United States v. Allan Michael Klein

BELL, LAY, Circuit Judge, Circuit Judge.* LAY, Circuit Judge. 5, 1975,

On March federal issued a warrant the search of a store Somerville, retail music located Massachusetts, known “Das and L Limit- warrant ed”. The authorized the executing officer to seize “certain 8-track electronic tape which are cartridges unau- ‘pirate’ reproductions thorized and also any commercial documentation and advertising relating materials thereto are evi- dence of commission of a criminal of- wit, fense, knowing and wilful in- fringement secured copyrights Title Code, United States in violation of 17 Circuit, Eighth sitting designation. *Of ”1 that it failed circumscribe the executing execution of U.S.C. § agents, FBI with the three officer’s discretion particularly describ- experts from the of two or three assistance seized, things second, recording industry, entered busi- music were seized in violation of the L where premises of D and ness principles of Warden v. Hayden, 387 U.S. which the be- eight-track 18 L.Ed.2d reproductions of be unauthorized lieved to since there was not a sufficient nexus be- recordings. Following sound copyrighted tween the charged crime and the items was filed seizure a 10 count information seized. Because we find that the warrant L, D alleged owners of and against insufficiently described the items to be Weiner, charging Lawrence Allan Klein and seized we need not discuss the second basis reproduc- selling with unauthorized them Judge Garrity’s for holding; we affirm the recordings sound copyrighted tions of ruling of the district court. pleading violation of 17 104. After U.S.C. § a motion guilty, not the defendants filed issuing The affidavit submitted to the grounds that the suppress tapes on magistrate by Agent of the FBI Saraceni in violation of the warrant was issued which preceded recites the facts the is- court, the The district Fourth Amendment. of the warrant.2 In the affidavit suance Jr., Garrity, presid- Arthur Honorable W. stated that on March 3 and suppress on Saraceni sustained the motion ing, First, premises he entered defendant’s grounds: the warrant did and two eight-track with the Fourth Amendment in an comply purchased on each occasion provides Straw, spoke 1. 17 U.S.C. 104 § that: On 3/3/75 I also with William [A]ny willfully profit attorney Records, Inc., person who and for an for Warner Brothers by infringe any copyright Boulevard, Burbank, secured this shall 3701 Warner Cal. Straw title, knowingly willfully copyright and aid or who shall told me that certificate N19790 was infringement, shall be deemed by Register or abet such Copyrights issued the U.S. misdemeanor, guilty and Records, Inc., 10/10/74, of a convic- Brothers on Warner re punished imprison- shall be tion thereof tape Tull War the “Jethro Child” and that War- year exceeding a fine for not one or Brothers, Inc., ment ner had not authorized Bonanza $1,000, $100 of not less than nor more than anyone reproduce any Productions or else to both, in the discretion of the court. part tape. of the “Jethro Tull War Child” Limited, complete 3/4/75 I went to D and L read: On 239 The affidavit Street, Somerville, purchased Elm I where an Special My I a Saraceni. am name is John Reddy tape 8-track entitled “Helen Free and Boston, Investigation, Agent, Federal Bureau Easy” premises $3.00 for cash. While on the I Mass. approximately Thomas, noticed tapes 500 or more 8-track Wayne spoke I with On 3/3/75 which, upon my previous experi- Wamer/Electra/Atlantic, Inc., based for salesman subsidiary area, appeared Communications, ence in this to be unauthorized Inc. of Warner reproductions copyrighted commercial H located at 110 Commerce Thomas’ office is tapes. Woburn, Way, Mass. Jackson, spoke tape On 2/13/75 I with David me with an 8-track Thomas furnished Records, Inc., attorney Capitol for 1750 North Tull War Child”. was labeled “Jethro which Street, Hollywood, says produced Vine California. Jackson it was “Bonanza label The. Inc., Sales, Productions,” Register Copyrights Art advised me that the U.S. a division of purchased Capitol Georgia. copyright this certificate N20147 to Thomas told me he issued Records, Inc., Limited,” Street, Reddy Easy” tape Elm “D and L 239 for “Helen Free and from Somerville, Mass., 2/25/75, 10/14/74, Capitol $3.00 for cash. on on had not and authoriz- Huffman, anyone reproduce tape. Mitch Dis- I met with On 3/3/75 ed else to On Manager tape Warner/Electra/Atlan- trict Sales I 2/13/75 also obtained an 8-track tic, produced England Region another 8-track Manager Inc. Huffmann New Sales Child”, Records, Inc., Johnson, tape which he Capitol entitled “Jethro Tull War James of 235 being genuine tape produced Street, identified as Elm tape Dedham. Johnson identified that Communications, subsidiary Warner production, another an authorized manu- Records, Inc., Inc., wit, in a Records, Inc., to Warner Brothers by Capitol copy- factured “Chrysalis joint Records”. We venture righted Reddy Easy”. “Helen Free and On tape played and the Warner then the Bonanza tape purchased I I 3/4/75 listened to the at Brothers-Chrysalis tape, Mr. Huffman and and tape D L I Limited and to the re- tapes on the two found that the sounds 2/13/75, both ceived from James Johnson appeared to be identical. the sounds on the two sounded identical. 186 623-35, determined was an un- which he later 6

