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UNITED STATES v. MESSINO

January 12, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
CLEMENT A. MESSINO, Defendant.



The opinion of the court was delivered by: JAMES H. ALESIA

 Before the court is the pending portion of defendant Clement A. Messino's Motion to Exclude Evidence Seized During Execution of Warrants of Seizure and Monition Pursuant to Civil Forfeiture Proceedings. *fn1"

 I. INTRODUCTION

 The court first commented on this motion in its Memorandum Opinion and Order dated December 19, 1994, 1994 WL 722742, at *1-3. In that opinion the court denied the motion insofar as it sought to exclude certain evidence based on an alleged violation of Rule 16 of the Federal Rules of Criminal Procedure and to exclude certain evidence based on a claimed violation of United States v. James Daniel Good Real Property, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993).

 As explained in the December 19 opinion, there were two types of warrants executed in a parallel civil forfeiture proceeding -- realty warrants and personalty warrants -- at issue in this motion. The realty warrants, there seems to be no dispute, violate the principle of the Good case. The personalty warrants, the court has held, do not. What was left to resolve after the December 19 opinion was whether the government could rely on either the coverage of the realty warrants or the plain view doctrine to validate the seizure of items in question. Eventually, the government abandoned the plain view doctrine as a basis for valid seizure of the evidence in question on this motion, leaving only issues of the validity and coverage of the personalty warrants. The three warrants relied upon are attached as exhibits to the Government's Amended Response to Defendant Clement Messino's Motion to Exclude Evidence Seized During Execution of Warrants and Monition ("Government's Amended Response").

 The general validity of the warrants is attacked in part on the basis that the probable cause finding was tainted by illegally obtained evidence. The court does not consider that issue part of this motion, rather considering that issue part of the taint hearing stemming from the court's previous suppression of evidence. Defendant will therefore, through the taint hearing, get another bite at the suppression apple, although, as discussed below, only one item of evidence survives the motion. As far as coverage of the warrants, the parties agreed that no hearing was necessary, and instead simply argued the motion. This opinion will therefore resolve coverage issues based on the submitted papers and arguments. The fact that the parties have so narrowly focused the issues allows for some brevity.

 II. BACKGROUND LAW

 The court first discusses two principle points of Fourth Amendment law central to disposition of the coverage issue.

 A. A Warrant is Held to its Scope

 It is axiomatic that a warrant is held to its scope. "A warrant assures citizens that the intrusion is warranted by law and that it is narrowly limited in its objectives and scope." Craft v. Pace of South Holland, 803 F. Supp. 1349, 1355 (N.D. Ill. 1992) (citing New York v. Burger, 482 U.S. 691, 703, 107 S. Ct. 2636, 2644, 96 L. Ed. 2d 601 (1987)). Where this comes into play on this motion is that a warrant of seizure and monition cannot be used as a general search warrant. To do so would constitute the sort of "exploratory rummaging" or "excessive seizures" barred by the Fourth Amendment. See United States v. Bentley, 825 F.2d 1104, 1110 (7th Cir.), cert. denied, 484 U.S. 901, 108 S. Ct. 240, 98 L. Ed. 2d 198 (1987). The government at argument did not contradict defendant's argument to this effect. Defendant's point is that if all the warrant authorized officers to do was seize certain items, the warrant could not justify a general search for incriminating evidence. Of course, a seizure that satisfied the plain view exception to the warrant requirement would pass Fourth Amendment muster, see generally Horton v. United States, 496 U.S. 128, 133-36, 110 S. Ct. 2301, 2306-07, 110 L. Ed. 2d 112 (1990), but the government made clear at argument that it was not relying on that or any other exception to the warrant requirement. By the government's position, the seizure of the seven items the government seeks to introduce must be covered by a valid warrant, or the seizure was illegal.

 Another, related point derives from these observations: authorization to seize an item is not authorization to seize evidence of the item. The most obvious example here would be the distinction between seizing a check and seizing a copy of a check. Where a warrant only authorizes seizure of the item of value, evidence of the item is not then subject to seizure. To hold otherwise would convert the seizure warrant into a general search warrant, a proposition the government has not even forwarded. That evidence might be subject to seizure under plain view, but the government is only defending seizure based on the items being described by the warrants.

 B. Relevance of the Kind of Warrant at Issue

 Defendant emphasizes at oral argument that the warrants at issue are warrants of seizure and monition, not search warrants. Reading the warrants on their face, that statement is true, in the sense that no search for evidence is authorized by the warrants. But of course the authority to seize an item involves some authority to search for the item. The test, as ...


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