United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars & Fifty-Seven Cents

of America STATES UNITED THOUSAND FOUR

NINETY-TWO DOL- TWENTY-TWO

HUNDRED CENTS AND FIFTY-SEVEN

LARS Currency

($92,422.57), United States Account Bank from PNC

Seized Name of Held in the

# 8400369727 Distributors, Inc.

Kim’s Wholesale Distributors,

Kim’s Wholesale

Inc., Appellant

No. 00-4348. Appeals, States Court

Third Circuit. 6, 2001.

Argued Dec. Sept.

Filed Howard, Stephen

David M. J. McCon- Dechert, Rhoads, (Argued), Price and nell Recker, PA, M. Philadelphia, Catherine PA, Recker, Philadelphia, Ap- for Welsh & pellant. Zauzmer, Levy, A.

Michael L. Robert (Argued), R. Hall Office Christopher PA, Philadelphia, Attorney, United States Appellee. for AMBRO, ALITO, Before GREENBERG, Judges. Circuit THE COURT OPINION OF ALITO, Judge. Circuit judgment an from appeal This is ac- funds from a bank civil forfeiture for Distribu- owned Kim’s Wholesale count (“Kim’s”). tors, complaint Inc. subject were the funds claimed 981(a)(1)(A) § under 18 U.S.C. forfeiture had been involved they ground on the money in violation of in transactions statute, § 1956. U.S.C. laundering was ob- the forfeiture supporting Proof from records seized tained from business individuals, Qun Chen, to a warrant issued pursuant Qiang Wang Kim’s Judge in Magistrate United States connec- stamp trafficking elaborate food investigation tion with a wide-scale of ille- letters, scheme. According to the Chinese trafficking stamps. in food gal take-out buying restaurants were food stamps from stamp recipi- low-income food suppress Kim’s moved to the evi seventy ents for cents on the dollar. JA at dence under the Fourth Amendment1 and 107. It alleged was that the restaurants complaint. When the Dis dismiss were then reselling stamps the food to a motions, par trict denied those Court (the partnership “Wang-Chen Partner- stipulation ties entered into a under which ship”) ninety cents on dollar. The that it had no defense Kim’s conceded turn, partnership, allegedly was redeem- action, judgment the forfeiture final ing stamps the food through grocery against entered Kim’s the amount of $92,422.57, right any legitimate and Kim’s retained the stores that did little if busi- appeal ruling the District Court’s on its partnership ness. Id. The allegedly suppress motion to and dismiss. The Dis stores, opened time, operated them for a judgment trict entered against Court and then paying closed them to avoid tax- $92,422.57, Kim’s the amount of and this stores, es. Id. The letters named three appeal followed.2 For the reasons stated Store, Wyoming Variety Grocery Tasker below, reject arguments relating we Kim’s Store, Food, Jacky’s they claimed particularity, cause and but we were operating solely purpose for the find the inadequate record to resolve trafficking stamps. food argument concerning the seizure of letters, receiving After the Secret Chinese, in documents written and we Department Service and Agriculture be- therefore vacate judgment and remand gan an extensive investigation. In the for further proceedings regarding that is 1997, spring of sue. “undercover Secret Service agents $130,000 sold more than in food I. stamps” to the Wang- members of the 1996, government October re- Chen Partnership sixty cents on the anonymous implicating ceived letters two dollar.3 Id. at 106. Those food stamps 433, 447, Plymouth 3021, Pennsylva 1.In One 1958 Sedan v. U.S. 96 S.Ct 49 L.Ed.2d 1046 nia, 693, 700, 1246, 380 U.S. (1976) 85 S.Ct. 14 (refusing apply exclusionary rule (1965), Supreme L.Ed.2d 170 Court held case, proceedings). to federal civil tax In this exclusionary the Fourth Amendment’s government applica- does not contest the applies rule to forfeiture cases because "a bility Plymouth of One 1958 Sedan. proceeding quasi-criminal forfeiture in However, years, character.” in recent Here, Inc., Flexon, 2. unlike in Verzilli Supreme Court has declined to extend the (3d Cir.2002), F.3d 421 appellate we have exclusionary variety rule to a of non-criminal jurisdiction because reversal would not result proceedings. e.g., Pennsylvania See Bd. of in a "full trial.” at Id. 425. Scott, 357, 369, Prob. and Parole v. 524 U.S. 2014, (1998) (a 118 S.Ct. 141 L.Ed.2d 344 11, 1997, example, 3. For on March a confi- parole may board consider evidence obtained "$3,030 Wang dential informant sold in food violation the Fourth Amendment when $2,100 stamps for in cash.” JA at 120. After determination); making a recommittal Immi sale, agents Wang Government watched gration Lopez-Men Serv. v. Naturalization doza, 1032, 1050-51, stamps walk to a Chinese 3479, restaurant with the purchased (1984) Wang from the informant. then (declining apply L.Ed.2d 778 exclusionary went to another deportation hearings rule to Chinese restaurant and to civil INS); Janis, later, Hing Loong held days United States v. Food few Market. A Wyoming mail carrier who delivered mail around through later redeemed were Jacky’s Grocery reported three named that the stores noon Variety, one others, letter, time; Bao and two Gou Gro- store closed 85% of the never- Market and Hing Loong Food cery theless, 6,1995, between March and March store, Zheng’s Id. A sixth Trading, Inc. $2,735,573 Jacky’s “deposited Id. at 108. Grocery, was later identified. stamps,” “accounted for food which 99% of five of of the bank records of A review all receipts.” business Id. 147-48. [its] they revealed that had these six stores Grocery’s reported Tasker mail carrier $12,000,000in over “collectively redeemed always that “the door was locked.... , Id. April 1994.” stamps food since There were never Id. at customers.” investigation yielded substantial evi- But Grocery 150. Tasker redeemed if any did “little that these stores dence $2,004,164 1, stamps April in food between Id. at retail food business.” 22, and March 1995. Id. Food customer traffic Agents videotaped 109. all stamps depos- accounted for 99% of its Grocery Bao and found in and out of Gao its. Id. day average only eight that on customers videotaped Zheng’s Grocery Officers be- received few bag. left The store with May May tween 13 and 1996. The to three a man “carried two deliveries: employee enter the videotape disclosed bags ap- into the store on plastic grocery store at about 8:30 a.m. and lock the door twenty-one occasions between proximately People behind him. who tried to enter the Id. at 137. Yet January April 1997.” The employee store were unable do so. $1,885,205 in food deposited Bao Gao p.m. and locked the door left 4:30 be- 23, 1996, and stamps September between hind him. There were no deliveries. Id. May 1997. Id. at 138. The store However, at 152. between December $5,000 turn over a would have had “to 18, 1996, Zheng’s and October re- inventory generate ten times a week to $2,383,296 stamps. deemed food Wyoming Variety, sales.” Id. which these Zheng’s deposited only during cash $900 register sparsely had no cash and was Id. at period. this entire supply with a small of canned stocked produced also investigation The nevertheless re- beverages, foods and food “$308,359 in that the sham store owners withdrew average” a month on deemed A from their bank accounts stamp proceeds Id. at 140-41. stamp deposits. food $18,000 gave Agent Wang Chan in agent stamp covers tíme.” Id. an retrieved food book $30,000 $3,030 stamps, stamps Wang in food which were food sold to cash for from the in receptacle Hing Hing Loong garbage by outside Food Market from the then redeemed stamps Loong Wyoming Variety. Market. had cancel- Food The Id. 121-22. and Loong markings Hing Food Mar- Wang lation from April called the confiden- On ket. he had six tial and told him that informant buy any would like to amount individuals who 18, 1997, the confidential infor- On March Agent stamps Chan could obtain. of food Wang Secret Service mant introduced 1997, 8,May On another Secret Id. at 122. Agent Agent Chan indicated that he Chan. agent posed of Chan’s as an associate Service stamps quantities of food for cash. sold bulk $100,000 Wang to him in and met with sell contact, "Wang Agent During told Chan this $60,000 During Id. stamps in cash. food through grocery that he had seven stores Wang agent meeting. told the that he stamps and that he which he redeemed food $100,000 $70,000 in would redeem partners already and had redeemed over his through and stamps his businesses stamps].” food worth [of one million dollars food $30,000 to other resell the balance Wang that he could would Id. at 121. further stated $100,000 parties. stamps at Id. at 123. up to in food one "take cash, by payable McElravy, made either to checks Glen from the Secret Service— owners, employee of a take- the store swore out an in support affidavit of a restaurant, or to one of a group out master search warrant for numerous loca- companies including wholesale food Kim’s. tions, including Kim’s. Agent Thomerson Indeed, all of Id. 161. the sham had investiga- been involved over 100 grocery stores “drafted a substantial num- involving illegal tions use of food despite ber of checks to Kim’s the fact that stamps, special had received training selling were little if the stores food the area stamp trafficking, of food and was inventory.” at 161. For example, Id. specialist documentation, a in the identifi- $951,603 Grocery Zheng’s drafted cation, and retrieval of stamps. Spe- food Wyoming Variety checks to Kim’s and Agent McElravy cial had assisted in nu- $46,503 despite drafted in checks to Kim’s money merous laundering investigations doing little business. Id. at 162. special training and had received in identi- reviewing After canceled checks drafted fying subject assets to forfeiture due to Kim’s, grocery sham an agent stores to money involvement in laundering offenses. deposited that Kim’s had determined The affidavit underlying the search war- $399,389.20from these sources into its ac- rant set forth facts show that Kim’s was September count at Bank since PNC participant in an ongoing and extensive 1996. Id. at 164. scheme stamps, to traffic food in viola- 2024(b) (food (c) §§ tion of 7 grocery sham store owners drafted U.S.C. and fraud), stamp § checks to Kim’s in a manner designed (money U.S.C. 1956(h) proceeds conceal the stamp laundering), § of the food (money U.S.C. trafficking appear laundering scheme and make it conspiracy), and 18 U.S.C. purchasing significant § stores were food (conspiracy). The warrant applica- inventory. According investigating to the tion presented signed by to and agents, stamp mistakenly food traffickers Magistrate Judge September on 1997. $10,000 believe that checks for more than The warrant authorized the seizure of the Currency result in the filing of Transac- following Kim’s records: Report Suspicious tion or a Activity Re- invoices, Receipts, 1. lists of business port,4 majority id. at and the vast associates, delivery schedules, ledg- the checks drafted to Kim’s Gou Bao ers, statements, financial cash re- Grocery Zheng’s Grocery were disbursement, ceipt, jour- and sales $10,000. just amounts below nals, correspondence. Zheng’s Grocery often drafted than more 2. Computers, computer peripherals, one day check a to Kim’s. For example, on related instruction manuals 1, July 1996, Zheng’s drafted four checks notes, and software in order to con- $9,400, in the following Kim’s amounts: duct an off-site search for electronic $9,300; $9,200, $9,100. Id. and at 163. copies of the items listed above. just Gou Bao wrote checks for under Id. at 181. $10,000 several times week. Id. at 164. agents Special executed, Two lead case When the warrant was numer- —Senior Thomerson,

