On December 12, 1997, after the district court denied his motion to suppress evidence, Thao Dinh Le pled guilty to the following offenses: (1) possessing firearms while being a user of unlawful controlled substances, in violation of 18 U.S.C. § 922(g)(3); (2) possessing unregistered destructive devices, in violation of 26 U.S.C. § 5861(d); and (3) carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Le now appeals from the district court’s denial of his motion to suppress evidence. For the reasons discussed below, we affirm.
BACKGROUND
On July 2, 1997, pursuant to a state search warrant issued June 27, 1997 (“the state warrant”), which authorized a search of Le’s residence for methamphetamine, officers of the Tulsa Police Department (TPD) entered Le’s residence. Because the state law enforcement officers had some reason to believe that explosives and other weapons might be present at the residence, they had previously notified a TPD K-9 bomb-sniffing squad and agents from the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) that their services might be required at some point during the search. Upon entering the residence, officers discovered methamphetamine and other controlled substances, as well as a stockpile of explosives and other assorted military-style ordnance, including the following: four different varieties of rifle grenades; a Claymore mine; hand grenades; smoke grenades; five different types of machine guns; plastic explosives, TNT, and detonating cord; and a grenade launcher. Upon discovering the explosives, TPD officers called in the K-9 team and the ATF agents. TPD officers did not seize the explosives, but they did seize controlled substances, several firearms, and other assorted items.
Later that day, based on the explosives and weapons that they had seen while at *1262 Le’s residence with the TPD officers, federal agents obtained a federal search warrant to again enter Le’s residence, this time to search for and seize explosives (“the federal residence warrant”). This warrant was executed in the evening hours of July 2, and federal agents seized the explosives and heavy weapons discovered earlier in the day.
At about the same time that the TPD officers were executing the state warrant, a combined force of TPD officers and ATF agents stopped Le as he was driving his truck through Tulsa. The purpose of this stop was to execute a search warrant, issued June 27, 1997, for samples of Le’s blood and hair (“the blood and hair warrant”). This warrant contained an unusual provision which ordered Le, if he refused to provide the samples, to appear before the district court to show cause why he had not complied with the warrant. During this stop, Le was arrested and taken into custody, and the samples were taken.
Also during the day on July 2, ATF agents executed another federal warrant, also issued June 27. This warrant (“the first federal business warrant”) authorized agents to search Le’s business, Cadre Supplies, Inc., for records and documents relating to firearms transactions. During the execution of this warrant, agents seized stacks of documents, including log books, phone message books, and other records. While on the business premises, agents discovered boxes of weapons and weapon parts, and they contacted an agent of the U.S. Department of Defense, who came to the business and examined the weaponry to determine if the items were stolen military equipment. The Defense agent determined that many of the weapons were indeed stolen. However, no weaponry was seized at the business on July 2.
On August 4,1997, ATF agents executed yet another search warrant for Le’s business (“the second federal business warrant”), this one issued on August 4 and authorizing a search for machine guns, silencers, grenade hulls, night vision equipment, and other assorted weaponry seen at the business by the agents who executed the July 2 search. While at the business on August 4, agents seized many such items.
Soon after the initial searches and seizures, a federal grand jury returned a nine-count indictment against Le, based upon the evidence gleaned from the various searches of Le’s residence and business. Le was charged with the following offenses: (1) possession of a stolen firearm, in violation of 18 U.S.C. § 922(j); (2) unlawful possession of machine guns, in violation of 18 U.S.C. § 922(o); (3) possession of firearms while being a user of unlawful controlled substances, in violation of 18 U.S.C. § 922(g)(3); (4) possession of stolen explosives, in violation of 18 U.S.C. § 842(h); (5) possession of unregistered destructive devices, in violation of 26 U.S.C. § 5861(d); (6)-(8) three counts of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (9) possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d).
Le then filed a motion to suppress evidence and two supplemental motions to suppress evidence, challenging all five of the warrants issued in this case. Le challenged the state warrant on four grounds, claiming that (1) insufficient probable cause existed in the warrant’s underlying affidavit; (2) under Oklahoma law, which he asserted controlled the question, the search was impermissible because the affidavit did not state the last time that contraband was observed at Le’s residence; (3) the warrant itself was not sufficiently particular, because it made no mention of the explosives found in the house and seized; and (4) the officers exceeded the permissible scope of the warrant.
