United States v. Anna M. Strand, A/K/A Anna Rogers

BOWMAN, Circuit Judge,

dissenting from Part V of the opinion of the Court.

As mentioned earlier, I dissent from the holding of the Court in Part V that Leon *458and Sheppard do not permit the introduction of the household items seized as “stolen mail” during the search of the Strand/Rogers apartment as evidence against Anna Strand on Count I of the indictment. With all due respect, I believe the Court in Part V is not properly distinguishing between the technical dictates of the Fourth Amendment’s particularity requirement and the nature of the inquiry mandated by Leon and Sheppard. Neither Leon nor Sheppard alters the substantive requirements of the Fourth Amendment in any way. Rather, they simply announce a rule of evidence: if, after determining that a warrant does not satisfy the requirements of the Fourth Amendment, a court concludes that the executing officer’s reliance on the warrant nevertheless was objectively reasonable, evidence seized in reliance on that warrant is not to be excluded. Because there are a number of factors that convince me that the postal inspectors had an objectively reasonable basis for believing that they were conducting only the search that the warrant authorized them to conduct, I would hold that Leon and Sheppard require us to affirm Strand’s conviction on Count I.

Leon and Sheppard clearly contemplate that “ ‘[sjearches [made] pursuant to a warrant will rarely require any deep inquiry into reasonableness,’ for ‘a warrant issued by a magistrate normally suffices to establish’ that a law enforcement officer has ‘acted in good faith in conducting the search.’ ” Leon, 104 S.Ct. at 3421 (quoting Illinois v. Gates, 462 U.S. at 267, 103 S.Ct. at 2347 (White, J., concurring in the judgment) and United States v. Ross, 456 U.S. 798, 823 n. 32, 102 S.Ct. 2157, 2172 n. 32, 72 L.Ed.2d 572 (1982)). By way of illustration of the inquiry reviewing courts are to make, the Supreme Court noted that certain situations would negate a belief that an officer acted with objective reasonableness: (1) if a judge or magistrate in issuing a warrant was misled by an affidavit the affiant knew or should have known was false; (2) if a judge or magistrate has wholly abandoned the judicial role and merely serves as a rubber-stamp for police; (3) if the affidavit supporting the warrant so lacked probable cause as to render official belief in its validity unreasonable; or (4) if a warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Leon, 104 S.Ct. at 3421-22.

In the present case, the majority does not hold, and I find no indication, that any of these four conditions is present. There is no evidence that Inspector George was dishonest or reckless in preparing the affidavit, nor that the magistrate abandoned his detached and neutral role in issuing the warrant. The issuing magistrate and the District Court in this case both concluded, as have we, that the affidavit established probable cause; thus, we clearly cannot say that the affidavit was “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” Leon, 104 S.Ct. at 3422 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265-66, 45 L.Ed.2d 416 (1975)). Nor was the warrant so facially deficient that the postal inspectors executing the warrant could not reasonably have believed it to have been valid. Indeed, in Part II of the Court’s opinion we have held that the warrant validly authorized a search for stolen mail.

Instead of analyzing the objective reasonableness of the search in the present case on the basis of the four Leon factors, however, the Court conducts a more general inquiry into the objective reasonableness of the search. Essentially, the Court concludes that the postal inspectors could not have believed they did not exceed the scope of the search they were permitted by the warrant because neither the warrant nor the affidavit contains a sufficiently particularized list of the items to be seized. I do not dissent from this more general inquiry since I believe, as indicated by the nature of the inquiry undertaken by the Supreme Court in Sheppard, the four factors articulated in Leon are merely illustrative of the inquiry a reviewing court must undertake to determine whether an objectively reasonable basis existed for the search actually *459undertaken by government agents. But I believe the Court errs in concluding that the same lack of particularity of the descriptions of the household items in the warrant and affidavit that requires us to hold that the seizure of the household items violated the Fourth Amendment also demonstrates the lack of an objectively reasonable belief on the part of the postal inspectors that they were conducting precisely the search the magistrate had authorized them to conduct.

First and foremost, I note that in the present case, a United States District Judge conducted a de novo review of the question we now consider. He concluded that “the items seized did not exceed the permissiveness of the search or violate the defendant’s Fourth Amendment rights.” United States v. Strand, No. 3-83 Cr. 69 (D.Minn. July 27, 1983) (order of District Court affirming decision of magistrate and denying defendant’s motion to suppress). While I concur with my brethren in concluding as a matter of law that the District Judge erred in so holding, I find the fact that he so concluded remarkably strong evidence for the proposition that the postal inspectors could have had an objectively reasonable basis for reaching the same conclusion. I cannot join a holding that would require postal inspectors to be more sophisticated judges of Fourth Amendment jurisprudence than our own District Court Judges.

I do not, however, rely on the District Court’s ruling alone for my conclusion that the postal inspectors had an objectively reasonable basis for believing that they were conducting only the search they were authorized to conduct. An examination of the evidence that convinced the District Court the postal inspectors acted, as a matter of law, within the scope of their warrant convinces me that the postal inspectors had an objectively reasonable basis for believing that they were authorized to seize the household items they actually seized.