Agent Debra Depart- from the ous documents were from seized Kim’s Agriculture, ment of Special Agent and premises, including handwritten notes on fact, (2000); only (2001). 4. cash § transactions result in the 31C.F.R. 103.22 filing reports. § of such 31 U.S.C. 5313

145 stamp particularity arguments ... bags recording food “involve ‘novel paper brown transactions, questions] restau- of law whose invoices to Chinese resolution is nec- documenting exchange of food essary guide rants future action law en- ” at products for Kim’s a discount to stamps magistrates,’ forcement officers and value, accounting journal cata- Satterwhite, 317, face and an United v. 980 F.2d States (5th Cir.1992) transactions. Two loging stamp bulk food quoting 320 Illinois v. journals employee Gates, volunteered re- 2317, 462 U.S. 103 S.Ct. 76 stamp (1983), vealed bulk food transactions L.Ed.2d 527 and we therefore turn bought See, documented that Kim’s food directly good e.g., to the faith issue. at a discount to face value from at stamps 625, v. 119 Taylor, United States F.3d 629 (8th in Cir.1997); least 19 restaurants return for whole- Zayas- United States v. Diaz, (1st products, 105, Cir.1996); food that Kim’s redeemed sale 112 95 F.3d stamps through grocery Cancelmo, the food three 804, United States v. 64 F.3d stores, (2d deposited Cir.1995); Satterwhite, that Kim’s checks F.2d at stores into its bank ac- grocery from 320. at Kim’s then

counts. See id. 187-188. illegally stamps sold the obtained food B. Wang-Chen cents to the Partner- 90-92 Leon, evi suppression Under stores, ship’s grocery sham and the sham inappropriate dence “is when an officer paid checks drawn on grocery stores with in objectively executes reasonable accounts. Id. at 35. the stores’ bank authority.” a warrant’s rebanee on United (3d Williams, 69, II. v. States Cir. 1993). The Supreme developed Court A. exclusionary deter unlawful police rule to argues District Leon, 906, at conduct. 468 U.S. S.Ct. refusing evi suppress Court erred However, where law enforcement of its premis dence obtained the search “objectively act in officers reasonable supported es because the warrant was not belief that their conduct not violate d[oes] by probable particularly cause and did Amendment,” or marginal the Fourth “the gov describe the to be seized. The items produced benefits [deterrent] nonexistent the warrant was ernment counters objec by suppressing evidence obtained that, by probable supported cause tively subsequent reasonable reliance on a event, faith” “good justi warrant cannot ly invalidated search rule, exclusionary adopted in fy the substantial costs of exclusion.” Leon, States Therefore, if 104 S.Ct. 3405. (1984), applies. 82 L.Ed.2d 677 Un has a warrant and exe an officer obtained Leon, if a suppress der motion faith, police cuted it in “there is no pursuant obtained to warrant does nothing to deter.” Id. illegality and thus present argument a Fourth Amendment 104 S.Ct. 3405. provide that should be decided order to applicability magis law enforcement or to To determine instruction to to the exclusion good it for a review faith judges, appropriate trate rule, reasonably “immediately ary turn to a we ask “whether ing court to consid known that Id. at well trained officer would have good eration of the officers’ faith.” (cid:127) 925, case, magis illegal despite In do the search was 104 S.Ct. 3405. we authorization.” United States probable not think that Kim’s cause and trate’s 146 (3d Cir.1999) warrant, 360, realized, upon reading the that it quot- 367