Le challenged the federal residence warrant on the ground that, because it made mention of only one type of explosive device, it was not particular enough, and on the ground that the officers exceeded the scope of the warrant. Le also challenged *1263 the first federal business warrant, arguing that the warrant’s affidavit did not convey to the magistrate sufficient probable cause, that the warrant was not sufficiently particular, and that the officers executing the warrant exceeded the warrant’s scope. In his motions to suppress, Le also challenged the second federal business warrant, but apparently abandoned this challenge by stipulation with the government. 1
Finally, Le challenged the blood and hair warrant on the ground that the executing officers had neglected to inform him of the warrant’s unusual provision allowing him an audience before the district court in the event he refused to comply with the warrant.
On December 9, 1997, the district court issued an order disposing of Le’s various objections to the search warrants. The district court granted Le’s motion to suppress evidence gleaned from the execution of the blood and hair warrant, ruling that Le should have been apprised of his right to appear before the district court. However, the district court denied, either on the merits or as moot due to stipulation, Le’s motion as to the other four warrants.
Following the district court’s denial of his motions to suppress, Le entered into a plea bargain. The government agreed to dismiss six of the charges, and Le pled guilty to (1) possessing firearms while being a user of unlawful controlled substances, in violation of 18 U.S.C. § 922(g)(3); (2) possessing unregistered destructive devices, in violation of 26 U.S.C. § 5861(d); and (3) carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). On the first two counts, Le was sentenced to terms of 70 months’ imprisonment, with the terms to run concurrently. On the third count, Le was sentenced to a term of 60 months’ imprisonment, with the term to run consecutively to the two concurrent 70-month sentences.
Under the terms of the plea agreement, Le also “agreefd] to forfeit and otherwise waive any ownership right he might possess in all items seized during the investigation of any of the acts alleged” in the indictment, “including acts to which the defendant is not pleading guilty.” Appellant’s App. at 112. Before sentencing, Le filed a motion requesting that the government return the property seized in the searches. The district court denied this motion by minute order on April 13, 1998.
Le now appeals from the decisions of the district court. First, advancing the same arguments that were denied by the district court, Le appeals from that portion of the district court’s December 9, 1997, order which denied his motion to suppress. Le also appeals from the district court’s April 13, 1998, minute order which denied his motion for return of seized property.
*1264 DISCUSSION
1. The Search Warrants
We first address Le’s objections to the search warrants. “When reviewing a district court’s denial of a motion to suppress, we accept its factual findings unless clearly erroneous and view the evidence in the light most favorable to the government.”
United States v. Hargus,
A. The State Warrant
Le raises several issues with respect to the state warrant. First, he claims that it violated state standards governing admissibility, and that therefore the evidence yielded therefrom should be inadmissible. Second, he argues that sufficient probable cause was not set forth in the affidavit to satisfy either federal or state standards. Third, he argues that the warrant lacked particularity because it failed to mention the .explosives that TPD officers had reason to believe were present at the residence. Finally, he argues'that the executing officers exceeded the scope of the warrant. We address each of these arguments in turn.
1. The Legal Standard
As an initial matter, Le argues that state law standards, rather than federal constitutional standards, should govern the admissibility of evidence seized pursuant to the state warrant, even though his case is a federal prosecution. Often, this question is merely academic due to the fact that many state statutes and constitutional provisions are interpreted co-extensively with their federal counterparts.
See, e.g., People v. Luttenberger,
Oklahoma courts require that search warrant affidavits state clearly the specific dates on which contraband or evidence of a crime was observed on the premises to be searched.
Morris v. State,
It is, however, well established in this circuit that “in federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by Federal law even though the police actions are those of state police officers.”
2
United States v. Miller,
*1265
Thus, the district court was correct to apply federal constitutional principles to the issue at hand. The specific requirements of Oklahoma law, such as the requirement that the affidavit state the specific dates on which criminal activity was observed on the premises to be searched, are only parts of the totality of the circumstances which federal courts must consider in determining whether the affidavits underlying state search warrants are sufficient.
See United States v. Richardson,
2. Sufficiency of the Affidavit
When reviewing a magistrate’s finding of probable cause for the issuance of a search warrant, we “must consider the totality of the circumstances and determine whether the affidavit established the probability that evidence of criminal activity would be located in the desired search area.”