tape S.Ct. 29 L.Ed. (1886). copyright tapes. reproduction authorized also Texas, See Stanford v. supra, 379 U.S. 481-86, 506; at S.Ct. Marcus v. Search the warrant nor the affida neither Since Warrant, 717, 724-29, “pirate” the so-called specifies how vit 1708, 6 (1961); L.Ed.2d 1127 identified, Mary- Frank v. the defendants were to be land, 360, 363-66, U.S. illegal “gener is an S.Ct. that the warrant assert L.Ed.2d 877 that the under seized al warrant” suppressed. They rely must be the warrant does not language often of Marron repeated on the all have the indices States, general v. United It is limited (1927): particular to search of a place 72 L.Ed. 231 items, particular is, certain requirement shall warrants eight-track tapes cartridges located particularly .things describe the D and L. Neither general makes searches under warrant nor the affidavit,3 however, impossible prevents them and the seizure sets out clear standards describing one under a thing which assure magistrate the that the execu taken, another. As to what is to noth- ting officer will be able to differentiate a the left to discretion of the officer pirate reproduction a legitimate eight- executing tape. track Although Agent Saraceni re that, 196, counted based on his experience, Id. at 48 76. See also Andre S.Ct. he 463, Maryland, 480, sen v. 427 had approximately U.S. 96 S.Ct. “noticed 500 or more 2737, (1976); 49 627 L.Ed.2d Stanford v. 8-track which . [in store] Texas, 476, 485, 506, 379 85 U.S. S.Ct. 13 appeared to be unauthorized reproductions (1965). L.Ed.2d 431 copyrighted commercial tapes,” his affi davit does not reveal the experi basis of his The Marrón standard finds its derivation ence or the means which an executing in Colonial America’s aversion to writs of officer could identify tapes. general assistance The tran warrants which script of hearing before placed discretionary Judge broad with authority Garrity provides no additional anywhere British custom officials to search illumination on Sara smuggled ceni’s goods and seize identification anything methods.4 The affida States, pleased. v. vit See Weeks United 232 therefore presented magistrate 383, 389-91, 341, 34 nothing S.Ct. 58 L.Ed. 652 more than generic description of (1914); States, Boyd 616, v. United 116 U.S. the items to be seized.5 purposes Warden, 3. An 560, affidavit be referred to for 564-66, v. 1031, 401 U.S. 91 S.Ct. providing particularity (1971); if the affidavit ac Wolff, 28 L.Ed.2d 306 Rice v. 513 F.2d companies warrant, 1280, (8th 1975), warrant uses 1287 Cir. rev’d on other grounds, incorporate 465, 3037, suitable words of reference which 428 U.S. 96 S.Ct. 49 Womack, (1976). v. affidavit. United States 166 L.Ed.2d 1067 35, 49, U.S.App.D.C. 368, (1974), 509 F.2d 382 argument 5. At oral Attorney the United States denied, cert. 422 U.S. 45 pirate stated that the characteristics (1975); Lightfoot, L.Ed.2d 681 United States tapes possessed by visually defendants were 177, 181, U.S.App.D.C. 165 F.2d “tell-tale.” tape He related authorized In case this the warrant no makes elaborately had an professionally designed reference to the affidavit. There is no also advertising jacket pirate jackets whereas were evidence on the record that the affidavit ac usually simply crudely addition, done. In companied the warrant. Thus the affidavit government counsel averred that someone fa- provide particularity. cannot be used to recording industry miliar with would know ground, We do not decide the case legitimate companies recording and the mu- however, since even if the affidavit could be particular sicians compa- that recorded with a used, provide particular- it would not sufficient ny. example, eight-track For tape he stated an ity. produced of Frank Sinatra which was not is, course, rudimentary validity recording company It that the records, with whom he appraised of the warrant must be produced by the facts compa- fact is an unknown ny, likely revealed to pirate tape. and not later those be a The warrant Whiteley found to exist officers. and affidavits did not mention of these hijacked issue before us is case involved a shipment Thus the fundamental of fur description pirate generic whether tip coats. After a concerning the location under the circumstances tape is sufficient coats, of the fur the FBI obtained a war- Amendment.6 with the Fourth comply coats, stoles, rant to search for “fur jackets and other finished fur products . . .” solely Eighth on an Circuit Relying Id. at 1353 n. 1. The Second Circuit held States, 382 F.2d Spinelli v. United opinion, sufficient, the description quoting Vitali in 1967), grounds, rev’d on other support of its position: “Where goods are of a common nature lightly brushes aside and not government unique there is ruling in favor of the obligation the district court’s no to show that the one [sic] Spinelli Eighth In Circuit defendants. sought . necessarily are the ones upheld “bookmaking para a warrant stolen, but to show the circumstances stating: phernalia,” indicating likely.” this to be Id. at the circumstances of the crime When quoting States, Vitali v. United supra at make an exact fruits Averell, 122. See also United States v. impossibil- and instrumentalities virtual F.Supp. 1004 (E.D.N.Y.1969) (seizure of can be ex- ity, searching officer thousands of hijacked wigs undescribed generic to describe the class pected constitutional). held It must therefore be seeking. he