Loy, 191 F.3d 23, Leon, at 922 n. 104 S.Ct. was invalid and should thus have declined ing 468 U.S. that an officer executes a it. 3405. The fact to execute typically to a warrant pursuant search an officer conducted prove

“suffices III. justifies applica- faith and good a search A. exception.” tion of faith (3d 308 Hodge, States v. 246 F.3d Kim’s contends that affidavit was so Cir.2001) Leon, citing 468 U.S. at 104 cause that lacking probable indicia of Nevertheless, we have identi- S.Ct. 3405. the officers who executed the warrant in which an fied four narrow situations should have realized that it was invalid. is not rea- officer’s reliance on a Specifically, “[ajlthough Kim’s asserts that sonable: support the affidavit

(1) judge issued magistrate when the application respect was detailed with to the deliberately the warrant reliance on alleged grocery scheme stores and affidavit; recklessly or false fraudulently the Chinese restaurants to re- (2) magistrate judge aban- stamps, provided when deem food it almost no judicial failed per- doned his role and linking information those activities to function; neutral and detached form his Appellant’s Kim’s.” Brief at 35-35. Kim’s (3) also contends that even if the officers could the warrant was based on an when reasonably that the informa- thought lacking proba- affidavit “so in indicia of in the affidavit provided probable tion as to render official belief in ble cause unreasonable;” premises cause that Kim’s once contained entirely or its existence scheme, illegal of the reason- (4) facially when the warrant was so able officer should have realized that the particularize deficient that it failed to information was stale the time the war- things place to be searched or rant was issued. be seized. Williams, 3 F.3d at 74 n. quoting A magistrate judge may find (citation omitted). when, probable viewing totality cause case, circumstances, present prob

In the Kim’s does not “there is a fair ability contend that the affidavit contained delib that ... evidence of a crime will be Gates, erately recklessly particular place.” or false information or found in a Magistrate Judge that the abandoned her When war judicial Instead, Kim’s relies on the challenged, role. rant is issued and later a def exceptions third fourth above applied noted erential standard of review is determining and maintains that the affidavit was so whether the magistrate probable judge’s in indicia of cause and lacking so cause decision was erro lacking requisite particularity reviewing inquires in the as to neous. The court in the legal render official belief warrant’s whether there was “a ‘substantial basis’ for cause,” ity entirely finding probable Hodge, unreasonable. order Jones, exceptions, quoting come within these Kim’s must United States v. (3d show, Cir.1993), just Magistrate Judge that the F.2d as “after- issuing scrutiny by erred the search warrant at the-fact courts of the sufficien issue, Magistrate Judge’s that the cy but er affidavit should not take the form Gates, ror so obvious that a law enforcement of de novo review.” 462 U.S. at officer, legal training, without should have 103 S.Ct. 2317. resolution of “[T]he cases in this area The affidavit stated that Kim’s marginal or received doubtful by pref $1,305,302 largely payments determined should be from these “sham” be accorded to warrants.” erence to grocery stores. Id. at 162. pay- These 1057-58, Jones, quoting F.2d at Unit ments could not payments have been for Ventresca, 380 U.S. ed States because, groceries as the affidavit clearly (1965). 741, 13 L.Ed.2d 684 forth, sets these any stores sold few if Therefore, groceries. simple fact that

B. Kim’s cashed checks from grocery stores are that persuaded We implicated in the stamp trafficking food affidavit in this case was so deficient Kim’s strong scheme is that was as to render reliance on it probable cause also involved the scheme. It is there- contrary, we view unreasonable. On apparent fore that the affidavit “was not a making the affidavit as a substantial show ‘bare bones’ document” and that the offi- cause on which it was ing probable cers’ reliance on the search warrant was officers to objectively reasonable objectively Loy, reasonable. at F.3d citing rely. Hodge, 246 F.3d at 309 See 369. Williams, pro F.3d at 74. The affidavit complex great regarding vided detail C. money laundering stamp food fraud arguing that the affidavit in extensively that had been investi scheme woefully this case was lacking indicia of gated by experienced Specifical officers. cause, probable great Kim’s places weight information that ly, provided the affidavit following passage on the in the affidavit: Wang-Chen Partnership engaged in a under multi-million dollar scheme companies food that en [Wholesale are Partnership purchased food which gaged stamp in food trafficking and discount, them stamps at a and redeemed money ... maintain laundering records “ through ‘bogus’ grocery stores.” JA legitimate activity of their business both noted, agents 107. As undercover sold pri at their locations and at commercial stamps Wang-Chen food to the Partner they vate residences to which have ac later re ship, stamps and these were receipts, cess. These records include groceries. deemed some of these invoices, associates, rec lists business that did investigation showed these stores numbers, delivery telephone ords of business, legitimate little but a review of schedules, statements, ledgers, financial of five of the stores the bank records disbursement, receipt, cash sales they collectively had re demonstrated in journals, correspondence. This $12,000,000 in deemed more than food is relevant because it shows formation stamps April since 1994. Id. at 108. The the extent to which the businesses have from the of the food proceeds redemption engaged been commerce. stamps grocery were withdrawn from the added). (emphasis at 119 JA check, bank and all of stores’ accounts Pointing passage, argues to this ... grocery pay “the stores made checks that the that the “affidavit able to a common set of wholesale food demonstrate^ seeking legiti- 109, government was evidence of companies,” including Kim’s. Id. business, ... mate [and] 161. The amount “far ex checks issue when there is inventory only ceeded the value of food should ... evidence of a may purchased.” the stores Id. at cause to believe particular place.” will found in a crime be 148 (10th Cir.1972). (italics Johnson, 285, F.2d 287 original). at 26 461 Brief

Appellant’s Furthermore, where the items to be seized unpersuasive. argument is This purpose preserva- are created for the of stated, pro- the affidavit previously As records, tion, passage as are business reason to believe vided substantial significant. time of is also less See large amounts of mon- had received Kim’s (3d Williams, 411, 421 States v. F.3d lit- stores that conducted ey grocery from Cir.1997). case, noted, present In the as pro- This information tle or no business. relationship between Kim’s and the to believe that Kim’s probable vided cause duration, Partnership was of considerable would not con- ordinary books and records a for and the warrant authorized legitimate grocery showing tain entries categories of records. standard business to these sham purchases by and deliveries typically Businesses retain such records stores, of such entries and the absence certainly period for extended time— that the checks issued would tend to show for more than 11 months. For these rea- other to Kim’s were for these stores sons, objectively we hold that it was rea- therefore legitimate purposes. than We executing sonable for the officers to be- passage with this problem see no supporting lieve that the evidence affidavit, we hold that there is no search warrant was not state.5 the fruits of the ground suppressing premises Kim’s to lack of search of due IV. probable cause.

