U.S. v. Russell ( 1992 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 91-1406
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BOBBY RUSSELL,
Defendant-Appellant.
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Appeal from the United States District Court
For the Northern District of Mississippi
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(April 28, 1992)
Before JOLLY, JONES and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant Bobby Russell pled guilty to tax fraud and other
fraudulent activity. Russell appeals, arguing that the search
warrant used to obtain evidence which played an integral part in
his conviction was defective and that the good faith exception to
warrantless searches does not apply. We disagree, and affirm the
district court's orders overruling Russell's motions to suppress
this evidence.
I
On August 20, 1986, James Baker--a special agent with the IRS
criminal investigation division--applied for a search warrant to
the United States District Court for the Northern District of
Mississippi. The application sought permission to search Russell's
office1 and home because he was suspected of tax fraud.2 The
Magistrate Judge found probable cause and issued a search warrant.3
The search warrant was executed on Russell's residence and
place of business the next day. The warrant served on Russell and
the warrant in the Magistrate Judge's files, however, failed to
include the second attachment describing the items to be seized.4
During the search, however, Baker posted a copy of the list of
1
Russell was the sole proprietor of BHR Publishing in
Tupelo, Mississippi. In his capacity as proprietor of BHR, Russell
published newspapers, magazines, and calendars, and conducted
country music shows for different organizations.
2
On April 19, 1990, a federal grand jury in the Northern
District of Mississippi returned a 226-count Indictment against
Russell and his coconspirator, Beverly Bedford. The Indictment
alleges various instances of tax fraud, including fraudulent
deductions and fraudulent use of IRS Form W-2.
3
Baker's application for a search warrant was accompanied by
a thirteen-page affidavit. Part I of the affidavit described
Baker's qualifications and the crimes which Russell allegedly
committed. Part II set forth the underlying facts and
circumstances which provided probable cause for the issuance of the
search warrant. Part III of the affidavit listed the items to be
seized during the search.
4
The warrant, as issued by the Magistrate Judge, was to
include two attachments. The first attachment was to describe the
premises to be searched, and the second attachment was to describe
the items to be seized. These attachments were used because the
warrant form had insufficient space. Where the property to be
seized was supposed to be listed, the search warrant read "(See
attached)" (A copy of Part III of the affidavit from the
application and affidavit for search warrant, see supra note 3, was
supposed to be attached). This second attachment, describing the
property to be seized, was omitted from the search warrant. The
cause of this defect in the search warrant is unknown. Neither the
Magistrate Judge nor Baker could clearly ascertain how the second
attachment was omitted from the search warrant. The Magistrate
Judge's staff was apparently responsible for compiling the
attachments from the affidavit and assembling the warrant. The
district court's finding that Baker acted in good faith (see infra
note 6) suggests that Baker was not responsible for this oversight.
See also infra note 10.
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items to be seized, and made a computerized inventory of each item
actually seized from Russell's house and office. When the search
was completed, Baker served Russell with a copy of the warrant and
a copy of the inventory of the items seized. At trial, Russell
moved to suppress the evidence seized on the ground that the
warrant--which did not include a list of items to be seized during
the search--was fatally defective. The district court denied
Russell's motion and held that the evidence should not be
suppressed.5 Russell appeals.6
5
See Russell v. United States, 649 F. Supp. 1402 (N.D. Miss.
1986).
6
Prior to his appeal, the district court reconsidered the
suppression issue in light of the affidavit of Bill Gibson, a
special agent with the Internal Revenue Service. Gibson alleged
that on the night of August 20, 1986--the day before the warrant
was executed--he met with Baker, who had applied for the warrant to
search Russell's house and office. Gibson allegedly told Baker
that the warrant did not contain a list of items authorized to be
seized. The district court considered Gibson's testimony, and
entered an opinion overruling Russell's supplemental motion to
suppress. In its order, the district court stated that there was
nothing in the record, including the affidavit of Gibson, to
indicate that Baker sought the warrant in anything other than good
faith.
On appeal, Russell reasserts that Gibson's affidavit
indicates a lack of good faith on Baker's part. As we have noted
infra note 10, the facts show that Baker understood that the search
and seizure was limited to the premises and items listed in the
affidavit, and that the scope of the intended search and seizure
was not exceeded. Therefore, we do not agree with Russell that
Baker either wilfully served a warrant he knew to be defective or
that he was ignorant of the Constitution. Moreover, the district
court's fact findings regarding Bakers' good faith--findings
supported by the record (see infra note 10)--are not clearly
erroneous.
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II
Russell contends that the evidence seized should have been
suppressed because the search warrant--missing the attachment
listing and describing the items to be seized (see supra notes 3-
4)--was defective and because the warrant was not obtained and
executed in good faith. Our review of the objective reasonableness
of an officer's reliance on a search warrant is a question of law
reviewable de novo, and the underlying facts upon which that
determination is based is reviewed for clear error. See United
States v. Maggitt, 778 F.2d 1029, 1035 (5th Cir. 1985), cert.
denied, 476 U.S. 1184, 106 S. Ct. 2920 (1986); United States v.
