United States v. Janice Fitzgerald

injuriоus Capucci conten- there to human health. supports government’s record convic- using King’s prior tion that it was testified that the consumer could contract done, tion, had to raise infer- handling cellophane pack- defense disease from Moreover, intent. since King’s ences about of sweet and sour sauce stored at the ets in evidence already conviction was prior Capucci warehouse. also testified ample had opportunity and defense counsel bags workers who handled the of rice would the defendant in his own to rehabilitate Because the testimo- exposed be to disease. remarks, prejudice closing possibility relevant to the ny experts of these two was Taglione, was reduced. United States case, we government’s find district (5th Cir.1977). judge 546 F.2d its discretion in court did not abuse allow- in his to eliminate everything power did them ing testify. to possible prejudice by only sustain- any carefully We have reviewed the trial ing objection, defense counsel’s but also transcript and other records in this case. disregard to the remark. structing We find the trial court was well within its circumstances, In these we find no abuse of refusing grant discretion defend- denial of discretion in the district court’s admitting ants’ mistrial motion and the ex- the mistrial motion. judgment pert testimony. Accordingly, court King further contends district of the district court is affirmed. the testi- admitting

abused its discretion in in ento-

mony Brickley, expert of Paris control, and Dr. Dario Ca-

mology pest Jr.,

pucci, who testified about threat

human health bacteria posed by pathogenic exposed

on food to rodents. packaging

King testimony maintains that the of these America, Appellee, experts unnecessary prove two was UNITED STATES of Food, Drug violation of the Federal inflammatory Cosmetic Act and was FITZGERALD, Appellant. Janice prejudicial. No. 82-1242. of both of these ex testimony perts establishing was relevant to Appeals, United States Court of food stored in the warehouse Wyandotte Eighth Circuit. within the of 21 meaning adulterated Sept. Submitted 1983. 342(a)(4). U.S.C. That sеction defines § Dec. Decided 1983. food as adulterated if it held un has been insanitary may der conditions it “whereby April 23, Certiorari Denied filth, have become contaminated with See 104 S.Ct. 2151. may injuri have been whereby rendered ous to Mr. Brickley interpreted health.” gathered by investigators

the data the FDA Wyan-

and reached the conclusion that high

dotte warehouse had a level of rodent

infestation. testimony helped Such

prove pos contamination was a “reasonable

sibility” present. under the conditions Seafoods, Inc.,

United v. Anderson (5th Cir.1980); Berger States, supra, 200 F.2d at 821. Dr.

Capucci’s the in testimony established that

sanitary Wyandotte conditions at the ware

house could have stored rendered the food Cleveland, Ohio,

Alan Caplan, P. for ap- pellant. Lahners, Atty.,

Ronald D. D. Ne- U.S. braska, Omaha, Neb., Erickson, Robert J. Justice, Attorney, Dept, of Washington, D.C., Kubichek, David A. Asst. Atty., U.S. Omaha, Neb., appellee. LAY,

Before Judge, Chief FLOYD R. GIBSON, HEANEY, Judge, Circuit Senior BRIGHT, ‍‌​​‌‌‌​‌​​​​​‌‌​​‌‌‌‌‌‌​​‌​‌‌‌​​​‌​‌‌‌​‌​‌‌​​​​​‍ROSS, McMILLIAN, ARNOLD, FAGG, GIBSON, BOWMAN, R. JOHN Circuit Judges.

