tr. 224-225.)
(JA 12). This testimony indicates an exact knowledge of the items specified
in the search warrant and of the rationale set forth in the supporting
affidavit that justified the seizure of the Snow White documents. (JA 12).
The quoted testimony of agent Higgins thus indicates a knowledgeable and proper
exercise of his authority under the search warrant and does not support the
court's ruling invalidating the search and suppressing all the seized
documents.
The district court opinion next recites testimony by agent Joel Dean
explaining his basis for seizing a pleading file in a lawsuit brought by
Gregory Taylor. He testified that he took the document under item 162 of the
warrant, quoted at p. ---- supra. Dean testified that Taylor's presence at
the headquarters when the search was being conducted caused him to conclude
*126 **83 that he could have been a participant in the Scientology's plan
to obstruct justice in regard to the theft of government property (which 162
specifies). Tr. 279. (JA 13). Dean also recalled that the Internal Revenue
Service had originally arrested Taylor, mistaking him for one Wolfe, who had
actually stolen some IRS documents. See Part VII infra. Whatever deficiency
there may be in Dean's reasoning for seizing the pleading in the lawsuit, his
action was directed at the designated purposes of the search and not some
unrelated crime. This incident may reflect at most a negligent
misinterpretation of the warrant; it does not furnish a basis for invalidating
the entire search.
The district court's opinion also cites Dean's testimony that he seized some
documents under the plain view doctrine. The document bearing computer No.
58287 pertaining to codes was specifically mentioned. This document listed
various "codes-codes for different terms, names, and words ...." Dean
testified he seized this document "because it would be a valuable key in the
entire 161 items to understand them in their entirety":
It's a listing of codes, and knowing the other 161 items could have codes,
and after reading this, I selected this and seized this so we could interpret
the other items that were seized in regard to the affidavit. (Tr. 323-325.)
(JA 13). Using this justification, and relying on the plain view doctrine,
Dean seized a package of codes which accounted for 14 items in the government's
inventory of seized documents.
(4) We find that Dean's plain view seizure was lawful. Evidence of crime
that comes into "plain view" of law enforcement officers during a lawful search
may be seized even if they have no warrant to search and even if the crime was
not that which justified the search. Coolidge v. New Hampshire, 403 U.S.
443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 464 (1971); [FN9] Harris
v. United States, 331 U.S. 145, 154-55, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399
(1947). See United States v. Robinson, 414 U.S. 218, 236 (1973); see
generally United States v. Johnson, 561 F.2d 832 (D.C.Cir.) (en banc), cert.
denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080 (1977); United
States v. Reese, 561 F.2d 894, 903 n.17 (D.C.Cir.1977); United States v.
Mason, 523 F.2d 1122, 1127 (D.C.Cir.1975). It follows that officers armed with
a search warrant for certain items may seize other items in plain view that are
clearly tied to the crime alleged in the warrant. Cady v. Dombrowski, 413
U.S. 433, 448-50, 93 S.Ct. 2523, 2531-32, 37 L.Ed.2d 706 (1973); Marron v.
United States, 275 U.S. 192, 198-99, 48 S.Ct. 74, 76-77, 72 L.Ed. 231 (1927).
This principle is fully applicable to searches for documents, even though the
"plain view" of the contents occurred while the officer was inspecting
documents to determine their significance. United States v. Ochs, 595 F.2d
1247, 1256-57 & n.8 (2d Cir. 1979) and cases cited. An earlier opinion to the
same effect is Abel v. United States, 362 U.S. 217, 238, 80 S.Ct. 683, 696,
4 L.Ed.2d 668 (1960). Dean thus gave a valid reason for his conduct in seizing
the "code" material. The key to the code used in some of the documents
authorized to be seized was definitely relevant and necessary to correctly
interpret a great many of such documents. There is nothing insensitive in
seizing a code book to de-code documents directed to be seized that turned out
to be written in code. A search would not be reasonable if searches were
required to seize documents that could not be interpreted.
FN9. Coolidge requires: (1) that the agents who make a plain view seizure
must lawfully be at the site when they observe the matter in plain view and
must make the seizure within the limits of the area where their presence is
lawful; (2) an item that is not specified in a warrant must be sufficiently
incriminating on its face to establish probable cause for its seizure
despite the absence of its being mentioned in a warrant; and (3) the
agent must come upon the unspecified item inadvertently. The requirement
of inadvertence permits the agent to be validly searching the area or
examining a document for evidence of another crime. Abel v. United
States, 362 U.S. 217, 238, 80 S.Ct. 683, 696, 4 L.Ed.2d 668 (1960);
United States v. Ochs, 595 F.2d 1247, 1256-57 & n.8 (2d Cir. 1979).
The final item of testimony that the district court recited as justification
for its *127 **84 suppression order was that of agent Charles Booth. He
testified to the seizure of a document with a large "SW" on the top "which he
took according to items 152, 155 and 156 of the warrant." Item 152 designates
"GO 1361" for seizure and items 155 and 156 are the specific "Snow White"
Guardian Orders quoted above. The supporting affidavit also indicates that
Guardian Order "GO 1361 (IRS SW)" was one of the programs directed against
governmental agencies. (JA 63). "IRS SW" would indicate the Snow White
project against the Internal Revenue Service. Booth accordingly interpreted
the SW as meaning " 'Snow White'... which was listed in the search warrant."
The SW document also contained the notation "utilize BI for help in leads for
discovery..." Booth construed this as indicating a plan by Scientology's
Bureau of Information (BI) to attempt "to put a source within the FBI to obtain
any information that they couldn't get or did get under the Freedom of
Information." He concluded it came under the warrant's designation of Guardian
Order 1361 (Tr. 504-05) (J.A. 13). This indicates he understood the nature of
the Snow White program as set forth in the supporting affidavit. The seizure
of the document was authorized by the search warrant.
The testimony cited by the district court thus fails completely to make out
any general rummaging operation. In most instances the agents were able to
produce a satisfactory explanation of how they related the item they seized
with a specific authorization in the search warrant. Read fairly, the
testimony confirms the other testimony and circumstantial evidence, see Part
III.A, supra, indicating that the agents took "care to assure that (their
search was) conducted in a manner that minimizes unwarranted intrusions upon
privacy." Andresen v. Maryland, 427 U.S. 463, 482 n.11, 96 S.Ct. 2737, 2749
n.11, 49 L.Ed.2d 627 (1976).
2. The Seizure of Items Alleged to be Obviously Beyond the Scope of the
Warrant
(5) Nor is support for the district court's conclusion of a willfully
overbroad seizure to be found in an independent evaluation of the seized
documents before it. These documents were filed by Scientology at the
suppression hearing to show that they were illegally seized and justified
suppressing the entire search. I have examined each of these documents as well
as any testimony of record relating thereto. What follows is a description of
each document and reasons for seizing them under the designations of the search
warrant. Transcript references are to any testimony concerning the exhibit and
the item in the search warrant designating the item for seizure. The separate
statement, p. 3-4, asserts that such review of the documents and the record is
beyond the function of an appellate court. But when the record is clear an
appellate court can interpret a document and a search warrant as well as a
trial court.
(1) Exhibits 13-16, 34 includes a court pleading and papers in FOIA and
constitutional tort cases. The agents were informed by the affidavit that
Scientologists were engaged in a conspiracy that involved the stealing (and
photocopying) of government documents. This information would permit seizure
of court pleadings such as these, in which the United States was a party, since
the pleading would then be in federal agency files and its appearance in the
files of Scientology might evidence a theft of the agency files. This
rationale is particularly relevant to FOIA cases and documents produced
thereunder, for the additional reason that many such documents deleted
significant information and Scientology's program of stealing documents might
be directed at obtaining documents to fill in the gaps caused by redaction of
such FOIA documents. Ex. 13, wherein Taylor, and not Scientology, is the
private party, is discussed above.
(2) Exhibits 18-26 are documents listing a long series of code designations
for various words. Conspirators use codes for the obvious purpose of
concealing the nature of their activities. The codes were seizable under item
162 as "instrumentalities" of the *128 **85 alleged conspiracies and
necessary to interpret code words used in designated documents. They were
actually related to the specified documents that used the code words they
identified and supplied their meaning.
(3) Exhibit 27 was seized under item 156 because it was labelled "Snow
White." It outlines a plan to evict its enemy, Interpol, from the Treasury
Building through legal action, i.e., a legal approach to accomplish a possibly
illegal result-conceal the conspiracy.
(4) Exhibit 28 was taken under item 162. It discloses efforts to enlist
churches in an effort to press Scientology's FOI demands. It is relevant to
the conspiracy in that Scientology's covert operation was directly related to
seizing the documents and obtaining the information by illegal means that could
not be obtained legally. The FOI program thus identified documents to be
stolen if not obtained legally. If any person, including a church, with
knowledge of the illegal aspects of the scheme, aided or abetted the plan, that
person would be a potential defendant.