Tedford, 875 F.2d 446, 448 (5th Cir. 1989) (citations omitted)
(this court accepts facts underlying the trial court's finding of
good faith unless clearly erroneous; the court's ultimate
determination that officers acted in good faith is a conclusion of
law subject to de novo review).
The Fourth Amendment to the Constitution states that warrants
shall particularly describe the place to be searched, and the
person or things to be seized. Rule 41(c) of the Federal Rules of
Criminal Procedure states that a warrant shall identify the
property or person to be seized and name or describe the person or
place to be searched. See Fed. R. Crim. P. 41(c). In their
briefs, the parties do not disagree that, because the warrant in
this case did not include a list of the items to be seized as is
required by the Fourth Amendment and Rule 41(c) of the Federal
Rules of Criminal Procedure, the warrant was defective. Therefore,
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we will only determine whether the good faith exception to the
exclusionary rule applies.
The purpose of the exclusionary rule is to deter police
misconduct. See United States v. Leon, 468 U.S. 897, 916, 104 S.
Ct. 3405, 3417 (1984). The Court has stated that the exclusionary
rule should not be applied to suppress evidence if the evidence was
obtained by officers acting in objectively reasonable reliance on
a subsequently invalidated search warrant. See id. at 922-23,
104 S. Ct. at 3420; Massachusetts v. Sheppard, 468 U.S. 981, 987-
88, 104 S. Ct. 3424, 3427 (1984) (citation omitted). However, this
good faith exception does not apply if: (1) in issuing the warrant
the magistrate is misled by information in the affidavit that the
affiant knows is false or would have known was false except for his
reckless disregard of the truth; (2) the issuing magistrate wholly
abandons his judicial role; (3) the warrant is based on an
affidavit so lacking in indicia of probable cause that official
belief in its existence is entirely unreasonable; or, (4) the
warrant is so facially deficient in failing to particularize the
place to be searched and things to be seized that the executing
officers cannot reasonably presume it to be valid. See Leon,
468 U.S. at 923, 104 S. Ct. at 3421 (citations omitted).
The Government refers us to Massachusetts v. Sheppard, 468
U.S. 981, 104 S. Ct. 3424 (1984), where the Court discussed a
situation somewhat similar to that in this case. In Sheppard, the
Court affirmed the execution of a warrant that authorized a search
for "controlled substances," but was actually meant to enable a
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search for evidence of a murder. The judge attempted to modify the
warrant, but failed to incorporate an affidavit stating the items
to be searched for. Id. at 986-87, 104 S. Ct. at 3426-27. In
holding that the evidence was properly admitted notwithstanding the
defect in the warrant, the Court stated that the police conduct was
objectively reasonable and largely error free, and that it was the
judge, and not the police officers, who made the critical mistake.
Id. at 990-91, 104 S. Ct. at 3429; see also United States v.
Anderson, 851 F.2d 384, 388-89 (D.C. Cir. 1988), cert. denied, 488
U.S. 1012, 109 S. Ct. 801 (1989) (discussing Sheppard). In
Sheppard, the Court noted that suppressing evidence because the
judge failed to make all the necessary clerical corrections,
despite his assurance that such changes would be made, would not
serve the deterrent function that the exclusionary rule was
designed to achieve. See Sheppard, 468 U.S. at 990-91, 104 S. Ct.
at 3429. In this case, we likewise see nothing to be gained by
laying fault for this apparent clerical error at Baker's feet.7
Russell's arguments primarily focus on the objective
reasonableness of Baker in relying on the defective warrant. He
argues that Baker did not do all that could be reasonably expected
to rectify the defective warrant. According to Russell, Baker knew
about the missing list of items to be seized because another agent
had pointed it out to him the night before the search.8 Russell
contends that, when Baker spoke to the Magistrate Judge on the
7
See supra note 4.
8
See supra note 6.
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morning of the search, Baker should have asked about the missing
list of items.9 We find these arguments unpersuasive.
As the Government notes, the evidence indicates that the
warrant--defective because of clerical error--was executed in good
faith.10 As the Court noted in Sheppard, the exclusionary rule was
9
Russell also argues that Baker's misunderstanding about the
necessity for the list to be attached to the warrant does not
justify the application of the good faith exception. He asserts
that the warrant was so defective that a reasonably well-trained
agent could not have been expected to rely on the warrant.
Likewise, Russell contends that the search grossly exceeded the
scope of the probable cause affidavit.
