November 8, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2183
MICHAEL A. CROOKER,
Plaintiff, Appellant,
v.
KENNETH VARRIALE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr and Stahl, Circuit Judges.
Michael Alan Crooker on brief pro se.
Donald K. Stern, United States Attorney, and Karen L. Goodwin,
Assistant United States Attorney, on brief for appellee.
Per Curiam. Plaintiff, Michael A. Crooker, appeals the
grant of summary judgment in favor of the defendant, ATF
Agent Kenneth Varriale, in this Bivens action, see Bivens v.
Six Unknown Named Agents, 403 U.S. 388 (1971), that
challenged a November 1991 search of, and seizure of items
from, Crooker's residence and a seizure of an additional item
pursuant to a July 1992 search of that residence. The
district court concluded that Crooker was collaterally
estopped from asserting several of the Bivens claims. As to
those Bivens claims not precluded by collateral estoppel, the
district court determined that the items had been
constitutionally seized as within the scope of the warrant,
in plain view, and/or Agent Varriale was not liable as he was
entitled to qualified immunity.
Upon careful review, we conclude that summary judgment
was appropriate on all counts; although as to certain counts,
we affirm on grounds different from the district court. See
Four Corners Serv. Station, Inc. v. Mobil Oil Corp., 51 F.3d
306, 314 (1st Cir. 1995) (appellate court is free to affirm
on any ground supported by the record). We pass the issue of
collateral estoppel, affirming, instead, on an alternative
ground of qualified immunity, the grant of summary judgment
on the counts deemed precluded. As to the counts involving
the November 1991 seizure of antique firearms and the July
-2-
1992 seizure of ammunition, Crooker has failed to allege a
violation of his own Fourth Amendment rights.
I.
The district court, in a comprehensive memorandum, dated
October 26, 1994, explained the factual and procedural
background. We set out an abbreviated version, outlining
only those facts and the procedural history necessary to
explain the basis for our determination.
Crooker was released from prison in February 1991 after
serving a 4-to-5 year state prison sentence for possession of
a machine gun. Pursuant to a warrant, Agent Varriale
searched Crooker's residence on November 8, 1991, for
firearms, ammunition, and related material. Agent Varriale
seized, among other things, several antique and non-antique
firearms, numerous rounds of ammunition, an address book, a
firearms record card, and firearms publications.1
Crooker was indicted on charges of being a felon-in-
possession of firearms in violation of 18 U.S.C. 922(g).
In this criminal proceeding, Crooker moved to suppress the
1. As noted in our opening paragraph, there was a second
search of Crooker's residence conducted in July 1992.
Pursuant to a separate warrant issued in the course of an IRS
investigation of Crooker for filing false tax refund claims,
Agent Varriale assisted IRS agents in executing the July 1992
warrant and seized ammunition from an antique firearm.
In this Bivens action, Crooker does not contest the
issuance of the July 1992 warrant. He claims only that the
July 1992 warrant did not authorize or encompass a seizure of
that ammunition.
-3-
evidence seized in November 1991, arguing that the warrant
had been issued without probable cause and that items seized
were outside the scope of the warrant. The motion to
suppress was denied by Chief Judge Tauro.
Thereafter, in exchange for the dismissal of the felon-
in-possession indictment, Crooker pled guilty to an
information charging him with conspiracy to possess firearms
by a felon, in violation of 18 U.S.C. 371. By the
dismissal of the felon-in-possession indictment, Crooker
avoided the imposition of a mandatory 15-year term of
imprisonment. The parties agreed to, and Judge Tauro
imposed, an eight-year sentence for the charge to which
Crooker pled guilty.
After pleading guilty in his criminal case, Crooker
moved to lift a stay that had been entered in his earlier
Bivens action against Agent Varriale. Some of the Bivens
claims duplicated the allegations forming the basis for
Crooker's suppression motion, i.e., that the application for
the 1991 search warrant included deliberate false statements,
that the 1991 search warrant was not supported by probable
cause, and that the 1991 search exceeded the scope of the
warrant. Relying on Allen v. McCurry, 449 U.S. 90 (1980)
(collateral estoppel applies to 1983 actions), the district
court determined in the Bivens action that Crooker was
collaterally estopped from relitigating the issues decided in
-4-
the suppression ruling previously entered in the criminal
case. The district court granted summary judgment in favor
of Agent Varriale as to the remaining Bivens claims,
concluding that the items which were the subject of these
counts were lawfully seized or detained or that, in any
event, Agent Varriale was entitled to qualified immunity.
II.