(5) Exhibit 30 was a Snow White item taken under 156. Indicative of its
noninnocuous nature was the stated "Snow White Objective( )" of "uproot(ing)
and cancel(ing) all ("derogatory" and "false") files and reports whenever
found." It was clearly supportive of the conspiracies described in the search
warrant.
(6) Exhibit 31, suggesting a plan to "obliterate" United States intelligence,
was taken under item 162. Exhibit 32 is a copy of Exhibit 31.
(7) Exhibit 33 is a memo to "Mike" Meisner from "Mitch" which comes under
designated item 159. It refers to allegedly false police reports about
Scientology.
(8) Exhibit 35 is a one page memo of a cryptic nature. Government counsel
stated at the hearing: "That particular document is not the entire document.
There were attachments that made specific reference to stolen documents and it
is not part of the exhibit." The court responded, "All Right." Tr. 346.
(9) Exhibit 36 apparently accompanied exhibit 35. No explanation is given for
its seizure, although it was said to "concern( ) the D.C. MPD investigation."
(Tr. 346). The memo describes a District of Columbia Police Department report
on L. Ron Hubbard (Scientology's founder) and does not clearly explain just how
Scientology got it. The possibility that this police report was obtained by
covert means supports its seizure as evidence supporting the described
conspiracies.
(10) Exhibit 37 is a compliance report on Guardian Order 1634 and thus falls
under designated item 153. The magistrate found probable cause to seize all
designated items and such finding is not successfully attacked here as to any
designated document.
(11) Exhibit 38 has the initials "SW" on the left side of the paper. It
mentions "FBI Coordination" and using "B-1" (the Bureau of Information) to
"utilize every opportunity in discovery to gain further ... data." It was
seized under designated item 155 (Snow White).
(12) Exhibit 39 contains letters written among police officers about
Scientology. They were seized under designated item 31: " 'Documents denied in
entirety' (on FOIA request) comprised of correspondence between and among
members of INTERPOL requesting and transmitting information concerning L. Ron
Hubbard and Scientology." (From Description of Property, JA 33).
(13) Exhibit 40 is a compliance report on G.O. 1634 and thus fits under
designated item 153. JA 38.
(14) Exhibit 41 is a Snow White FOI document, seized under designated item
155. JA 38.
(15) Exhibit 42 mentions both "SW" and G.O. 1634-3 and so falls under
designated items 153 and 155. JA 38.
(16) Exhibit 43 is basically the same as Exhibit 41.
(17) Exhibit 44 is basically the same as Exhibit 41; it is a legal pleading in
a Snow White Interpol FOI action.
*129 **86 (18) Exhibit 45, similar to Exhibit 39, was taken under
designated item 31. JA 33.
(19) Exhibit 46 is an "SW" memo from one Scientologist to another. Paragraph
5 states that a visitor gave the writer "some documents last July pertaining to
the RCMP (Royal Canadian Mounted Police) in Canada, and Interpol. Today he
said these documents were 'lifted' by (deleted), who got them out of the files,
of RCMP." This document was taken under designated items 155 and 162. JA 38,
39.
(20) Exhibit 47 is an internal IRS memo ("Official Use Only") taken under
designated item 162 as a fruit and evidence of crime. It could well be
stolen. JA 39.
(21) Exhibit 48 is a letter from Scientology to a law firm. The agent
answered "don't know" as to why this item was seized. Tr. 562. The letter
reports on investigations of Scientology by several nations' law enforcement
agencies. It does not explain how all of this information was obtained and
states "we have a number of investigations still in progress concerning this
and other info which I will send to you directly about this FBI 'secret'
data." Such reference corroborating covert activities was seizable in order to
explain how the information on Interpol was obtained from government sources.
(22) Exhibit 49 consists of files released by the FBI in response to FOIA
requests. This might indicate which files the Scientologists were interested
in taking. It also might indicate what files they did not receive from a
particular law suit and hence which files might be targeted from covert
acquisition. It might also indicate redacted information that Scientology
would attempt to obtain by covert means. Most of these are Snow White items
seizable under designated item 155, although a lack of testimony as to exhibits
49-64 makes this conclusion uncertain. The record thus does not contain
sufficient facts to order the return of these exhibits.
(23) Exhibit 55 is a series of letters which indicate that the Scientologists
were aware of an English police report to which they had no authorized access.
Evidence of an unlawful conspiracy to steal government documents in England may
have some bearing on a similar conspiracy to accomplish the same illegal
objective in the United States.
(24) Exhibit 57 is apparently a "truth packet" prepared by Scientology to be
sent to European law enforcement agencies. Its relevance, if any, may depend
on the reference it makes to Interpol, which was one target of Scientology's
unlawful conspiracies.
(25) Exhibit 58 is the report of a Scientologist who visited the Coast Guard
to view files. As the supporting affidavit states, part of the unlawful
conspiracy included a program directed against the Coast Guard.
(26) Exhibit 62 mentions agencies logged under 1634-1-1 project and thus could
be seized under designated item 153 of the warrant, which refers to Guardian
Order 1634.
(27) Exhibit 64 is the application of Mary Blevins for a job with Scientology,
which was rejected, a notation indicates, "because of her State Department and
CIA connections." Yet the application of Blevins does not mention these
connections. Apparently the Scientologists knew about these connections
because (1) she told them (Why were they interested?), or (2) she did not tell
them but they knew from other sources (How?). The definite relevance to the
described conspiracies is not spelled out, but Scientology's unexplained
knowledge of her prior employment by the State Department and CIA would
constitute some evidence that the covert action program of Scientology extended
to those agencies. The supporting affidavit did refer to CIA documents stolen
by Scientology agents that reported on drug operations in South America (JA
63. See also JA at 70 n.22.) The evidence of record does not disclose any
basis for suppressing the document.
Each of the foregoing documents is one the Government voluntarily offered to
return, except apparently the document whose parts are marked Plaintiffs Ex.
35-36 and which is described above. The above *130 **87 analysis of these
allegedly "innocuous" documents indicates that each of them may have some
relevance either to the specific designated items in the search warrant that
the agents were "commanded ... to seize" (JA 21) or as evidence of alleged
offenses outlined in the affidavit incorporated in item 162. The documents
before the district court at the hearing were, at best, justification for
suppressing only a small number of them, all of which the government had
already volunteered to return; it manifestly was not justification to conclude
the search and seizure were invalid in toto.
3. The Reliance on the Government's Inventory
(6) The third and final basis for the district court's finding of a general
seizure is its conclusory reliance on a "survey" of the FBI documents to find
that about half of the documents seized could by "no stretch of the
imagination ... be regarded as within the designated categories of documents to
be seized." (JA 14). The failure to cite specific documents or categories of
documents makes this a finding worthy of no deference. Moreover, a survey of
this type is inherently unreliable. The inventory contains only the title,
and, at most, a one-sentence general description of each document seized. It
does not purport to show why the document was seized, or to identify the search
warrant item under which it was taken. As some of the individual documents in
the above analysis indicate, a document with an innocuous format and title may
contain passages which an agent in good faith could believe to be
incriminating. In light of its inability to show that even a significant
portion of its own selected sample of documents was seized unlawfully, we must
reject as wholly unsubstantiated the district court's reliance on the FBI
inventory.
C. The Failure of Proof by Scientology
In sum, the circumstantial, testimonial, and documentary evidence of record
falls far short of demonstrating that the agents engaged in an unlawful general
search. We acknowledge that law enforcement officials may in some cases
exhibit such a disregard for the specific restrictions of a search warrant that
an otherwise lawful search may be transmuted into a general search.[FN10] This
however, has not been shown to be such a case. In shifting through well over a
hundred drawers or boxes of documents, agents seized a total just filling two
cardboard boxes. The uncontroverted testimony, corroborated even by the
testimony of a Scientology official who was on the scene, is to the effect that
the agents were guided in their search and seizure by continual references to
the warrant and the incorporated affidavit. Finally, Scientology produced, at
best, only isolated instances of arguably excessive seizures, and not any
indication that the agents systematically exceeded the warrant or search for
evidence of crimes other than those specified in the warrant. Cf. United
States v. Rettig, 589 F.2d 418, 422-23 (9th Cir. 1978) (search ostensibly for
marijuana actually a search for cocaine).
FN10. See United States v. Rettig, 589 F.2d 418 (9th Cir. 1978) ("the
agents did not confine their search in good faith to the objects of the
warrant, ... (which) became an instrument for conducting a general
search."); United States v. Fernandez, 430 F.Supp. 794, 801
(N.D.Calif.1976) (defendants objecting to introduction of items seized
under the descriptions in the warrant must show that "the seizure of the
undescribed items or other misconduct in the search rendered the entire
search unreasonable.") See also Lo-Ji Sales, Inc. v. New York, 442 U.S.