A. D. Kim’s contends that the warrant argues suppres Kim’s next “general this case was a warrant” and the information sion is called for because plainly requisite particularity so lacked the Kim’s relating in the affidavit was stale. concerning the items to be seized that Sep executed on The search warrant was official reliance on it was unreasonable. 1997, and the affidavit showed tember Fourth provides Amendment that “no relationship with the began that Kim’s issue, upon probable Warrant shall but Wang-Chen Partnership 1994 and con cause, affirmation, supported by or Oath in financial engage transactions tinued particularly describing place to be Partnership through with the October searched, persons things and the or to be 108-09, reject 1996. JA at 162-64. We seized.” The Fourth Amendment does ren argument gap that this 11-month prohibit long searches for lists of docu in the affidavit so dered the information provided ments or other items that there clearly stale that reasonable officers could probable cause for each item on the list not have believed warrant was and that each particularly item is de valid. scribed. activity requirement “an “The pro particularity Where is of ” nature, pas general ‘the ... impossible.’

tracted and continuous ‘makes searches ” Christine, sage significant.’ time becomes less United States v. 687 F.2d (3d Cir.1982) Tehfe, quoting v. United States v. Marron Unit (3d Cir.1988) States, quoting United States ed 275 U.S. argued supported finding that the District Court im- cause. Be- properly information we considered outside of cause find that the warrant was executed faith, ruling we need address the affidavit in its that the affidavit this issue. (1927); also, e.g.,

L.Ed. 231 see v. plainly in violation of the particularity re- Stanford Texas, 476, 480, quirement 85 S.Ct. that the executing officers could (1965). general L.Ed.2d 431 A reasonably have trusted in legality. its authorizes “a general, exploratory rum- Although the scope of the warrant was in maging person’s a belongings.” extensive, Cool- certainly the warrant was not idge v. New Hampshire, 403 U.S. general. The warrant authorized a search (1971). 29 L.Ed.2d 564 for and seizure of the following: order for a warrant to be invalidated as 1) invoices, Receipts, lists of business general, it “vest the executing must offi- associates, schedules, delivery ledg- cers with unbridled discretion to conduct ers, statements, financial cash re- exploratory rummaging through [defen- ceipts, disbursement, jour- and sales papers dant’s] of criminal evi- nals, and correspondence. Christine, dence.” 687 F.2d at 753. As 2) Computers, computer peripherals, re- Christine, we noted examples of general lated notes, instruction manuals and warrants are authorizing those searches and software order to conduct an for and seizures of vague categories such off-site search for copies electronic of “ ” “ of items as ‘smuggled goods,’ ‘obscene the items listed above. materials,”’ “‘books, records, pamphlets, JA at 181. The thus “des- cards, lists, memoranda, receipts, pictures, ... cribfed] in generic inclusive terms recordings and other written instruments what Christine, is to be seized.” concerning the Party Communist Tex- ” “ ” It did not vest the executing offi- as,’ “ films,’ ‘illegally obtained ” cers with “unbridled to search discretion” (citations ‘stolen property.’ omit- for and they seize whatever wished. Id. It ted). broad, was indubitably but it not “gen- was We have contrasted a “general eral.” warrant” with warrant simply that Moreover, we think that reasonable offi- overly overly broad. An broad warrant cers have easily could believed that specific “described] both and inclusive warrant was not even broad with overly generic seized,” terms is to what be but it respect the categories of items to be authorizes the seizure items as to which sure, seized. beTo the warrant autho- probable Christine, there is no cause. rized a search for and the seizure of entire F.2d at overly warrant, 753-54. An broad categories legitimate records, business however, redaction, can be cured but it is critical keep in mind that a is, by “striking from [the] warrant those principal purpose of the warrant was to phrases severable and clauses that are in prove viz., negative, had Kim’s valid for lack of probable general cause or engaged legitimate business transac- ity preserving those severable phrases tions with groceries the sham from which and clauses satisfy the Fourth Kim’s large had received payments. cash Amendment.” Id. at 754. Evidence pursuant previously quoted seized overly passage to an from the war broad affidavit, attacks, rant Kim’s why need not which shows suppressed be if there faith was cause to seize the cate- applies.

gories*of business records covered B. warrant. passage This stated: [Wjholesale Contrary argument, companies food that are en- warrant here general was neither gaged nor so stamp in food trafficking and statements, receipt, disburse- cash nancial ... maintain records laundering

money ment, correspon- journals, activity both and sales business of their period of pri- and at least for the relevant locations dence”—at their commercial they ac- officer Consequently, to which reasonable residences time. vate receipts, include that the breadth easily These records have believed cess. could associates, rec- invoices, business justified.6 lists of in this case of the warrant numbers, delivery telephone ords of the warrant contends that The dissent statements, schedules, financial ledgers, “lim- it was not plainly flawed because was disbursement, and sales receipt, cash rela- bearing some ... to documents ited This in- correspondence. and journals, target- Kim’s transactions with tion to shows because it is relevant formation known or the individuals grocery ed stores have the businesses to which the extent and be- in the fraud” participants be legitimate commerce. in engaged been types specify generic it “the cause did added). In other (emphasis at 119 JA crimes, i.e., trafficking or stamp food of in words, engaged legitimate if Kim’s had which the items des- money laundering, to grocery with transactions business at Dissent pertained.” for seizure ignated example, it had for question if, stores — However, argument simply over- 27. in- “receipts, groceries sold them —its in this investigation that the looks the fact associates, voices, records lists of business (that negative sought prove a case schedules, numbers, delivery telephone legitimate sales engaged Kim’s had not statements, receipt, cash financial ledgers, groceries). In order to show to the sham disbursement, journals, and cor- and sales occurred, it was sales had that no such such have evidenced would respondence” all of the for and seize necessary to search if of such le- And evidence transactions. a record of such transactions files which from missing was transactions gitimate Searching for and kept. have been would invoices, lists of business “receipts, Kim’s positively that seizing only those records numbers, associates, telephone records of would not illicit transactions showed schedules, financial state- ledgers, delivery reason, objective- it was sufficed. For this disbursement, ments, and receipt, cash executing officers for the ly reasonable it was correspondence,” journals, and sales prop- to believe that the this case that no such to infer reasonable for and seizure erly authorized inBut order had occurred. transactions Kim’s records categories of business of such transactions that evidence show set out. that the warrant necessary to examine lacking, it was was the warrant invoices, Kim’s contends lists of “receipts, Kim’s all of be particularity requirement associates, violated telephone records of business and schedules, it not restrict the search numbers, fi- cause did delivery ledgers, origins of illegal or to conceal the keep that the scheme important to in mind It is also issued, only for of the might to search a violation warrant was the funds constitute fraud, stamp but also evidence of food money laundering 18 U.S.C. statute. See laundering money evidence of (c). search for 1956(a) seeming- § A transaction as. laundering money conspiracy to commit purchase of face as the ly innocent on its include the use of that these latter offenses supplied restaurant groceries to be to a variety of stamp fraud in a proceeds of food fraudulently food exchange obtained 1956(a)(1). § ways. See 18 U.S.C. different thus stamps might qualify, and there was knowing use of example, For and seize broad probable cause to search for million) (more $1.3 than funds categories of records. groceries to further the sham received from seizure to documents concerning transac- lief in [legality] its entirely unreasonable.” during tions that occurred period Hodge, the time F.3d 308. Accordingly, the illegal stamp food Leon trafficking to the exclusionary rule vein, precludes suppression scheme. similar the dissent of evidence on this ground. warrant, argues most, should