Crooker contends that the district court erred in
concluding that he is collaterally estopped. He cites to
Haring v. Prosise, 462 U.S. 306 (1983), for the proposition
that entry of a guilty plea does not preclude a litigant from
bringing a civil claim based on a Fourth Amendment violation
arising out of the same set of operative facts. The Prosise
Court held, inter alia, that since a plea can be accepted on
the basis of inadmissible evidence, the legality of a search
is not "necessarily determined" by a guilty plea. Id. at
316. We need not consider whether the issues raised by
Crooker were precluded by any adjudication in the criminal
case,2 because we affirm on alternative grounds -- namely
2. We note, however, that the Prosise Court stated that one
concern which animated its decision was the desire to
preserve judicial resources. "The rule [rejected in Prosise]
would require an otherwise unwilling party to try Fourth
Amendment questions to the hilt and prevail in state court in
order to preserve the mere possibility of later bringing a
1983 claim in federal court." Prosise, 462 U.S. at 322.
Further, the Court noted that in the case before it, there
was "no repetitive use of judicial resources and no
possibility of inconsistent decisions that could justify
precluding the bringing of such claims." Id. at 322 n.11.
-5-
qualified immunity -- the district court's grant of summary
judgment on the counts it deemed precluded. See Four Corners
Serv. Station, Inc., 51 F.3d at 314 (appellate court is free
to affirm on any ground supported by the record).
Qualified immunity shields government officials
performing discretionary functions from liability for civil
damages so long as their conduct "does not violate clearly
established statutory or constitutional rights of which a
reasonable [police officer] would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity
defense sweeps broadly, protecting "all but the plainly
incompetent or those who knowingly violate the law." Hunter
v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)). As this court recently
explained,
appellate assessment of a qualified
immunity claim is apportioned into two
analytic components. First, if the right
asserted by the plaintiff was "clearly
established" at the time of its alleged
violation, we are required to assume that
the right was recognized by the defendant
official; second, we will deny the
immunity claim if a reasonable official
situated in the same circumstances should
have understood that the challenged
conduct violated that established right.
Hegarty v. Somerset County, 53 F.3d 1367, 1373 (1st Cir.
1995) (quoting Burns v. Loranger, 907 F.2d 233, 235-36 (1st
Of course, Crooker's litigation of the suppression motion did
require the expenditure of scarce judicial resources.
-6-
Cir. 1990) (citations omitted)). In the context of qualified
immunity, summary judgment is warranted if the plaintiff
fails to generate a trialworthy issue by undermining the
evidence supporting the defendant officer's objectively
reasonable belief that his actions were lawful. Dean v.
Worcester, 924 F.2d 364, 367 (1st Cir. 1991).
The rights which Crooker says were violated -- the right
to be free from a search conducted pursuant to a warrant
premised on deliberate misstatements, the right to be free
from a search conducted pursuant to a warrant unsupported by
probable cause and the right to be free from a search for
items not adequately described in the warrant -- are clearly
established. Franks v. Delaware, 438 U.S. 154, 164-65 (1978)
(reciting that the Fourth Amendment demands a factual showing
sufficient to comprise probable cause and demands that it be
a truthful showing); Krohn v. United States, 742 F.2d 24, 26
(1st Cir. 1984) (same); Berger v. New York, 388 U.S. 41, 55
(1967) (reciting the Fourth Amendment's requirement that a
warrant particularly describe the things to be seized);
United States v. Morris, 977 F.2d 677, 681 (1st Cir. 1992)
(same), cert. denied, 113 S. Ct. 1588 (1993). Consequently,
our analysis turns on whether a police officer in Agent
Varriale's position reasonably could have believed that his
actions did not violate those rights. As regards the actions
surrounding the 1991 search warrant, an objectively
-7-
reasonable officer could have believed that Varriale's
actions did not violate clearly established law.
Crooker contends that the following statement, submitted
by Agent Varriale in support of the 1991 warrant application,
was deliberately false:
In my experience, it is common for
individuals who are prohibited from
legally possessing firearms--but who wish
to do so illegally--to have a household
or family member or associate who is
properly licensed to possess firearms,
make purchases of firearms and ammunition
which are then in fact used by the
prohibited person. In this way persons
who are prohibited from legally
possessing firearms are able to possess
firearms without creating any record of
transactions in their name. Based on my
training and experience, I believe that
such a ruse is likely where, as here,
significant amounts of ammunition are
being received through mail orders and
the purchasing party need not appear in
person.
