United States v. Klebig, Alan L.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 1, 2007
Decided July 10, 2007
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 06-3663 Appeal from the United States
District Court for the Eastern
UNITED STATES OF AMERICA, District of Wisconsin
Plaintiff-Appellant,
No. 06 CR 64
v.
Charles N. Clevert, Jr., Judge.
ALAN K. KLEBIG,
Defendant-Appellee.
ORDER
The government indicted Alan Klebig in a two-count indictment, charging
him with possession of an unregistered firearm and possession of an unregistered
firearm silencer. Klebig filed a motion to suppress the firearm and the silencer.
The district court granted Klebig’s motion to suppress and the government appeals.
We reverse and remand.
No. 06-3663 Page 2
I.
Good fences make good neighbors. But apparently no fence was tall enough
for Alan Klebig. According to police, Klebig had it out for his 81-year-old neighbor,
Doris Gillis, believing she had reported him to the city for various property
violations, resulting in the Watertown, Wisconsin Building Inspection Department
issuing Klebig thirty-three citations, totaling over $5,000. Gillis believed that in
retaliation Klebig damaged her home, yard, and personal property from April 2005
to October 2005. For instance, on April 20, Gillis found a white powdery substance
dumped on her lawn. When a police officer touched the substance, it burned his
hand, and it also burned through his leather gloves. Gillis also told police in early
May that someone had damaged her lawn and plants with an unknown chemical
substance. In July, someone drove from Klebig’s driveway over Gillis’s grass and
onto her driveway, leaving an oil spill. Also in July, Gillis discovered a white
powdery substance around the gas tank of her lawn mower and the powder had
corroded some of the aluminum on the gas tank cover. Then, in September, officers
obtained more solid evidence connecting Klebig to the sabotage: On September 11,
a surveillance camera set up by Gillis recorded a substance being sprayed across
the fence line from Klebig’s property onto Gillis’s property. The substance damaged
the paint on the siding of Gillis’s house and destroyed a motion light. Later in
October, Gillis’s son reported that someone had also come to his house and poured
motor oil on his front walk and driveway and that he had discovered several dead
spots on his lawn, where he had found liquid and pieces of broken balloons.
Based on this evidence, on October 18, 2005, police sought a search warrant
for Klebig’s home. Detective Kathy Selk contacted the local District Attorney’s
office, providing the office with information concerning the investigation of Klebig,
including the above incidents and the fact that a sample of the white powder that
caused damage to Gillis’s residence had been analyzed by the Wisconsin State
Crime Lab and had been found to be “an unknown acid.” In response, the District
Attorney’s office drafted a search warrant, which was later approved by a state
court judge. The search warrant permitted law enforcement officers to search
Klebig’s residence, garage, and shed, and to seize: “Any chemicals, containers
containing residue of chemicals, any oil and containers containing residue of oil, and
anything that could be used to spray chemicals.”
Four Watertown police detectives executed the warrant that same day. They
searched Klebig’s entire house, including drawers, closets, and under beds. The
officers seized a wide array of items covered by the warrant, including several
containers of various types of acids, such as phosphoric acid, muriatic acid, and
No. 06-3663 Page 3
hydrochloric acid.1 They also seized several cleaning products that contained
hydrochloric acid. The officers, however, also seized other items found during the
search, some of which were illegal (marijuana, a .22 caliber rifle fitted with a home-
made silencer, a sawed-off rifle, and a fake bomb) and others of which were not,
such as sheets of paper containing Klebig’s signature, an insurance form that had
written on it the titles of several movies, and (bizarrely) a dead mink wrapped in
aluminum foil found in a freezer.
The United States later charged Klebig with possession of an unregistered
firearm and possession of an unregistered firearm silencer, in violation of 26 U.S.C.