319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979) (items may not be seized pursuant
to an open-ended warrant to be completed as search is conducted).
IV. APPROPRIATE REMEDY
We also disagree with the district court's conclusion that in this case
seizure of some items not authorized by warrant or by the plain view doctrine
requires as a remedy the suppression and return of all items seized. On this
point the law is clear. Several circuit court cases that have directly
addressed the question whether some extra-warrant seizures justify suppression
or return of documents seized in conformance with a warrant fully support the
severable nature of such seizures: while extraneous *131 **88 items seized
must be suppressed, designated items may be retained.
In United States v. Forsythe, 560 F.2d 1127 (3d Cir. 1977), where the
warrant authorized a search of the business records of a bail bond agency for
bail bond application forms, books, records, cancelled checks, correspondence
and related papers, the agents seized a metal safe containing jewelry, cash,
receipts and cancelled checks. The cash, jewelry and some relevant papers were
returned voluntarily. On such facts the Third Circuit held that the illegal
seizure of the non-warrant items did "not justify suppression of highly
probative evidence consisting of those documents and records which were legally
seized pursuant to the warrant." Id. at 1134.
An even stronger case upholding severability is United States v. Cox, 462
F.2d 1293 (8th Cir. 1972) involving a seizure (wire tapping) where there was a
failure to "minimize" as to some irrelevant conversations. Appellant contended
that all conversations so obtained should be suppressed. It was ruled,
however, that the proper remedy was to exclude the extraneous conversations and
admit those "the warrant contemplated overhearing." 462 F.2d at 1301. The
scope of the remedy for failure to minimize in Cox is applicable to a Fourth
Amendment case like ours. Cf. Scott v. United States, 436 U.S. 128, 98
S.Ct. 1717, 56 L.Ed.2d 168 (1978), aff'g 551 F.2d 467 (D.C.Cir.); United
States v. Scott, 516 F.2d 751 (D.C.Cir.1975), cert. denied, 425 U.S. 917, 96
S.Ct. 1519, 47 L.Ed.2d 768 (1976).
The Ninth Circuit applied the severability rule in United States v.
Daniels, 549 F.2d 665 (9th Cir. 1977), rejecting
the notion that the invalid seizure of ... letters 'tainted' the rest of (a)
search (for marijuana). The exclusionary rule does not require the suppression
of otherwise legal seizures merely because they were part of the same search in
which an illegal seizure occurred.... Wong Sun's "taint" reaches items derived
from unconstitutional behavior, not items derived from constitutional behavior
even when contemporaneous with that which is unconstitutional.
Id. at 668.
The Fifth Circuit, in another case involving a marijuana search, United
States v. Mendoza, 473 F.2d 692, 696-97 (5th Cir. 1973), held:
Though in executing the warrant the officers may have seized items which were
not within the scope of the warrant, that does not affect the legal seizure of
the items which were within the scope of the warrant. Brooks v. United
States, 416 F.2d 1044 (5th Cir. 1969), cert. denied, 400 U.S. 840 (91 S.Ct.
81, 27 L.Ed.2d 75) (1970).
In the Brooks case cited in Mendoza, the warrant had specified stolen
property and "numerous tools suitable for use in burglaries," including "a
cutting torch." The stolen property was described as the proceeds of two
specified bank robberies. However, FBI agents also seized various articles of
clothing, toilet articles and "the like." The court ruled that "(t)he legal
seizure of the articles described was not affected by the seizure of additional
articles not described." Id. at 1050.
Four cases in the Second Circuit also reach the conclusion that searches are
severable and that seizure of items not covered by the warrant does not
necessarily taint the proceeding so as to require suppression of every item
seized. The warrant in United States v. Dzialak, 441 F.2d 212 (2d Cir.
1971), was issued to search for stolen property in the home of a suspect.
"Binoculars" were specified, but the agents seized 21 Timex watches, three
opera glasses, two microscopes and seven telescopes, all of which had been
stolen. The court reversed the conviction on the count for possession of the
stolen watches but affirmed on the count involving the optical equipment on the
theory that such items were sufficiently related to binoculars. Implicit in
this result is the holding that the unlawful seizure beyond the items specified
in the warrant does not necessarily invalidate the seizure made within the
warrant.
*132 **89 The next search case in the Second Circuit held that the
seizure (wire tapping) of conversations beyond the hours authorized for
interception exceeded the authorization and should be suppressed, but the
suppression of all conversations was not required. United States v.
Principie, 531 F.2d 1132 (2d Cir. 1976). A third case, involving a search
incident to an arrest, which is relevant by analogy, is United States v.
Artieri, 491 F.2d 440, 445-46 (2d Cir.), cert. denied, 419 U.S. 878, 95
S.Ct. 142, 42 L.Ed.2d 118 (1974). Therein police made a valid warrantless
arrest of a narcotics dealer in his home while he was preparing heroin for
sale. Heroin within his control was seized and thereafter the officers
searched the residence and seized other contraband, which was not introduced at
trial. The defendant's argument that the unconstitutional search of the
residence justified complete exclusion of all evidence seized was rejected.
The court aptly stated the law: "evidence lawfully seized as incidental to an
arrest is not transmitted into an unlawful seizure by a subsequent
unconstitutional seizure made in the same case." Id. at 445.
Finally, in United States v. Dunloy, 584 F.2d 6 (2d Cir. 1978), the Second
Circuit held that, where police seized some personal papers when searching a
safety deposit box for evidence of cocaine, the remedy with respect to any
seizure which exceeded the scope of the warrant was not to invalidate the
entire search but merely to suppress the excess items.
In this circuit in Huffman v. United States, 470 F.2d 386, 390 n.3, 393
n.7 (D.C.Cir.1971),[FN11] we ruled that a seizure pursuant to a warrant
directed to "the magazines 'Modern Girls' and 'Girls' as well as other
magazines of a similar appearance and contents" did not authorize seizure of
the book "Female Auto-erotic Practices" and three rolls of 8 mm. film. Our
decision there implicitly recognized the severability of legally seized from
illegally seized evidence and did not require the suppression of the magazines
seized under the warrant because of the seizure of the book and film outside
the warrant. Id. at 393 n.7.
FN11. We reversed Huffman on rehearing on other grounds in light of
intervening Supreme Court obscenity decisions. 502 F.2d 419 (1974).
The Supreme Court indicated its approval of the severability approach in
Andresen v. Maryland. Andresen involved two searches-one of a lawyer's
office, the other of his associated real estate business corporation. The
search warrant authorized police to seize evidence of a specific crime of false
pretense involving a single real estate lot, Lot 13T. In the search of the
corporation 52 items were seized. The State voluntarily returned 45 items, and
at the hearing the trial court suppressed six other items "on the ground that
there was no connection between them and the crimes charged." 427 U.S. at
467, 96 S.Ct. at 2742 (Emphasis added). The net result was that only one item
out of 52 seized in the search of the corporation's office was not returned or
suppressed. The law office search resulted in the seizure of 28 items. Of
these the State returned seven and the trial court suppressed four items "on
its determination that there was no connection between them and the crime
charged." Id. at 467, 96 S.Ct. at 2742 (Emphasis added). Thus out of a
total of 80 seized items, 52 were returned and 10 suppressed-leaving a net of
18 items that were retained-22.5%.[FN12] In the *133 **90 course of its
opinion the Supreme Court adverted to the execution of the search warrants:
FN12. Included in the 18 were "documents relating to a lot other than Lot
13T (which were objected to as) not relevant to the Lot 13T charge and were
admissible only to prove another crime with which he was charged after the
search." 427 U.S. at 482, 96 S.Ct. at 2749 (emphasis added). The
Supreme Court ruled that the evidence relating to the other crime was
properly seized:
Although these records (relating to a lot other than Lot 13T) subsequently
were used to secure additional charges against petitioner, suppression of
the evidence was not required. The facts that the records could be used to
show intent to defraud (a consistent pattern of conduct relevant to intent)
with respect to Lot 13T permitted the seizure and satisfied the
requirements of Warden v. Hayden (387 U.S. 294, 87 S.Ct. 1642, 18
L.Ed.2d 782).
Id. at 484, 96 S.Ct. at 2750 (Emphasis added). The records relating
to a lot other than Lot 13T were obviously seized under the plain-view
doctrine.
The record discloses that the officials executing the warrants seized
numerous papers that were not introduced into evidence. Although we are not
informed of their contents, we observe that to the extent such papers were not
within the scope of the warrants or were otherwise improperly seized, the State
was correct in returning them voluntarily and the trial judge was correct in
suppressing others.
Id. at 482 n.11, 96 S.Ct. at 2749 n.11. Andresen thus supports the
procedure of permitting the government to return voluntarily the items seized
that are not relevant to the charge and to retain all items seized in
accordance with the warrant-even where 51 out of 52 seized items were returned
or suppressed.