is items accepted generic descriptions are suffi- at 886. This court took similar 382 F.2d cient in at least some cases. States, 338 F.2d in Calo United approach were, both Vitali and Scharfman there 1964), generic (1st involving in addition to the facts which indicated the . description of “bet sheets . . run common nature nonuniqueness of the parapher sheets . . . and like down items, indicating circumstances the likeli- Id. at 794. also James v. Unit nalia." See hood that goods seized were the goods States, 467, 416 F.2d 472-73 Cir. ed stolen. In Vitali the supporting affidavit denied, 907, 1969), 397 90 cert. U.S. S.Ct. the search warrant established the similari- 902, (1970); 25 Nuckols v. Unit L.Ed.2d 87 ty group between a of stolen watchbands States, 120, 122, F.2d App.D.C. ed 69 99 and those known to be in the defendant’s denied, cert. 305 59 U.S. possession. The court then noted that: Ct. 83 L.Ed. S. Having similarity established it was then Perhaps supportive govern more of enough appeared the manu- position language ment’s is the in this facturer-consignor sold to the watch States, decision in Vitali v. court’s United trade, and watch band in which defend- (1st 1967), 383 F.2d 121 Cir. which was ant, Acceptance and AAA Corporation followed Circuit in United Second Scharfman, occupied premises, which (2d did not ap- 448 F.2d 1352 Cir. States be, 1971), denied, pear to cert. manufacturer (1972). The Scharfman had no record of sales to either of them. Furthermore, pirate tapes. upon characteristics of is committed in or use of said premises.” there is no of the previ- indication on face warrant Id. at 480. This circuit had people executing ously constitutionally that the the warrant would be inadequate grant held experts in the field. This information authority was not premises to “enter said . . . disclosed in the district court nor was the infor- investigate concerning to and search into and ” given magistrate prior to the to mation execu- said violations. . Giles v. United tion of the States, (1st 1922). F. In the present part case the of the warrant authoriz- warrants 6. Courts have often invalidated ing relating seizure “materials thereto which generic failed to include even a evidence of the are commission of a criminal property to be seized. Rice United in violation offense ... of 17 U.S.C. States, 1928), (1st example, 24 F.2d 479 highly suspect 104 . under § these this circuit overturned a warrant however, We confine our decisions. decision agent “to and ascertain if fraud an search tapes. seizure upon the internal revenue service has been or Thus, States, supra agent at 122. and such tali v. United current Vi indicia of illegality would have known as the tape jackets, crudeness of the obscu- officer, seizing Speidel watch executing rity recording names, company and the establishment in the an lack known from association of such a compa- bands trade, likely ny was not watchband with a known artist. watch or rights. any personal violate The second distinction is even more cru- particular shipment con- In Scharfman cial. While the particularity level of re- hijacked, of furs had been taining hundreds quired in a warrant decline when there informant, experienced “himself an fur- is reason to believe that a large collection of agents to fact rier,” FBI alerted present similar contraband is on the premis- were in shipment the defend- furs searched, es to be there specific must be employee ship- and an premises, ant’s and detailed foundation for such a belief. positively identified fur owner ment’s There was none Agent here. Had Sarace- being part store as coat defendant’s ni’s affidavit his expertise detailed in this hijacked load. Given these facts it area, indicated the basis which he had reasonably be inferred that a large concluded that 500 or pirate more of similar contraband was in the collection (such were on the premises as visual indicia possession prac- that for all defendant’s above), noted and explained how those indi- purposes that collection could not tical cia identify pirate tapes to the trained ob- precisely purpose described for the of limit- servor, a valid warrant could have been scope seizure. issued. Thus the government failed to meet two significantly similar but different case is different in two tests. It failed to establish that there was a First, important respects. the affidavit and large collection of contraband in the de- provide any failed to before fendant’s store and it failed to explain the guidance the fact officers method which it intended to differenti- pirate were reproductions. as which ate that contraband from the rest of de- the magistrate The two bases revealed to fendant’s inventory. Furthermore, pirate tapes (1) which were were determine government failed to meet these tests in a comparison to if aural see an authorized situation in which the necessary additional reproduction with suspect was identical the information easily present- have been (2) tape, and with holders investigation of magistrate ed to the any without undue copyrights suspect reproduc to see if the personnel. burden on enforcement tions were authorized. In each instance investigation Moreover, such could occur after we do not believe that seizure. The warrant does not reveal particularity the requirement of warrants any degree certainty of that can authorized be fulfilled the specula uninformed Moreover, not will be