Case Information
*1 Before WIDENER and SHEDD, Circuit Judges, and David R. HANSEN, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
Reversed and remanded by unpublished per curiam opinion. COUNSEL ARGUED: Thomas Ernest Booth, Criminal Division, Appellate Sec- tion, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Sidney Harold Kirstein, Lynchburg, Virginia, for Appellees. ON BRIEF: John L. Brownlee, United States Attorney, Sharon Burnham, Assistant United States Attorney, Roanoke, Vir- ginia, for Appellant. John E. Falcone, Lynchburg, Virginia, for Appellee Martin; Joseph A. Sanzone, SANZONE & BAKER, P.C., Lynchburg, Virginia, for Appellee Sanders.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
OPINION
PER CURIAM:
A federal grand jury indicted K&C Trucking Company ("K&C") and several K&C officials and employees (collectively "K&C") under 18 U.S.C. §§ 371, 1001, and 1002, for one count of conspiracy and seventeen counts of making false statements. The charges arise from K&C’s alleged attempt to conceal violations of federal highway safety regulations that limit the hours of service by commercial truck- ers. Before trial, K&C moved to exclude evidence that the United States had seized pursuant to a search warrant during a search of K&C’s business premises. The search warrant had been obtained by a Special Agent of the United States Department of Transportation ("DOT") Office of Inspector General ("DOT-IG" or "IG"). Although the district court concluded that no constitutional violation had occurred, it nonetheless invoked its "supervisory power" and excluded the evidence because it found that the DOT-IG had exceeded his authority under the Inspector General Act of 1978 and had acted in "bad faith." The United States now appeals the exclusion order pursu- ant to 18 U.S.C. § 3731. For the reasons set forth below, we reverse the exclusion order and remand for further proceedings. I
The district court found the following facts to be established. In March 1998, the DOT Office of Motor Carriers ("OMC") received a letter from a former K&C employee stating that K&C management required its tractor-trailer drivers to drive more hours than are legally permitted and to submit false driver log books. The former employee also stated that K&C management directed its drivers to transport hazardous materials in an improper manner.
Based on this letter, a DOT official informally requested records from K&C during an on-site inspection at K&C’s Rustburg, Virginia, office. K&C refused this request. OMC then issued an administrative subpoena for the production of documents, but K&C refused to com- ply with this subpoena.
On October 22, 1998, Special Agent Eric Johnson of the DOT-IG submitted to a federal magistrate judge in the Western District of Vir- ginia an application and affidavit for a warrant to search K&C’s Rust- burg premises and to seize certain documents that Agent Johnson alleged would establish violations of federal safety rules and regula- tions by K&C and its drivers. The magistrate judge issued the search warrant that day, authorizing law enforcement agents to search the K&C office and all trucks on the premises for certain categories of documents. The following day, approximately forty law enforcement officers, many dressed in "full combat gear" executed the search war- rant and seized 103 boxes of documents and several computer records. The officers placed the K&C employees who were at the office that day in an employee kitchen and held them there for at least four hours while the search was conducted. During the search an OMC official stated to K&C employees that the search would not have occurred had K&C complied with the OMC subpoena. The search attracted the attention and presence of some local media, and one news report indicated that reporters had been promised a detailed story from federal agents at another time.
From reading the district court’s opinions, it appears that the term "full combat gear" refers to bullet-proof vests and sidearms. On the same day that the magistrate judge issued the search war- rant, federal grand jury subpoenas were issued in the Western District of Virginia at the request of an Assistant United States Attorney ("AUSA") for the same documents that were the subject of the search warrant. The grand jury subpoenas directed K&C to produce the sub- ject documents on November 17, 1998. After these subpoenas were served on K&C, discussions between counsel for K&C and the United States confirmed that all documents subject to the subpoenas were in the United States’ possession as a result of the search. Conse- quently, the United States did not require anyone from K&C to appear before the grand jury.