have covered period documents from the In Massachusetts Sheppard, 468 U.S. 1994 to 1997 period and not for the 1984 to 981, (1984), 82 L.Ed.2d 737 1998. Dissent at 26. This argument, how- the companion Leon, case to the Supreme ever, provide does not ground for sup- applied Court faith doctrine to a pressing the supporting judg- case in which a warrant had been invali- ment of forfeiture. dated because it overly broad. See also United States v. Kepner, The warrant issue here was (3d Cir.1988). In Sheppard, the tantamount to one authorizing a search for police wished to search the residence of 1984, 1985, 1986, records for years the etc. boyfriend the of a murder victim. The through 1997. If the dissent is correct that supporting specified affidavit that police the warrant should not have covered docu wanted to search the defendant’s residence ments from 1984 to that flaw renders for fifth “[a] bottle of liquor, amaretto broad, the overly warrant general. not bags nickel of marijuana, jacket a woman’s The inclusion of the period from 1984 to that has been described as black-grey 1993 did not “vest the executing officers (charcoal), possessions victim], of [the simi- with unbridled discretion to conduct an type lar wire rope that match on those exploratory rummaging through [defen body victim], the of [the or in the above .papers in dant’s] search of criminal evi [Thunderbird]. [A] [b]lunt instrument Christine, dence.” 687 F.2d at 753. Rath might that been have used on the victim. er, the of simply inclusion those years Men’s or clothing women’s may that have authorized a search for as documents to blood, gasoline, burns on them. Items which may there not have probable been that may have fingerprints of the victim.” Christine, cause. Under our decision in at, 985, 104 S.Ct. 3424 (quoting the the proper remedy putative for this defect affidavit). police The sought the warrant simply was to years excise the for which on a Sunday and were thus unable to most, there was no cause. At the obtain the appropriate warrant form. The lack of time restrictions meant that the investigating detective found a warrant broad, warrant overly was general. not county form used another for searches have, not, Kim’s could but did move for for controlled brought substances and the redaction of the warrant on ground. warrant judge. to the reading After (Redaction unlikely is helped Kim’s affidavit, judge agreed to authorize the since expect one would the documents requested warrant and necessary made upon government which the to show relied changes to the controlled substance war- that bank in question funds were involved rant form in order to tailor it case at illegal scheme would within fall However, hand. judge failed to scheme.) period time event, any change directory portion of the war- the absence from the warrant provi rant, of a which “any authorized a sion limiting the search seizure to substance, article, controlled implement or documents pertaining to the period time of in, for, other paraphernalia used inor con- the scheme not make the did warrant “so nection with unlawful possession or use ” facially deficient” “as to render official be- of controlled substance.... Id. at stances, is so as where the such the war- (quoting 104 S.Ct.

987 n. lay even a in form that overly plainly defective form). thus The warrant was rant faith that not believe officer could broad. narrow cir- proper. That the warrant that the Leon held Court Supreme here, and we present is not cumstance applies rule exclusionary exception to jus- suppression is not therefore hold reasonably be- executing officers where tified. by a war- authorized a search is lieve that ob- The Court is broad. rant too V. required officer is police that a served just has advised judge who question A. possesses he autho- him that the warrant the officers argument final is that search; requested conduct the rizes him to violated the warrant who executed developed exclusionary rule was as the all by seizing docu- Fourth Amendment by police, [and] unlawful searches “deter Chinese, regardless ments written magistrates and punish the errors content, determining whether without first inappropriate. suppression judges,” cate- within one the documents fell 990, 104 S.Ct. 3424 468 U.S. Sheppard, that violat- in the gories specified Gates, 462 U.S. at quoting Kim’s con- ed the Fourth Amendment. (White, J., judgment). in concurring have should government tends that the in dates limiting The absence the. was person to a who required been send worst, is, at case present in the warrant the scene of able to read Chinese the in in the defect the similar to whether doc- in to determine search order present in the The officers Sheppard. within the in Chinese fell uments written investigation; lengthy a case conducted argu- scope. these warrant’s Because transac- numerous bank they reviewed important Amendment ments raise Fourth all of tions; assembled they painstakingly gov- specifically questions that are during the inves- collected the information address by binding precedent, we erned and de- it to a neutral presented tigation, turn- issues before the Fourth Amendment revised Judge, and then Magistrate tached exception. See faith ing to Leon it re-presented the affidavit Leon, at 104 S.Ct. U.S. Judge, who found Magistrate a warrant. cause to issue B. Judge Magistrate The members explained how The affidavit this case They are cho- highly qualified. corps are planned prob- to deal with the agents Court, by the District merit sen based on The written Chinese. lem of documents Magistrate Judge posi- for competition affidavit stated: Judges typically Magistrate is keen. tions of the records that some involving anticipate with We experience issues have more will be premises on the be searched officers. judicial other warrants than gov- a The recorded in chínese dialect. case believed Judge Magistrate agent attempt assign an ernment and thus is- will proper that the warrant in at one chínese is least Judge has who fluent Magistrate a sued it. When may It teams. determination, dialect to search law enforce- made such to screen for- impossible be officers, attorneys, nonetheless rarely ment who are for relevance eign language documents Magistrate rely on the are entitled they are either because premises on the except rare circum- Judge’s judgment, in a agents dialect unknown to our or U.S. 118 S.Ct. 140 L.Ed.2d we (citation because are unable to (1998) staff omitted), and there are search location with a speaking chínese plainly circumstances in which it is rea- agent. We will seize all records that we sonable to execute a warrant for docu- cannot read. these records (or ments in foreign language After for techni- been reviewed someone with records) cal without the familiar of an assistance used, the dialect all records not de- officer who capable is of understanding scribed in this search warrant be shall sought. materials Reasonableness is returned. “by determined assessing, on the one added). hand, (emphasis JA 176-77 Accord- degree to which [a or ing brief, to the government’s the warrant upon seizure] intrudes pri- individual’s for the search of Kim’s was one of and, 23 vacy other, on the the degree to arrest and search warrants that were exe- which [the search or seizure] needed for cuted time approximately same promotion governmental 180 federal and state law enforcement offi- interests.” Wyoming v. Houghton, 526 cials, approximately ten of spoke whom 143 L.Ed.2d Appellee’s Chinese. Br. at 41 n.3. No (1999) (citation omitted). If, for ex- officer speak able to Chinese was sent to ample, there urgent is an need to execute Thus, Kim’s. Id. agents if the who execut- documents written in a lan- ed the warrant at proceeded as guage relatively people few in the affidavit, stated in they seized doc- all jurisdiction read, can it bemay reasonable uments written in Chinese. The govern- to proceed without the assistance of some- represents ment in its brief that all of the one able to read the If language. officers seized documents written in Chinese “fell were obligated such a situation to wait into one of categories two of documents until someone who is able to read the specified by the warrant: invoices and language can be found and assigned to 40-41, ledgers,” id. at in and of view the search, assist with the vital evidence could scope warrant, of the may well be lost, be as we will explain, and there are However, true. point the is not conceded alternative minimizing means of the intru- by Kim’s and the record as it now exists on sion that privacy immediate execution apparently does not show whether or not of Thus, the produce. warrant would government’s the representation is true. suggestion agent that an who is able to language read the always must be C. assigned to the team executing the war- The in affidavit this case did rant is unreasonable. provide not probable cause for the seizure same, At the Chinese,

