United States v. Roderick L. Lebron, Jr.

guidelines ap- in Secretary tions which the could be Torres v. Health and Human of Services, plied (1st to determine whether there was work 668 F.2d economy per- Here, which a claimant could dispute is a there as to whether form. We indicated the manner pain separate grounds Allred’s is either a applied. which should be sub- disability significant for or enough, is when guidelines stance we held that use of the limitations, considered with his exertional inappropriate evidentiary where their un- disabling. case, If to be either is the derpinnings exactly do not coincide with guidelines applied. cannot be Simonson v. disability evidence of found the record. Schweiker, supra, 699 F.2d at 430. If a claimant’s relevant characteristics dif- any respect fer in material from those IV. CONCLUSION grid, guidelines applied cannot be We have no alternative but to re customary and the reliance on vocational mand to the district court with directions to experts vigor. its full McCoy retains v. Secretary. it to remand to the The Secre

Schweiker, Here, supra, 683 F.2d at 1146. tary may then award benefits or remand to question there is a serious as to whether evidentiary an AU for a further hearing, grid applied. be should specific findings and more consistent with First, underlying including age facts opinion. emphasize again, We because open proof. and education remain to Id. Secretary appears reject our many Here, years Allred has eleven of education issue, holdings on the that a claimant can grade he out at the but tests seventh level. solely not be found not disabled given must be to this Consideration fact. grounds that disabling pain of which he complains is not by objective manifested

Second, capable per a claimant findings. medical The claimant’s credibili forming sedentary light or work under the ty must be determined from the total guidelines ability perform must have the record. required physical day day acts in and competitive out in the sometimes Reversed remanded. people real stressful conditions which Here, work in the real world. what Id.

evidence there is indicates that Allred does ability.

not have this

Finally, pain where is considered separate ground disability,

aas for it must enough prevent

be severe the claimant engaging any gainful

from substantial America, Appellee, Where, UNITED STATES here, employment. pain as is con with exertional limi sidered combination v. tations, only significant it found need LeBRON, Jr., Appellant. Roderick L. enough prevent the claimant from en No. 83-1074. range gaging jobs contemplat in the full category which ed the exertional Appeals, United States Court of qualifies. (quoting claimant Id. at 1148 Eighth Circuit. Gagnon Secretary Health and Hu Services, (1st Submitted June 1983. man 666 n. 8 Cir.1981)). simpler To make review and to Decided March reversal, unnecessary avoid it would make stay completely more sense for an AU to guidelines pain

away from the where is so

significant applicant pos does capacity the residual functional

sess guidelines predicated.