In November 1998, K&C joined a lawsuit in the United States Dis-
trict Court for the District of Columbia to challenge the legality of the
search of its office and seizure of its records. That case eventually
reached the circuit court of appeals, which examined the scope of the
investigative authority of the DOT-IG under the Inspector General
Act of 1978 (as it existed in 1998).
See Truckers United For Safety
v. Mead
,
In keeping with its mission to enforce motor carrier safety regulations, the [OMC] initiated compliance review investi- gations into appellants’ record keeping practices. As part of that effort, the [DOT-IG] was engaged to use its purported search and seizure authority to obtain appellants’ business records. Under the legal framework in effect at the time of the underlying events, the Inspector General Act of 1978, the Inspector General ("IG") had no authority to engage in the kinds of criminal investigations at issue here — criminal investigations that are at the heart of an agency’s general compliance enforcement responsibilities. We therefore hold that appellants are entitled to the return of records and other property seized from them during the IG’s ultra vires inves- tigations and seizures.
In May 2002, the DOT-IG returned the documents to K&C. Some- time thereafter, counsel for the United States informed K&C’s coun- sel that the investigation into K&C was ongoing and that the documents should be preserved.
On September 4, 2002, a federal grand jury in the Western District of Virginia issued subpoenas to K&C for the production of all records that were seized during the 1998 search. These subpoenas also com- manded production of similar documents dating from September 2001 forward. K&C moved to quash the subpoenas, but the district court denied the motion. K&C then produced the documents, and the grand jury thereafter issued the indictment.
II
Before trial, K&C moved to exclude all of the evidence seized dur- ing the 1998 search. K&C argued that in light of Mead I , the evidence was "improperly seized in violation of the defendants’ fourth amend- ment rights to be free of unreasonable searches and seizures." The district court resolved this motion in two memorandum opinions.
In the first memorandum opinion, the district court — relying on Mead I — concluded that the 1998 search warrant was invalid because the DOT-IG’s actions were ultra vires . The district court also concluded that the 1998 grand jury subpoenas were invalid because they were part of the invalid 1998 DOT-IG investigation, and the 2002 grand jury subpoenas were invalid under Silverthorne Lumber Co. v. United States , 251 U.S. 385 (1920), because they sought the documents that were previously seized pursuant to the 1998 search war- rant. [3] Finally, the district court concluded that no constitutional viola- The DOT-IG successfully challenged other aspects of the fee award, but it did not challenge this conclusion. See Truckers United for Safety v. Mead , 329 F.3d 891, 894 n.5 (D.C. Cir. 2003). In Silverthorne , the Supreme Court reversed a contempt citation against a company for refusing to comply with an order enforcing grand jury subpoenas. The Court found that the government had illegally seized records from the company and then used the knowledge it had gained from the seizure to have the grand jury call for production of the docu- ments. 251 U.S. at 390-92.
tion had occurred because Agent Johnson’s affidavit in support of the 1998 search warrant "fully establishes probable cause" and the 1998 search "would have been valid except for the agent’s lack of authority to conduct the investigation."
Following supplemental briefing by the parties, the district court filed the second memorandum opinion to address "the remaining question [of] Defendants’ remedy for a statutory violation that does not rise to constitutional proportions." The district court noted that K&C urged it "to invoke its supervisory powers and suppress the evi- dence" in order to "promote judicial integrity, as well as deter future illegal conduct where law enforcement officials willfully engage in lawless conduct." After analyzing caselaw concerning the supervisory power of federal courts to implement a remedy for a non- constitutional violation, the district court stated that the case involves "neither a mere technical violation of the Inspector General Act of 1978 nor a violation of the statute that rises to constitutional propor- tions." The district court then concluded:
[I]t appears that a violation of a statute or regulation — without more — is insufficient grounds to apply the exclu- sionary rule. But, if additional elements of bad faith, or unreasonable or outrageous conduct exist, then a federal court may use its supervisory powers to exclude the evi- dence obtained in violation of a statute.