of all documents we do not in embrace war the the suggestion rant that executing did not authorize may the seizure of all officers always “seize all mean, [they] such documents. This records does not cannot however, that the read.” If officers government who are to was neces able read the sarily required language question available, an agent readily send are who was able to read the assign Chinese to failure to Kim’s to such an officer assist the execution of warrant. assist gen executing the the may “The warrant be eral Furthermore, touchstone of reasonableness which unreasonable. even if there governs Fourth analysis Amendment ... is a sufficient reason not to assign such a governs the of person, method execution the of the warrant must be executed still warrant,” Ramirez, United States v. 523 in a reasonable manner. privacy of pres- in the conducting the search interests elude Amendment whose Fourth

those counsel, moving party the allowing not be ence should by the search affected are por- or certain files than is rea- to demonstrate degree greater infringed to could not intermingled documents tions serve the necessary to sonably of the search scope the fall within possibly enforcement. of law interests warrant, the search be requiring that or way proceeding reasonable One id. master. See special conducted Pre- Code of in the Model is outlined (1975), § 220.5 SS Procedure Arraignment D. where “documents which recommends case, the record is present In the or for be searched cannot to be seized whether to determine insufficient examining the contents without identified aas re was violated Fourth Amendment documents, executing offi ... of other in Chi of documents of the seizure sult but the documents examine cer shall brief government’s Although nese. appropri under them impound shall either need relating to the representations makes found, or seal where protection ate at Kim’s without execute fur pending safekeeping them for remove Chinese, ” able to assigning an officer read 220.5(2). § Id. at proceedings.... ther present record appear that it does not im- or following the removal Promptly More representations. those supports documents, executing poundment record over, appear that it does not the fact and circum “report officer should that did any documents whether reveals or removal impounding stances of scope of the not fall within the as As soon thereafter issuing official. If no such docu taken from Kim’s. were upon justice permit, and interests of taken, no viola then there were ments all interested notice due and reasonable If such the Fourth Amendment. tion of held hearing be before shall persons, a retained, there were documents taken person ... which issuing official a violation.7 may have been may or docu or control the whose possession from violation, may or there if there was And ... and may appear ... taken ments were reversing the for may grounds not be (a) of the documents for the return move of forfeiture. judgment (b) specifica or part, ... or whole record, we gaps Because of the on these and limitations of conditions tion such vacate the that it advisable to be to believe for documents further search the to the and remand of forfeiture prevent judgment to may appropriate be as seized further proceedings. Court for of District invasion unnecessary or unreasonable remand, identify 220.5(3). any should doc- § This adver On Kim’s privacy.” search and taken the to were moving party uments hearing enables the sary any categories of the of do fall within to procedures be used certain request that If in the warrant. set out privacy.” of documents “prevent excessive invasions identified, govern- the such documents are Pre-Arraignment of Note to Code Model to the given opportunity be 220.5; ment should see also United § Procedure SS the of these either seizure Tamura, 595-97 establish F.2d 694 States v. by the Fourth (9th Cir.1982). permitted in- may documents procedures These course, docu- handling the cursory activity. Of might if a not be a violation 7. There point would up of examination to the to ments determine of such documents examination comply Amendment to with Fourth scope war- also they whether fell within requirements. they evidenced criminal rant revealed Amendment or that the Leon to rule is inapplicable. United States v. Leon, exclusionary precludes suppres- 897, 923, rule U.S. 104 S.Ct. sion.8 (1984). L.Ed.2d 677

VI. I. The Kim’s warrant lacked above, constitutionally explained required For the reasons we specificity. reject arguments relating proba- However, ble and particularity. cause be- The Kim’s warrant was so inexact that gaps present cause record relat- the executing officers could not have rea- ing to the seizure of documents written in sonably presumed validity. its It allowed Chinese, we vacate judgment of forfei- the seizure of the following items: ture and remand to the District Court for invoices, Receipts, lists of business as- proceedings further concerning this issue sociates, schedules, delivery ledgers, fi- only. statements, nancial receipt, cash dis- bursement, journals, and sales AMBRO, Judge, Circuit dissenting. correspondence. The Kim’s warrant was lacking so Computer, computer peripherals, particularity that related reasonably no well- notes, instruction manuals and officer soft- trained could execute it in good ware in Thus, order conduct an off-site faith. I respectfully dissent.1 search for copies electronic of the items The Fourth Amendment requires that a listed above. warrant describe with particularity the place to be things searched to be This warrant vested the executing officers Coolidge seized. v. New Hampshire, 403 with carte blanche to seize all documents— 443, 467, 91 S.Ct. 29 L.Ed.2d even those written in regardless Chinese — (1971). pass muster, To constitutional agents whether the knew what the docu- specificity to what is “[a]s to be taken” is ments were they or how related to the necessary so that “nothing is left to the investigation. By so, doing the Govern- discretion of the officer the warrant.” executing ignored ment its burden of drafting the States, Mar ron v. United 275 U.S. Kim’s specific as possible as based (1927). 72 L.Ed. 231 on information available at the time of Moreover, when a warrant facially is “so the search. United States v. American ie., in failing particularize Inc., Pittsburgh, Investors deficient — place (3d Cir.1989). be searched or things Here, that limit- be seized—that executing ing officer can information would have included Kim’s valid,” not reasonably presume it to be alleged period time of involvement and good faith exception to the exclusionary criminal activity.2 express 8. question We no view on the wheth- constitutionally defective warrant in this good exception er apply faith would here case. if a Fourth Amendment violation is found. 2. Based on the information contained in its agree 1. I majority with the record is affidavit, the Government also could have lim- inadequate argument to resolve Kim’s with ited the search and seizure to documents respect to the seizure of written in documents bearing some relation to Kim’s transactions however, my opinion, In Chinese. that issue targeted grocery with the stores or the indi- reached, would not be as all participants viduals to be known in the fraud. suppressed taken from Kim’s be should due to 156 have been B. The warrant should have been should