Our prior opinion in this case reflected the advisory language in Andresen
in informing the district court that "documents seized in the search by the
agents exceed(ing) the bounds of the search warrant should be returned," but
documents "relevant to the particularized offenses and which are specifically
referred to in the affidavit and search warrant( ) should be delivered to the
government forthwith." 572 F.2d at 327. The district court, in ordering
the wholesale suppression and return of the documents in disregard of this
directive, cited not one case in favor of its position. Rather, it sought to
distinguish cases tending to support a severability approach.
Scientology cites cases that do support wholesale suppression, but on facts
far removed from those present here. In United States v. Rettig, 589 F.2d
418 (9th Cir. 1979), the entire fruits of the search were suppressed because
(1) the agents unreasonably exceeded the limitations of the warrant and
searched for evidence not shown on the face of the warrant and (2) "it was
not possible for the court to identify after the fact the discrete items of
evidence which would have been discovered had the agents kept their search
within the bounds permitted by the warrant." Id. at 423. Neither
circumstance is present here. In other cases cited, such as United States
v. Burch, 432 F.Supp. 961 (D.Del.1977), aff'd mem., 577 F.2d 729 (3d Cir.
1978) and Application of Lafayette Academy, Inc., 462 F.Supp. 767
(D.R.I.1978), aff'd, 610 F.2d 1 (1st Cir. 1979), the search warrant was held
to be invalid as a general warrant. Here, by contrast, the search warrant has
been held to be facially valid. Only its execution is at issue. Thus, in the
cases cited by Scientology, what was involved was not a basically sound search
and seizure with improper seizures of some items, but warrant language so
general or police conduct so offensive that the court found the officers had
engaged in an impermissible exploratory search. The search here was not
unlawfully exploratory since the agents searched for designated documents,
seized some documents in plain view that were relevant to the designated
offenses or documents, and did not generally explore for documents outside the
offenses or documents specified in the warrant.
It is apparent from the above cited case law that the record here does not
justify a ruling that all items seized must be suppressed and returned.
V. FACIAL VALIDITY OF THE SEARCH
Urging an alternative basis for upholding the district court's wholesale
suppression order, Scientology invites us to reconsider our prior holding that
the search warrant was facially invalid. Scientology contends that the
warrant, read in light of the agents' interpretation of it, is too vague and
overbroad to withstand scrutiny. We reject that contention. We adhere to our
holding that the warrant is valid on its face. Our examination of the record,
including the agents' preparation, their conduct during the search, and the
low percentage of documents *134 **91 they seized (as opposed to those
they necessarily perused),[FN13] only confirms our impression that "(t)he
recited facts and designations of property and offenses impose particular
limits upon the search warrant ...." 572 F.2d at 326.
FN13. In Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d
627 (1976), the Supreme Court rejected an argument that a search warrant
was unconstitutionally general where police seized from two to five percent
of the files in the rooms searched and where 65% of the items seized were
voluntarily returned and another 12.5% were suppressed. Id. at 466-68,
96 S.Ct. at 2741-42, see TAN 10 supra. The figures here are comparable.
It appears the agents took two 12 x18 x18 boxes of documents from rooms
containing well over a hundred boxes, desk drawers, and file cabinet
drawers. (JA 204). According to the inventory by computer 63% of the
items were offered to be voluntarily returned by the government. (JA
128). Scientology's failure to challenge specific documents that the
government wanted to retain leaves us with no basis for determining that
any of the retained items were seized unlawfully.
VI. PROBABLE CAUSE FOR THE WARRANT
(7) In our prior consideration of this case, we stated our "agree(ment) with
the finding of the United States Magistrate that the affidavit did show
probable cause." 572 F.2d at 326. We remanded, not for a hearing on
whether probable cause supported the warrant, but, inter alia, for a hearing on
whether the factual statements were stale, a question relevant only if probable
cause is first established. We decline Scientology's invitation to depart from
our prior determination. The inclusion of each of the 162 items in the search
warrant is supported by a reading of the affidavit or its accompanying "Source
of Documents" sheet; each was a fruit, instrumentality or evidence of a
specified crime.
Scientology makes the further contention that there was no justification for
searching any office but the Information Bureau in its building. Scientology
Br. at 25-28. Scientology concedes that the search warrant designates "the
Fourth Floor ... (housing) the offices of the P. R. Bureau, the Information
Bureau, the Legal Bureau and the Assistant Guardian's office ...." (JA 21),
but disputes that there was probable cause for a search of that breadth. The
supporting affidavit, however, states "that the guardian's offices and their
operational and administrative bureaus in the Church of Scientology have
maintained files containing documents reflecting all activities of the
church ... since inception of the Guardian's Office in 1966" (JA 61).
(Emphasis added). And all of the Bureaus designated in the warrant that were
searched in the same suite of offices were under the "Assistant Guardian D.C.,"
including the "Assist. Guardian Finance." (Organizational Chart," JA 74).
[FN14] The affidavit thus supported probable cause to search all the offices
from which documents were seized, all of which were in the Fourth Floor area
specified in the affidavit and warrant. The single door leading to the suite
bore the sign "Office of the Assistant Guardian," and only one door to the
offices inside the suite bore a descriptive sign indicating the office of the
occupant.[FN15]
FN14. The affidavit also lists the following five bureaus as being part of
the "Guardian World Wide"-"Information, Public Relations, Legal, Finance
and Social Coordination." (JA 42).
FN15. Indeed, probable cause existed to search not only the Information
Office but also the other designated bureau offices of Scientology in the
District of Columbia. And, the supporting affidavit would have justified a
broader search within Scientology's files for the "plans, scenarios and
directives" (id.) prepared in furtherance of the conspiracy to obstruct
justice by suborning Meisner and Wolfe to testify falsely before the grand
jury. The supporting affidavit, which was incorporated into the search
warrant, states specifically that "officials of the Church of Scientology
conspired to obstruct justice by preparing a false response to expected
inquiries of Meisner and Wolfe by law enforcement authorities and federal
grand juries; that plans, scenarios and directives were committed to
writing in furtherance of this conspiracy, that such writing are secreted
in the files of the Church of Scientology in Los Angeles, California, and
Washington, D.C...." (JA 71). (Emphasis added). Therefore the searchers
were not limited to the files of the Guardian Office or the Information
Bureau in Scientology's Washington office in searching for these
designated documents as the Separate Statement states in footnote 1.
*135 **92 VII. THE CLAIM THAT THE SUPPORTING AFFIDAVIT WAS BASED ON
STALE INFORMATION
Scientology also contends in its cross-appeal that the information supporting
the warrant was stale and failed to support a finding of probable cause to
search for the documents in the District of Columbia. There is no merit to
either point and the district court was not in error in rejecting such
contentions.
The affidavit in support of the search warrant was executed by Special Agent
Tittle on July 4, 1977 and the search was conducted on July 8, 1977. It
quoted extensively from information furnished in June 1977 by Michael Meisner,
who had achieved high office in Scientology's heirarchy. Starting as a
staff officer, Meisner became Assistant Guardian for Information and then
National Secretary for Information (JA 43, 63). Through his positions of high
responsibility he acquired firsthand information of Scientology's most
sensitive operations and method of keeping records. (JA 43). Moreover, as an
actual participant, he had firsthand knowledge of the burglaries and other
covert operations. In fact, most of the government documents that were
covertly obtained in 1975-76 bear his signature ("Mike"). (JA 61).
According to the sworn affidavit, in mid-1976 Meisner and Gerald Bennet Wolfe,
a Scientology agent in the employ of the Internal Revenue Service, were
discovered while preparing to steal documents in the United States Courthouse
in Washington, D.C. (JA 53-54). Anticipating the indictment of Meisner and
Wolfe, Scientology officials conferred with them to fabricate consistent
perjured testimony for the grand jury. (JA 57). Wolfe was arrested and
testified in accordance with the scheme, while Meisner, pursuant to the plan,
went into hiding. In April 1977, when Meisner told Scientology officials he
wanted to return to D.C., he was held against his will, although he retained
continuing access to confidential information concerning Scientology. (JA
60). After a substantial period of confinement Meisner escaped and notified
the authorities on June 20, 1976 that he wanted to cooperate in the ongoing
investigation of the government office burglaries he had helped to
perpetrate. (JA 60). The information he then provided is the basis of the
Tittle Affidavit.
This information, if not stale by the time the FBI acted on it, furnished
overwhelming probable cause to search the D.C. offices of Scientology. Meisner
reported that he personally filed copies of covertly obtained documents at the
Scientology's D.C. office (JA 48), and that they were retained in the fourth
floor office of the Assistant Guardian for Information (JA 52). This office
maintained files of documents similar to those in Los Angeles (JA 69). The
affidavit reports Meisner as relating:
(S)ince many of the government agency documents maintained in Los Angeles
were acquired through the efforts of D.C. operatives, and since copies were
always retained in the D.C. Bureau, copies of the self-same documents are filed
in both locations.