Although the district court observed that it was "unable to point to one egregious or reckless act that taints the conduct in this case," it held that based on "the totality of the circumstances — such as the IG’s plain disregard of the congressional limitations on its authority and the manner in which the IG executed the 1998 warrant," the DOT-IG’s conduct amounted to "bad faith" and "warrants the sup- pression of the evidence seized pursuant to the 1998 search warrant and the 1998 and 2002 grand jury subpoenas."
In support of this ruling, the district court found that the plain lan- guage of the Inspector General Act and a 1989 Department of Justice Office of Legal Counsel opinion put the DOT-IG on notice that it See Inspector General Authority to Conduct Regulatory Investiga- tions , 13 Op. Off. Legal Counsel 54 (1989) ("1989 OLC Opinion"). had no authority to participate in the 1998 investigation. The district court also considered it significant that the DOT-IG and OMC were, in the course of the K&C investigation, engaged in a "coordinated effort" that "required the approval of senior DOT officials." Further, the district court pointed to the conclusion in Mead II that the DOT- IG’s legal position was not "substantially justified" as evidence that the DOT-IG should have known it could not participate in the 1998 K&C investigation. The district court also found "that the circum- stances surrounding the [K&C] investigation and the manner in which the IG conducted the investigation support Defendants’ contention that the IG abused its authority." The district court pointed primarily to the facts surrounding the execution of the 1998 search warrant, not- ing that "the manner in which the IG executed the . . . warrant appears grossly disproportionate to the nature of the alleged violations."
On appeal, the United States primarily argues that the district court erred by invoking its supervisory power to exclude the evidence from trial.
We note that although the United States argued below that it lawfully
obtained the evidence pursuant to the 1998 grand jury subpoenas, it does
not make that argument on appeal.
See generally United States v. Brai-
nard
,
"The function of a criminal trial is to seek out and determine the
truth or falsity of the charges brought against the defendant. Proper
fulfillment of this function requires that, constitutional limitations
aside, all relevant, competent evidence be admissible, unless the man-
ner in which it has been obtained — for example, by violating some
statute or rule of procedure — compels the formulation of a rule
excluding its introduction in a federal court."
Lopez v. United States
,
"The use of the exclusionary rule to remedy statutory violations, as
an exercise of the supervisory power, requires an exercise of discre-
tion on the part of the court."
United States v. Searp
,
Neither the district court nor the parties have cited to us any cases
in which we have considered whether a criminal defendant is entitled
9
to the exclusion of evidence because a government agent involved in
the criminal investigation exceeded his authority. However, we have
considered this issue on several occasions and appear to have been
consistent in rejecting exclusion as a remedy.
See United States v.
Mason
,
The district court did not analyze the facts of this case under this
standard, but it did conclude that the DOT-IG’s violation of the
Inspector General Act was sufficient to warrant exclusion of the evi-
dence because the DOT-IG acted in "bad faith."
[7]
In this regard, the
In
Payner
, the Supreme Court noted that "Federal courts may use
their supervisory power in some circumstances to exclude evidence taken
from the defendant by willful disobedience of law."
violation of the Inspector General Act rather than Federal Rule of Crimi- nal Procedure 41, which governs the issuance of search warrants. See district court properly recognized that exclusion of trial evidence is not available to remedy all violations of this sort and that some type of extreme government misconduct must be present. The question we must now answer is whether the facts underlying the district court’s "bad faith" conclusion constitute the type of "severe official miscon- duct" that justifies the exercise of supervisory powers. We believe that they do not.
The district court found the DOT-IG’s conduct to constitute "bad faith" in part because of "the manner in which the [DOT-IG] executed the 1998 warrant." As to this finding, the district court pointed to: (1) the number of law enforcement officers who executed the search and the manner in which many of them were outfitted ( i.e. , "full combat gear"); (2) the sequestration of K&C employees in the employee kitchen while the search was conducted; (3) the presence of local media while the search was conducted; and (4) statements by an OMC official that the search would not have occurred if K&C had complied with the administrative subpoenas. We are not persuaded that these circumstances reasonably support a finding of "bad faith," much less "severe official misconduct."