which the are Marks, Clare, Cuddigan, P.C., Timothy ing LeBron purchaser J. was an active Hopkins, Cuddigan 12, 1982, Rauth & and James property. On March Schaefer, firm of Schaefer of the Troia & Agent presence, agreed Petersen’s LeBron Omaha, Neb., appellant. purchase Panasonic screen televi- sion and a Sony set video cassette recorder Lahners, Neb., D. Atty., Ronald D. U.S. (VCR) Dailey. During from this transac- Gross, Jr., Atty., Joseph Asst. D. F. U.S. tion, Dailey freely discussed fact that Neb., Omaha, Neb., appellee. for the items were hot and were from the LAY, BROWN, Judge, Before Chief Sen Agent Omaha area. Petersen observed the ARNOLD, Judge,* ior Circuit Circuit and items, respectively, serial numbers on these Judge. TKZ178623 and 23486. A surveillance team observed LeBron return to the meet- LAY, Judge. Chief ing place later day, load the television under Roderick LeBron was convicted van, and into a VCR and unload it at his §§ 5861(d) (1976) and 5871 U.S.C. for know- Subsequent investigation home. revealed ingly possessing firearms that had not matching descriptions that items these had been registered appeal, him.1 On Le- reported been as lost or stolen. alia, asserts, inter Bron that the search of 4, 1982, On June the informant intro- his home and seizure of the was firearms Agent Chant; duced Petersen to Jesse pursuant to an warrant. We find Sylvania Chant showed Petersen a VCR impermissibly was the warrant broad reading with a sticker on it High “Benson and that the seizure of the firearms was School, Subsequent Media Center.” inves- improper; therefore and re- we reverse tigation VCR, Sylvania revealed that a seri- pro- mand to the district court for further reported al number 8300933 had been sto- ceedings. High len from the Media Center of Benson Background Moreover, School. Chant admitted that the The warrant on was issued June stolen. VCR was The informant directed 9, 1982, Judge Douglas by Pittman of the Chant to LeBron in order to sell the VCR Court, County Municipal Omaha, Nebras- relayed and later Chant informant upon presen- ka. The was warrant issued had Sylvania that he sold the VCR to Le- by tation of an affidavit Officer subscribed 7, 1982, Bron. June On LeBron admitted Depart- Tomsheck of the Omaha Police possessed to the informant that he still ment. Sony the Panasonic screen VCR alleged, part, The affidavit the follow- purchased set which he television had from February ing facts. and March 8, 1982, Dailey in March. On June LeBron Alcohol, Tobacco, Fire- Bureau of seeking told the informant that he was (BATF), conjunction arms with the Oma- Sylvania stolen additional VCR’s like investigating Department, ha Police was purchased recently VCR he had from fencing property in the Oma- Chant. investigation, ha area. In the course of the The LeBron’s warrant described resi- Special Agent Pet- an informant introduced dence detail and authorized a search ersen, BATF, Dailey Dailey. to Durke for: residence property, fenced stolen and on several occa- (1) Sony Recorder, Video Cassette offered items sions he sold or to sell stolen 23486; # serial Agent The Petersen. informant (2) Large Panasonic Screen responsible supplying Agent Peter- Televi- LeBron, Set, #TKZ178623; serial sen with information about includ- sion * Brown, Bailey suspended year Senior Circuit 1. LeBron received a three sen- Honorable tence, 15,000 fine, proba- Judge, Appeals placed United States Court of for the and was years. two Sixth Circuit. tion for ting were valid under this clause Record-

(3) Sylvania Video Cassette 8300933; The court concluded view doctrine. er, # serial a vio- unduly threaten the warrant did (4) would document any records which rights under personal lation of LeBron’s prop- involving stolen illegal transactions Amendment. the Fourth erty; un- (5) property, other Discussion probable exists known, for which there that, contends other appeal, LeBron On it to be stolen. cause to believe items, specified the warrant than the three ap- comprised of team was The search property to seized fails to describe Depart- Police eight Omaha proximately particularity required with the special agents from and two ment officers Specifically, LeBron Amendment. Fourth the war- BATF. The officers served clauses of the fourth and fifth asserts that approximate- at LeBron’s residence rant at He impermissibly are broad. the warrant premises, Upon entering the ly a.m. 