USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1828
UNITED STATES OF AMERICA,
Appellant,
v.
REX W. CUNNINGHAM, JR., THOMAS FERRIS, BRIAN HOYLE,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Todd E. Newhouse, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for the United
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States.
Wendy Sibbison for appellees.
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May 19, 1997
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BOUDIN, Circuit Judge. In the district court, the
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defendants in this criminal case moved to suppress evidence
as illegally seized and, based on the magistrate judge's
report, the district court granted the motion. The
government filed an interlocutory appeal from the suppression
order. We reverse.
I.
In late February 1992, Carmen Picknally, an assistant
district attorney in Hampden County, Massachusetts, applied
to the state Superior Court for a warrant, pursuant to Mass.
Gen. Laws ch. 272, 99(F), to authorize the interception of
telephone calls to or from two specified cellular car
telephone numbers. The car telephones in question were
located in cars controlled by defendant Rex W. Cunningham,
Jr., and the offenses under investigation were suspected
violations of state anti-gambling statutes. Mass. Gen. Laws
ch. 271, 17.
A supporting 109-page affidavit by state trooper Timothy
Alben described evidence that Cunningham had used threats in
attempting to collect gambling debts for bets that he had
taken. The affidavit also set forth information from five
confidential informants about a large-scale gambling
organization allegedly controlled by Cunningham, including
specifics as to how the organization worked, the names of
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employees, telephone numbers, and the location of records and
cash.
On February 28, 1992, Justice Constance Sweeney, of the
state Superior Court, issued the requested warrant, and
signed ancillary orders directed to two carriers. Several
incriminating calls were intercepted between Cunningham and
others and were described in another affidavit of Alben in
support of a requested extension sought by Picknally on or
about March 17, 1992. Justice Sweeney granted the requested
extension. Surveillance of the two telephones ended on April
1, 1992.
On April 17, 1992, Picknally applied to the Superior
Court for a new warrant, this time (according to the
application's caption) "authorizing the interception of oral
communications of . . . Cunningham within an establishment
known as Dillons (sic) Tavern." The application identified
Dillon's Tavern at a street address in Springfield,
Massachusetts, and said that it was on property controlled by
Cunningham and his relatives. Incorporating a new Alben
affidavit, the application referred to loansharking, Mass.
Gen. Laws ch. 271, 49, as well as gambling, as suspected
offenses.
Although the caption referred to interception of oral
communications "within . . . Dillons (sic) Tavern," the
first paragraph described the application as one for a
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warrant "to intercept certain wire and oral communications,"
and there are later references to "wiretaps" and, separately,
to "oral communications . . . within Dillons (sic) Tavern."
The affidavit also asked for authority for Alben to make
secret entries into Dillon's Tavern "for the purpose of
installation and activation of oral interception devices."
This application, it appears, was a poorly edited markup of
the original wiretap application.
Immediately below Picknally's signature was a paragraph
signed by the district attorney for the county, saying that
he had reviewed the application and affidavit and that the
proposed use of electronic surveillance relative to two
specified telephone numbers was consistent with county
policy. The two listed telephone numbers were the cellular
telephone numbers specified in the original application.
Apparently the paragraph had been copied from the original
warrant application without change.
The supporting Alben affidavit, this time 62 pages in
length but attaching the original affidavit as well,
described Cunningham's caution in using the telephone and
provided reasons for believing that Cunningham and others
were using Dillon's Tavern for meetings in aid of gambling
and loansharking. The affidavit described Cunningham's
regular use of a particular table in Dillon's Tavern to
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conduct his business. It also explained why oral
interceptions were needed to supplement other evidence.
Alben's affidavit did not contain the confusing jumble
of references to wiretaps and oral communications that marred
the Picknally application. It asked for approval to
intercept oral communications within Dillon's Tavern,
specifying that interception would
be limited to only such times that physical
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surveillances of this DILLONS TAVERN and Rex W.
CUNNINGHAM Jr. can reasonable (sic) place
CUNNINGHAM within this location and that
interceptions will take place only at or near the
particular table within the dining area which has
been identified within this affidavit as being
consistently used by CUNNINGHAM or his associates.
It also asked approval to enter Dillon's Tavern to install
technical equipment to achieve the interceptions.
The warrant signed by Justice Sweeney had a caption
similar to the application, specifically referring to
interception of oral communications; but--like the
application--the warrant also referred confusingly to wire
communications. It approved the secret entry to install
equipment, and imposed various safeguards. The warrant was
extended numerous times, and assault and battery was added as
a suspected offense. Surveillance ended on November 1, 1992.