BRIGHT, Judge. Circuit A jury Fitzgerald convicted Janice violating three codefendants of 18 U.S.C. App. 1202(a)(1)(possession medallions, a conviсted by a mirror bearing § a Hells commerce).1 sticker, felon of a firearm in interstate large a number of photographs and three-judge panel albums, A of this photo court affirmed a telephone directory, and codefendants, the convictions of the three various other documents. They also seized Fitzgerald’s. but on divided vote reversed three (1) firearms: found in its Apker, (8th United States v. 705 F.2d 293 resting against case the wall of a bedroom Cir.1983). closet, (2) pistol found in the pocket of a closet, woman’s coat hanging (3) in and petitioned United States for rehear- a rifle found “behind a dresser drawer.” banc, ing grаnted, en which this court limit- These supplied firearms the basis for Fitz- ed to the question whether firearms discov- gerald’s subsequent indictment and convic- ered in view during the course of a 1202(a)(1), tion under section from which pursuant to a federal search war- appeals. conviction she now rant, which warrant fails to describe some objects of the of the search with sufficient The three-judge panel which initially con- are particularity, admissible into evidence. sidered the appeal Fitzgerald and her admissible, We hold such firearms and af- codefendants held the search warrants in- firm Except conviction. as to ground valid on the failed to issue, this our decision en banc does not objects describe some of the of the search panel otherwise disturb the opinion this with particularity. sufficient Specifically, case. the panel determined that the pro- authorizing visions the seizure of Hells An- I. Background. gels membership “papers directories and re- grand A Fitzgerald indicted and nine lating to Club activities” too broad persons, other alleging that as members or exactitude” stan- satisfy “scrupulous associates of the Hells con- applies dard which to warrants impinging spired to methamphetamine distribute on first аmendment interests. See United 841(a)(1) violation of 21 U.S.C. and 846. 299- Apker, supra, States F.2d §§ Federal authorizing portions warrants issued the ar- 303. The invalidity those indictees, rest of the and the search here. But of their warrants issue residences for panel portions various indicia of Hells An- also held that buckles, gels membership jackets, which would belt describing serve to es- warrants tablish alleged T-shirts, their involvement and and mir- photographs, plaques drug exactitude re- conspiracy.2 scrupulous Teams of federal and rors satisfied the precise state law enforcement at 302-03. quirement. officers executed the Id. rehearing arrest this is and search warrants on the issue before the court on early morning portions of certain February Fitzger- invalidity 1981. At whether the residence, wholly ald’s the officers seized a Hells the warrants renders the warrants held, Angels T-shirt, invalid, Angels poster majority a Hells the panel Schatz, plaques, 1. The Honorable Albert G. mirrors and other items United C. Certain Judge States District for the give District of Nebras- which the names of members of ka, presided at trial. Angels. Hell’s depict Photographs the associa- D. which 2. The search warrants authorized the search Angels. of the Hell’s tion of members following and seizure of the items: telephone Telephone num- books with E. jean jackets A. Sleeveless leather and with bers listed therein of members of insignia wings a Death’s Head on the Angels, local and national which includes Angels” back with the notation “Hell’s writ- members. ten above the Death’s Head and the state activities, relating papers to Club F. Certain of, party that Nebraska, is a member in this case records, expenditures, rules financial Club is written beneath the Death’s regulations. symbol (commonly Head and hereafter re- Angels” printed “Hell’s G. Red T-shirts with Angel’s Colors”). ferred to as “Hell’s on them. B. A metal which states “Hell’s belt buckle Angels” on it. Cook, whether, rather, activity. insufficiently particu- lice (5th Cir.1981). In decid warrant can be severed portions lar evidence should be rest, leaving ing particular the warrant intact whether from the case, then, any given courts portions. suppressed severed apart from the weigh the deterrent effect of properly below, adopt forth we For the reasons set See, costs. against its societal suppression and hold the war- approach, severance Janis, 428 U.S. e.g., United States au- rants valid as to those which 3021, 3031-32, 453-54, 457-58, 96 S.Ct. items, i.e., thorized a search for 3033-34, Where buckles, clothing, certain belt articles of sup result from little or no deterrence will mirrors, plaques and tend- photographs pression, suppression inappropriate, the Hells An- ing show association with ceases, for the rule where reason gels. Because the warrants as redacted also must cease. application valid, police possessed authority doctrine, see “plain under the view” Texas Here, then, we consider whether Brown,-U.S.-, 1535, v. 103 75 S.Ct. Fitzger firearms seized in suppressing the (1983), Coolidge 502 and v. New L.Ed.2d purposes would advance the ald’s bedroom 443, 464-73, 91 Hampshire, 403 U.S. S.Ct. First, exclusionary which animate the rule. 2022, 2037-42, (1971), 29 L.Ed.2d 564 that the law enforcement offi we observe any seize contraband or evidence apparent sought in case and obtained arrest cials this might inadvertently of a find they crime warrants from a magistrate. and search executing portions while the valid of the court, magistrate, the district and the us, before it ap- warrant. On the record all concluded three-judge panel of this court pears clear that the officers discovered the police probable that the had cause to search shotgun in closet in view Fitzgerald’s plain residence. Five of the seven during clothing carrying the search for the par clauses of the sеarch warrant met signia of the Hells Because the Angels. describing in the ob ticularity requirement during seized execution of the valid search; jects of the the other two portions of the warrant to support suffices only deficient in that subsequently held 1202(a) conviction under section exact satisfy “scrupulous failed to (1), we affirm that conviction. Nothing suggests test. in the record itude” magistrate the officers or the did not II. Discussion. according to be the in- believe themselves respect the full prime purpose rights of the rule ex dictees’ constitutional circumstances, cluding evidence in these we seized violаtion of the merit. Under purposes fourth amendment the deterrence of not think it would advance the fu do exclusionary ture unlawful rule to exclude all police conduct. United behind the Calandra, 338, 347, v. in resi States 414 94 that the officers seized U.S. 613, 619, dence, in merely S.Ct. 38 L.Ed.2d 561 Addi because the warrant was we fol tionally, protect Accordingly, the rule serves to courts one deficient. respect First, Third, from which the any taint-by-association police approach low the misconduct, Fifth, Sixth, Circuits,3 prevents and and Ninth and sever prosecution that, states,4 from ab- benefiting po- adopted, from unconstitutional- al have and hold — denied, Riggs, U.S.-, 69, (1st 3. See United States v. 690 F.2d 298 104 S.Ct. Cardwell, Cir.1982) severance); (adopting (1983); United States United ‍‌​​‌‌‌​‌​​​​​‌‌​​‌‌‌‌‌‌​​‌​‌‌‌​​​‌​‌‌‌​‌​‌‌​​​​​‍States v. 83 680 Christine, Cir.1982) Cir.1982) v. (3d (adopt- (9th (endorsing 687 F.2d 749 F.2d 75 the severance Cook, supra, ing severance); United States v. holding question approach but the warrant 730, (5th Cir.1981) (adopting severance). 657 susceptible F.2d 734-36 of not Freeman, severance); 685 F.2d See, Court, Aday Superior e.g., (5th Cir.1982) (admitting 952-53 55 Cal.2d evidence (1961) (ad- during Cal.Rptr. discovered in of 362 P.2d execution portions warrant); pursuant portions Sov- mitting the valid of a items seized to valid severed States, ereign portions of which were insuf- News Co. v. United of other See also United States (6th Cir.1982) severance), ficiently particular). cert. (adopting sent a showing pretext or bad faith on lawful authority expired), (c) to search police of the part prosecution, or the requirements other of the plain view invalidity part of a search warrant does discovery rule —inadvertent probable require the suppression of all the evi- cause to associate the item with criminal dence seized during its execution. More activity met. —are precisely, we hold that the infirmity part of a warrant requires suppression of III. Conclusion. pursuant evidence seized part of the warrant (assuming Applying such evidenсe could not these standards Fitzger seized, otherwise have case, been as for example ald’s we conclude that at least one of plain-view on grounds during the execution the weapons introduced her was of the portions warrant), valid properly received into evidence. The valid require does not suppression any- warrant authorized the offi thing described the valid portions of the for, cers to search among other things, cer (or lawfully plain-view seized —on jackets, T-shirts, tain and belt buckles. The grounds, for their execu- example during— officers would reasonably have lookеd in tion). approach, think, This we complies items, bedroom closet for these requirements with the of the fourth amend- there, view, they found ment. the shotgun. The officers never found a recognize