10:00 have ceased urges that the search should large a Panasonic officers observed the of immediately upon the officers’ seizure set, and a Sony a VCR television screen in the warrant. the first three items listed The serial numbers Sylvania VCR. hearing magis the At the before to the numbers were identical two VCRs trate, argued that en government the the large screen television the warrant. guns and that the tire warrant was valid as the brand and make set was the same plain the view doc warrant; however, admissible under the were in the one described court, argument before this the one trine. At oral not the same as serial number was however, essentially con government Despite the vari- in the warrant. listed impermissi clause was ance, ceded that the fifth all three items were seized. agree. The warrant’s au bly broad. We authority presumed the basis of the On for “other stolen thorization of a search warrant, their the officers continued of the search, contrary property” general allows a searching Le- house. While search of the Amendment. A valid war to the Fourth bedroom, an two officers observed Bron’s things to be taken rant describe should closet, dimen- storage the outside overhead particu place to be searched with and the approximately five feet sions of which provides guide it a to the larity such that opened the feet. Officer Blecha four the offi informed discretion of exercise of and, step utilizing an available lad- closet executing the warrant. Marron v. cer Cf. der, an “enormous” number observed 196, 192, States, 48 S.Ct. 275 U.S. United 262), including the (approximately firearms (1927). 74, 76, The Fourth L.Ed. 231 72 indictment, charged firearms ten general war prohibition Amendment’s Suppress at subject of the Motion to rummag exploratory prevent rants is to issue here. belongings. Acknowledg ing person’s aof magistrate’s findings, the Adopting the v. John ing purpose, had found that the officers district court (8th Cir.1976), son, this court F.2d 1311 541 specif- the three items identified and seized underlying measure of observed that “[t]he im- in the warrant almost ically described description giv adequacy in the is whether entering LeBron home. mediately upon warrant, a violation specificity en the that the war- The district court concluded likely.” at 1313. personal rights is Id. “any authorization of a search rant’s standard, generally courts illegal Applying this would document records which they provide if reasona- approve warrants property” was involving stolen transactions informed guidance to the exercise of acceptable generic ble description of an a valid Johnson, Similarly, impossible when it is discretion. See, e.g., United States class. crime, approval the fruits of a The court to describe given description generic of a has been to a and seizure held that observation then See, e.g., United States v. execu- class of items. the officers were guns of the while Cir.1971), (2d Scharfman, urges that, 448 F.2d 1352 warrant is valid and if the denied, 405 U.S. cert. searching officers were for records when (1972); Spinelli L.Ed.2d 789 v. United they upon firearms, came the latter States, (8th Cir.1967), F.2d 871 rev’d should be admitted under the view grounds, on other 393 U.S. Alternatively, government doctrine. (1969). gener- 21 L.Ed.2d 637 But the contends the officers were not search- description “property al ... believe[d] ing merely for they records when came stolen” is not a of a upon Relying the firearms. on the vari- fact, descriptive class. it is not at all. ance in the large serial numbers conclusory simply language. It No screen television set found and the one guidelines provided guide the are offi- warrant, government described cers in their execution of the or to warrant urges that continuing officers had a limit their discretion. No means distin- right for, were, fact, to search still guishing property prop- stolen between for, searching a screen television set delineated; erty that is not stolen is more- with a matching serial number over, the distinction is not one that is readi- warrant searching as well as for records ly apparent. provide These directions no “which would document transactions against subjecting protection person’s a involving property” when came lawfully property general held upon guns. and seizure. Such a authorization indiscriminately allows officers to search The record support does not the