seized.7 this tion of magistrates or judges even as to could, think, defect we have been remedied whether one form of contraband or another all if the relevant information available to can be distinguished from legitimate similar government the properly products had been set by agents may may who or not be refer, forth. We see n. 5 to experts averments in the field. We having confess to detailing background the expertise ignorant in pirate been of how tapes can be detecting field of pirate tapes distinguished of the legal from merchandise until Garrity Judge tion, 7. As in observes his district but no more than a fraction of opinion: nearly 2,000 court tapes seized would be admissi- any apprehen- ble in event. . . . We are of the effect execution of the search process sive lest put the court in be used to warrant this case was to the defend- impose practical ants severe economic out of business as matter. sanctions busi- suspected tape inventory About of the defendants’ nessmen criminal offenses inde- 80% pendently was seized. A ten-count criminal information was sanctions surrounded filed, eventually including charges process based due of law. upon tapes ques- during the in search Attorney at the Supreme Since Steele has by the United States Court informed only indirectly that might it be confronted constitutional Similarly, argument.8 oral generic contraband, propriety descriptions. When mar- black form other some raised, issue has been it has been in the color, in example, is different drugs ket of the First context Amendment where free regular size, packaging from shape, predominate. issues speech See Stanford v. However, we do not products. commercial Texas, supra, and Marcus Search War relevant if is this information is see rant, In supra. Marcus the Court struck before magistrate to the presented not down a search warrant authorizing seizure “stolen”, “pirate”, or A warrant hand. Although of “obscene materials.” watches, drugs, goods, they be “illegal” emphasis Court’s concerned encroachment suffi- does not become clothing, of First Amendment rights, the basic explana- by after the fact ciently particular premise of the Marrón case was reiterated these were differ- products as to how tions in condemning in which there legal when the merchandise entiated guide exists “no exercise of informed were carried out. seizures ” executing discretion offi- Court, al- Supreme The decisions cer. 367 at 1716. directly provide basic though point, in Fundamental was Court’s concern is generic description to when a guidance perceived impossibili- what the court as the 1,No. In Steele v. United States sufficient. real- ty of warrant “with L.Ed. 757 45 S.Ct. expectation might istic the obscene be Court, Elrod v. Supreme citing (1925), the accurately separated from the constitution- (4th 1921), Moss, announced 278 F. 123 ally protected.” language Id. We find this whiskey’ description ‘cases of that “the [of] helpful adequacy here. The of a warrant uphold a search specific enough to quite is considered in from the cannot be isolation at 416. 267 U.S. at warrant.” underlying rationale for the warrant re- however, reveals, of Elrod Johnson, examination An In United quirement. States sufficient description was generic 1976), Eighth 541 F.2d during whiskey was contraband underlying held that measure because Circuit “[t]he therefore, was, no dan- There in the is whether prohibition. adequacy warrant, of his deprived given specificity that a citizen would viola- ger rights imprecision personal likely.”10 tion of Id. at property because of lawful description.9 1313. generic property deprived lawfully magistrate in- which he is was assumes the The dissent against agent’s alleged prescience entitled to hold state. to dis- formed of reproductions legit- pirate at 129. tinguish from the Id. tapes. This overlooks imate analyzing similarly non-specific war possessed told the rant, Supreme Court, People v. the Illinois after the to determine limited fact bases two 518, Prall, 145 314 Ill. N.E. 610 stated: actually illegal the seized were whether however, defect, most serious is The the Furthermore, reproductions. it is well settled particular property description of want of the in affidavit cannot be rehabilitated that an sought to be seized. issued to The warrant by hearing post-arrest known to information property the sheriff described the as “certain magistrate. agents but not to the the disclosed tubes,” tires and the automobile and directed 560, Warden, Whiteley v. See premises plaintiff to search the sheriff of in 1031, (1971). 306 28 L.Ed.2d goods stolen error for “said and chattels.” property of stolen In the case which can be Moss, 123 in Elrod 278 F. The court v. 9. described, readily requires the Constitution 1921), held: Cir. sufficiently identify description particular to sought protection rights to of of the accused the articles be seized. Frost v. the People, require be con- 193 Ill. 61 N.E. 86 Am.St. does not that the Constitution description particular- Rep. degree A minute the of and detailed to exact same strued property required, ity description to be in for con- the is not warrants of seized of search definitely right property liquors, de no of must be so because there is but traband making liquor, property and hence the officer the search in contraband scribed Where, property. danger wrong of seize the as no the citizen will not there can be to 190