We the dangers which Hells Angels jacket belt buckle or at Fitz would attend on this approach were it care residence, gerald’s discovery so their lessly administered. The police might be shotgun occurred before the expiration of tempted to frame warrants their authority under the warrant to search terms, adding a few specific clauses in the for particularly-described items. Because hopе that protection under the of those the pretext, record reflects neither bad clauses they engage could in general rum faith, nor lack of inadvertence on the offi maging through premises the then con part, cers’ the properly district court admit tend that any incriminating they evidence ted the into evidence. recovered was found in view during hand, The pistol, on the other is not ad- the search for the particularly-described police missible. We do not think the had believe, however, items. We that careful reason pockets ordinary to search the of an administration of the rulе will afford full looking, pursuant overcoat while to the val- protection First, to rights. individual mag warrant, id the for Hells istrates must exercise vigilance to detect Likewise, insignia. relating the record to pretext and bad part faith on the of law the the rifle discovery of fails to disclose Second, enforcement officials. courts permit sufficient information to us to con- rigorously should apply exclusionary the clude that the officers discovered it in rule to evidence pursuant seized to the in during por- the execution of the valid valid portions Third, of the warrant. items tions the of the warrant. We know not desсribed in the sufficiently particular police discovered the rifle “behind a dresser portions of the warrant will not be admissi drawer,” looking why they ble unless it appears (a) police the possession weap- there. But because of one found the item in a place where one would enough on is to a conviction under support reasonably have expected them to look in necessary 1202(a)(1), the process of section searching objects for the described in whether the rifle admissible. the determine sufficiently particular por moreover, case, the warrant, tions of thе In the context of this (b) the police found pistol the and the item before trial admission of the objects found all the court’s must deemed harmless described in the rifle into evidence be sufficiently particular por is, tions of (that the warrant error. before their