By then 125 cassette tapes had been accumulated and were
sealed by the Superior Court.
On April 21, 1995, a federal grand jury in Springfield
indicted Cunningham on RICO violations, loansharking, illegal
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gambling activities, and conspiracy to commit those offenses,
18 U.S.C. 2, 892, 894, 1955, and 1962(c) and (d). Co-
defendants Brian Hoyle and Thomas Ferris were charged with
loansharking conspiracy. Most of the evidence against
Cunningham, and all of the evidence against the co-
defendants, derived from the electronic surveillance and from
searches conducted under state-court issued warrants at
various sites shortly before the surveillance terminated.
By joint motion filed on December 15, 1995, the
defendants moved to suppress materials acquired by electronic
surveillance under Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, 18 U.S.C. 2510-20. That statute
governs interception of both wire communication and oral
communication, laying down detailed standards and procedures.
Id. 2516-18. It also provides for exclusion from
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evidence of interceptions taken in violation of the statute.
Id. 2515.
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After a two-day evidentiary hearing, including testimony
from Picknally, Alben, and Hampden County District Attorney
William Bennett, the magistrate judge issued a report on
March 28, 1996. In it, he recommended that the motion to
suppress be allowed as to all electronic interceptions of
conversations at Dillon's Tavern. He said that the confusion
in the warrant meant that it did not comply with statutory
requirements as to specificity, 18 U.S.C. 2518(4), nor--
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assuming a good faith exception existed--was reliance on the
warrant objectively reasonable.
On May 17, 1996, the district court approved the
magistrate judge's recommendation. Its analysis tracked that
of the magistrate judge and his rejection of a "good faith"
defense was adopted by cross reference. In memoranda dated
June 13 and July 12, 1996, the district court addressed two
successive government motions for reconsideration but stood
by its earlier conclusion. The government then brought the
case to us by interlocutory appeal. 18 U.S.C. 3731.
II.
On review of a suppression order, we defer to the
factfinder's findings of raw fact unless clearly erroneous,
and we consider issues of law de novo. United States v.
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Morris, 977 F.2d 677, 680 (1st Cir. 1992). In the past,
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there has been deference accorded to the factfinder's
judgment in applying general standards to particular known
facts; but the Supreme Court has recently stressed our
responsibility, in a related Fourth Amendment context, to
review "mixed questions" from an independent vantage.
Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996)
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(reasonable suspicion and probable cause).
The government offers two alternative reasons for
reversal. The first is its claim that the warrant
adequately, although not perfectly, identified oral
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communications as its target--especially since Justice
Sweeney and Trooper Alben as executing officer knew that this
was its purpose. The second argument is that the so-called
good-faith exception of United States v. Leon, 468 U.S. 897
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(1984), is available under the statute in this case and
applies on the present facts.
At the threshold, defendants object that neither basis
for appeal was sufficiently preserved. Because we consider
only the first ground on the merits, our discussion of this
threshold objection is similarly limited. To decipher that
objection, it is necessary to understand how the government's
defense of its warrant evolved on the path from the
magistrate judge to the district court and finally to us.
Before the magistrate judge, the government defended its
warrant on the ground that, analyzing the wording in detail,
the errors were technical or clerical. The government did
not expressly assert that the personal knowledge of the
authorizing judge and executing officer were pertinent; but,
the magistrate judge touched obliquely on the issue, saying
that the government's "excuse" would, if accepted, "allow
agents to conduct searches so long as they understood what
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was intended by the orders which their attorneys drafted for
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signatures by the court."
In its district court brief, the government again
analyzed the warrant's language, arguing that it referred
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several times to interception of oral communications at
Dillon's Tavern and that no reasonable officer would read it
to approve wiretaps, especially because no telephone numbers
were listed in the warrant. The government did not mention
the knowledge of the judge or executing officer; indeed, in
its first petition for reconsideration, the government
complained that the district court had looked "beyond the
four corners of the warrant."
The government's first attempt to emphasize what Justice
Sweeney and Trooper Alben knew at the time came only in its
appellate brief where, for the first time, it also cited to
United States v. Bonner, 808 F.2d 864 (1st Cir. 1986), and
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similar cases making such knowledge relevant. Whether this
new emphasis is a separate "ground" or merely a new twist,
the government clearly did not offer it below and instead
steered the magistrate judge and district court toward a
strict linguistic analysis of the warrant. If these judges
erred, it was surely error "invited" by counsel.