(JA 69). In addition the affidavit stated that the operational and
administrative bureaus had files (JA 61); the Finance office in D.C. received
copies of stolen documents (JA 69); it was the practice in Scientology's
offices for the files to follow the personnel (JA 64, 67, 68); "plans,
scenarios and directives (were) ... secreted in the files of the Church of
Scientology in ... Washington, D.C.," and "copies of (the) summary of (Wolfe's
false grand jury testimony) were secreted in the offices of the Church of
Scientology in Los Angeles, California and Washington, D.C." (JA 71).
(8) The question remaining is whether the information was stale, thus
vitiating the probable cause that would otherwise exist. Meisner related to
the affiant, agent Tittle, that he heard in June 1976, shortly after Meisner
and Wolfe were confronted by FBI agents in the United States Courthouse, that
the relevant D.C. files had been removed from D.C. headquarters for safekeeping
in a private residence. (JA 70). In late March 1977, however, Meisner learned
from the Scientology official in charge of *136 **93 the files (the
Southeast Secretary of the U.S. Information Bureau of Scientology) that the
files had been returned to the office of the Assistant Guardian for Information
at 2125 S Street, N.W. In light of the character of the crime described in the
affidavit (an elaborate and ongoing conspiracy to collect stolen documents),
the highly organized nature of Scientology's operation and record-keeping
system, and the practice of keeping the files where the officials could use
them, we find the magistrate acted reasonably in concluding there was a
probability that documents reliably reported to repose at Church headquarters
three months before would still be there. See Andresen v. Maryland, supra,
427 U.S. at 478 n.9, 96 S.Ct. at 2747 n.9.[FN16]
FN16. The Andresen Court disposed of an analogous staleness claim:
It is also argued that ... a three-month ... time lapse precluded a
determination that there was probable cause to believe that petitioner's
offices contained evidence of the crime. This contention is belied by the
particular facts of the case. The business records sought were prepared in
the ordinary course of petitioner's business .... It is eminently
reasonable to expect that such records would be maintained in those offices
for a period of time and surely as long as the three months required for
the investigation of a complex real estate scheme.... All this, when
considered with other information demonstrating that (the subdivision in
question) was still a current concern of petitioner, amply supports the
belief that petitioner retained the sought-for records. (Id.)
VIII. THE ALLEGED VIOLATION OF 18 U.S.C. s 3109
(9) Scientology also contends the district court erred in failing to rule
that the search by the agents violated 18 U.S.C. s 3109.[FN17] A failure to
comply with section 3109 would lead to the return or suppression of the item
wrongfully seized. Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755,
20 L.Ed.2d 828 (1968); Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190,
2 L.Ed.2d 1332 (1958).
FN17. 18 U.S.C. s 3109 provides:
The officer may break open any outer or inner door or window of a house, or
any part of a house, or anything therein, to execute a search warrant, if,
after notice of his authority and purpose, he is refused admittance or when
necessary to liberate himself or a person aiding him in the execution of
the warrant.
At the inception of the search the first agent announced his presence and
identity, showed the search warrant to the employees of Scientology there
present, and announced the purpose of the intrusion. (JA 536-37).[FN18]
Agents reaching the fourth floor office of the Assistant Guardian encountered a
locked door, at which they knocked and announced their purpose. Scientology
official Gregory Taylor acknowledged the knocks but refused for four or five
minutes to open the door. Believing that the Scientologists had a paper
shredder on the premises, the agents used a carbide saw to gain entry. Taylor
then shut and locked one of the inner office doors, which the agents also broke
open. Other doors were similarly opened after consultation with an Assistant
United States Attorney waiting outside the building. At no time did any
Scientology official tender a key for any door or file cabinet within the
Fourth Floor suite, although they were heard to discuss among themselves the
merits of doing so.
FN18. Scientology does not argue that the original entries into the
building and the Assistant Guardian's suite were improper. Scientology
Br., 43.
Assuming arguendo that section 3109 applies beyond the context of a private
dwelling and to the opening of office file cabinets, we hold that the
requirements of the statute were met. Persistent obstructionist behavior by
Scientology officials, plus their subsequent failure to provide keys, amounted
to a continuing "refus(al) (of) admittance" within the meaning of the statute.
We therefore affirm this portion of the district court's judgment.
IX. THE CLAIM OF ENTITLEMENT TO A FRANKS V. DELAWARE HEARING
(10) The final contention of Scientology is that the district court erred in
denying it an evidentiary hearing in which to test the *137 **94 veracity
of the allegations in the Tittle Affidavit, in accordance with the then-recent
holding of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667
(1978):
where the defendant makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant's request.
In the event that at that hearing the allegation of perjury or reckless
disregard is established by the defendant by a preponderance of the evidence,
and ... (the falsehood was material to the finding of probable cause,) the
search warrant must be voided and the fruits of the search excluded to the same
extent as if probable cause was lacking on the face of the affidavit.
Id. at 155-56, 98 S.Ct. at 2676-77. In attempted compliance with this
procedure Scientology presented to the district court affidavits purporting to
show that the Tittle Affidavit was materially and intentionally false (1) in
stating that "non-FOI" documents were those obtained covertly; (2) in implying
that the Snow White program had illegal aspects; and (3) in stating that
Meisner learned from a Scientology official in March 1977 that the relevant
files had been returned to Scientology's D.C. headquarters.
Even were we to read the Scientology affidavits as truly controverting the
allegations in the Tittle Affidavit, we are not persuaded the district court
erred in denying the request for an evidentiary hearing. At most, the
affidavits showed that Meisner gave false information. They do not amount to
a "substantial preliminary showing that a false statement (was included)
knowingly and intentionally, or with reckless disregard for the truth, ... by
the affiant "-Tittle. Id. at 155-56, 98 S.Ct. at 2676-77 (Emphasis added).
As the Supreme Court went even further to make clear, "(t)he deliberate falsity
or reckless disregard whose impeachment is permitted ... is only that of the
affiant, not of any nongovernmental informant." Id. at 171, 98 S.Ct. at
2684 (Emphasis added).
X. THE REMAND TO CONSIDER THE RETURN OF INDIVIDUAL DOCUMENTS
The majority, following submission of the foregoing opinion and the
conclusion, have filed a separate statement (Sep.Stmt.) in which they direct a
remand to afford the district court a third opportunity to consider whether
individual documents were seized beyond the scope of the search warrant and
accompanying affidavit.[FN19] In my view the litigation ought to end now
rather than provide this third opportunity to consider the documents
separately. Our earlier decision, which is the law of the case, In Re
Search Warrant, 572 F.2d 321, 327 (D.C.Cir.1977), rehearing en banc denied,
January 4, 1978, cert. denied, 435 U.S. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519
(1978), recognized the right of Scientology to have any document returned that
exceeded the search warrant "as construed in (said) opinion." This authorized
"the court to consider and determine whether any specific document may have
been seized outside the authority of the search warrant as construed in this
opinion." 572 F.2d at 327. Yet Scientology in both prior hearings failed to
introduce any seized documents and thereby must be considered to have abandoned
its claim for the return of any document except the substantial number of
documents the government previously indicated it intended to return. The
California court ruled similarly with respect to the Scientology's similar
tactics with respect to its attack on the California search,[FN20] which was
made under *138 **95 an identical search warrant. Recognizing this fact,
Scientology's counsel, in a memorandum filed with the court in this case
stated "that the warrants the government seeks to keep from the D.C. documents
are almost entirely duplicated in the Los Angeles documents which have already
been released to the government." Scientology Memorandum, June 2, 1978, Court
file, No. 54, p. 12. This may account for its failure to introduce any of
the seized documents in this case. Instead it appears that Scientology elected
to focus exclusively on theories that would justify suppression of the entire
seizure. Having foregone its opportunity to introduce or proffer evidence to
justify the suppression and return of particular documents, while proceeding
with its more ambitious claims, Scientology must be deemed to have waived and
abandoned any demand for the return of individual documents (although of course
it remains entitled to the documents the government has volunteered to return
when the court proceedings no longer require them). Scientology obviously made
a strategic decision to forego one, limited form of relief while seeking
broader forms. They may still seek to pursue this broader point by certiorari,
though certiorari was denied by the Supreme Court, 435 U.S. 925, 98 S.Ct.
1491, 55 L.Ed.2d 519, on Scientology's petition attacking the earlier decision
upholding the validity of the search warrant on the authority of Andresen v.
Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). Id., at 327.
Cf., separate opinion of Judges Wright, Bazelon and Leventhal at 572 F.2d
329. It is not for this court to compel counsel to reverse its earlier
decision and impose on the district court and all parties concerned the burden
of litigating a claim once abandoned and which appears to be essentially
frivolous if, as Scientology's memorandum states, the remaining documents are
"almost entirely duplicated in the Los Angeles documents" which have "been
returned to the government."