United States v. Wittgenstein,
The affidavit presented to the state magistrate in this case contained the following information. The affiant, TPD Officer James Comstock, stated that he had received information from two different confidential informants, both of whom provided essentially the same information. The first informant stated that Le was selling several varieties of drugs from his residence, and that “he had seen a considerable amount of [methamphetamine, cocaine, and marijuana] at [Le’s] residence on numerous occasions, and had bought cocaine and methamphetamine from [Le], over one-hundred, (100), times in the past couple of years.” Appellant’s App. at 41. This source also stated that Le “has a gun store” which “sells fully automatic fire arms” and that Le “keeps some of these weapons and ammunition at his residence.” Id. The source stated that, because of Le’s access to weapons, he “was scared of any repercussions that might occur should [he] assist officers in any other way.” Id. at 41-42.
*1266 The second source corroborated the first, stating that “he has worked for [Le] in the past, and has bought methamphetamine and cocaine from [Le] on numerous occasions from both [Le’s] residence and from [Le’s] gun shop,” and that “he has seen [Le] to have in his possession ... a kilogram of cocaine.” Id. at 42. This source also stated that he was “scared of [Le] because of his access to automatic weapons.” Id.
In an effort to corroborate the information received from the two confidential sources, Comstock ascertained that Le did indeed live at the address given by both sources; that Le did indeed have a gun shop at the address given by both sources; and that the gun shop was licensed by the federal government to sell firearms, including machine guns and silencers. 3 In addition, on June 13, 1997, Comstock collected the trash that Le left at his curb, and discovered a “used ziploc baggie with a white powder residue inside of it.” Id. A field test revealed that the white powder in the baggie was methamphetamine. Id. On June 27, 1997, Comstock again collected Le’s trash, and found two small baggies, similar to the one found on June 13, but these two baggies had been washed clean. Id.
We
think that the information in the affidavit, taken as a whole, supports the magistrate’s finding that probable cause existed to issue the warrant. The affidavit contained information provided by two different informants whose stories were remarkably consistent. “[Consistency between the reports of two independent informants helps to validate both accounts.”
United States v. Schaefer,
In addition, Officer Comstock corroborated the informants’ information, first by ascertaining that Le was involved in a business that bought and sold firearms and thus had access to heavy weapons, and second by searching Le’s refuse and discovering traces of methamphetamine on June 13. Le argues that Com-stock’s discovery of methamphetamine in Le’s trash on June 13 is “stale” evidence and too far removed from the July 2 search to be probative of criminal activity at the residence. Appellant’s Br. at 39-40. However, “the determination of whether information is stale depends on the nature of the crime and the length of criminal
*1267
activity, not simply the number of days that have elapsed between the facts relied upon and the issuance of the, warrant.”
United States v. Myers,
In this case, both informants stated that Le’s narcotics operation was a continuing and ongoing activity. Both stated that they had purchased drugs from Le “on numerous occasions,” Appellant’s App. at 41, 42, and the first informant stated that such purchases had been occurring over a two-year period,
id.
at 41. With regard to an ongoing criminal enterprise such as the one Le was involved in, a search warrant affidavit can contain information that is more than a few days old. Indeed, we have upheld a magistrate’s finding of probable cause in cases involving ongoing criminal operations where the gap between the receipt of the probative information and the issuance of the warrant was two-and-one-half weeks,
see Miles,
Looking at the totality of the circumstances presented to the issuing magistrate, we think that probable cause existed for the issuance of the state warrant. The combination of the informants’ reciprocal corroboration and Comstock’s corroborative efforts “reduced the chances of a reckless or prevaricating tale, [and] thus provided] a substantial basis for crediting” the informants’ assertions.
Gates,
3. Particularity of the Warrant
The Fourth Amendment requires that search warrants “particularly describe] the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. Le argues that the state warrant failed to meet this requirement because it authorized a search only for “methamphetamine” and “fruits [and] instrumentalities” of methamphetamine transactions. Appellant’s App. at 47. The warrant made no mention of the explosives, machine guns, and other assorted ordnance that TPD officers suspected might be stored at Le’s residence, and which those officers in fact found at the residence. Le argues that the government’s failure to include explosives and related items in the warrant turned the state warrant into an invalid general warrant.
Le grounds his argument in the reasoning of
Coolidge v. New Hampshire,
However, because the inadvertence requirement to the plain view exception was announced by only a plurality of the Court, there was some question as to whether the requirement was binding precedent.