Thus, that because the affi- description we conclude ñute and property detailed provide seized, failed to to be and the but property davit must be so guidance the fact before definitely making described that officer pirate repro- were as to which officers search will not seize the wrong proper a substantial and un- there exists ty.” Prall, 522-23, ductions People v. 314 Ill. per- of a of likelihood violation justifiable N.E. I disagree with probability of violation is rights. sonal my brothers’ conclusion under cir the complex considers when one enhanced cumstances of this case the requisite clarity and the fact that the nature of the search lacking. was is a outlet place being searched retail for First, I would not frame the issue as of tapes with thousands in recordings sound “generic” description whether a proper. is light of information availa- stock.11 a generic description think of in this con which could have served ble to delineating text potentially as a class that scope of the warrant and to narrow both includes seizable and non-seizable personal rights, protect the defendants’ goods, example “certain automobile inadequate. warrant was tires”, Prall, tubes People supra, circumstances, have we no al- Under stoles, coats, jackets “fur and other finished to the district ternative other than sustain products fur . . .”. United States v. court. Scharfman, (2d 1971), 448 F.2d 1352 denied, Judgment is affirmed. cert. (1972). The L.Ed.2d 789 trouble

CAMPBELL, Judge (dissenting). Circuit generic description it is that does not direct the officer which articles to select for sei provides The fourth amendment that no described, zure from the generally inoffen except they particu- shall warrants issue sive, generic class. While a description may larly place to be describe searched and if, example, sometimes things The question be seized. here sufficient — circumstances, is narrowed other see is whether a warrant seizure at Scharfman, supra; United Vitali particular States store “certain 8-track elec- States, (1st v. United F.2d tape tronic which cartridges are 1967) reproductions’’ problem conferring raises the ‘pirate’ unauthorized [em- — it free-wheeling phasis supplied] is defective for want of a discretion the officer. particular things But the description generic in issue is not in out, point just seized. As brothers It my sense described. is limited require does a “mi- class viz. tapes, fourth amendment identifiable unauthorized gambling paraphernalia, in the case of The context and size seizure differen- purpose specified property, analogy suggest- is not to seize but tiate case from the heroin character, property specified aof ed our brother in dissent. We must reem- contraband, phasize dealing reason of character its is that we are here with a mass description by designating inventory its character is seizure of most of the a retail case, however, proper- typical sufficient. In this establishment. In the heroin seizure ty pursuant warrant, police described is “certain automobile tires and to a if the officer is tubes,” property judgment which is be found over-zealous or in his incorrect great quantities subject heroin, likely which is the substance he he is every city trade in deprived lawful in the United have the defendant of a few ounces of identify no There is effort sugar States. these or talcum or some other similar sub- name, number, color, size, tires and tubes hardly imagine stance. We can a mass seizure nothing or material. There was large heroin in the context business with gave warrant which the the sheriff informa- quantities Certainly products. of similar in the proper- tion which could he select certain example supra page we noted a 9 of search ty description within the in the warrant and drugs, require for black market we would a property equally refuse to take other well carefully description more defined in a warrant described in the The warrant was amphetamines” than “unlicensed before we insufficient permitted a mass and search seizure of retail 522-23, (emphasis Id. at 145 N.E. at 612 add- inventory. pharmacy’s ed). not, indeed, Appellees all of consti- do claim reproductions, that “pirate” wilful criminal problems evidence of a identification arose here or seizable that tute in “whiskey” tapes pirated. mentioned the were not Like the seized Since it violation. ability agents States No. seems well within the to v. United Steele (1925), none of 69 L.Ed. 757 make this distinction and therefore execute warrant, is class innocent. I do not see how the in described warrant the items