§§ 5861(d) and 5871. Klebig moved to suppress the evidence obtained during the
search of his house, arguing that the police lacked probable cause and that the
warrant did not describe with particularity the items to be seized. A magistrate
judge concluded that the government had probable cause to believe that Klebig had
used chemicals to damage his neighbor’s property, but concluded that the warrant
did not satisfy the Fourth Amendment’s “particularity” requirement because it
permitted the seizure of “any chemicals” and “any oil” in the house, which would
extend to “[c]ountless personal hygiene items, ordinary household cleaning supplies,
detergents, drugs, and even many foods and baking supplies” along with “oil of the
motor, olive, baby, or countless other varieties.” The magistrate judge also rejected
the Leon good-faith exception, concluding that no reasonable officer would believe
that a search warrant requiring the seizure of “any chemicals” or “any oil” was
valid. See United States v. Leon, 468 U.S. 897, 926 (1984). The magistrate judge
then concluded that while the police discovered the two rifles in plain view, the
weapons and the silencer should be suppressed “[b]ecause the officers’ presence was
pursuant to a plainly facially defective search warrant, [and thus] the officers were
not in a lawful position to discover these firearms and therefore the firearms were
not properly seized.” The magistrate judge further concluded that although
“ordinarily the proportional remedy when police officers exceed the scope of a search
warrant is the suppression of only the evidence seized that was beyond the scope of
the warrant,” that limited suppression would be inappropriate here because the
search degenerated into a “general search.” The district court adopted the
magistrate judge’s recommendation as its own decision, and suppressed the sawed-
off rifle and firearm silencer. The government appeals.
1
This was not the first time officers discovered chemicals at Klebig’s home: Four years
earlier, Klebig’s house burned down, and police investigating the fire believed it was caused by
chemicals stored in his house.
No. 06-3663 Page 4
II.
The Fourth Amendment requires a warrant to describe with “particular[ity] .
. . the place to be searched and the persons or things to be seized.” U.S. Const.
amend. IV. In this case, the district court held that the search warrant was invalid
because the directive to seize “any oil” and “any chemicals” lacked particularity.
Whether a warrant satisfies the particularity requirement of the Fourth
Amendment is a question of law, which we review de novo. United States v. Vitek
Supply Corp., 144 F.3d 476, 480 (7th Cir. 1998).
On appeal, the government does not challenge the district court’s conclusion
that the directive to seize “any oil” lacks particularity. Rather, the government
argues that the “any chemicals” description in the warrant was sufficiently
particular so as to satisfy the Fourth Amendment and that because this portion of
the warrant was valid and severable from the overbroad category of “any oil,” the
officers’ search was constitutional. The government then maintains that because
the search was constitutional, the illegal firearm and silencer, discovered in plain
view during the search for chemicals, are admissible.
We first consider whether the “any chemicals” description satisfied the
particularity requirement of the Fourth Amendment. “In practice, courts have . . .
demanded that the executing officers be able to identify the things to be seized with
reasonable certainty and that the warrant description must be as particular as
circumstances permit.” United States v. Jones, 54 F.3d 1285, 1290 (7th Cir. 1995)
(internal quotation omitted). However, “[i]f detailed particularity is impossible,
generic language is permissible if it particularizes the types of items to be seized.”
United States v. Hall, 142 F.3d 988, 996 (7th Cir. 1998). In this case, the officers
did not know exactly what chemicals Klebig had used to sabotage his neighbor’s
house. Some of the chemicals were liquid—for instance, the chemicals sprayed over
the fence on the house—while others were powder, like the white powder found on
the lawn mower. The magistrate judge, in its recommendation adopted by the
district court, believed that “caustic chemicals” was a more apt description.
Without that limitation, the judge concluded that the “any chemicals” category
would justify the seizure of “the sodium chloride in the salt shaker” and the
“acetylsalicylic acid (aspirin) in the medicine cabinet.” However, contrary to the
magistrate judge’s analysis, a reasonable officer would not read the “any chemicals”
category as justifying the seizure of anything that could be expressed with a
chemical name. Nor does it seem that the adjective “caustic” would add much to the
meaning of the warrant, given the unique circumstances of this case, namely that
many household chemicals, if misused, could inflict damage to lawns or paint.