See Texas v. Brown,
In the case before us, the government concedes that TPD officers had some knowledge of the existence of explosives and heavy weapons at Le’s residence prior to executing the state warrant. Tr. of Hearing on Motions, October 17, 1997, at 222 (government counsel stating that “Judge, I think I can shorten this by saying we will stipulate that Officer Comstock had knowledge prior to his arresting [Le], that there ... could be explosives located in the house”). Indeed, Officer Comstock stated that he “had been told” that there were explosives in the house, but that he “did not know [that] for a fact,” and that TPD officers did not seek a search warrant for explosives prior to July 2 because, until that date, they had no corroborating information to back up the claims of informants that explosives and weapons were present at Le’s residence. Tr. of Hearing on Motions, September 11, 1997, at 65, 69, 79. Comstock also stated that because TPD officers suspected that there might be explosives at the residence, out of an abundance of caution for officer safety they notified a K-9 team from the TPD bomb squad and told them to be on standby. Id. at 47.
Upon entering Le’s residence pursuant to the state warrant for drugs, TPD officers discovered drugs, weapons, and explosives. The search warrant return indicates that TPD officers seized several varieties of drugs and weapons, but did *1269 not seize the heavy weaponry and explosives. Appellant’s App. at 49-51. Later that day, based on what the TPD officers and the federal agents, who had been called in when explosives were discovered, had seen at the residence, a second warrant was issued for Le’s residence, authorizing federal agents to search for explosives.
We think the actions of law enforcement officers in waiting to seize the explosives until after the issuance of the second warrant was lawful and even commendable behavior. It likely would have been permissible in this case for the officers to have simply seized the explosives without obtaining the second warrant. Indeed, the Supreme Court has expressly endorsed such actions, stating that “if [an officer] has a valid warrant to search for one item and merely a suspicion concerning the second [item], whether or not it amounts to probable cause, we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first.”
Horton,
In sum, we cannot conclude that the officers’ behavior was unlawful. We think it clear that the inadvertence requirement is no longer a necessary condition for a legal “plain view” seizure. Under current Supreme Court precedent, a police officer may, if on the premises pursuant to a valid warrant or under an exception to the warrant requirement, seize items which immediately appear to be evidence or contraband of a crime. Here, law enforcement officials acted with due regard for both officer safety and the Fourth Amendment by calling in the K-9 team and the ATF agents only after explosives were discovered in plain view during a lawful search for drugs, and by waiting to seize those explosives until after a second warrant, this one for explosives, had been issued. In this case, we cannot conclude that the state warrant was infirm merely because it did not specifically authorize a search for explosives. The explosives were discovered because they were in the plain view of the TPD officers legally on the premises. Accordingly, the state warrant meets the Fourth Amendment’s particularity requirement.
4. Scope of the Search
Le next argues that the officers who executed the state warrant grossly exceeded the scope of the warrant by seizing several items not specifically mentioned in the warrant, and that the remedy for this alleged violation of his Fourth Amendment rights should be a blanket suppression of everything seized pursuant to the state warrant.
We begin our analysis by noting that “the general rule,” where executing officers exceed the scope of a warrant, “is that ‘only the improperly seized evidence, not all of the evidence, must be suppressed, unless there was a flagrant disregard for the terms of the warrant.’ ”
Hargus,
In very rare cases, however, we have applied the unusual remedy of blanket suppression. In
United States v. Medlin,
Similarly, in
United States v.
Foster;
The only other federal appellate case of which we are aware in which blanket suppression was the remedy applied is
United States v. Rettig,
Keeping in mind the rule that blanket suppression is an extreme remedy, almost wholly absent from the Fourth Amendment jurisprudence of other circuits, we must determine whether the officers executing the state warrant so flagrantly exceeded its scope that blanket suppression is a justifiable remedy. The state warrant, which we have already determined to be validly issued, authorized a search for the following:
methamphetamine, fruits, instrumentalities, monies, records, to include telephone number information on possible associates related to the sale of controlled dangerous drugs, financial records, (bank records, checking, savings and business account information), that demonstrate the above subject is deriving profit from the sale of methamphetamine or any other controlled dangerous drugs and dispersement [sic] of assets which are drug related, proof of residency, drug related notations.
Appellant’s App. at 47. In connection with the execution of this warrant, TPD officers confiscated some 78 items, including two plastic baggies full of methamphetamine; several pill bottles containing prescription painkillers; several varieties of ammunition; various firearms and gun parts, including a pellet gun; a grenade launcher; a hunting knife; several holsters; one green armor vest; a scanner, monitor, and camera; $710 in U.S. currency; one gold chain; one brown wallet; a bank bag; a night scope; a black address book; a cellular phone; a key chain and assorted keys; and two briefcases containing assorted documents.
Any argument Le might make that the TPD officers exceeded the scope of the warrant by seizing the firearms and ammunition is fatally flawed. The guns and ammunition were discovered pursuant to a valid warrant-based search for methamphetamine, and were in the plain view of the searching officers. Also, Officer Com-stock testified that he and the other TPD officers were aware that it was a federal offense for a user of drugs to possess a firearm.