up fails to to the measure fourth amend- suggest overly that an not mean to I do requirement ment the property in description in a warrant would general seized be while particularly described. And narrowed limit- every adequately case be agree my colleagues I with that additional “illegal”. But to items termed ing seizure descriptive material in the warrant would “pirate” items can here unauthorized if as harm, have I see constitutional done no no aurally, well as distinguished, visually as be necessity yourself” of inclusion of “do it accuracy, degree of and if a reasonable biographical instructions or a sketch show- judgments them demands identifying agent expertise initially who legal, factual than concern are more bought pirated (and at the tapes shop who inadvertently purposely will agents in stated affidavit that he had noticed in the course of a personal rights violate pirated 500 or shop more such in the greatly under the warrant is dimin- seizure previous “based in experience [his] A thus seizure ished. short, area”). this I my think brothers reproductions” is ‘pirate’ “unauthorized difficulty executing overestimate might appear; first general as it not so correctly. this warrant had cause, it meets the upon probable issued seize; plain what directions as to to requirement particularity. constitutional else at their anything peril. Certain- among to and choose pick No discretion ly if the agents quan- had seized substantial items is “guilty” and conferred. “innocent” non-pirated tapes tities of they would have whether de- simply is question acting plain been in disregard of di- ‘pirate’ reproduc- “unauthorized scription, warrant, rection presuma- in the would tions”, conveys enough information so that bly be subject personal liability, to see Bi- expected be to executing officer can vens v. Agents Six Unknown Named tapes, identify seize such illicit Narcotics, Federal Bureau of unreasonably disturbing without oth- do so I believe the here is er items. I my position. do not mean to overstate According enough purposes. clear for such case, concede is a close since evidence, pirated tapes readily can be to determining whether “pirated”, are ascertained, appearance both from their make a judgment officers must status shoddy, to (they are said have amateurish that could be—but on the evidence quite look lettering covers and and to dif- items) appear tricky. does to I concede non-pirated ferent be— categories name there are some of illicit checking against the manufacturer’s legitimate agent items so that an not in companies, general all or those of expected reliably There must most circumstances be of which are well-known. most class, showing pick what out the items e. catalogs belonging lists legitimate g. compare what firms. all “stolen” watches. But Vitali put out are States, supra. seem little more diffi- United To leave Identification would agent warrant au- whether a watch was stolen would than routine cult many great potential of counterfeit bills. cases offer too thorizing seizure adequately long “heroin” is after-the-fact verification so as initial iden- A warrant seize practical possible. descriptive though even heroin be indis- tification on some basis is unprac- any authority powers tinguishable to an Nor do I that the affida- from other know of eye, particularize vit or meth- and can be identified with cer- the warrant must ticed verify tainty by laboratory whereby after fact. ods the true test made the officer any requirement ruling object. nature know of out I don’t drug. Both agent processes require The would have essentially seizure. to mistaken unique, disputed possibly to much in- factual determinations. refer formation; agent magistrate rather than the vested with broad judgmental he evaluation, a matter, legal discretion to make would, up as practical as a end decid- empowered would be the were he case to items to seize. distinction is ing what seize all “obscene” materials. See Marcus agent executing an the instruc- between Warrant, v. 367 U.S. Search 81 S.Ct. and an agent acting tions (1961); 6 L.Ed.2d Stanford own But essentially on his initiative. while Texas, 506, 13 L.Ed.2d pirated tape a distinguishing doubtless re- (1965).2 knowledge some as well quires outside as (i. e. lists of reference outside materials sufficiently par- I thus deem this warrant legitimate manufacture), tapes and their in ticular its items to be decision, discretionary really is not in the seized, since it could be correctly executed legal sense of a decision about which rea- through use of generally the