10
Baker prepared and presented an application for a search
warrant which was supported by an affidavit that demonstrated
probable cause and set forth the place to be searched and the items
to be seized. Specifically, the direct examination of the
Magistrate Judge reveals the following exchange:
Q. During the course of the hearing concerning this
warrant, what did you considering in issuing the warrant?
A. . . . I read the affidavit prepared by the special
agent and executed before me . . . I looked at the
description of the property. I look at the itemized list
of things to be seized. I read and studied the facts,
the underlying facts of probable cause. And based on
looking at the description, I then looked at the search
warrant and I signed it, after considering all of the
things stated in the affidavit.
Q. Did you make a finding of probable cause?
A. I did make a finding of probable cause. And I looked
at the search warrant and signed it.
Record on Appeal, vol. II at 13, United States of America v. Bobby
Russell, No. 91-1406 (5th Cir. filed Apr. 16, 1991) ["Record on
Appeal"] (direct examination of Magistrate Judge):
The record establishes that the search warrant signed by the
Magistrate Judge contained an attachment identifying the place to
be searched, but did not have the list of items to be seized. See
Record on Appeal (Government's Exhibit #2: copy of search warrant
that was signed and executed by Magistrate Judge on August 20,
1986). Neither Baker nor the Magistrate Judge realized that the
list of items to be seized contained in the affidavit was not
attached to the warrant as finally assembled, as is supported by
the following testimony:
Q. Now, at the time you signed the warrant, were you
aware that the things to be seized were inadvertently
omitted from the - -
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A. I was not at that time. I was not aware of that, at
that time, that that has been omitted from the search
warrant.
Q. Had you known that, would you have signed the
warrant?
A. I would have seen to it that it would have been
attached before I signed it.
* * *
Q. Do you have any idea of what happened to the list
that should have been attached to the warrant?
A. I cannot recall.
* * *
A. So I went back in my file, when you filed your
motion, and I did not have a copy of those items attached
to my copy of the search warrant. I do recall seeing
those items listed in the affidavit.
Record on Appeal at 15, 17, 23 (direct and cross examination of
Magistrate Judge); id. at 63 (cross examination of Baker):
Q. Well, you understood that you had a copy of the whole
warrant, didn't you?
A. Actually, I later learned during the execution when
I handed him the return that in fact the attachment was
not on there. But I didn't question the fact that the
attachment for items to be seized was not on the warrant.
And the reason I didn't question it was because of a
fairly unusual event, at least in my experience with
warrants is concerned, at the time I was handed the
document to be served on Mr. Russell, at my request,
prior to going to the Magistrate's Office, Mr. Dawson
asked the Magistrate if he would seal the file. The file
included necessarily the affidavit. Because Item 3 of
the affidavit was in fact the item 2 attachment to the
warrant. When I handed Mr. Russell the file, even though
I noticed it wasn't on there, I assumed it was omitted by
the Magistrate because it didn't have to be attached.
Q. You assumed that when you left the Magistrate's
office?
A. No. I didn't even know it wasn't on there. I didn't
think about it, whether it was or wasn't. I never looked
at the file. I never looked at the document given to me
by the Magistrate at all until 9:50 pm on the 21st of
August when I gave it to Mr. Russell.
There is also an abundance of other testimony in the record to
suggest that the Magistrate Judge and Baker were aware of the
warrant's limitations and acted accordingly:
-- The facts indicate that the Magistrate Judge and
Baker understood that the search and seizure was limited
to the premises listed and the list of items contained in
the affidavit:
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Q. Now, Magistrate Gillespie, through the
process you've talked about issuing this
particular warrant, what was your
understanding about the searching and seizing
authority of Special Agent Baker?:
A. That under the warrant that he had the
authority to search the property described in
the search warrant and seize the items listed
therein.
Q. Would that list be identical to the list
attached to the affidavit?
A. That's right.
Record on Appeal at 17 (direct examination of Magistrate
Judge); id. at 53 (direct examination of Baker):
Q. Now, what did you believe was your
authority to search with respect to the place
to be searched?
A. I was convinced that my authority to
search the premises . . . was limited solely
to the items listed in the affidavit that I
filed with the Magistrate under oath and only
Section 3 items subject to being seized.
-- The facts show that, on the morning of the search,
Baker called the Magistrate Judge to add an item that had
been omitted from the affidavit's list:
Q. Did you call the Magistrate?
A. Yes. I was specifically concerned about
adding the item to the warrant. I knew that I
could not add the item to the warrant or
search for it if in fact I did not have the
approval of the Magistrate.
* * *
A. At approximately 10:06 am I called the
Magistrate. At which time I informed the
Magistrate that due to what appeared to be a
typing error in the attachment of items to be
searched to the affidavit, which included the
warrant . . . there was omitted an item I for
Equipment or Devices used to prepare any
document or record described herein. And I
have the original, a copy of the original
document that I wrote on . . . which is the
third page of this document, states "Added
10:06 am, 8-21-86 A.P.P. telephone Magistrate
Gillespie."