Giresi, F.Supp. (D.N.J.1980) cases). (collecting 459 n. 17 state was based 7). # The state search warrant affirmed.5

The conviction is Tomschecks’ Officer upon Omaha Narcotics GIBSON, R. Senior Circuit FLOYD controlled sub- suspected observation of result. Judge, concurring in the he and three other shortly stances after residence to officers arrived the result upholding While I concur in search war- the federal arrest and execute upon based the ad- Fitzgerald’s conviction the support rants. In his affidavit the seized from her resi- guns mission of warrant, Tomscheck Officer state search dence, applying I that result by would reach serving he was the “Fed- stated that while ex- adopted discovery inevitable widely Warrant”, “one he observed eral Search Although ception exclusionary to the rule. resi- containing suspected cocaine metal vial actually guns the record shows metal tooter” on the and one cocaine due to the invalid fed- pursuant partially seized bedroom. top of a bedstand in warrant, they eral search were nevertheless tes- hearing, At the Tomscheck suppression against Fitzgerald because admissible he first observed the vial and tified that have been while the offi- could discovered while he was con- tooter on the bedstand executing cers were the valid state search (i.e., search” a search for Fitzger- ducting “sweep the search of authorizing risk) might present security controlled sub- who suspected persons ald’s residence stances. incident to the execution of federal (See suppression hearing wаrrant. arrest original panel opinion, applied In 65-68). transcript discovery uphold the inevitable exception the convictions of Apker, Davenport, search validity of the state Gearhart, finding guns admitted admitting propriety and hence them have been discovered discovery excep inevitable guns under the pursuant independently obtained valid tion, saw upon whether Tomscheck depends authorizing search warrants state while con cocaine residue suspected “suspected search of their residences for inci legitimate sweep ducting In controlled substances.” executing dent to the arrest or while case, however, applying I refrained from indicia search warr partially invalid federal discovery exception permit inevitable had seen ant.* If Officer Tomscheck the admission of the discovered at her guns during sweep residue suspected cocaine residence, finding no evidence of an inde- search, warrant would then the state search pendent state search warrant for her resi- would have guns have been valid and the Apker, dence. See inevitable admissible under the dis been F.2d at 306-07. Apker, at covery exception. However, if hе had seen these 306-07.