See
Tr. of Hearing on Motions, September 11, 1997, at 56-57;
see also
18 U.S.C. § 922(g)(3);
United States v.
*1271
Smith,
Le argues, however, that the seizure of the pellet gun, the gun parts, the pill bottles, the gold chain, the holsters, and several other items shows that the TPD officers flagrantly disregarded the scope of the warrant. While some of these items may arguably have been improperly seized, the officers did not exhibit a “flagrant disregard” for the terms of the warrant.
Medlin,
We need not remand for a specific determination of which items were lawfully seized, because we have determined that the methamphetamine and firearms, the only items taken as a result of the execution of the state warrant for which Le was prosecuted, were lawfully seized.
B. The Federal Residence Warrant
Le also challenges the federal warrant issued later in the afternoon of July 2, based on what TPD officers, the K-9 team, and the ATF agents had seen at the residence earlier that day, authorizing federal agents to search the house for explosives. Le argues that this warrant was not sufficiently particular’, in light of the fact that its underlying affidavit specifically mentioned only one type of explosive device, and that the warrant itself did not specifically refer to any particular types of explosive devices; Le also argues that the executing officers exceeded the scope of the warrant.
1. Particularity of the Warrant
When federal agents went to a U.S. Magistrate Judge on the afternoon of July 2 to request a federal search warrant for Le’s residence, they were already aware of some of the specific types of explosives stockpiled in Le’s garage. Indeed, at least one ATF agent had personally viewed the explosives and heavy weaponry when he was called in, for officer safety reasons, during the TPD search for drugs. Still, the affidavit submitted to the magistrate judge specifically mentioned only one type of explosive device discovered in the residence—HE M383 explosive grenades. Appellant’s App. at 66. The warrant signed by the magistrate judge authorized a search for
[a]ny explosives, explosive materials and parts that can be readily converted into destructive devices, any combination of parts either designed or intended for use in converting any device into a destructive device capable of expelling a projectile by the action of an explosive or other propellant, any and all firing mechanisms to include grenade launchers, launchers and/or any device designed for use as a weapon, as a signaling pyrotechnic, lin throwing, safety, or similar device.
Appellant’s App. at 71. Le argues that because the federal agents had more specific information at the time they asked the magistrate judge for a warrant, the warrant should have been more specific.
In general, a warrant meets the Fourth Amendment’s particularity requirement “when it enables the searcher to reasonably ascertain and identify the things authorized to be seized.”
United States v. Harris,
We have previously sustained a generically phrased warrant in an explosives case.
See Finnigin,
The warrant issued in this case, worded almost identically to the warrant condoned in Finnigin, authorizing a search for “any explosives, explosive materials and parts,” is therefore sufficiently particular to allow the searching officers to distinguish between items that may or may not be seized, even though the officers may have had more specific information regarding the type of some of the explosive devices. The federal residence warrant does not violate the Fourth Amendment’s particularity requirement. 5
2. Scope of the Search
Next, Le argues that the federal agents who executed the federal residence warrant so grossly exceeded the scope of the warrant as to manifest a flagrant disregard for the warrant’s terms, thus converting the warrant into an unlawful general warrant. Le argues, therefore, that all evidence discovered pursuant to this warrant should be suppressed, citing Med-lin and Foster.
The search was clearly not the type of search condemned in Medlin and Foster. During the course of the search, federal agents confiscated approximately 50 items, only eight of which can, even under an interpretation of fact and law highly favorable to Le, be considered unrelated to explosives. Those eight items include a furniture receipt, a video receipt, an envelope addressed to Rachell Harper, and several flares. Appellant’s App. at 73-74. Even assuming, arguendo, that the seizure of those eight items was entirely unlawful, such action does not come close to the type of flagrant disregard for the terms of the warrant found in our prior cases. Thus, Le’s remedy would be suppression of the wrongfully seized items, not a blanket suppression order.
In any event, Le’s argument is moot because Le was never prosecuted for possessing any of the eight items. He was prosecuted for possessing drugs, guns, and explosives, all of which were seized lawfully. Thus, we decline to remand the case to the district court for a meaningless determination of whether the eight items were unlawfully seized.
C. The First Federal Business Warrant
Finally, Le challenges the first federal business warrant, issued June 27 *1273 and executed July 2, on the grounds that the magistrate did not have probable cause to issue the warrant, 6 that the warrant was insufficiently particular, and that the executing officers exceeded the scope of the warrant.