throughout any- and one’s house to seize government’s contention that at the time thing they please. seized, the firearms were the officers were Alternatively, government urges the that searching still for the television set. Ad up- the admission of the firearms can be mittedly, ambiguity there is some application held of the severance adduced suppression evidence at the hear doctrine. Fitzgerald, See United States v. court, however, ing. The district agreed (8th Cir.1983) (en banc).2 724 F.2d 633 Un- LeBron’s with view of the evidence and theory, government urges der this the us particularized found that the three items to sever the fifth clause from the warrant shortly the warrant were seized uphold govern- The after the and the remainder. ment contends that the fourth of entered clause the officers LeBron’s home.3 We note (a) Supreme directly police place 2. The Court has not dealt with that the the found item in a question severing portions reasonably expected the of valid where one would have of search Brown, 460 process searching Texas v. invalid. them to look in the of warrants from for Cf. (1983). 1535, 730, objects sufficiently partic- 75 L.Ed.2d 502 the described in the U.S. warrant, Circuit, however, (b) portions recently police ular of the Eighth the The has they found the item before found all the ob- adopted a severance doctrine. United States v. jects (8th Cir.1983) (en banc). sufficiently particular described in the Fitzgerald, 724 F.2d 633 (that is, portions of the warrant before their Fitzgerald, we held that: authority (c) expired), lawful to search and infirmity part requires of of a warrant [T]he requirements plain the other the of view suppression pursuant the of evidence seized discovery probable rule —inadvertent and ..., part that of the warrant but does not cause to associate the item criminal ac- with anything require suppression the of described tivity met. —are (or portions of the warrant law- in the valid Id. at 637. grounds, fully plain seized —on view for ex- execution). ample during their Ultimately, initially 3. the television set found — Fitzgerald provides guidelines for At 637. positively Was identified as the one described in application doctrine, of the severance doctrine: the warrant. Under the severance First, magistrates vigilance- to must exercise particularized once the items seized, i.e., in the warrant are part pretext bad faith of law detect and on the portion once the valid of the warrant Second, executed, enforcement officials. courts should plain has been the view doctrine can rigorously apply exclusionary longer admitting the rule to evi- no be a basis of those items pursuant portions subsequently plain dence seized to the invalid found. The view doctrine Third, grounds only provides warrant. items not described in of the for seizure when the offi- sufficiently particular portions object prior justifi- of the war- cers’ access to the has some the appears rant will not be admissible unless it cation under the Fourth Amendment. ever, again, underlying was made without once measure that this determination significance discrep- sufficiency description of the addressing the of the However, adequate even ancy provides protection in the serial numbers. whether it finding argued may personal rights. if it was the individual’s Ventres- support ca, 108-09, error, the record does at at 745-46. U.S. S.Ct. carefully At the time the government’s contention. The court must assess found, officers in- descriptions were in- guns were assure unwarranted investigation very thorough upon privacy in a trusions are not threatened. volved bedroom, searching, alia, Andresen, 11, inter LeBron’s See 427 U.S. at 482 n. 11; under mattress. at dresser drawers and 2749 n. v. Fitz- United States (8th note Officer Vince testified gerald, 724 F.2d at 637 See infra closet where the fire- the overhead government The several relies on small, found and were when arms Eighth support validity Circuit cases to any way big there was asked whether of the clause. v. records United States fit in television could have the clos- screen Dennis, (8th Cir.1980) 625 F.2d 792-93 possible.” et, imagine “I—I it’s replied, he (warrant authorizing search for “books that, makes review of record clear Our (or evidence) relating records items fact, found, guns when credit extortionate transaction busi engaged in a officers were description); ness” is a valid United States might items that felt have for other Coppage, v. Cir. 686-87 been stolen. 1980)(“books, records, equipment, chemical argument final government’s The rests personal papers relating to the manu validity of clause the records methampheta facture distribution government urges The that the warrant. warrant); mine” is a valid for a guns officers found view while Williams, F.2d searching records of they were (8th Cir.1980) (“records 745-46 n. 5 & property. difficulty that we with have banking, books, personal address records government’s argument is that purchases and notation of narcotics records clause of the warrant suffers the description). is sales” a valid In each of deficiency as the same constitutional stolen cases, these we held that the records to be property clause. particularity seized were described with pass sufficient to muster. constitutional that, despite recognize We However, in each case the records describ may to dangers, a warrant issue specific ed are of refer a character. The probable and seize records there is if illegal in to specific ence the warrant to records cause believe that which are activity allegedly that the records docu instrumentality or of a evidence crime will gives ment a substantive limitation to the description there and the is stated be with investigating officer’s discre exercise of particularity. v. sufficient Andresen executing the tion when warrant. Records 11, 463, 427 482 n. 96 Maryland, U.S. sales, manufacturing of narcotic and distri 11, 2737, (1976); 2749 n. 49 L.Ed.2d 627 drugs, and a credit transaction bution Dennis, 782, F.2d v. 625 792 United States particularized provide all a de business (8th requisite specificity The guidelines, scription and inherent which are particular fluctuates with the circumstanc clearly lim here. Had the warrant absent Ventresca, v. es. United States 380 See 108-09, 741, the records to be those docu 745-46, ited seized to 13 U.S. menting items (1965); regarding transactions Cop 684 L.Ed.2d United States v. warrant, (8th Cir.1980) specifically F.2d we page, 635 687 described Muckenthaler, presented present v. would not be with the (quoting United States Cir.1978)). (8th difficulty. F.2d How- case, m the The warrant instant without Bron’s home. discovery The of the fire- more, “any product a search arms authorized records of the unconstitu- search of tional illegal which LeBron’s residence. would document transactions Their admission into evidence is error. See involving property.” stolen There is no Unit- Cardwell, ed States v. 680 F.2d 75 attempt particularize to Cir.1982); Klein, United States v. 565 F.2d of the property or records themselves. (1st J., Cir.1977)(Lay, sitting by desig- only limiting The factor is the reference to nation). discussed, property.” “stolen As earlier generic classification sufficient is not judgment of conviction is reversed provide guidance any executing to to an and the case is remanded the district explanation officer. as well any Absent proceedings. for further court of the which method the officers were distinguish any such records from docu BROWN, BAILEY Senior Circuit Judge. legal relating ments transactions. Cf. respectfully I dissent. Klein,

