Dale B. Korkowski v. James A. Clancy ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 95-4147
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Dale B. Korkowski; *
Sherry A. Korkowski, *
*
Appellants, *
*
v. *
*
James A. Clancy; Gary L. * Appeal from the United States
Reitan; D. A. Orstad; Pamela * District Court for the
R. Evans; Terry L. Dehmer; * District of Minnesota.
Hubert H. Humphrey, III, * [UNPUBLISHED]
Attorney General, State of *
Minnesota; Scott M. Sandberg, *
Assistant Wright County *
Attorney, *
*
Appellees. *
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Submitted: March 31, 1997
Filed: April 4 , 1997
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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.
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PER CURIAM.
Dale B. Korkowski and his daughter, Sherry A. Korkowski, appeal from
the district court's1 adverse grant of summary judgment in their 42 U.S.C.
§ 1983 action. We affirm.
In July 1989, during an ongoing state investigation into Dale
Korkowski's financial affairs, Minnesota law-enforcement officers entered
Dale's home with a warrant to search for business records. Minnesota
Department of Revenue agents also entered Dale's home and
1
The Honorable Paul A. Magnuson, Chief Judge, United States
District Court for the District of Minnesota.
conducted the search, during which they seized some items not specifically
listed in the warrant. Claiming a Fourth Amendment violation, the
Korkowskis filed this section 1983 suit against the law officers; the
revenue agents; Wright County, Minnesota; and others. In its order
granting summary judgment for defendants, the district court concluded that
the Korkowskis had failed to allege a governmental policy resulting in the
deprivation of their constitutional rights and that the claim against
defendants in their individual capacities failed, as the seizure of items
not specifically listed in the warrant and the participation of the revenue
agents was not unconstitutional.
We review a grant of summary judgment de novo, applying the same
standard as the district court, determining whether the record, when viewed
in a light most favorable to the non-moving party, shows that there is no
genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Earnest v.
Courtney, 64 F.3d 365, 366-67 (8th Cir. 1995) (per curiam).
The Korkowskis complained that defendants exceeded the scope of the
warrant when they seized a metal box containing birth certificates,
personal-injury settlement papers, house-payment records, money orders, and
other items; cash; and records pertaining to the business of Dale's wife.
After reviewing the warrant and the other summary judgment papers, which
include a history of Dale's tax-evasion efforts, we agree with the district
court that defendants' seizure of the items at issue did not render the
search unconstitutional in these circumstances. See United States v.
Accardo, 749 F.2d 1477, 1479 n.3 (8th Cir. 1985) (seizure of all business
records was constitutional where suspected offense involved complex fraud
scheme), cert. denied, 474 U.S. 949 (1986); Marvin v. United States, 732
F.2d 669, 674-75 (8th Cir. 1984) (unlawful seizure of items outside warrant
does not per se render whole search invalid, although flagrant disregard
for limitations
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of search warrant might make otherwise valid search an impermissible
general search).
We also agree with the district court that no Fourth Amendment
violation occurred when the revenue agents participated in the search,
because they were assisting the officer identified in the warrant. See
Ayeni v. Mottola, 35 F.3d 680, 684, 687 (2d Cir. 1994), cert. denied, 115
S. Ct. 1689 (1995); United States v. Robertson, 21 F.3d 1030, 1034 (10th
Cir.), cert. denied, 115 S. Ct. 238 (1994); see also 18 U.S.C. § 3105;
Minn. Stat. Ann. § 626.13 (West Supp. 1997).
Further, we agree with the district court that the Fourth Amendment
claim against the County and the individual defendants in their official
capacities fails because the Korkowskis did not allege or show the
existence of a governmental custom or policy of violating citizens' Fourth
Amendment rights during the execution of search warrants. See Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985); Oklahoma City v. Tuttle, 471 U.S. 808,
818 (1985); Patzner v. Burkett, 779 F.2d 1363, 1366-67 (8th Cir. 1985).
The Korkowskis also argue on appeal that the district court judge was
biased against them. We reject this claim. The few conclusory allegations
they make as to the judge's conduct fail to show any extra-judicial source
of bias or to overcome the general presumption of judicial impartiality.
See Liteky v. United States, 510 U.S. 540, 554-55 (1994); United States v.
Walker, 920 F.2d 513, 516-17 (8th Cir. 1990).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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