A. The warrant alleged Kim’s limited to alleged dates Kim’s to limited activity. criminal of involvement. the warrant majority, by the As noted Further, speci- the warrant could business list of generic its qualify did crimes, ie., food generic types fied description a by providing records money laundering, to trafficking or stamp investigation. under period time relevant designated per- for seizure which the items to Kim’s pertaining allegations While F.2d George, v. 975 tained. United States 1996, and while exclusively place took Cir.1992) (2d 72, (refusing apply to 77 at partnership pertained those that because “a war- faith Leon 1997, the war- 1994 to from large occurred any crime at scope not limited rant through forage license rant bestowed unconstitutionally broad that no all is so Kim’s, even those any found records could reasonably police officer well-trained through in 1983 opening its dating from otherwise”) (emphasis original). believe there is no 1994, during which period fatal, distinguishes this defect is This before us that the record suggestion on 4 Conley, v. F.3d case from United States anything but conducted (3d Cir.1993), which Government 1200 itself, deficiency result- By this business. that the warrant proposition cites for the unconstitutionally warrant. broad in an ed Conley, In our facially deficient. was not Ford, F.3d 576 v. States of the District reviewed a decision Court (“Failure (6th Cir.1999) limit de- broad finding that based on its suppress Court to dates, when terms relevant scriptive premises of a search warrant for the police, will to the dates are available such machines poker which leased business overbroad.”). a warrant render ap- establish cause. On failed to that the war- defendants maintained peal, omission, majority defending because it rant at issue was overbroad most, the lack of time that “[a]t asserts authorized the seizure of the warrant was meant restrictions broad, Maj. Op. at general.” overly machines, ma- keys for poker video [a]ll other- suggests law Controlling case 151. records, chines, accounting all revenue is one authoriz- general A wise. records, records, purchase or- employee in a rummaging exploratory ing general “a from distributors and manufactors ders Coolidge, belongings.” person’s machines, all records poker video [sic] of example, For Stan- S.Ct. machine locations and showing poker Texas, 379 U.S. ford paraphernalia all indicative of (1965), general involved a 13 L.Ed.2d gambling operation. There, authorized the warrant warrant. rejected the at 1204. Our Court F.3d records, “books, pamphlets, the seizure that the satis- argument, finding lists, memoranda, pictures, cards, receipts, requirement of the particularity fied the other written instruments recordings and limit- fairly because it Fourth Amendment Party of Tex- concerning the Communist illegal to items related to the ed the search The warrant 85 S.Ct. 506. as.” Id. at suspicion. under gambling operation no limitations as here —which contained at 1208. transactions, activities, or period, the time contrast, Kim’s warrant did not as the specific not even as crimes involved—is illegal activity much as allude to Stanford, was found to be so that in which agent reviewing An investigation. under unconstitutionally general.

157 implementing the warrant on Kim’s or evidence a crime will be found in a of would have no to distinguish basis particular between place.” Gates, Illinois v. business and receipts 213, 238, records to relating 2317, 76 L.Ed.2d (1983) suspected illegal added). conduct and those that (emphasis Contrary to altogether were irrelevant and majority’s assertion, innocuous. the Government The Kim’s warrant did can meaningfully obtain a only warrant for evidence limit personal the intrusion into privacy suggesting illegal conduct, not for evi- dence, it because failed to or evidence, direct the a dearth of officers suggesting legal only probative crimes, seize items conduct. here money laundering food stamp and/or The majority exacerbates misappre- this McClintock, fraud. United States v. Cf. hension of law by stating that “in order to (9th Cir.1984) 748 F.2d 1282-83 (ap show that evidence of such transactions proving containing language was it lacking, was necessary to examine “any and all referring items to the sale of all of invoices, Kim’s ‘receipts, lists busi- diamonds gemstones and other which are associates, ness records of telephone num- XVIII”); evidence of a violation of Title bers, schedules, delivery ledgers, financial Dennis, States 625 F.2d 792 statements, cash receipt, disbursement, ” (8th Cir.1980) (upholding a warrant which and journals sales correspondence.’ called for seizure of books and “certain Maj. Op. at 150 (emphasis in original). (or evidence) records items of relating This argument essentially suggests that the extortionate credit transaction busi Kim’s “permeated with fraud,” or was ness”); States, Grimaldi v. United 606 so extensively in the involved scheme that (1st Cir.1979) F.2d (holding it every affected level of its organization. that phrase “paraphernalia used in the (8th v. Sweeney, Rickert 813 F.2d manufacture of counterfeit federal Cir.1987). reserve notes” adequate was an means of limiting However, the Government’s own brief warrant). and affidavit undermine the majority’s business, justifies

The majority the Government’s analysis. A does not qualify as failure to phrase include a limiting “permeated with if fraud” it is an actual alleged criminal activity legitimate business which merely in- investigation because “the in this particular case volved in a criminal activity for (that sought prove negative Kim’s had a period finite time. United States v. not engaged in legitimate Kow, (9th Cir.1995). sales to the (em- sham groceries).” Maj. Here, atOp. 150-51 itself acknowledges Government phasis original). This position essential- Kim’s was first established ly endorses fishing expedition years where the over prior ten to the business’ first Government is allowed to seek evidence of alleged scheme, involvement legitimate, illegitimate, conduct.3 Fur- that during 1995 and 1996 Kim’s received ther, “negative” proof argument only con- of its 13% total revenue from the Supreme tradicts the Court’s dictate alleged scheme. Government’s Br. at 24. before a issue, may accounts, search warrant By all Kim’s was a magistrate judge must be satisfied that business even when it was participating “there is a fair probability contraband the scheme. More importantly, there is no Ironically, majority i.e., prove positive, contradicts its own as actual direct "negative” proof argument by stating also money laundering of a Maj. Op. scheme. that the Government seized the documents 150 n.6. the affidavit copy a of did not have during Kepner involvement its criminal of up the who drew agent lead handy, the Un- its existence. years of