But whether we should ignore Bonner is a more difficult
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question. The government sought timely review of the
magistrate judge's ruling, and it filed a timely appeal to us
from the district court's ruling. True, local rules warn
that failing to list grounds for reviewing the magistrate
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judge's report may be fatal;1 but we do not read this warning
to counsel as preventing a reviewing court--where timely
review is sought at each stage--from noticing on its own
arguments not developed below.
The ability of a reviewing court to decide the case
properly is fundamental. Singleton v. Wulff, 420 U.S. 106,
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120-21 (1976). Indeed, the rules expressly preserve our
ability to notice "plain errors" that affect "substantial
rights," Fed. R. Crim. P. 52(b), especially where failure to
do so would work a substantial injustice. United States v.
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Olano, 507 U.S. 725 (1993); see also Johnson v. United
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States, ___ S. Ct. ___, 1997 WL 235136 (U.S. May 12, 1997).
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The threat of substantial injustice is not limited to the
interests of defendants. United States v. Krynicki, 689 F.2d
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289, 292 (1st Cir. 1982).
In this case, Bonner and similar decisions show that the
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issue of knowledge is not wholly distinct from the claim of
clerical error; whether an error is forgiven as clerical
depends, at least in some situations, on whether in context
it actually threatened privacy interests; and this in turn
may be affected by the executing officers' knowledge. The
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1Compare Rule 3(b), Rules for U.S. Magistrates in U.S.
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District Court in Massachusetts with Thomas v. Arn, 474 U.S.
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140, 146 & n.4 (1985) (declining to treat such rules as
jurisdictional). See generally 15A C. Wright, et al.,
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Federal Practice andProcedure 3901.1, at 42 (2d ed. 1992).
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Bonner argument is not intuitively evident; but it is "plain"
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enough once the cases are consulted.
A final reason for refusing to cabin the analysis here
is that the defendants are not prejudiced, because their
ability to meet the government's Bonner argument is not
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affected by the delay. The knowledge of the state judge and
executing officer is readily inferred from documents and from
testimony taken at the magistrate judge hearing, where
defense counsel cross-examined the witnesses. Defendants
have not pointed to any evidence lost or foregone due to the
government's tardiness in making its knowledge argument.
III.
Turning then to the merits, we face at the outset a
statutory ban on use in court of the contents of an
intercepted wire or oral communication, or "evidence derived
therefrom," where disclosure would violate Title III. 18
U.S.C. 2515. There is no violation if the interception was
"authorized by" Title III. Id. 2517. The authorizing
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provisions, 18 U.S.C. 2516-18, elaborately set forth the
crimes to be investigated, the application process for
authorizing orders, and the standards to be met.
Pertinent here is 18 U.S.C. 2518(4), which governs
each order authorizing an interception and requires that the
order specify five different items. Three items (subsections
(a), (d) and (e)) are not in dispute: the identity of the
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target, the identity of the agency and the authorizing
official, and the time period. The other two items which
must be included are as follows:
(b) the nature and location of the communications
facilities as to which, or the place where,
authority to intercept is granted; [and]
(c) a particular description of the type of
communication sought to be intercepted, and a
statement of the particular offense to which it
relates[.]
The defendants invoked both provisions; the magistrate
judge and the district judge focused upon (b), as the
government seeks to do here. In truth, we think that both
provisions need to be read together. Their thrust,
disregarding the final clause of (c), is to identify the type
of communication and to narrow the targeted communications by
location of "facilities" (e.g., identifying a particular
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telephone) or "place" (e.g., where a "bug" is to be located
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to intercept oral communications).
In a literal sense, the warrant does describe both type
and place: it refers expressly to oral communications and to
Dillon's Tavern. But this is an extreme example of missing
the forest for the trees. By referring randomly to oral
communications and wire communications or wiretaps, the
warrant is garbled on the very questions posed by subsections
(b) and (c). Taken as a whole--but taken alone and without
extrinsic evidence--the warrant does not tell the objective
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but ignorant reader just what interceptions are to be
targeted.
Now, the extent of confusion is a matter of degree. Any
reader can see that the warrant has been misdrafted; whether
a reasonable (but otherwise uninformed) police officer would
solve the puzzle correctly is probably a matter of
percentages. In all events, the confusion is serious, and
despite the government's linguistic acrobatics, this is not a
warrant that we would deem adequate if it were signed by a
judge and executed by a police officer having no other
knowledge of the background and objectives.
