Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80-CR-398 -- James B. Moran, Judge .
Before Bauer, Circuit Judge, Kunzig, Judge,*fn* and Wood, Circuit Judge.
This is an interlocutory appeal by the United States government of an order granting a motion for the return of a briefcase seized during the arrest of Maurice Benjamin. We find that the FBI agents arresting Benjamin had a reasonable suspicion to believe that the briefcase contained evidence of the underlying crime. Accordingly, we reverse the district court decision and deny the motion.
Maurice Benjamin is under investigation by a federal grand jury in the Southern District of New York and by the Commodities Futures Trading Commission (CFTC) for activities in connection with Pyne Commodities Corporation. Pursuant to these investigations, FBI agents conducted a search of Benjamin's New York City residence and uncovered notebooks showing activity in bank accounts in his name and in the names of entities under his control. On July 11, 1980, the CFTC obtained a temporary restraining order providing for a "freeze of the assets of ... (Maurice) Benjamin ... prohibiting (him) from withdrawing, transferring, removing, dissipating or disposing of any assets or property in (his) possession or control or on deposit at any bank, savings and loan, trust company, credit union, brokerage firm or any other financial or brokerage institution whereever (sic) situated." Benjamin was notified of the temporary restraining order on July 12, 1980.
On July 15, 1980, Benjamin withdrew $20,000 from an account located at the Des Plaines Bank in Des Plaines, Illinois. FBI Special Agent Daniel Bodine was informed of this transaction and of the fact that Benjamin was scheduled to return to the Des Plaines Bank the next day to cash a check for $100,000. On these facts, a complaint was presented and an arrest warrant issued in New York on July 16, 1980, charging Benjamin with violations of 18 U.S.C. §§ 1503 and 1505 for obstructing justice.
The FBI agents in Chicago were informed of the issuance of the arrest warrant and, on that same day, proceeded to the Des Plaines Bank. There they observed Benjamin as he entered the bank with his secretary, Nancy Smith. He carried nothing into the bank, but had a manila envelope in his hands when he left. Benjamin and Smith walked together toward Smith's automobile. Benjamin was in the process of reaching toward the car door to open it when the FBI agents stopped him. He was arrested by Agent Bodine, and asked to place his hands and the manila envelope on top of the car. A search of Benjamin's coat and person revealed that Benjamin was not carrying the $20,000 withdrawn the day before.
After Agent Bodine handcuffed Benjamin and placed him in the government automobile, Bodine returned to Smith's car. Bodine testified that this was done within the space of four to five minutes and that the distance between the two cars was about 10 yards. From Smith, Bodine learned that she had driven Benjamin to the bank and that from the bank, she planned to drive Benjamin and his son, who was in the back seat of the car, to the airport to return to New York. At that time, the agents asked if the briefcase in the back seat of the car was Benjamin's. When Smith identified it as his, the agents took it into their possession.*fn1
They placed the briefcase in the government automobile and drove Benjamin and the briefcase to the FBI headquarters in Chicago. Benjamin's request for its return was denied, but his attorneys were permitted to open the briefcase and remove Benjamin's keys, wallet, credit cards, airplane tickets and driver's license. It was then re-locked without examination of its contents by the government.
The following day, July 17, 1980, Benjamin brought a Motion to Quash and for the Return of Property pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure,*fn2 alleging that the seizure of the briefcase was illegal. Application for a search warrant was stayed by the court until the motion was ruled on.
Beginning July 18, 1980, hearings were held on the question of the propriety of the seizure. It was brought out at that time that Benjamin had elected to have his probable cause hearing in the Southern District of New York rather than in the Northern District of Illinois. It was agreed that the validity of the underlying arrest would be left for that proceeding and that the hearing would be confined to probable cause as it related to the seizure of the briefcase.
The district court initially denied the motion, but upon reconsideration, granted the motion and ordered the briefcase returned. The government then informed the court that it intended to appeal the ruling. The court subsequently entered an order staying the return of the briefcase pending resolution of this appeal.
Initially, we must deal with the issue of the propriety of this appeal which is raised by the appellee. Under 18 U.S.C. § 3731, an appeal may be made to the court of appeals from an order of a district court "surrounding or excluding evidence or requiring the return of seized property ... if the United States Attorney certifies to the court that the appeal is not taken for the purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding." 18 U.S.C. § 3731 (emphasis added).
The original certification of the United States Attorney indicated only a belief that the briefcase may contain such evidence. This court granted leave to the district court to consider the government's Motion for Leave to File an Amended Certification which states that the evidence is a substantial proof of a material fact in the proceeding is the object of a motion to this court to dismiss the appeal.
Appellee contends that the government can only speculate about the contents of the briefcase since it was never opened. Therefore, the requisite certification for appeal cannot logically be made.*fn3 However, the United States Attorney attached as support for the amended certification a letter from an Assistant United States Attorney from the Southern District of New York. That letter included a reference to Benjamin's "admissions that receipts relating to the July 15 transaction are presently in the briefcase." Since the United States Attorney knew that these receipts were in the briefcase when he made ...