FN19. It is incorrect for the majority to assert that Scientology has not
had "at least one opportunity to indicate to the district court whether any
particular documents must be returned because they fall outside the scope
of the warrant and were not properly seized under the plain view exception
to the warrant requirement." (Sep.Stmt. p. 1).
FN20. "Petitioner (Church of Scientology) apparently decided for its own
reasons not to proceed on either of ... two sub-issues: ... (a) did the FBI
agents seize documents from areas not covered by the warrants, and (b) were
certain seized documents not within the warrants' specific descriptions of
the items to be seized? ... Petitioner elected not to introduce any of the
seized documents and thereby to abandon its contention that particular
documents were illegally seized. Petitioner has been offered numerous and
ample opportunities to present its contention that individual documents
were illegally seized; it will not be heard to raise this abandoned issue
once again. Accordingly, its request for a hearing on this issue is
denied." (Emphasis added) (Footnote omitted) Memorandum of Decision, U. S.
District Court, C.D.Cal., No. CV-77-2565-MML, July 21, 1978, Court file,
No. 63; p. 3, 8.
Our opinion and order in In re Search Warrant, supra, mentioned four
challenges to the search that might be raised on remand: (1) an overbroad
search, (2) use of unnecessary force, (3) reliance on stale allegations of
fact, and (4) seizure of "any specific document ... outside the authority of
the search warrant as construed in this opinion." 572 F.2d at 327, 328. On
the first day of the hearing on remand (April 21, 1978), counsel for
Scientology stated there were "four legal arguments as to why the materials
that have been seized by the Government should be returned." (App.3 363).
These were (1) staleness of the search warrant, (2) failure to serve the
affidavit, (3) use of unnecessary force, and (4) "the individual documents."
(App.363-66). (Scientology has since raised other grounds. See, e.g., parts
VI, IX supra.)
The "individual documents" claim was not pursued at the hearing. Scientology
thus confined its claim to three points that attacked the entire search.
Counsel for Scientology reported that they had "not been able to conform to the
Court's request that we give to the Court our list of those documents we think
should be returned as opposed to what (the government) might otherwise keep if
the warrant itself is valid." (App.366). Counsel explained that the
government had been slow in submitting its listing of what it intended to keep
and that it had failed to supply document numbers corresponding to the document
descriptions that appeared on the inventory and on the documents themselves.
(App.366-67).
*139 **96 Nothing, however, precluded Scientology from listing by
document number the items it claimed to be outside the authority of the
warrant. In fact, in papers filed two weeks later Scientology did list five
"non-return" items it claimed were beyond the search warrant (Status Memorandum
of the Founding Church of Scientology at 3 (May 5, 1978)). Even then,
however, counsel indicated it sought to avoid disclosure of the contents of
some documents in stating that inquiry into an unspecified number of documents
would be avoided to avert "undue disclosure of confidential Church
documents." (Id.) This is apparently the real reason that Scientology did
not press the point. But lack of time was no longer an excuse when, on June
30, 1978, the district court informally told the parties that it would conduct
no further hearings in the matter but would give each side an opportunity to
submit any additional pleadings it desired. Scientology was thus afforded a
complete opportunity to present its claim that any specific documents were
seized illegally. But three weeks passed and in its July 21 response, the
government noted that three months had elapsed since Scientology had
professed itself unable to produce a list of the documents it claimed were
seized unlawfully, "much less a statement of reasons supporting its
challenges." (Proffer of Testimony and Exhibits and Memorandum of Law in
Response to Informal Court Order of June 30, 1978 at 26, JA 185.) The
government concluded that
Under these circumstances, petitioner must indeed be deemed to have abandoned
its challenge to the individual documents, just as the Church of Scientology of
California did in the related matter before Judge Lucas.
(Id.)
Judge Lucas' decision involving the documents search at Scientology's
California offices, see note 1 supra, also stated:
Petitioner (Church of Scientology) apparently decided for its own reasons not
to ... introduce any of the seized documents, or any other evidence to
prove .... that seized documents were not included in the list of property to
be seized. Instead, Petitioners abandoned its prior contentions and unveiled a
completely new theory.
Church of Scientology v. United States, No. CV-77-2565-MML, slip op. at 7
(C.D.Cal. July 5, 1978), appeal dismissed, 591 F.2d 533 (9th Cir. 1979).
(11) For similar reasons the district court should have held that
Scientology abandoned its individual documents claim here, where, again for
reasons of its own, Scientology seemed to take an "all or nothing" approach,
and persistently failed to proffer any evidence to support a claim to the
return of individual documents. Indeed, the most reasonable interpretation of
the district court's opinion is that it reached just such a holding in
"rul(ing) against petitioner on all other grounds." (JA 19) (Emphasis added).
The government had argued to the court that Scientology abandoned its
individual documents claim, and Scientology had made no meaningful reply
thereto. On this point Scientology simply stated that "The government's reply
herein merely argues with the statements previously made by the petitioner in
its memorandum and does not require further argument herein with the exception
of two points," neither of which was germane to abandonment. Petitioner's
Reply to Government's Proffer of Testimony and Exhibits and Memorandum of Law
in Response to Informal Court Order of June 30, 1978 at 13 (July 31, 1978).
Petitioner's previous memoranda, however, were no more precise in maintaining
any claim that the court should order the return of any specific documents the
government sought to keep. Indeed, Scientology's interest in individual
documents by all appearances was always coextensive with its interest in a
holding that the entire search was exploratory in nature and that therefore all
documents must be returned. For example, in its Memorandum in Response to
Government's Reply of May 11, 1978 (June 2, 1978), counsel for Scientology
characterized the four claims it raised at the first day of the remand hearing
as claims
*140 **97 (1) that the warrant was stale; (2) that the government used
excessive force in the search; (3) that the government failed to make adequate
service ... of the affidavit with the search warrant; and (4) that the
search warrant was overbroad in violation of the Fourth Amendment both as to
the geographical area searched and as to the documents seized.
Id. at 6 (emphasis added). Three of these claims coincided with issues we
referred to in our earlier opinion calling for a remand but a claim of
inadequate service of the search warrant was substituted for an attack on any
"specific document ..." p. 2, supra. The last claim is clearly not a demand
for the return of specific documents but a claim that the whole search was
overbroad and so many documents were unlawfully seized that the seizure must be
deemed invalid in toto. The point is repeated at 12-13 of the Scientology
memorandum of June 2, 1978:
Four (of) the five grounds upon which petitioner originally objected to the
July 8, 1977 search of Church premises have not been ruled upon by this Court.
Petitioner has asserted that:
....
(4) The warrant and search were overly broad in that the affidavit supplied
no probable cause to: (a) search offices other than the Information Bureau; or
(b) seize most of the items enumerated numbers 1 through 161 in the
"Description of Property."
(Emphasis added.) Again, by negative but necessary implication, Scientology
was not pressing any claim for the return of individual, specified documents,
but instead again presents an argument that avoids disclosure of specific
documents. Some inquiry into individual documents would be germane to the
issue of exploratory seizure, of course, but it is clear that Scientology's
sole goal was wholesale suppression, not the return of specific documents the
government still wanted to keep.
In the light of Scientology's assertions before the district court the
government submits that Scientology abandoned any individual documents claim,
and that we should interpret the district court's ruling as holding against
Scientology on all but one of its claims. Scientology did explain at one point
that it was the district court that wanted to confine the inquiry to items the
government had already agreed to return. Id. at 6. But in light of its
exclusive emphasis on broad contentions that comment reeffects only
Scientology's interest in using all evidence possible to pursue its "all or
nothing" claim of exploratory seizure, and not an interest to pursue an order
for the return of specified documents. In any event, Scientology was given a
full opportunity to submit any additional pleadings it desired and cannot now
complain of any such court-imposed limitation when it has not appealed from
it. And this court's present sua sponte remand on this point is irregular and
its basis is unfounded. Although Scientology appealed from apparent adverse
rulings on the staleness, probable cause, excessive force, and evidentiary
hearing issues, see parts VI-IX supra, it raised no point on appeal concerning
any individual documents claim. It thus waived any complaint about the
district court's conduct in relation thereto.
(12) In short, although we recognized Scientology's right to seek the return
of specific documents seized beyond the authority of the search warrant, and
although we remanded for a hearing on that point, among others, Scientology
failed to take advantage of that opportunity and therefore abandoned any claim
to the return of individual documents. That much is clear, in my opinion, from
the parties' submissions to the district court. A party's persistent failure
to pursue a claim is grounds to conclude it has abandoned it. Church of
Scientology v. United States, supra; see Foremost International Tours,
Inc. v. Qantas Airways Ltd., 478 F.Supp. 589, 602 (D.Haw.1979); Dawson v. G.