kind of availa- ble, up differing. objective men could sonable end It information that a magistrate objective any agent on can assume possess rests criteria. There is little to either or acquire.3 My at easily least brothers over- distinguish process required the decisional state they matters when speak the war- agents required here from that rant requiring all information be agents who are told to seize heroin or other agents obtained after seizure. While the instance, suspicious narcotics. In latter shop, they are still in the easily screen by first eye; they may substances are noted catalogs tapes using legitimate tested”; then be following “field and then manufacturers for verification after first seizure the substances are tested in a labo- their noting suspicious jackets letter- ratory. the pirated tapes Here are first ing. eye; they ascertained are then checked like, against catalogs perhaps or the after I can understand the lest court’s concern experts; finally consultation with they agents discretionary vested broad aurally compared, stage are this last authority pick and choose among hard- comparable laboratory testing to-distinguish on items. But this record at Supreme Agent Wayne Thomas, 2. The in Court said Stanford that the Saraceni and a sales- particularity requirement Warner/Electra/Atlantic, of the fourth amend- man for Inc. Those ment had to be observed with the “most conclusively scru- were determined to be unau- pulous ‘things’ exactitude when are books duplications. Agent thorized Saraceni was and the basis for the seizure is the ideas experience able because of his in field contain”, 506, 511, make a visual estimate that numerous other 13 L.Ed.2d But while the case illegal premises records were also of D tapes, involves stocks of musical the basis for executed, and L. And when the warrant was nothing seizure has whatever to do with the by inspection ultimately the officers could tapes. ideas contents of the The situation is comparison aural make certain that in no different from that United States v. pirated tapes were seized. Scharfman, (2d 1971) 448 F.2d 1355 where Kaufman, Judge speaking panel up- in My brothers’ concern over lack of “clear holding a warrant seizure of “fur ascertaining pirated tapes standards” for coats, stoles, .”, jackets. pointed [and] persuasive be more if there were indication rights out when first amendment are not distinguishing pirated tapes genuine involved, specificity requirement is more poses problem. ones a real But there is no surrounding flexible. The circumstances evidence that it does. Search warrants issue greater guaran- Scharfman warrant offered no day every narcotics, telling to search for tee than did the circumstances here that money, betting paraphernalia, counterfeit properly impounded by seizable items would be like, requiring all items some discernment the officers. One coat the stores testing, having, and even after-the-fact but at positively searched in Scharfman had been objective recognition. bottom an basis for employee shippers identified Compare see no difference here. United States hijacked, corroborating whose furs had been Drebin, 1977) (no 557 F.2d 1316 tip shipments which located the the fur illegal legal evidence films could be Here, question. apparently pi- stores two distinguished by inspection). visual purchased rated were from D and L And, items are least, to me that the not I am worry it seems unable to about putting these hard-to-distinguish; entirely it seems out defendants of business. This prima facie selection occur because their inventory to make practicable entirely consisted or mostly tapes of tapes, leaving untouched “pirated” of offered in plain for sale violation of law— approach unpirated My items. brothers’ were, tapes therefore, seizable as in- will, fear, discourage I law enforcement strumentalities and evidence of crime. The may already an area where hard fact operation defendants’ entire de- legitimate enough producers to enlist for pended on of items this nature makes their support of enforcement interest worse, conduct not better. They stand in of personnel. requirements warrants If little position different than a fence who in this field that become so technical complains put he is out of business because government attor- sophisticated the most the police seize his inventory of stolen successfully, them neys can write net goods. less a civil result will be blow for liberties I would is, reverse the for It decision piracy. than a license continued dis- trict court. course, protect against important