The search warrant authorized the law enforcement officers to search K&C’s business office and all trucks on the premises (includ- ing those that came onto the premises while the search was ongoing) for a significant number of documents. The search lasted for at least four hours and yielded 103 boxes of documents and some computer files. While we are not convinced that the number of officers partici- pating in a search would, under any circumstances, be relevant to this type of inquiry, we believe in any event that the scope of this particu- lar search reasonably justified a large number of officers. Moreover, in light of the inherent dangers law enforcement officers face even in their regular duties, we find nothing improper about the officers’ generally United States v. Simons , 206 F.3d 392, 403 (4th Cir. 2000) ("Non-constitutional violations of Rule 41 warrant suppression only when the defendant is prejudiced by the violation or when ‘there is evi- dence of intentional and deliberate disregard of a provision in the Rule’" (citations omitted)).
choice to carry sidearms (or other weapons) and wear protective gear while they performed their search.
Additionally, the sequestration of K&C employees during the search was consistent with caselaw in this circuit. Our holding in United States v. Photogrammetric Data Services, Inc. is apt here:
Because they were in possession of a valid warrant to search the premises . . . for evidence of the fraudulent billing scheme, the agents . . . necessarily had authority to secure the premises and detain the employees temporarily in order to conduct the search with minimal interference. In particu- lar, the agents, . . . suspecting a widespread fraudulent bill- ing practice within the company, had a valid interest in assuring that the altered timesheets they expected to find could be seized before any employee or manager had the opportunity to destroy them.
259 F.3d 229, 239 (4th Cir. 2001) (internal citations omitted).
Further, although the district court found that the search "attracted the attention of the local media," it did not find that the media was present at the request of law enforcement or that law enforcement allowed the media onto K&C property. We are therefore hard-pressed to understand why the media’s interest in this case demonstrates "bad faith" on the part of the DOT-IG. We likewise do not believe that the statements by the OMC official necessarily indicate any nefarious motive for the search. Instead, those comments reflect the reality of the situation: once K&C refused to respond to the administrative sub- poenas, the search became a logical step in the investigation.
In addition to its criticism of the manner in which the search was conducted, the district court also found that the DOT-IG acted in bad faith because of its "plain disregard of the congressional limitations on its authority." As to this finding, the district court pointed primar- ily to the plain language of the Inspector General Act and the 1989 OLC opinion, both of which support the conclusion that the DOT-IG was not authorized to conduct the K&C investigation. While we agree that the DOT-IG likely acted in excess of its authority (a fact which the United States now appears to concede) and that it may have been *12 12
negligent in doing so, we do not believe that the circumstances of this violation demonstrate "brazen lawlessness." See, e.g. , Walden , 490 F.2d at 376 ("While the bulk of the evidence was obtained by violat- ing the Instruction, there is totally lacking any evidence that there was a conscious, deliberate or willful intent on the part of the Marines or the Treasury Department’s Special Investigator to violate the Instruc- tion or the spirit of the Posse Comitatus Act. From all that appears, the Special Investigator acted innocently albeit ill-advisedly").
IV
In short, we are left with the "definite and firm conviction" that the district court "committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Westberry , 178 F.3d at 261. The invocation of supervisory power to exclude evidence from a criminal trial in order to remedy a government agent’s viola- tion of statutory authority in a criminal investigation is an extreme measure that must be reserved for cases involving "severe official misconduct." This is not such a case. We therefore reverse the sup- pression order and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
K&C argues as an alternative that the evidence should be excluded
under the Fourth Amendment because of Agent Johnson’s "intentional or
reckless misstatement of authority" in the 1998 search warrant affidavit.
However, there have been no factual findings in this case to support such
a ruling.
See generally Photogrammetric Data Servs.
,