Malind, Inc., 463 F.Supp. 461, 465 (S.D.N.Y.1978). To the extent that
Scientology can complain that the district court somehow tied its hands in this
matter, it was incumbent upon Scientology to protest below and to raise
the *141 **98 point here. It did not take advantage of this
opportunity. In its May 5, 1978 status memorandum Scientology merely stated
that the seizure was invalid because "the documents are not evidence of
criminal activity, but private, protected writings." Record, Vol. II, # 43, p.
2. Such defense is a non-sequitur. Scientology also couched whatever claim it
did make so that "undue public disclosure of confidential church documents can
be avoided." Thereafter Scientology had more than an ample opportunity, as
pointed out above, to submit any claim it had for the return of specified
documents when the court on June 30, 1978 offered the parties an opportunity to
submit any additional pleadings they desired. Supra, at 2. Scientology's
response to this June 30, 1978 offer by the court was a document filed on July
31, 1978 entitled, "Petitioner's Reply to Government's Proffer of Testimony and
Exhibits and Memorandum of Law in Response to Informal Court Order of June 30,
1978." Record, Vol. III, # 67, July 31, 1978. In this document under the
subheading "Individual Documents Were Improperly Seized," Scientology referred
to its previous contention that items 1-148 were not mentioned in the Tittle
(Supporting) affidavit, and that items 149-161 were not supported by probable
cause in the Tittle affidavit. The substance of this contention is nothing
more than the same broad attack that a general search and seizure of the
opportunity offered by the court as presenting Scientology with what would be
nothing more than a "futile exercise." Separate Statement, n.3. Therefore, it
is submitted that the individual documents claim was abandoned below, or was
waived on appeal, and has thus been allowed to expire. It is not for this
court to revive it. I therefore dissent from the remand on this point.
In my judgment the Separate Statement, infra, fails to recognize the full
authority to seize documents under item 162 and the incorporated supporting
affidavit. It incorrectly assumes that more seized documents depended upon a
"plain view" rationale for the validity of their seizure than is actually the
case. Some of the agents may have similarly been uninformed as to their full
authority under the search warrant. What the Separate Statement does not
consider is that many of the documents could be seized as
"fruits, instrumentalities, and evidence (at this time unknown) of the crimes
of conspiracy, obstruction of justice and theft of government porperty (sic) in
violation of 18 U.S.Code ss 371, 1503 and 641 which facts recited in
the accompanying affidavit make out."
JA 39, 40-72. (Emphasis added). Thus, as to documents that were
instrumentalities of the crimes, like documents reporting on the progress of
the alleged illegal ventures, or fruits of the alleged crimes, and stolen
government documents, or copies thereof, their seizure was directed by the
search warrant and reliance on "plain view" authority was not necessary, though
it would be easy in many such instances to rely on "plain view" because the
incriminating incidences were so apparent in the document. For example, see
our discussion of "Red Box" matter in United States v. Heldt, 667 F.2d 572
(D.C.Cir.1981), filed contemporaneously herewith.
CONCLUSION
For reasons set forth above we hold that the decision of the district court,
holding that the search resulted in an unconstitutional general seizure and
ordering the suppression of all seized documents except stolen ones, is not
supported by substantial evidence in the record and is clearly erroneous. We
therefore vacate that part of the applicable order and judgment as there is no
showing that the seizure of the documents the Government had decided to retain
was illegal in any respect. We affirm the court's dismissal of the Church's
remaining challenges to the search. Inasmuch as this should terminate the
case, it will be in order, after the times for rehearing and certiorari have
expired, for the Government to return the seized documents *142 **99 it
indicated originally it intended to return.[FN21]
FN21. It should be noted that appellant Scientology, its indicted
officials and members, have already received substantial benefit from their
attack on the search in that Scientology was not indicted and none of the
documents seized in the Washington search were used against their officers
and members in the criminal trial on their indictment for the various
offenses growing out of their burglaries of government offices, the theft
of numerous government documents and the attendant conspiracies.
Judgment accordingly.
Separate Opinion of Circuit Judge WALD, in which Chief Judge ROBINSON concurs:
I concur in Judge MacKinnon's opinion, with the exception of Part III, B
(entitled "The Bases of the District Court's Decision"), Part X, and the
Conclusion.[FN1] I agree that the record does not support the district court's
decision that the agents conducted a general search or seizure. See Judge
MacKinnon's Op. at 119. I am also convinced, however, that the Church of
Scientology ("Church") must be provided with at least one adequate opportunity
to indicate to the district court whether any particular documents must be
returned because they fall outside the scope of the warrant and were not
properly seized under the plain view exception to the warrant requirement.
Since all the members of this panel agree that the Church "is entitled to the
return of items seized outside the warrant," Judge MacKinnon's Op. at 119,
[FN2] and since the district court has never made any finding regarding which
particular documents were improperly seized, I find that this case must be
remanded to allow the district court to perform that task.[FN3]
FN1. I must also decline to concur in the majority's footnote 15, because
I believe it unnecessary to the opinion, and perhaps incorrect.
FN2. See also Judge MacKinnon's Op. at 130, 133-134.
FN3. I cannot agree with Judge MacKinnon's opinion, Part X, that the
Church waived its objections to the illegality of the seizure of particular
documents below. It clearly announced its intention to present evidence on
particular documents that were allegedly illegally seized as outside the
scope of the warrant, in the event that more generalized attacks upon the
execution of the warrant failed. See Joint Appendix ("J.A.") at 163, 360,
366. In the two day hearing on April 21 and 28, 1978, however, the trial
judge stated most emphatically and repeatedly that he wished to hear only
evidence pertaining to the reasons why documents slated to be returned to
appellees were seized, not any evidence pertaining to particular documents
the government intended to keep or use. See J.A. 360, 566, 683-89, 692,
841-42; Government's Brief at 6-7. Judge MacKinnon's Op. at 121. After
this "truncated" hearing to which the government vigorously objected as
inadequate to air the issues in the case (Government's Brief at 6-7), the
court requested any and all additional pleadings to be submitted in writing
and ruled subsequently that all material seized (except stolen items) be
returned because a "general exploratory seizure" had taken place in
violation of the fourth amendment. J.A. 19.
Under these circumstances I do not think that the Church was required to
raise individually every document whose seizure it objected to as outside
the warrant in post-hearing written submissions at the risk of waiving all
such objections. Having been denied any right to present oral testimony or
cross-examine witnesses at a hearing as to the circumstances in which each
such document was seized, it would most likely have been a futile
exercise. Moreover, the Church did indicate a desire and intention to
question FBI witnesses on the retained documents. See Status Memorandum
of the Founding Church of Scientology, May 5, 1978, Record, vol. 2, no. 43
at 2-3; Petitioner's Reply to Government's Proffer of Testimony and
Exhibits and Memorandum of Law in Response to Informal Court Order of June
30, 1978, July 31, 1978, Record, vol. 3, no. 67. Indeed it appears that
the government itself assumed on appeal that such objections might still be
taken to individual documents on remand, once its appeal as to the overall
reasonableness of the seizure is won. Government's Brief at 36. ("(O)ur
position ... has been that the District Court's task is to determine what
individual documents, if any, were seized without authority and to direct
their return. We have screened out those documents we are prepared to
return voluntarily (without conceding their illegal seizure) in order to
simplify the court's task.") But cf. J.A. 185 (government claim below
Church had "abandoned" objections to individual documents). Although the
trial court in its memorandum opinion finding that a general seizure had
taken place also ruled against petitioner "on all other grounds," we do not
read that as a blanket dismissal of claims concerning individual documents
about which it had refused to hear any evidence or argument during the
hearing. Indeed, such a reading would seem inconsistent with its primary
ruling that all the material-not just individual documents-had been
illegally seized.
*143 **100 In Part III, B, Judge MacKinnon's opinion discusses why the
district court improperly relied upon the government's offer to return
"innocuous" documents as the basis for finding a general search. I agree with
Judge MacKinnon that an inordinately heavy reliance was placed upon the
government's proffer of return. First, it is apparent that the United States
Attorney's Office had not had an adequate opportunity to examine the documents
and classify them carefully before making its offer. See J.A. at 341, 351-53.
More importantly, even if the United States Attorney's classification of
"innocuous" documents had been a careful and considered one, such
classification simply is not probative of whether each of those documents was
lawfully seized. There are a variety of reasons for the government to return
documents voluntarily, e.g., they may be superfluous, or unhelpful, or simply
duplicative of the many thousands of documents seized in the California search,
which were based essentially upon the same warrant. See generally Government's
Brief at 48-49. The high percentage of documents voluntarily offered for
return [FN4] is therefore not an appropriate basis upon which to find a search
unconstitutionally general. Furthermore, treating the government's offer to
return seized property as evidence of wrongdoing might have an undesirable
effect: "such activity, which should be encouraged, would be chilled: the
government will not return property out of fear that it will be interpreted as
an admission of impropriety." United States v. Hubbard, 493 F.Supp. 209,
234 (D.D.C.1979).