Upon reviewing again, the record I real- executing the invalid federal ized that there search items while valid state warrant, the state search indicia search authorizing drugs the search for (Government have been invalid as “the Fitzgerald’s residence exhibit warrant would provide Judge Lay joins opinion plain en- would a valid Chief this view observations tirety. Ross, Arnold, Gibson, Judges John R. issuance of the state search war- basis for the Fagg, join III. Bowman all but Part drugs regardless of whether those ob- rant for opinion, this and concur in the affirmance. during made the execution of servations were Floyd Judge R. Gibsоn concurs in the result during or the valid federal arrest warrant only, separate for the reasons set forth in his partially invalid federal search execution of the opinion. clearly Tomscheck ob- warrant. Since Officer suspected cocaine residue “in a served the * ap- majority’s plain Under view-severance reasonably expect- place have where one would proach, inquiry this be of academic would process searching for look in the ed to [him] First, only. ap- terest view-severance sufficiently particu- objects described justifies proach the evеntual seizure warrant”, (at 637) lar of the [indicia] guns regardless validity of the state warrant would not be the fruit the state search Second, considering search warrant. even any poisonous tree. validity of state the officer’s fruit of the poisonous validly seized, tree” —the poisonous that the conviction being tree the invalid federal search war- should be join affirmed. I do not Part III. rant. however, opinion, lead my because in pistol view the and the rifle were also valid- judge’s findings district on the validi- ly discovered and seized. A belt buckle ty of the state search warrant are instruc- could ‍‌​​‌‌‌​‌​​​​​‌‌​​‌‌‌‌‌‌​​‌​‌‌‌​​​‌​‌‌‌​‌​‌‌​​​​​‍have been found in an overcoat pock- tive. The judge trial initially concluded et, or behind a dresser drawer. It was that the state search warrants for all of the therefore wholly proper for the officers ex- defendant’s residences were not the “fruit ecuting the warrant looking be in those of the poisonous tree” because the federal places. indicia search warrants were (Desig- valid. nated 40). Record at He then alternatively I also wish to emphasize that the Court found that even if the federal search war- en banc holding that the Hell’s An- invalid, rants were the state search war- gels have a First right Amendment of asso- rants, including the one issued for Fitzger- ciation, that any or clause in this warrant residence, ald’s they still valid because was not enough description in its upon based the observation of “sus- of the articles to be seized. Those conclu- pected controlled substances” during sions were by reached the panel, course of sweep searches incident to the were not referred to the en Court banc for execution of (Des.Rec. the arrest warrants. its review. right-of-association ques- 2). at 40 n. Officer suppres- Tomschecks’ tion especially gives me pause. Presumably hearing sion testimony supports this finding no argue one would there is a First applies as it (SH case. 65- right Amendment a motorcycle. ride 68). Moreover, it is certainly reasonable to Whether the First Amendment nonetheless infer that Tomscheck could have observed guarantees the of two right people or more suspected cocaine residue on the top of motorcycles to ride is a groups, question the bedstand while he was conducting much panel opinion more doubtful than the legitimate sweep search of Fitzgerald’s bed- implies. No one contends room. Angels petition Congress for redress of dоctrines, grievances, or advocate ideas or

Thus, because the state search warrant so far as I know. Whatever of associ- right valid, residence was being have, then, ation probably aspect upon based Tomschecks’ view observa- “liberty” which the Due Process during legitimate search, tion sweep against arbitrary Clause seems to protect guns three found in apartment action, governmental irrational rather than would be admissible under the inevitable right entitled to the more expansive pro- discovery exception to the exclusionary Amendment, tection of the First which for- My rule. conclusion here is of course based bids reasonable well as at- unreasonable upon the assumption that the officers would tempts by Congress abridge the freedom have guns discovered all three while they speech. of “It ... that may be association searching for controlled substances for ends mentioned in the First specifically under the valid state search I warrant. prevail against Amendment will all state would therefore affirm Fitzgerald’s convic- while regarded ‘compelling,’ interests not tion applying without the view-sever- . .. other kinds of association would be approach anсe partially the invalid indi- protected by specific guarantees not the of cia warrants. Rights, the Bill of the more by but nebulous ARNOLD, Judge, concurring, concept process, oxy- Circuit of substantive due an with ROSS, GIBSON, whom JOHN R. moron if there ever was one.” United FAGG, McClure, 1560, BOWMAN, and v. Judges, join. Jaycees Circuit States (8th Cir.1983) (footnote omitted). 1568

For the reasons so ably by stated the Court, I agree that the plain panel opinion view-severance The that holds approach proper, by is that the the protected was is association