the first twelve as to his team carefully instructed affidavit circumstances, Kim’s does der these responsi and “took scope of the the search entity with “permeated an as qualify every piece determining whether for bility by thus, majority errs fraud,” the and of scope within the fell seized evidence of of busi- seizure all a wholesale justifying Comparable at 763-64. warrant.” Id. the ness records. here. was not exercised diligence steps no took II. Government The considera- majority places the Similarly, scope the of limit the to Shep- v. on Massachusetts emphasis ble and seizure. search 104 S.Ct. pard, 468 (1984), Supreme in which the L.Ed.2d 737 drafting, inadequate to its In addition faith good allowed the Court subse- to undertake failed the Government a warrant was invalidated where proceed scope of the limit the quent measures failing to court for appellate a state affidavit was seizure. The search and be seized.” “things the describe war- into or attached the incorporated Sheppard autho- Though the affidavit cannot rant, the therefore and specific an search without expansive rized specificity. additional of a source serve as seized, the to be of items Johnson, description v. States See United and the affidavit prepared who Cir.1982) detective (3d (holding that where every effort to warrant made into secured incorporated reference is affidavit warrant, in the form inaccuracies correct warrant, can the affidavit cure Shep- of supervised the search personally of particularity). lack warrant’s residence, along copy a brought pard’s and McEl Further, Agents Thomerson Id. at 985- affidavit to the search. out affida who swore ravy, officers words, the In other 3424. S.Ct. the Kim’s search vit, supervise failed to Supreme motivating factor critical distinguishes Their inaction and seizure. clerical judge’s disregard Court Kepner, v. States from United this case officers fact that oversight was the (3d Cir.1988), ma which the F.2d 755 reasonably be step that could every “took dis without actual jority support cites Id. at of them.” expected a upheld Kepner In we cussion. contrast, here took the officers of and seizure the search that authorized of limit seizure steps to the search and no records, “documents, personal effects” business records. who a union official Kepner, of Thomas States comparable More continuing investiga subject of was the (10th Cir.1988), where F.2d 592 Leary, 846 applica racketeering. tion into labor suppression affirmed the Tenth Circuit affidavit more accompanying used tion and grounds the warrant on the order warrant, al language than specialized negate as to facially overbroad so to believe that leging cause probable Leary, The warrant faith. claim yield the condominium would search to believe on cause predicated diaries, documents, records, “clothing, in an ille- engaged had the defendant [Kepner’s] that establish correspondence transaction, authorized gal export unit as of the condominium use and control company for export of an receipt prohibited illegal well as his messages, con- (alteration Telex [cjorrespondence, origi at 762 benefits.” orders, invoices, ship- tracts, purchase nal). though the search team Even documents, records, ping payment ex- rewriting, not the redacting, of this uncon documents, port packing slips, technical stitutional warrant. But as Christine data, notations, recorded and other rec- clear, makes redaction does not include ords and relating communications to the inserting new terms into a warrant. In purchase, illegal sale and exportation stead, “[b]y redaction, we mean striking materials in violation of the Arms Ex- from a warrant those phrases severable Act, port Control U.S.C. and and clauses that are invalid for lack of Export Administration Act of probable cause or generality -preserv 50 U.S.C.App. 2410. ing those phrases severable and clauses satisfy the Fourth Amendment.” Id. 846 F.2d at 594. generated The search added). at 754 (emphases This definition twenty records, boxes business most does redrafting include document to unrelated to the investigation. See id. at add time or limitations, criminal activity 594-95. warrant, The Court held that the when, especially here, as the warrant con which “encompassed every docu- virtually tained no such “phrases and clauses” in ment might expect that one to find in a place. the first office,” modern export company’s was fa- cially light deficient in of the fact that the “Redaction is inappropriate when the Government had in its possession informa- portions valid may warrant not be tion that it could have used to limit more meaningfully severable from the warrant precisely the description of the documents When, as a whole.” Id. as with the Kim’s to be seized. Id. at 600-02. warrant, “no portion of the warrant is sufficiently particularized in Leary,

As to pass information readily constitu- muster, tional available to the then total Government suppression in this case to is (refus- required.” Kow, make the 58 F.3d at description warrant’s 427-28 of the rec- ing to allow ords to be redaction or apply seized substantially specif- more Instead, ic. faith when the rejected Government “did Government not limit scope precise more language, and the seizure to a time sweeping frame within speak suspected results which the criminal themselves: the Govern- activity place” took ment thirty-six confiscated failed “to boxes of docu- describe ... ments, specific cabinet, criminal filing suspect- computers, activity two ed.”); Christine, (“It see plastic twelve 687 F.2d at bags is containing paper brown beyond bags, doubt all currency. pur- seized general

suant to a warrant sup- must be Suppression only III. is the pressed.”). Kow, Similar to the

appropriate remedy. portion no of the Kim’s limited by reference to dates or activity. criminal Finally, majority the re misapplies situation, In this redaction only is not inap- remedy daction endorsed in States propriate, wholly it is unfeasible. Christine, (3d Cir. 1982). conceding While that the warrant IV. Conclusion should restrictions, have included time majority states that Any Christine’s redaction number of limiting the measures — concept may cure by defect authoriz warrant relevant period, time transac ing a reviewing tions, court to activities, insert rele or incorporating criminal vant dates into the Kim’s affidavit, warrant. attaching This or supervising reasoning stretches Christine to the ma to limit the officers’ discretion— jority’s Procrustean bed endorsing the could arguably have allowed this warrant scrutiny. constitutional

to survive gen draft a chose instead

Government ex Amendment the Fourth

eral warrant Further, the Su “[w]hen forbids.

plicitly faith good announced Court

preme Leon, the exclu it weakened

exception it. rule, not eviscerate but it did

sionary police magic lamp is not a faith

Good find them they rub whenever

officers v. Zim United States in trouble.”

selves (3d

merman, Cir. 487-38

2002). indeed in trou that it was Sensing ar at oral

ble, conceded the Government warrant “could the Kim’s

gument better, have and should been written This admission better.”

been written unconstitutional

an understatement it nonetheless To sanction

proportion. faith swallow

lets Leon’s respect I rule. Amendment’s

the Fourth

fully dissent. BUSKIRK, Appellant

Willard METALS; PMA

APOLLO Group

Insurance

No. 01-3556. Appeals, States Court

Third Circuit. 10, 2002.

Argued June 20, 2002. Sept.

Decided

Case Details

Case Name: United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars & Fifty-Seven Cents

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 20, 2002

Citation: 307 F.3d 137

Docket Number: 00-4348

Court Abbreviation: 3rd Cir.