1. Sufficiency of the Affidavit
The affidavit underlying the first federal business warrant is the same affidavit used to procure the blood and hair warrant and, in many ways, is similar to the affidavit underlying the state warrant. The affidavit contains information obtained by TPD Officer Comstock, and states that Comstock interviewed one Jay Riseling, a former employee of Cadre Supplies, Inc. 7 Riseling informed Comstock that his duties at Cadre Supplies, Inc. included maintenance of the business’s firearms transaction records, and that while so employed he had made “numerous false and fictitious entries which were made in order to conceal the identity of the persons supplying and/or receiving the firearms from authorities and/or to avoid having to pay the applicable federal firearms taxes.” Appellant’s App. at 58. Riseling also asserted that he had seen Le in possession of considerable amounts of methamphetamine, cocaine, and marijuana, and had purchased such drugs from Le “on numerous occasions in the past couple of years.” Id. at 57. Riseling told Comstock that Le purchased cocaine in increments of 10 to 30 kilograms, and that Le appeared to be “heavily addicted to prescription pain medication as well as cocaine and methamphetamine, which he usually ingests by injection on a daily basis.” Id.
The affidavit also relates Comstock’s efforts to corroborate Riseling s account, including Comstock’s discovery of methamphetamine residue in Le’s trash. According to the affidavit, federal ATF agents also attempted to confirm Risel-ing’s account by searching national ATF licensing records and ascertaining that Le, doing business as Cadre Supplies, Inc., “is a federally licensed firearms dealer, and is additionally, specifically licensed to deal in machine guns and silencers.” Id. at 58. The affidavit concluded by stating that federal agents believed, based on the information contained therein, “that evidence of false and/or fictitious entries may be obtained from the required firearms transaction records, tangible or intangible, for Le’s business.” Id. Based on the affidavit, a U.S. Magistrate Judge issued a warrant authorizing a search for the firearms transaction records of Cadre Supplies, Inc.
We think this affidavit contains sufficient indicia of probable cause to meet the totality of the circumstances test enunciated in
Gates.
First, many of Ri-seling’s statements, such as his admissions that he purchased drugs from Le and that he intentionally falsified federal firearms records, are against his penal interest, a factor we have considered indicative of reliability.
See Sturmoski,
In sum, the totality of the circumstances contained in this affidavit afforded the magistrate a “substantial basis for concluding that probable cause existed.”
Id.
at 238-39,
2. Particularity of the Warrant
Next, Le argues that the first federal business warrant was not sufficiently particular, because it did not articulate a specific crime and because it used rather general terms to describe the items to be seized. The affidavit did not mention a specific criminal statute that officers suspected had been violated, but it did contain Riseling’s assertion that “he made numerous false and fictitious entries which were made in order to conceal the identity of the persons supplying and/or receiving the firearms from authorities and/or to avoid having to pay the applicable federal firearms taxes.” Appellant’s App. at 58. The accompanying warrant authorized a search for “[a]ny and all tangible or intangible firearms transaction records for Thao Dinh Le doing business as Cadre Supplies, Inc. and/or any and all other tangible or intangible records pertaining to firearms transactions.” Id. at 56. Le asserts that this warrant does not give the executing officers a clear enough picture of the crimes under investigation, and authorizes an unduly broad search into his business records.
First, we are satisfied that the warrant and its accompanying affidavit adequately described the criminal activity under investigation. We have sustained a warrant which did not limit the search to any alleged violation of a particular criminal law in a case where the warrant’s affidavit contained information indicating that the suspect was engaged in a “marijuana trafficking operation.”
Harris,
Next, we address Le’s contention that the first federal business warrant was not particular enough because it used general terms to describe the items to be searched for. It is true that a warrant authorizing seizure of every single business record possessed by a business may be overbroad.
See
Voss
v. Bergsgaard,
It is difficult to imagine how the first federal business warrant could have been phrased more specifically. Cadre Supplies, Inc. is a firearms dealership which buys and sells virtually nothing but firearms, ammunition, parts, and accessories. A request to search for documentary evidence of fraudulent firearms transactions will by definition entail at least a viewing of a large portion of the documents generated by a firearms dealership. But this does not necessarily mean that the warrant is impermissibly broad. The difference between a valid warrant and an overbroad warrant lies in whether the government could have phrased the warrant more specifically, not in whether the business is small enough to sell only one type of commodity.