FN4. See generally J.A. at 128-39 (Church's computer analysis of seized
documents estimates that 79% of such documents are to be returned
voluntarily).
Part III, B of Judge MacKinnon's opinion also discusses a second basis for the
district court's holding of a general search, viz., the testimony of the
participating agents. See Judge MacKinnon's Op. at 124-127. The district
court excerpted remarks by FBI Agents Higgins, Dean and Booth, all related to
their conduct and opinions regarding the search. J.A. 12-13. I find these
remarks wholly inadequate as a basis for determining that a general seizure
occurred. My own review of the testimony before the district court, see
generally J.A. at 363-896 (testimony of the agents), persuades me that the
methods and procedures used were not deliberately overbroad in scope, and were
not designed to net documents outside the scope of the warrants. Furthermore,
of the 93 file drawers, 14 desks, 3 bookshelves, and numerous boxes and files
of loose documents in the suite, the agents seized materials filling altogether
only two cardboard boxes measuring 18 inches by 12 inches by 12 inches.[FN5]
The record and the testimony simply do not show a general rummaging by the
agents amounting to an unconstitutionally general search which might require
the return of all documents.
FN5. See J.A. at 204; Government's Brief at 11-12; Church's Reply Br. at
28.
The final basis for the district court's disposition was its "survey of the
inventory of items seized," which convinced the court that "nearly half or more
of the seizure" fell outside the scope of the warrant. J.A. 14. On this point
I also agree with Judge MacKinnon's analysis, which concludes that "a survey of
this type is inherently unreliable." [FN6] In sum, I am convinced that the
district court's decision in this case must be reversed.
FN6. See Judge MacKinnon's Op. at 130.
Granting that the search was not so broad as to require the wholesale return
of everything seized, I do not believe that the Church should be precluded from
showing that some particular documents may have been taken unlawfully and
therefore should be returned. I cannot accept Judge MacKinnon's document-by-
document analysis which attempts to ascertain whether any particular documents
were unlawfully seized. It is not the function of this
appellate *144 **101 court to engage, de novo, in a highly factual
determination concerning which particular documents were within or without the
warrant. The district court has not yet even attempted to perform this task;
this matter is therefore not yet appropriate for our review. Furthermore, none
of the issues relating to particular documents have been briefed or argued
orally before this court. The proper approach is a remand to permit the trial
court to make this determination. See generally In Re Search Warrant, 572
F.2d 321, 327 (D.C.Cir.1977) (holding that the district court may "consider and
determine whether any specific document may have been seized outside the
authority of the search warrant").
Upon remand, the district court must first ascertain which documents are
actually in dispute. The court need not undertake an examination of every
single document seized. Instead the parties may be required to come up with a
list of documents, not yet returned, about which some dispute exists. Assuming
there are such documents, the court should then examine each of them with an
eye toward answering two questions: (1) was the document lawfully seized
pursuant to the list of particulars contained in the warrant; if not, (2) was
the document lawfully seized under the plain view exception to the warrant
requirement. If the answer to both questions is no, the document must be
returned; otherwise, the government is entitled to retain it. Since the
district court, in all likelihood, will have to apply the plain view
exception, [FN7] the following guidance may be helpful in avoiding future
unnecessary appeals.
FN7. The government acknowledges in its brief that the agents, who
believed they were seizing documents at least in part under the plain view
doctrine, must obey the doctrine's limitation set out in Coolidge v. New
Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 464 (1971). See
Government's Brief at 37 n.30; see also J.A. at 13 (testimony of agents
before the district court); text immediately infra.
Judge MacKinnon's discussion of the plain view doctrine [FN8] is
insufficiently sensitive to the limitations which govern the seizure of
documents nowhere mentioned in the warrant, but seized nonetheless. In
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 464
(1971), a plurality of the Supreme Court found that under certain circumstances
police may seize objects in "plain view" when they are searching pursuant to a
warrant, even though the warrant does not specify those objects. The Justices
recognized, of course, that an expansive interpretation of the plain view
exception might swallow the rule of particularization, since
FN8. See Judge MacKinnon's Op. at 126.
any evidence seized by the police will be in plain view, at least at the
moment of seizure. The problem with the "plain view" doctrine has been to
identify the circumstances in which plain view has legal significance rather
than being simply the normal concomitance of any search, legal or illegal.
Coolidge v. New Hampshire, 403 U.S. at 465, 91 S.Ct. at 2037 (original
emphasis in original).
Unless these circumstances are identified and applied, any warrant authorizing
a search for a particular document might, in conjunction with the plain view
exception, permit "government officials to use a seemingly precise and legal
warrant only as a ticket to get into a man's home and, once inside, to launch
forth upon confined searches and indiscriminate seizures as if armed with all
the unbridled and illegal power of a general warrant." Stanley v. Georgia,
394 U.S. 557, 567, 572, 89 S.Ct. 1243, 1249, 1251, 22 L.Ed.2d 542
(1969) (Stewart, J., concurring). Clearly, the plain view exception must be
defined in such a way as to preclude using a document search warrant as
authority to search for and seize all evidence of wrongdoing in the form of
documents which happen to be located at the search site. Cf. In Re Search
Warrant, supra, 572 F.2d at 324.
Based upon Coolidge, courts have formulated three limitations upon the plain
view exception. First, the searching agents must lawfully be in the location
where their plain viewing occurs, i.e., seizures based *145 **102 upon
plain view can occur only within the geographical limitations set out, or
implied, in the warrant. See, e.g., Keiningham v. United States, 287 F.2d
126, 129 (D.C.Cir.1960); United States v. Principe, 499 F.2d 1135, 1137 (1st
Cir. 1974); 2 W. LaFave, Search and Seizure s 4.10 (1978). Second, any seized
item unspecified in the warrant must possess an incriminating character plainly
and immediately apparent on its face, a character sufficiently incriminating to
establish probable cause for its seizure despite the absence of a warrant
mentioning it. Third, the searching agent must come upon the unspecified items
inadvertently. There being no question about the agents' obedience to the
geographic limitations of the warrant, we now discuss briefly the latter two
limitations on plain view.
The incriminating character limitation necessarily permits a brief perusal of
documents in plain view in order to determine whether probable cause exists for
their seizure under the warrant. See generally United States v. Ochs, 595
F.2d 1247, 1257 n.8 (2d Cir.), cert. denied, 444 U.S. 955, 100 S.Ct. 435, 62
L.Ed.2d 328 (1979) (cases cited). If in the course of that perusal their
otherwise incriminating character becomes obvious, they may be seized. Id.
See also Mapp v. Warden, 531 F.2d 1167, 1172 (2d Cir.), cert. denied, 429
U.S. 982, 97 S.Ct. 498, 50 L.Ed.2d 592 (1976) ("it would be absurd to require
an investigator to be oblivious to that which would be apparent to anyone else
with normal powers of observation"). Otherwise, the perusal must cease at the
point that the warrant's inapplicability to each document is clear. Searching
officers may not cart away documents unspecified by the warrant which simply
look somewhat suspicious, comb through them at their leisure and then return
them if after careful inspection they do not constitute evidence of criminal
activity. That sort of abuse might return us to the days of the general
warrant and must be scrupulously avoided.
The other, closely related limitation on the admission of unspecified
documents seized under a search warrant is that of inadvertence. See
Coolidge v. New Hampshire, supra, 403 U.S. at 469-70, 91 S.Ct. at 2040.
This requirement has been unevenly applied by courts. Compare, e.g., United
States v. Davis, 542 F.2d 743, 745 (8th Cir.), cert. denied, 429 U.S. 1004,
97 S.Ct. 537, 50 L.Ed.2d 616 (1976), and United States v. Wysong, 528 F.2d
345 (9th Cir. 1976) (courts characterizing as "inadvertent" the discovery of
items as to which it appears police could have made showing of probable cause
to seize, but failed to do so), with United States v. Winston, 373 F.Supp.
1005, 1007 (E.D.Mich.1974) (seizure of item cannot be "inadvertent" if, before
searching begins, police have probable cause to seize it). I believe the
inadvertence limitation stands for the simple proposition that agents must not
be searching for items outside the particulars of the warrant when they conduct
the search; in other words, agents must act in good faith to confine themselves
to searching for the specified items. See generally United States v.
Rettig, 589 F.2d 418, 423 (9th Cir. 1978). Because the present record
discloses no substantial evidence of bad faith in the agents' conduct with
regard to inadvertence, the district court's attention may focus upon
compliance with the incriminating character limitation.
-----
For the reasons set forth above, Chief Judge Robinson and I find that the
district court's holding that the search resulted in an unconstitutional
general seizure is unsupported by the record and clearly erroneous. We
therefore vacate the district court's order and remand the matter to it to
permit a determination as to which particular documents, if any, were seized
outside the warrant and must therefore be returned. We affirm the district
court's dismissal of the Church's remaining challenges to the search.