The inadequacy is not because of any high likelihood
that an otherwise uninformed officer would tap a telephone or
would intercept Cunningham's oral communications at some
other location than Dillon's. No telephone number is given
in the body of the warrant, and no other "place" of
interception is mentioned. Rather, standing alone, the bare
inconsistent words of the warrant fail to create reasonable
assurance that the signer or reader would know just what was
intended.
But this is not the end of the story. The Supreme Court
has made clear that suppression is not automatically required
for every Title III violation; rather, as a sister circuit
summed up the Supreme Court's precedents in United States v.
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Johnson, 696 F.2d 115, 121 (D.C. Cir. 1982), "violations of
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even . . . central requirements do not mandate suppression if
the government demonstrates to the court's satisfaction that
the statutory purpose has been achieved despite the
violation." See also United States v. Donovan, 429 U.S. 413,
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433-34 (1977); United States v. Chavez, 416 U.S. 562, 574-75
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(1974).
Title III is designed to protect privacy interests
similar to those reflected in the Fourth Amendment. Whether
or not Leon's good faith exception should be interpolated
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into the statute--an issue we do not decide--Fourth Amendment
precedent is highly relevant in deciding whether an
authorizing order is valid and whether a defect in wording is
of a kind that threatens the central interests sought to be
protected. Indeed, the Supreme Court itself has relied upon
Fourth Amendment precedent in implementing Title III. Dalia
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v. United States, 441 U.S. 238, 254-59 (1979).
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A substantial body of Fourth Amendment precedent akin to
Bonner, representing most circuits, permits a reviewing court
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to consider the knowledge of the officials who approved the
warrant and executed it. The reason is fairly
straightforward: such knowledge may, on particular facts,
show that there was in fact no real threat to legitimate
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privacy interests. Examples include the judge approving the
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warrant but forgetting to sign, or the warrant's omission of
an address known both to the judge and executing officer.2
In calling such mistakes "clerical," courts do not mean
that they are all unimportant typographical errors. What is
meant is that they are wording mistakes introduced by
accident or lack of care rather than wilfully or with a
sinister purpose. Cases like Bonner often involve, and
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forgive, very serious clerical mistakes, depending upon the
risk that they posed in fact. E.g., Bentley, 825 F.2d at
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1109 (personal knowledge of officers saved warrant that
listed wrong office number). In this sense, the term
"clerical" is highly misleading.
Such an approach is not cost free. In an individual
case, a defect may pose no threat (we will show that this is
so here); but exclusion of evidence in that case will still
make the police more careful next time and so may prevent a
different mistake that does pose such a threat. But there
are costs either way: excluding reliable evidence and
possibly freeing the guilty is also a cost. And cases like
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2See, e.g., United States v. Brown, 49 F.3d 1162, 1168-
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69 (6th Cir.), cert. denied, 116 S. Ct. 377 (1995); United
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States v. Owens, 848 F.2d 462, 465 (4th Cir. 1988); United
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States v. Bentley, 825 F.2d 1104, 1109 (7th Cir.), cert.
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denied, 484 U.S. 901 (1987); United States v. Turner, 770
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F.2d 1508, 1511 (9th Cir. 1985). An extensive collection of
federal cases, by circuit, is contained in 84 Geo. L.J. 717,
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734 n.78 (1996). Some additional case authority, including
state cases, is contained in 2 LaFave, Search and Seizure
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4.5(a) (3d ed. 1996).
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Bonner represent a balance between competing objectives. In
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any event, such is the law of this circuit and many others.
In sustaining the warrant in this case, we rely upon two
major elements. First, the flaw in this case, although
serious, was a discrete set of clerical mistakes in a process
that in all other important respects complied with the
statute. An application to a judge was made; it demonstrated
probable cause and other requisites for the interceptions
proposed; it identified place and type (although in a
confusing language); a warrant was signed; and the
authorizing judge and executing officer knew just what they
were doing.
Second, because the judge and the executing officer knew
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what had been proposed and authorized, there was no
substantial threat that this officer would intercept
communications other than as authorized. Thus, despite the
seriously confusing language, the error here presented far
less of a threat to civil liberties than, say, a facially
coherent warrant that mistakenly inverted the numbers of a
street address and was executed by an officer who did not
know the actual address.