Here, Le was suspected of continuous violations of the federal firearms laws, not simply violations relating to a particular transaction or to a particular type of weapon. Officers could not, therefore, have taken the steps we required in
Leary.
In the drug context, we have held that a generic warrant authorizing a search for all documents related to drug transactions may come within the Fourth Amendment’s particularity requirement.
See United States v. Wicks,
These authorities amply demonstrate that the first federal business warrant, which authorized a search for documents relating to firearms transactions, was not unconstitutionally overbroad. The warrant gave executing officers as clear a notion as could have been expected under the circumstances what types of criminal activity were suspected, and which documents might contain evidence of those crimes. Le’s argument to the contrary is without merit.
3. Scope of the Search
Next, Le argues that the federal agents who executed the first federal business warrant grossly exceeded the scope of that warrant by searching for items not named in the warrant. Le again argues that the proper remedy is a blanket suppression of all items seized pursuant to the first federal business warrant.
Pursuant to the first federal business warrant, agents seized “miscellaneous ATF records [and] log books,” “phone message books,” “miscellaneous correspondence, [and] firearms related documents.” Appellant’s App. at 63. Le argues that some of the firearms transaction documents seized by the agents contained no evidence of fraud, and therefore were not covered by the warrant and were improperly seized. Le further asserts that agents improperly seized documents, such as phone message logs, which have no apparent connection to firearms transactions. Also, Le argues that agents conducted an overbroad search for other items not named in the warrant, such as weapons and firearms, which were not actually seized on July 2.
Le’s argument that too many firearms transaction documents were seized is foreclosed by
United States v. Hargus,
the officers’ conduct did not grossly exceed the scope of the warrant. Their conduct was motivated by the impracticability of on-site sorting and the time constraints of conducting a daytime search warrant. The officers were authorized to seize ten broad categories of records, and those records were present in every drawer of both file cabinets. No item not specified in the warrant was admitted against [the defendant] at trial. Under these circumstances the officers did not grossly exceed the warrant in concluding they did not need to examine at the site every single piece of paper in both cabinets.
Id. at 1363.
Similarly, officers in this case, suspecting fraudulent firearms transactions, were authorized to search for and seize, all of Cadre Supplies, Ine.’s firearms transaction records. Certainly, officers could not tell merely by looking at the face of a particular firearms document whether it involved a fraudulent transaction. In such a case, officers were surely justified in taking all the firearms transaction documents, and examining them later to ascertain which ones evidenced fraud. Their actions in seizing some documents which were later determined to be unrelated to fraudulent activity cannot be evidence of a flagrant disregard for the terms of the warrant.
Likewise, the agents’ decisions to (1) call for an officer of the Department of Defense to determine if some of the weaponry seen in plain view was stolen, and (2) seize the phone message books are also not evidence of a flagrant disregard for the terms of the warrant. Even assuming, arguendo, that Le is correct in asserting that such decisions were beyond the scope of the warrant, a proposition that is by no means obvious, 8 the agents’ actions did not constitute the type of flagrant disregard for the terms of the warrant which justified blanket suppression in Medlin, Foster, and Rettig. Le’s only remedy for any excesses in the July 2 search of his business would be a remand to the district court to determine which items, if any, not mentioned in the warrant were searched and/or seized, and whether any of those items should be suppressed. Because Le was never prosecuted for the explosives seen at the business on July 2 and seized on August 4, or for any evidence found in the phone message logs, such a remand would be meaningless.
II. Forfeiture
Finally, Le argues that the district court erred by denying his motion for return of property, filed pursuant to Fed. R.Crim.P. 41(e). The district court denied this motion because Le expressly agreed to “forfeit and otherwise waive any ownership right he might possess in all items *1278 seized” during the execution of the various warrants. Appellant’s App. at 112. Le now argues that the district court’s decision was improper because Cadre Supplies, Inc. also has an ownership interest in some of the property, and, because the corporation was not party to the plea agreement, it has not waived its rights in the seized items.
Le’s assertion may or may not be correct. In either case, it is beside the point. The party who filed the Rule 41(e) motion below, and who argues the issue here on appeal, is not Cadre Supplies, Inc. in its corporate capacity, but rather Thao Dinh Le in his personal capacity. The district court was entirely correct in denying Le’s motion because Le, the party who filed the motion contesting forfeiture, relinquished any ownership rights he may have had in the property.
See United States v. Grover,
CONCLUSION
For the foregoing reasons, Le’s convictions are AFFIRMED. We also AFFIRM the district court’s decision denying Le’s motion for return of seized property.