No. 06-3663 Page 5
Since a detailed particularity was impossible in this case, the generic language “any
chemicals” was therefore sufficient for purposes of the Fourth Amendment.
Alternatively, even if the “any chemicals” language did not satisfy the
particularity requirement of the Fourth Amendment, the seized evidence is
admissible if the officers relied on the warrant in good faith. See Jones v. Wilhelm,
425 F.3d 455, 464 (7th Cir. 2005) (“Even if a warrant is ultimately found to be
unsupported by probable cause or lacking in particularity, searches conducted
pursuant to the warrant may be valid under the good-faith exception set forth in
United States v. Leon, 468 U.S. 897, 926 . . . . (1984)”). Seeking a search warrant is
prima facie evidence that a police officer is acting in good faith. United States v.
Mykytiuk, 402 F.3d 773, 777 (7th Cir. 2005) To rebut this presumption of good faith,
Klebig must show that:
(1) courts have clearly held that a materially similar affidavit previously
failed to establish probable cause under facts that were indistinguishable
from those presented in the case at hand; or (2) the affidavit is so plainly
deficient that any reasonably well-trained officer would have known that his
affidavit failed to establish probable cause and that he should not have
applied for the warrant.
United States v. Harju, 466 F.3d 602, 607 (7th Cir. 2006) (internal quotation
omitted).
Klebig does not identify a materially similar warrant that has been held
lacking in particularity, nor is the warrant in this case so plainly deficient that a
reasonably well-trained officer would have known that the warrant lacked
particularity. In fact, in this case, the District Attorney’s office prepared the search
warrant that was approved by a state court judge. Under these circumstances, even
if “any chemicals” was lacking in particularity to satisfy the Fourth Amendment, we
conclude that the officers executing the warrant could have relied on that warrant
in good faith.
Having concluded that the “any chemicals” description satisfied the
particularity requirement of the Fourth Amendment, the question then becomes
whether the valid portion of the search warrant is severable from the authorization
No. 06-3663 Page 6
to seize “any oil,” which the government conceded was overbroad.2 We addressed
this issue in United States v. Reed, 726 F.2d 339, 342 (7th Cir. 1984). In that case,
the defendant argued that a warrant that allowed officers to seize cocaine and proof
of residency was lacking in particularity. After holding that the “proof of residency”
language, in conjunction with a search for other named contraband, was sufficiently
narrow for constitutional purposes, this court added:
Even if “proof of residency” as the object of a search were vague and
overbroad, however, only that much of the June 5, 1979, warrant would fail.
The search for cocaine would remain valid as stated with sufficient
particularity and severable from any invalid search. While a search for
“proof of residency” may have sparked the officers’ interest in the portfolio
full of envelopes and papers, the search for cocaine equally could have
prompted a look into the portfolio. A search for drugs justifies entry into
containers where the drugs would fit and might reasonably be found. . . .
Because the search for cocaine was lawful, seizure of the other items may be
analyzed under the plain view exception to the warrant requirement and
need not be justified under the “proof of residency” part of the search
warrant.
Id. at 342-43.
Similarly, in this case, even with the government’s concession that the “any
oil” language was overbroad and lacking in specificity, the search for “any
2
Klebig claims that the government waived its “severability” argument that the evidence
was admissible because the search for “any chemicals” was valid, even if the search for “any oil”
was not. Before the district court, the government argued that the warrant was valid as to both
the “any chemicals” and “any oil” description. On appeal, although the government presents a
narrower argument than that made before the district court, the government also argued to the
district court that the “any chemicals” description was sufficiently particular. The government
also asserted before the district court that items legally seized under the valid warrant “would
remain valid as stated with sufficient particularity and severable from any invalid search . . . .”