640 * * * * * * shall not be in their houses the Court en Since First Amendment. language unequivocally That violatеd.” does not reach banc, opinion, as I read the proposition establishes the panel’s the simply “[a]t takes question, but Fourth analy- very of core purposes for given Amendment] conclusion as a [of to retreat into a man right stands the pursue me to sis, necessary for it is not free from there be his own home and issue. intrusion.” government unreasonable HEANEY, Judge, dissenting, Circuit States, 505, 365 U.S. v. Silverman McMILLIAN, Judge, joins. Circuit whom 682, 511, 679, 5 L.Ed.2d 734. 81 S.Ct. 573, 589-590, The search of Jan- York, dissent. respectfully v. New 445 U.S. Payton un- 1381-1382, was unreasonable 1373, ice home 63 L.Ed.2d 639 100 S.Ct. supported by and der the circumstances (1980). reality nothing was It

probable cause. of the entry Undeniably, “physiсal We should fishing expedition. more than a which the against the chief home is evil without hesita- seized suppress the evidence is di- Amendment wording ‍‌​​‌‌‌​‌​​​​​‌‌​​‌‌‌‌‌‌​​‌​‌‌‌​​​‌​‌‌‌​‌​‌‌​​​​​‍of Fourth tion. v. United States rected.” United States 313, Court, 297, today law sur- 407 92 S.Ct. case District U.S. interpretative 2125, 2134, (1972), quoted amendment tends rounding the fourth 32 L.Ed.2d 752 simple prohibition 585, at York, supra, obscure the amendment’s 445 U.S. Payton v. New 1379; searches and seizures. Coolidge Hamp- unreasonable v. New 100 S.Ct. capable 2022, 2042, This shire, 443, 474, reasonableness standard 91 403 S.Ct. U.S. applica- or mechanical precise definition (1971). 564 29 L.Ed.2d tion, circumstances of depends upon here the circumstances totality Mimms, 434 Pennsylvania each case. of Fitz- the search the decision that compels 330, 332, 106, 109, 54 L.Ed.2d 98 S.Ct. U.S. First, the home was unreasonable. gerald’s curiam); v. Califor (1977) 331 Chimel (per indi- to the search up leading circumstances 2034, 2041, 765, 23 nia, 89 395 S.Ct. U.S. for pretext cate the indicia warrant Ohio, 392 U.S. (1968); Terry L.Ed.2d 685 for affidavit search. The 1, 19, 20 L.Ed.2d 88 S.Ct. infor- any not contain search warrant did circumstances, (1968). considering In weapons drugs or indicating mation right priva we must remember that Yet, home. be found in would society.” a free Camara cy is “basic to search, of law teams morning 523, 528, Court, 87 S.Ct. Municipal 387 U.S. the United from officers enforcement must ex (1967). We Office, the United States Attorney’s intrusion, sсope amine “the Firearms, Alcohol, Tobacco Bureau of conducted, the the manner in which is Agen- Drug Enforcement the United States it, place and the initiating justification for Patrol, Douglas the Nebraska State cy, Wolfish, Bell v. in which it is conducted.” Po- Omaha Office County Sheriff’s 1861, 1884, 60 520, 559, U.S. S.Ct. the Omaha Police met at Department lice L.Ed.2d 447 There, local and fed- various Department. strong- protection concerning the