Notes
. The district court, in its order disposing of Le's motion to suppress, declined to address Le’s objections to the second federal business warrant and the federal residence warrant, because ''[t]he suppression issues with respect to these search warrants were resolved by stipulation between” the parties. Appellant's App. at 18 n. 2. The district court's assertion that these issues were resolved by stipulation is only partially correct. Le's attorney, when asked by the judge to make his argument relating to the second federal business warrant, stated as follows:
Your Honor, I don’t believe there's anything further we need to offer at this point. [The prosecutor] and I have talked, and as there’s nothing at this point that was seized during the August 4th search warrant that is the subject of a prosecution at this point, ... [argument on this issue is] not going to be helpful at this time, so I don’t think a stipulation is necessary.
Tr. of Hearing on Motions, October 17, 1997, at 249. The government argues that, by making this statement, Le withdrew his objections to the second federal business warrant, or at least admitted that any objections Le had to that warrant were moot. We agree, and, like the district court, decline to address any objections to this warrant.
However, the district court's statement that Le’s objections to the federal residence warrant were also waived is not supported by the record. Indeed, the government concedes in its brief that "the record is not clear that the government and Le reached a stipulation regarding that warrant." Appellee's Br. at 2. Thus, our discussion below will include analysis of Le's objections to the federal residence warrant.
. Nearly every circuit to address the issue is in accord.
See United States v. Bell,
. Le makes much of the fact that Comstock, in the affidavit, states that "Le owns Cadre Arms” and "Le has a Class III federal firearms license and can sell automatic weapons.” Appellant's App. at 42. He argues that he does not actually own the gun shop, Cadre Supplies, Inc., and notes that Cadre Supplies, Inc., rather than Le in his individual capacity, is the actual federal firearms licensee. In his brief, Le asserts that because some of the corroborating facts are "false,” the affidavit must be devoid of probable cause. Appellant’s Br. at 37. We think Le overstates the inaccuracies in the affidavit. While Le may not have "owned" Cadre Supplies, Inc., he was so essential to the business that soon after Le was incarcerated "[t]he business ... closed up.” Tr. of Hearing on Motions, October 3, 1997, at 107 (statement of Le's attorney, arguing that Le should be released on bond so that the business could remain solvent). And while the federal firearms license was not in Le's individual name, it was in the name of a corporation of which he was an essential part. We are satisfied that any inaccuracies contained in the affidavit’s corroborating statements are insubstantial, and that the statements do corroborate the informants’ assertions that Le was involved in the purchase and sale of heavy weapons.
. In support of his contention that the warrant was not sufficiently particular, Le cites three
pre-Horton
cases.
United States v. Sanchez,
. This conclusion is reinforced by the plain view exception to the warrant requirement, which would have allowed the TPD officers to seize the explosives when they were executing the state warrant earlier on July 2. It would be incongruous to hold that items which could properly have been seized earlier in the day are immunized from seizure later in that same day as a result of federal officers taking an extra precautionary step to make sure that their seizure of the items comported with constitutional procedure.
. We note that Le's argument that there was insufficient probable cause to issue the first federal business warrant is not well-developed. Le mentions this argument in one of the headings of his brief, but provides no argument or authorities in support of his position. Appellant's Br. at 42. In his reply brief, in response to the government’s charge that the argument was abandoned, Le concedes that the body of his brief ignored the issue but nevertheless asserts that the argument is preserved for appellate review, although even in his reply brief Le does little to support his contention. Appellant’s Reply Br. at 16. While the argument is scantily supported, we think that because it was presented to the district court in the first instance, see Tr. of Hearing on Motions, October 17, 1997, at 243-44, and was mentioned in Le’s brief, we may address it.
. From the language employed in the affidavit, it appears that Riseling may be the unnamed second source in the state warrant’s affidavit, although, if this is the case, the reasons for including his name in this affidavit while excluding it from the other affidavit are unclear from the record.
. For instance, there is a plausible argument that the military equipment could have been seized under the plain view doctrine. Agent Ward, the ATF agent who executed the first federal business warrant, testified that the weapons "appeared to be stolen to me ... because of their brand new pristine boxed condition with military lot numbers on them.” Tr. of Hearing on Motions, Oct. 17, 1997, at 214. This may have given him probable cause, under
Arizona v. Hicks,
We do not decide these issues here; we point out only that it is certainly not obvious that the agents’ actions on July 2 were beyond the scope of the warrant, and that even if they were, they were not so grossly unlawful as to constitute flagrant disregard for the terms of the warrant.