“roving general commission”

However, not important also to erect it is high

such to enforcement that the barriers law,

underlying designed to substantive

protect legitimate per- businessmen and

formers, potency. loses its ultimate liberties when

threat to civil occurs those BULLARD, Mildred T. Administratrix, et protect whom the should must look law al., Plaintiffs, Appellees, elsewhere self-defense. for I see little merit to the alternative RAILWAY, CENTRAL INC., VERMONT grounds suppress- for urged defendants Defendant, Appellant, question. the fruits of the search They seized tapes contend under al., Trustees, Robert W. Meserve et evidence”, the warrant were “mere unseiza- Defendants, Appellees. ble because their nexus insufficient un- Hayden, der the standards Warden v. 387 Harry GONYER, Plaintiff, Appellee, A. particular charged. with the crimes RAILWAY, INC., CENTRAL VERMONT contrary, the On would consider Defendant, Third-Party Defendant and individually collectively very both rele- Third-Party Plaintiff, Appellant, requirement vant to the intent of 17 U.S.C. for sentencing purposes. 104 as well as A § plausibly justify defendant could a few iso- al., Trustees, Robert W. Meserve et De

lated infringing tapes grounds sales of fendants, Third-Party Defendants and clerical like. oversight, error or the Third-Party Plaintiffs, Appellees. fact that a part shop’s substantial Nos. 77-1298 77-1299. inventory pirated consisted of would United States Court Appeals, be the best and sale proof wilfulness First Circuit. Furthermore, profit. appear to be instrumentalities of the Argued Oct. 1977. infringement profit, crime of wilful Decided Nov. of wrongdoing. mere evidence Whether or As Amended Nov. subject not each becomes the of a separate prosecution does not enhance defendants’

objection right to their seizure nor their

offer them for sale.

Case Details

Case Name: United States v. Allan Michael Klein

Court Name: Court of Appeals for the First Circuit

Date Published: Nov 14, 1977

Citation: 565 F.2d 183

Docket Number: 77-1121

Court Abbreviation: 1st Cir.