In making that argument to the district court, the government had maintained that the entire
warrant was valid, while now the government only maintains that the “any chemicals” portion of
the warrant is valid. Nonetheless, the broader arguments were presented to the district court and,
therefore, the government has not waived this argument. See In re Udell, 18 F.3d 403, 406 (7th
Cir. 1994) (concluding that there was no waiver because “at one time or another, the substance
of all of the [appellant’s] present argument [was] subsumed in the presentation to the district
court”).
No. 06-3663 Page 7
chemicals” remains valid, as it was stated with sufficient particularity and
severable from any invalid search.3 See id. Thus, the officers were legally entitled
to be inside Klebig’s house and to search in areas where chemicals could be stored.
This included under the bed and in the closet, which is where the officers discovered
the illegal firearm and silencer. Because the officers were legally entitled to search
under the bed and in the closet and because the illegality of the firearm and silencer
was readily apparent, the plain view doctrine justified their seizure. See Horton v.
California, 496 U.S. 128, 136-37 (1990) (holding that the plain view doctrine
provides for the admissibility of evidence seized if the officer was legally entitled to
search in the area where the contraband was found; the evidence was in plain view;
and the incriminating character of evidence seized was immediately apparent).4
Klebig responds, quoting from Hessel v. O’Hearn, 977 F.2d 299, 302 (7th Cir.
1992), that the “[f]lagrant disregard for the terms of the warrant transform[ed] it
into a general warrant, which the Fourth Amendment forbids.” Hessel, 977 F.2d at
302. However, as this court explained in United States v. Buckley, 4 F.3d 552, 557-
58 (7th Cir. 1993):
Even if we were to find that the officers exceeded the scope of the warrant,
the defendants would not succeed on [their motion to dismiss]. They argue
specifically that certain items such as jewelry, a telephone book and a vehicle
title exceeded the scope of the warrant. They claim these “errors” would be
enough to suppress the primary evidence against them, namely the cocaine
and marijuana plants. . . . If the defendants in this case wish for suppression
of all of the evidence, they must assert that all of the evidence was beyond
3
Klebig argues that the severability doctrine should only apply in limited circumstances,
citing decisions from other circuits where the courts considered whether the valid portions make
up the “greater part of the warrant” and whether “[a] warrant’s invalid portions, though
numerically fewer than the valid portions, may be so broad and invasive that they contaminate
the whole warrant.” United States v. Sells, 463 F.3d 1148, 1159-60 (10th Cir. 2006). We need
not decide whether to adopt a more restrictive severance standard in this case because a majority
of the warrant was properly particularized (i.e., the “any chemicals,” “containers containing
residue of chemicals,” and “anything that could be used to spray chemicals”) and the invalid
portion (“any oil and containers containing residue of oil”) did not allow for a broader or more
invasive search than the valid portion of the warrant.
4
On appeal, Klebig does not argue that the incriminating nature of the rifle and silencer
was not readily apparent.
No. 06-3663 Page 8
the scope of the warrant. The seizure of uncontested evidence remains valid
and is severable from any invalid search.
Similarly, in this case, even though the officers exceeded the scope of the
warrant and improperly seized some evidence, that does not make the evidence of
the illegal rifle and silencer, which were legally seized, inadmissible. Accordingly,
the district court erred in granting Klebig’s motion to suppress.
III.
Given the circumstances of this case, the warrant’s authorization to seize
“any chemicals” satisfied the Fourth Amendment’s particularity requirement.
Accordingly, the officers were legally entitled to search Klebig’s house, including
inside the closets and under the bed, as chemicals could have been hidden there.
While looking for chemicals in those places, the officers also found the sawed-off
rifle and the unregistered silencer. The plain view doctrine permitted the seizure of
these items, and although the officers exceeded the scope of the warrant in other
respects, that excess does not taint the properly seized evidence. Accordingly, the
district court erred in granting Klebig’s motion to suppress. We REVERSE and
REMAND.