Inspector George had applied for a warrant on the basis of an affidavit that listed a number of household items believed by him to have been stolen by Strand from the mail. The last paragraph of his affidavit states that:

Your affiant, from the above information, has reason to believe that the above merchandise and outgoing mail from the post offices located on the star route is evidence of the possession of stolen mail matter by Paul Rogers and Anna Strand (18 U.S.C. 1708) and believes the merchandise from the parcels and some of the mail can reasonably be expected to be in the home of Paul Rogers and Anna Strand at 260 Broadway Street East, Apt. 4, New Germany, Minnesota, (emphasis added).

The magistrate examined the affidavit and then issued a warrant directing postal inspectors to seize “stolen mail.” The warrant referred to the affidavit, even though, as we have held in Part II of this opinion, as a matter of law, the warrant did not incorporate the affidavit. Clearly, Inspector George reasonably could have believed that the term “stolen mail” as used in the warrant authorized him to seize those items of merchandise that he had described in his affidavit as having been stolen from the mail. Indeed, I have some difficulty in seeing how he reasonably could have thought otherwise. In his affidavit, Inspector George had specifically referred to the missing merchandise as “stolen mail matter,” and the magistrate had issued a warrant authorizing him to seize the “stolen mail.” We should “refuse to rule that an officer is required to disbelieve a judge who has just advised him, by word and action, that the warrant he possesses authorizes him to conduct the search he has requested.” Sheppard, 104 S.Ct. at 3429.

I find further evidence of the objective reasonableness of the search in the fact that Postal Inspector George, the officer who had submitted the affidavit and therefore knew what particular merchandise had been reported by postal customers as missing, personally supervised the search of the Strand/Rogers apartment. See id. at 3429 n. 6 (officer who directed the search knew what items were listed in the affidavit *460presented to the judge and had good reason to believe that the warrant authorized the seizure of those items). This is simply not a ease where a group of officers who were unfamiliar with the meaning ascribed to the term “stolen mail” by the officer/affi-ant and the magistrate started seizing ordinary household items in an unrestrained seizure of personal effects. A copy of the affidavit accompanied the warrant and items were compared to the affidavit in Strand’s presence.

The opinion of the Court properly notes that the postal inspectors also seized a number of items that were listed in a separate document that accompanied the inspectors during the search. Some of these items had come to the inspectors’ attention as having been reported missing from Strand’s mail route only after the affidavit was submitted, and therefore were not listed in the affidavit. It seems quite clear to me that to the inspectors the items listed in the affidavit and in the additional document all were encompassed by the term “stolen mail,” and they already had in their possession a warrant, based upon an affidavit listing similar household items, authorizing them to search for “stolen mail.” Under these circumstances, I cannot say that the inspectors’ reliance on the warrant as including all listed items reported as missing within the term “stolen mail” was not objectively reasonable.

Even were I to join the Court in holding that items seized as “stolen mail” by reference to a list not presented to the magistrate should be excluded, I still do not believe Strand’s conviction on Count I should be reversed. At least two of the items seized — a yellow flower pattern antique china butter plate and some Vivian Woodard cosmetics — were specifically listed in the affidavit and are set forth. as stolen articles in Count I of the indictment. The butter plate was described about as particularly as such an item can be described by anyone not especially versed in antique china. Even if all the other household items should have been suppressed, surely under Leon and Sheppard the seizure of the butter plate was objectively reasonable. This piece of evidence alone is sufficient to support Strand’s conviction on Count I.

I also believe that our case law would permit the postal inspectors in the present case to have formed the objectively reasonable belief that, on the basis of the warrant they had been issued, they were entitled to seize merchandise that had been reported as missing by postal customers. This Circuit has held that “[i]f the warrant itself was not so broad as to constitute a general search, then an item not mentioned in the warrant may be seized if the item is reasonably related to the crime for which the warrant issued.” Taylor v. Minnesota, 466 F.2d 1119, 1121 (8th Cir.1972), cert. denied, 410 U.S. 956, 93 S.Ct. 1425, 35 L.Ed.2d 689 (1973). We have held in this case that the warrant did authorize the seizure of letters and packages; while we also have held that the warrant as issued was not sufficiently particular to support the seizure of the household items, we reversed a District Court in so doing. If a case decided in this Circuit permits a governmental agent to seize an item not mentioned in a warrant as long as the item is related to the crime for which the warrant issued, and if the postal inspectors in the present case were validly authorized to search for stolen mail (as we have held), I find it hard to conclude that the postal inspectors could not have had an objectively reasonable basis, grounded in the law of this Circuit, for believing they could seize additional items that also had been reported to them as being stolen from the mail and therefore were closely related to the crime for which the warrant had issued.

Finally, I note that the basis for the Leon and Sheppard decisions was that excluding the evidence seized in those two cases would in no way have enhanced the deterrent function of the exclusionary rule. Similarly, I do not believe that excluding the household items seized from the Strand/Rogers apartment in the present case would serve the exclusionary rule’s deterrent function. The postal inspectors had established probable cause and they *461had a valid warrant to enter the apartment and search for stolen mail. Their conduct in executing the warrant was in no way outrageous or in any way unreasonable. The Fourth Amendment transgression that occurred is highly technical and entirely the result of an innocent mistake — one so subtle that the District Court failed to perceive it. I conclude that the household items seized are admissible under the Leon-Skeppard doctrine, and thus I would affirm Strand’s conviction on Count I.