Crooker argues that this statement is false because it is not
"common" for prohibited individuals to buy firearms and
ammunition through family members and that the amount of
ammunition bought was not "significant." He proposed to
demonstrate that such schemes were not "common," by comparing
the large number of lawful gun owners in the United States
with the small number of "straw-purchasing" schemes detected
each year by law enforcement.3 And he contended that the
3. Crooker neither produced such data, nor requested
additional time within which to do so. See Fed. R. Civ. P.
56(f).
-8-
amount of ammunition purchased could not be termed
"significant" when compared with the 2,000 - 6,000 pounds of
ammunition Crooker's supplier shipped daily.
Crooker's claims fall far short of generating a
trialworthy dispute as to whether Agent Varriale deliberately
supported his warrant application with false information.
Rather, his argument amounts to little more than a semantic
game. Crooker produced absolutely no evidence to refute the
statement that Agent Varriale, based on his experience,
considered firearms purchases by close family members to be a
common method by which prohibited individuals attempt to
acquire firearms illegally. A law enforcement officer, with
experience in such matters, could reasonably conclude that a
particular pattern of criminal behavior was "common" without
undertaking a statistical analysis encompassing all firearm
purchases in the United States. And a reasonable officer
reasonably could conclude that the fifty-one boxes of
ammunition which were delivered to Crooker's residence during
the previous four months represented a "significant" amount
of ammunition.
Crooker's second claim is that the search of his
premises violated the Fourth Amendment because the 1991
search warrant was not supported by probable cause. Once
again, we inquire whether a reasonable officer, in Agent
-9-
Varriale's position, reasonably could have believed that a
search did not violate Crooker's rights.
In United States v. Leon, 468 U.S. 897 (1984), the
Supreme Court held that evidence seized under an invalid
warrant, believed in good faith to be valid by the officers
who executed it, should not be suppressed under the
exclusionary rule. Leon explicitly noted that the standard
of "objective reasonableness" used in assessing a qualified
immunity defense should be used to determine when evidence
seized under a technically invalid warrant, should be
excluded. Id. at 922. The Court stated,
[I]n most such cases, there is no police
illegality and thus nothing to deter. . .
. In the ordinary case, an officer cannot
be expected to question the magistrate's
probable-cause determination or his
judgment that the form of the warrant is
technically sufficient. '[O]nce the
warrant issues, there is literally
nothing more the policeman can do in
seeking to comply with the law.' Stone
v. Powell, 428 U.S. 465, 498 (1976)
(Burger, C.J. concurring).
Id. at 921 (emphasis added).
In Malley v. Briggs, 475 U.S. 335 (1986), the Court made
clear that the Leon analysis serves as well in the qualified
immunity analysis applicable to police officers in the
position of Agent Varriale.
[W]e hold that the same standard of
objective reasonableness that we applied
in the context of a suppression hearing
in Leon, [468 U.S. 897 (1984),] defines
the qualified immunity accorded an
-10-
officer whose request for a warrant
allegedly caused an unconstitutional
arrest. Only where the warrant
application is so lacking in indicia of
probable cause as to render official
belief in its existence unreasonable,
Leon, [468 U.S.] at 923, will the shield
of immunity be lost.
Id. at 344-45 (footnote omitted).
The Leon Court set forth three circumstances wherein
good-faith reliance upon a neutral magistrate's probable
cause determination could not be found. First, in
circumstances where the police submitted affidavits in
support of the warrant application, which they knew, or
should have known, were false. Id. at 923. The affidavit
submitted in support of the 1991 search warrant contained no
such statements. Second, the police cannot place good-faith
reliance upon a warrant issued by a magistrate who has
"wholly abandoned his judicial role." Id. There is no such
suggestion in this case. Third, the police cannot assert
good-faith reliance on a warrant issued on the basis of an
application which was "so facially deficient -- i.e., in
failing to particularize the place to be searched or the
things to be seized -- that the executing officers cannot
reasonably presume it to be valid." Id. The 1991 warrant
issued for Crooker's residence was entirely regular on its
face. Consequently, in executing the 1991 warrant Agent
Varriale was entitled to place good-faith reliance upon the
-11-
search warrant, as an objectively reasonable basis for
executing the warranted search of Crooker's residence.
Crooker's third claim is that the search conducted by
Agent Varriale exceeded the scope of the warrant. The
warrant authorized a search for "ammunition and firearms,
possession of which constitute a violation of Title 18,
United States Code, Section 922(g), firearms maintenance
equipment, records of purchases, deliveries and receipts of
firearms and ammunition, including invoices, bills of sale .
. . and correspondence which constitute evidence of violation
of [18 U.S.C. 922(g)]."