Fourth amendment them officers addressed eral private home. war- est at the and arrest threshold execution of recently briefing reaffirmed: Supreme As the Court at the present Those rants. sus- everywhere look the in- told protects The Fourth Amendment be on the lookout residences and settings. pects’ variety privacy dividual’s an officer In the event drugs. guns more clear- privacy In none is the zone of items, magistrate, typist, a these by the observed than bounded ly defined when personnel law enforcement an and other dimensions of unambiguous physical issue state quickly by ready standing home —a zone that finds individual’s for in- basis only warrants. The search constitutional specific roots clear and was in this manner structing the officers be secure right people terms: “the of the hope that the thorоugh authoriz- states that nine of these defendants are ed by the indicia warrants would turn up members of the Hell’s Angels and that “De- guns and drugs which the courts would fendant Fitzgerald Janice was and is an later rule admissible under the view Associate of the Hell’s Angels by reason of exception. her marriage to Fitzgerald, Leslie a de- ceased member of the Angels, Hell’s and by Second, the law enforcement officers had reason of her in the participation activities little need for the indicia evidence of the Hell’s Angels during period the of ostensibly sought. Indicia of membership this conspiracy.” According to the indiсt- in the Hell’s Angels could provide cir- only ment, the Hell’s Angels organization, in- cumstantial evidence of the association ele- cluding defendants, the is attempting to of Moreover, ment conspiracy.1 the author- monopolize methamphetamine distribution already ities had some circumstantial evi- Omaha, Nebraska, in the All vicinity. of dence of Fitzgerald’s association with Hell’s alleged the acts pertain to the organ- entire Angels members. The affidavit for the ization; the indictment does not specify a search warrant recites Fitzgerald that is single act by Fitzgerald in furtherance the widow of a Hell’s Angels member. the conspiracy. only additional infor- Law enforcement officers observed her at mation the affidavit for the her search warrant husband’s traditional Hell’s Angels fu- adds is the affiant’s fact, reasons for neral. In Fitzgerald believing had gone to the indicia of police property membership Angels unit Hell’s of the Omaha Police would be found in suspects’ the Department after homes. her husband’s death to the minutes grand Since jury retrieve his are property, including a Hell’s An- secret, the gels magistrate and this ring and belt Court must buckle. The minimal accept probative on faith the existence value of the evidence, indicia evidence to- gether linking Fitzgerald to the drug with the fact government conspiracy.2 already impossibility had evidence reviewing probable associ- determination, with ation the Hell’s cause Angels, previous- bolsters added to the the. factors, conclusion ly that the cited warrant this search unreason- provided indicia makes pretext a for a search. able.

Finally, sum, In affidavit for the a review of the search war- facts leads rant recited no facts permit inescapable which would that the law enforce- conclusion either neutral magistrate who seeking issued ment officers were an excuse to the warrant or any reviewing court to de- a general execute search of termine whether there probable indictment, was grand cause home. A sealed jury Fitzgerald believe was involved in an necessity indicia doubtful illegal drug conspiracy. The affidavit exception conscious resort to corporates grand indictment which provided the excuse. While the outcome of names ten defendants. The indictment Fitzgerald’s trial on count conspiracy majority panel notes, police 1. As the police legitimate can because the had no reason for search for “mere evidence” of a if crime there searching Fitzgerald’s Angels home for Hell’s is a nexus between the to be item seized and indicia. Apker, criminal behavior. United States v. (8th Cir.1983), citing approval F.2d 293 agree majority panel opinion I do not with the Hayden, 294, 307, Warden 387 U.S. 87 S.Ct. incorporation of the indictment into 1642, 1650, (1967). In other provided the affidavit for a search warrant words, probable there must be cause to believe believe, probable cause to for fourth amend- sought particular the evidence will aid in the purposes, Fitzgerald engaged ment apprehension Id. agree conviction. do not activity. grand jury criminal indict- While membership legal organi- that evidence of in a ment, more, probable provides without cause helps prove zation defendant con- for an arrest this rule should not be spired illegal with others to commit an In act. Thompson, extended to search warrants. case, indicia C., The Fourth Function of Amendment only prove home police her what Jury, Grand 37 Ohio L.J. already knew: that she is widow of a Hell’s Angel. I would strike down search warrant determi- probable to the cause not relevant note that after

nation, help cannot trial, and weeks of preparation

months of produce enough government could conspiracy on the go

evidence to only prove

charge. government with evidence possession

firearm violations through into the trial

bootstrapped I do not think the ‍‌​​‌‌‌​‌​​​​​‌‌​​‌‌‌‌‌‌​​‌​‌‌‌​​​‌​‌‌‌​‌​‌‌​​​​​‍exception. allowed to succeed

government should be fourth violation of

this conscious protection

amendment therefore reverse Janice

search. I would

Fitzgerald’s conviction. STATES MARSHALS

UNITED

SERVICE, Appellant, MEANS, King,

William A. Mathew a/k/a Redman, persons and all other

Noble

occupying called “Yellow the location Camp

Thunder at Victoria Lake Forest”, Appellees. National

Black Hills

No. 82-2489. Appeals,

United States Court of

Eighth Circuit.

Submitted March 1983. Dec.

Decided

Case Details

Case Name: United States v. Janice Fitzgerald

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Dec 7, 1983

Citation: 724 F.2d 633

Docket Number: 82-1242

Court Abbreviation: 8th Cir.