(1st Cir.1977)(noting prevalent common majority As the opinion demonstrates, uniqueness among nature and lack of probable Officer Tomsheck had cause to believe, items in generic warrants which the de as is affidavit, set out in his upheld). scriptions large was operating fencing The record also LeBron a oper- appears ation at his home. nothing reveals that there was in the war It also from the probable rant or affidavit Tomsheck had affidavit substantiate the conten cause that, operating to believe such tion that even would there be such records business, illegal LeBron would fact, have LeBron’s home. the officers records numerous transactions that searched papers, and seized docu would involved. Thus affidavit ade- ments, cards, credit checks bore supports quately category: no direct relation to stolen property. The “any records which document trans- allowed, in, records clause and resulted an involving property.” actions indiseriminating rummage of the entire home.4 We hold that the records clause did adopted The district court the magis- adequate provide protection against trate’s determination that the involved unwarranted intrusion into the defendant’s guns were seized during while view personal rights. Consequently, it authoriz the course the search for such records. impermissibly ed an broad search of Le- adequately This determination is supported examination, Yes, On direct Officer Vince’s testi- A. did. search; mony name, full reveals the extent of the his Q. What was the sir? testimony aptly dangers illustrates the name, A. The defendant’s Roderick Le- such a search: name, Bron—the defendant’s Roderick Le- through We Vince]. went dresser [Officer Excuse Bron. me. drawers, the bed. Okay. Q. you any And did seize of those going through In the course of [Counsel]. documents? you anything? dresser did drawers find Yes, A. we did. Yes, A. we looked at records that in Q. Did those documents have the—the ownership there and documents that we them, why name defendant on it that examined. you seized them? Precisely you identify Q. are able to what Yes, they ownership A. showed of that you kind that of documents examined? person staying where the room at and so A. Financial records. We examined forth. Receipts. checks. We examined credit some they, your opinion, Q. Did in evidence cards. property? transactions in stolen you speak up Q. Would a little bit? I anything A. don’t believe we found A. We examined in credit that were cards that effect there. there. at 70-71. Record Q. Did the credit cards a name have on them? case, Goldberg precisely against in and I do not warned Unit- in by the this record Ventresca, 380 U.S. ed States v. opinion to find majority understand (1965). L.Ed.2d 684 There the opinion majority is based with it. fault Court said: descrip- generic that the proposition which document “any records the recognition tion These decisions reflect property” is involving stolen that the Fourth Amendment’s com- transactions mands, pass require- specific to constitu- like all constitutional sufficiently ments, If practical and not abstract. to me are It seems tional muster. teachings Court’s cases are explicit affida- lengthy and and the warrant policy be followed and constitutional reasonably construed, make it vit, fairly served, warrants, affidavits for search referred to were the records clear that here, as one must be such involved sales that one purchases and records of interpreted by magistrates tested and operating such a kept to be expect would in a realis- and courts commonsense and descrip- Certainly, generic this business. They normally tic fashion. are drafted records that had any tion would exclude by in the midst and nonlawyers haste nothing purchase and sale to do with investigation. a Technical re- criminal homes, televisions, firearms, video motor quirements specificity of elaborate once recorders, mowers and sheet tape lawn pleadings exacted under common law affidavit, which, according to the steel place A proper have no in this area. dealing. I can see no differ- LeBron was negative grudging attitude review- or description in- generic ence between will ing courts toward warrants tend here, reasonably construed in the if volved from discourage police officers submit- affidavit, in the light of facts set out ting judicial their evidence to a officer involved acting. before Dennis, 625 F.2d 782 at Id. at 85 S.Ct. Cir.1980). There, pointed as out here, approved, Certainly, put “grudging court if we a majority opinion this aside (Ventresca negative attitude” at against an individual in a loan shark case 746), we at should conclude employees, generic preying on his fellow generic description involved here is at (or description “certain records books approved by as definite as this least evidence) relating to the extortion- items of court Dennis. If ate transaction business.” credit relating “extortionate credit records court. I would affirm district specif- sufficiently is transaction business” “illegal ic, transac- records that document involving property” should

tions all, specific. After we

sufficiently what dealing these cases a reasona-

are with that the actors must have assumption

ble

kept of a business carried some records scale, not be and the officer should

at know, insert in the war-

required and to

rant, kept. precisely what records would be view, is, opinion my majority example approach of an that Justice

apt

Case Details

Case Name: United States v. Roderick L. Lebron, Jr.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 5, 1984

Citation: 729 F.2d 533

Docket Number: 83-1074

Court Abbreviation: 8th Cir.