Crooker first contends that seizure of the modern
firearms was outside the scope of the warrant, because Agent
Varriale did not have probable cause to believe that the
firearms actually belonged to him (and hence were possessed
in violation of 922(g)) and not Susan Bartnicki, with whom
he was living at the time of the November 1991 search (and
who was not barred from possession by 922(g)).
Nonetheless, a reasonable officer could reach the conclusion
that the firearms were possessed by Crooker based upon 1) the
fact that Crooker had signed for and tendered the payment for
ten boxes of ammunition, 2) the fact that the firearms were
within Crooker's residence and 3) the fact that the key to
the gun safe was hanging in Crooker's bedroom.
-12-
Crooker also contends that the seizure of antique
firearms was outside the scope of the warrant, because they
are not within the purview of 922(g). See 18 U.S.C.
921(a)(3), (16) (defining antique firearms and exempting same
from definition of "firearms" regulated under 922). We
affirm summary judgment for Agent Varriale on this count
because, in any event, Crooker did not allege any violation
of his Fourth Amendment right with respect to the seizure of
the antique firearms. "Fourth Amendment rights are personal
rights which, like some other constitutional rights, may not
be vicariously asserted." Alderman v. United States, 394
U.S. 165, 174 (1967). The Fourth Amendment's prohibition
against unreasonable seizures protects a possessory interest
in property. "[A] seizure deprives the individual of
dominion over his or her person or property." Horton v.
California, 496 U.S. 128, 133 (1990).4 Although Crooker has
claimed that, even as a convicted felon, he may lawfully own
and possess antique firearms, he alleged in the Bivens "Third
Amended Complaint" that the particular antique firearms
seized pursuant to the November 1991 warrant belonged to
4. Of course, the Fourth Amendment also protects against
unreasonable searches. "A search compromises the individual
interest in privacy." Horton, 496 U.S. at 128. Crooker had
a legitimate expectation in the privacy of his home. As the
searching officers had a valid search warrant and discovered
the antique firearms during the course of, and within the
permissible scope of, their authorized search for modern
firearms, however, Crooker's privacy interest was not
violated.
-13-
Bartnicki, who is not a party to this complaint. Similarly,
Crooker may not complain about the seizure of the ammunition
taken from an antique firearm during the course of the July
1992 search as he has alleged that that firearm and
ammunition belonged to Bartnicki.5
As to the remaining items seized under the 1991 warrant,
we agree with the district court.6 The address book and the
firearms record card and handwritten notes were either within
the scope of the warrant authorizing the seizure of "records
of purchases, deliveries and receipts of firearms and
ammunition, including . . . correspondence which constitute
evidence of violation of Title 18, United States Code,
Section 922(g)" or legitimately seized as being within "plain
view." We further agree that, in any event, Agent Varriale
was entitled to qualified immunity because a reasonable
officer in Varriale's position could so believe. Similarly,
we conclude that the legal papers and firearms publications
(counts which the district court found barred by collateral
estoppel) were constitutionally seized as within the scope of
the warrant, in plain view, or that, in any event, Agent
Varriale is entitled to qualified immunity.
5. Crooker was never charged in his criminal proceeding with
the unlawful possession of any of the antique firearms seized
in November 1991 or the ammunition seized in July 1992.
6. We also agree with the district court's conclusion with
respect to Crooker's complaint about the detention of a
package from Shooter's Equipment Company.
-14-
Finally, although not raised as a separate count in his
Bivens complaint, during the course of the district court
proceedings Crooker complained about the retention of items
seized. Whether Agent Varriale was personally responsible
for the retention of the items and had authority to order the
return of items taken in the search and, thus, is the proper
defendant with respect to such a claim is of some doubt.
See, e.g., Go-Bart Co. v. United States, 282 U.S. 344, 354-55
(1931) (reciting that because the United States Attorney had
control of the prosecution, the papers seized were held
subject to his control and direction, although in the
immediate care and custody of the officer who seized them);
Thompson v. Williamson, 962 F.2d 12 (8th Cir. 1992)
(unpublished per curiam) (affirming summary judgment in
Bivens action seeking return of property in favor of FBI
agent who alleged that he could not release property without
approval of AUSA). In any event, Crooker has not been clear
as to which items he refers. He, of course, is not entitled
to the return of any contraband. And, insofar as Crooker is
referring to the antique firearms seized in November 1991 and
the ammunition seized in July 1992, Crooker's failure to
establish that he is the rightful owner, see supra, defeats
this claim. Finally, insofar as he may be referring to
personal papers, Crooker now states that his property has
-15-
been returned. We conclude, therefore, that this claim is
moot.
Affirmed.
-16-