It is the combination of these two elements that, as in
Bonner, persuades us that the warrant should be treated as
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valid and, as in Johnson, that "the statutory purpose [of
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Title III] has been achieved despite the violation." 696
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F.2d at 121. And, as always, substantial compliance and risk
from error are matters of degree. Knowledge would not save
the interception if, for example, Alben had made out the
affidavit but then neglected to present it to a judge to
secure judicial approval. Similarly, nothing in what we say
offers any comfort to an officer who fails to comply with the
true object of the warrant.
It is also worth stressing that the knowledge of Justice
Sweeney and of Trooper Alben are established by a paper-trail
record that was created before the search. The affidavits
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submitted to secure the telephone taps and then to authorize
oral interceptions show beyond serious dispute just what the
judge and the executing officer understood. The hearing
record before the magistrate judge does help knit the events
together, but there is no threat here of recollections being
invented after the event.
This hard evidence lessens, although it does not
eliminate, the problems associated with any resort to
personal knowledge. But proof of the knowledge possessed by
the police is the critical issue for most warrantless arrests
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and searches, e.g., Chambers v. Maroney, 399 U.S. 42, 47-48
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(1970); and, of course, knowledge is scrutinized in warrant
cases as well where (for example) there is a charge of
fabrication or of invented information.
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The Supreme Court's cases do express a special concern
where subjective motivation rather than knowledge is
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involved. Thus, the Court has held as a matter of law that
malignant motive is irrelevant where objectively reasonable
conduct is proved to make out a defense of governmental
qualified immunity, Anderson v. Creighton, 483 U.S. 635, 641
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(1987), or where probable cause exists but a search is
challenged as pretext. Whren v. United States, 116 S. Ct.
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1769, 1774 (1996). But the special concerns about
overturning reasonable conduct because of bad motive have
nothing to do with this case.
One final word on this issue is in order. Where, as
here, the government seeks to rescue a defective warrant
based partly on knowledge of the judge or officer, the burden
is upon it to prove such knowledge--just as it would be the
defendant's burden if the warrant were facially valid but
sought to be impugned by proof of perjury. It is fortunate
for the government that in this case, the evidence is
overwhelming and available from the existing record. This
piece of luck does not make the mishandling of the matter
look any more attractive.
IV.
The defendants advance an alternative ground for
upholding the suppression of the Dillon's Tavern tapes. They
claim that the government failed to comply with the sealing
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requirement of Title III, 18 U.S.C. 2518(8)(a), with
respect to the cellular phone tapes. And, since the Dillon's
Tavern surveillance derived from this allegedly tainted
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evidence, defendants say that it must be suppressed. Id.
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2515. The district court ruled that the brief delay in
sealing was not material.
The statute authorizing an interlocutory appeal from an
order of suppression, 18 U.S.C. 3731, gives only the
government a right to appeal, and for good reason. If
evidence is suppressed, the government cannot appeal the
suppression order after trial for double jeopardy reasons,
whereas the defendant (if convicted) can always appeal from
the district court's earlier refusal to suppress.
It is well-established that appellate courts can uphold
a judgment based on a ground rejected by the district court.
This general principle has been applied to section 3731
appeals. United States v. Moody, 485 F.2d 531, 534 (3d Cir.
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1973). But the government objects in this case that the
defendants' alternative ground would not only support the
order suppressing the Dillon's Tavern tapes but also
undermine the different order declining to suppress the
cellular phone tapes. Thus, it argues that the alternative
ground is really a Trojan-horse effort to review an
unappealable order.
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The argument is clever but unpersuasive. The fact that
the sealing issue may have implications for two different
orders does not prevent us from considering that issue so far
as it pertains to a reviewable order. The cases cited by
the government, e.g., United States v. Shameizadeh, 41 F.3d
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266, 267 (6th Cir. 1994), are not on point. Indeed, if we
thought that the suppression order were clearly valid, but on
a ground different than that offered by the district court,
it would be bizarre to overturn it.
In this instance, however, the magistrate judge and the
district court amply justified their action in treating the
brief sealing delay as "satisfactor[ily] explained." 18
U.S.C. 2518(8)(a). See United States v. Ojeda Rios, 495
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U.S. 257, 265 (1990). There was no bad faith by the police,
no claim of alteration to the tapes, and no other prejudice
even suggested. Given these circumstances and the brevity of
the delay, we think no extended discussion is required in
this case.
Reversed.
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