Id. at 45 (direct examination of Baker).
-- In addition, the subsequent seizure of items from
Russell's home and business was limited to the items from
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the list in the affidavit:
Q. Now, these five agents, you said had the
authority to search and therefore given a copy
of the items to be seized?
A. That's correct. They were the only
persons.
Q. Who was the only person who had authority
to make the judgment to seize an item?
A. I was the only person on the entire search
team that was authorized physically to make a
decision to seize any item.
Q. Now, did you have a backup for that
decision?
A. Yes, I did. I had a [protective] device,
as I thought of it at the time, in that I had
another agent checking my decision regarding
the applicability of the item to be seized
against the items listed in the inventory.
Q. Who was that?
A. Special Agent Ransig. And I gave him the
original copy of the items to be seized
section, which I had in my possession, and I
put his name at the top of that document,
which he kept in his possession the entire
time the search was executed.
Q. Did Mr. Ransig also have any additional
duties during the search with respect to
making a return?
A. Yes, he did. The reason that I had him
postured to double check any decision I made
was because his primary duty was not to search
but inventory on a computer terminal, which we
set up on the premises of Mr. Russell's
business, all of items that were subject to
being seized.
Q. What advantage did that give to you in the
course to the owner of the premises?
A. It insured that only the items subject to
seizure were in fact being seized.
Q. What about making an immediate return
computer printout?
A. That was primarily the reason that we use
the computer in the first place was so that we
could lend a much more accurate, complete and
quicker return after execution of the search.
Id. at 47-48 (direct examination of Baker).
-- Baker also posted a copy of the list of items to be
seized on the wall of Russell's office:
A. The particular one, [copy of items to be
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adopted to deter unlawful searches by police, not to punish the
clerical errors of magistrates and judges. See Massachusetts v.
Sheppard, 468 U.S. 981, 990, 104 S. Ct. 3424, 3429 (1984) (citation
omitted).11 Accordingly, we find that the Leon good faith
seized] which I have is a copy of, was
actually posted on the wall in the room
described as Room 1 on the drawing of the
premises diagram of the floor plan right next
to the computer, right across, I would say
within six or seven feet of Mr. Russell's
desk.
Id. at 48-49 (direct examination of Baker).
-- And finally, Baker orally advised Russell of the
items to be seized when he first arrived and then left
Russell a computerized listing of the items to be seized:
Q. Now, was a copy of the warrant left with
Mr. Russell?
A. Yes, it was. Everything I was given by
the Magistrate to serve on Mr. Russell was
given to Mr. Russell. And, in addition, this
computerized list of the return.
Q. So the copy of the warrant, as issued by the
Magistrate, was served on Mr. Russell?
A. Yes.
Q. And, in addition, the computerized
printout of things that had actually been
seized was left with Mr. Russell?
A. That's correct.
Q. Now, in addition to that, did you orally
advise Mr. Russell of the things that were
going to be seized?
A. Yes.
Id. at 49 (direct examination of Baker).
11
See also United States v. Anderson, 851 F.2d 384, 388-89
(D.C. Cir. 1988). In Anderson, an affidavit prepared in support of
a state search warrant specified in detail the items to be seized,
but the affidavit was not attached to or incorporated by the
warrant. In holding that the investigating officers had an
objectively reasonable basis for their mistaken belief that their
search of a motel room was authorized by a valid warrant, the D.C.
Circuit noted that: (1) the investigating officers presented the
affidavit to a neutral judge along with an affidavit submitted
earlier in support of a federal warrant, (2) the search was
executed by the same officers who had prepared the affidavits, and
(3) the scope of the search was limited to the items listed in the
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exception applies, and we affirm the district court's orders
overruling Russell's motions to suppress.
III
For the foregoing reasons, we AFFIRM.
affidavits. Id.
Similarly, in United States v. Maxwell, 920 F.2d 1028,
1034 (D.C. Cir. 1990), the agent who applied for a search warrant
prepared an affidavit detailing the illegalities of which the
defendant was suspected and presented it to a neutral and detached
magistrate. The magistrate determined that probable cause existed
to search the defendant's apartment, but neglected to incorporate
the agent's affidavit into the warrant. Id. The D.C. Circuit
noted that, when the magistrate signed the warrant at issue with
the affidavit apparently attached although not specifically
incorporated into the search warrant, the agent could have
reasonably concluded that the scope of the warrant was limited to
materials supporting the allegations contained in the affidavit.
Id. The court also noted that the same agent who prepared the
affidavit and obtained the warrant also oversaw the execution of
the warrant. Id. Thus, the court held that the agents took every
step that could reasonably be expected of them, and that a
reasonable police officer would have concluded that the warrant
authorized a search for the materials outlined in the affidavit.
Id. (citations omitted).
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