case," that the Court is to decide whether the government can introduce the 201 case-in-chief documents at trial be examining everything seized during the search except the 201 case-in-chief documents.
In the usual case, the defendant directly challenges the validity of the seizure of the evidence which the government seeks to introduce at trial. Most defendants proceed in this manner because seizures are separable. Each item the government seeks to introduce into evidence is examined separately; those seized improperly are suppressed, while those seized properly are not suppressed. Merely because some evidence is seized beyond the scope of the warrant does not taint that evidence which has been properly seized. See e. g., United States v. Castle, 213 F. Supp. 56 (D.D.C.1962), aff'd., 120 U.S. App. D.C. 398, 347 F.2d 492 (1964), cert. denied, 381 U.S. 929, 953, 85 S. Ct. 1568, 1811, 14 L. Ed. 2d 687, 726 (1965); Brooks v. United States, 416 F.2d 1044, 1049-50 (5th Cir. 1969), cert. denied, 400 U.S. 840, 91 S. Ct. 81, 27 L. Ed. 2d 75 (1970); United States v. Holmes, 452 F.2d 249, 259 (7th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S. Ct. 1291, 31 L. Ed. 2d 479, 407 U.S. 909, 92 S. Ct. 2433, 32 L. Ed. 2d 683 (1972); United States v. Mendoza, 473 F.2d 692, 696 (5th Cir. 1973); United States v. Artieri, 491 F.2d 440, 445-46 (2d Cir.), cert. denied, 419 U.S. 878, 95 S. Ct. 142, 42 L. Ed. 2d 118 (1974); United States v. Daniels, 549 F.2d 665, 668 (9th Cir. 1977); United States v. Forsythe, 560 F.2d 1127, 1134 (3d Cir. 1977).
For the purposes of this case, the key in this line is Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). In Andresen, the Supreme Court affirmed the conviction of the defendant on one count of false pretenses and three counts of misappropriation by a fiduciary. Id. at 469, 484, 96 S. Ct. 2737. The defendant challenged the reasonableness of the searches and seizures from his corporation and his law office. Id. at 467, 96 S. Ct. 2737. A single document from the corporation, and seventeen items from his law office were introduced into evidence at his trial. Id. There was evidence that between 2% and 3% of the files in the law office were seized and less than 5% of the corporation's files were seized. Id. at 466-67, 96 S. Ct. 2737. Of the 52 items seized from the offices of the corporation, 45 were returned and the trial court suppressed six. Of the 28 items seized from the law office, seven were returned and four were suppressed. Id. at 467, 96 S. Ct. 2737. In the course of its opinion, the Court observed, "The record discloses that the officials executing the warrants seized numerous papers that were not introduced into evidence. Although we are not informed of their content, we observe that to the extent such papers were not within the scope of the warrants or were otherwise improperly seized, the State was correct in returning them voluntarily and the trial judge was correct in suppressing others." Id. at 482, 96 S. Ct. at 2749 n.11. Thus, the Court explicitly approved a document-by-document approach. Those properly seized could be used in evidence even though at the offices of the corporation only one of the 52 items seized was ultimately determined to be properly seized. Therefore, Andresen can be read to hold that even if most of the documents seized by a valid warrant have not been properly seized, those properly seized can be introduced into evidence at trial.
The defendants filed a special pleading just to meet the challenge Andresen presents to their "theory of the case." Defendants' Memorandum on the Applicability of Andresen v. Maryland to these Proceedings (August 24, 1979). In order to counteract the Andresen holding, the defendants cite essentially five cases. Each of these cases can be easily distinguished.
In Kremen v. United States, 353 U.S. 346, 77 S. Ct. 828, 1 L. Ed. 2d 876 (1957) (per curiam) the entire contents of the defendants' cabin were seized without a search warrant. Id. at 347-48, 77 S. Ct. 828. An eleven-page appendix detailing the personal items seized accompanies the opinion. Id. at 349-59, 77 S. Ct. 828. The Court held that the convictions must be set aside because evidence from the cabins was introduced at trial. However, the Court recognized that "the evidence seized from the persons of the petitioners might have been legally admissible." Thus, the Court did not refuse to distinguish between what was properly and improperly seized. Of course, in this case there are search warrants.
In United States v. Rettig, 589 F.2d 418 (9th Cir. 1978), federal agents sought to obtain evidence of a massive cocaine conspiracy. Id. at 420. A federal Magistrate declined to issue the search warrant. Id. The next day, the agents went to a state court judge and sought a warrant to seize evidence of possession of marijuana. Id. The Ninth Circuit found that the warrant was used as an instrument for conducting the search for which permission had been denied on the previous day, and that the actual search pertained to evidence of the cocaine charge, not to the possession of marijuana. Id. at 412. The court did not refuse to permit the introduction of properly seized evidence. Instead, the court ruled that under the circumstances, such a determination was impossible. Id. at 423. In this case, as the defendants have admitted in their pleading, it is possible to determine which discrete items of evidence were within the bounds permitted by the warrant. Thus, Rettig is completely inapposite.
In Application of Lafayette Academy, Inc., 462 F. Supp. 767 (D.R.I.1978), the court ruled that the warrant was a broad and general warrant; thus, severability was not permitted. Id. at 772. This Court has determined that the warrant in this case was not defective.
The defendants' citation of VonderAhe v. Howland, 508 F.2d 364 (9th Cir. 1975) can be described as disingenuous at best. In VonderAhe, agents arrived at the home and office of a dentist suspected of tax fraud and removed "practically every piece of paper they could lay their hands on." Id. at 365. The government had information that the dentist kept two sets of books one for audits (white) and one for actual receipts (yellow sheets and green cards). Id. at 366. Despite the fact that the agents knew what they were looking for and where it was, the warrants were extremely broad. Id. The agents in executing the warrants made a room-by-room search of the premises including the purse of a Mrs. Perez who was visiting the dentist's wife. Id. at 367. The Court found that there was no probable cause for the issuance of the warrants except for the yellow sheets and green cards, id. at 369, and that the warrants were general warrants. Id. at 366. What remedy did the Court provide to the dentist? The Ninth Circuit in VonderAhe ordered all of the seized property returned except for the yellow and green cards. Id. at 372. One could not imagine a more persuasive case for severability than VonderAhe: despite an invalid warrant, and seizure of every piece of paper in a man's home and office, the Court ordered only the return of the improperly seized material. The following language in the case is instructive:
The VonderAhes have asked us to invoke in their favor what has become known as the "exclusionary rule," i. e., to decree at this time that all records seized, including yellow sheets and green cards and any leads therefrom cannot be introduced in any proceeding, civil or criminal against them. However, if the facts are, as represented, that the taxpayers by their own wrong, deliberately concealed income and failed to pay taxes thereon, it would seem to be the height of inequity for the courts to enable them to profit thereby. Using equity as the standard, the warrants as issued restricted to the yellow sheets and green cards would have been reasonable; beyond these records they were too broad. Although the manner of execution was quite unjustified, the penalty of exclusion which the taxpayers would impose is equally unjustified. Our present task is to place the government's allegedly unlawful procedure in obtaining and executing the warrants and the VonderAhes' allegedly unlawful concealment on the mythical scales of justice, and observe the balance. Observing this balance (or possibly imbalance), we believe that justice can best be achieved by reversing the District Court dismissing the complaint and, upon remand, directing the District Court to grant the injunctive relief sought by appellants except as to the yellow sheets and green cards, copies of which the government may retain and use subject, however, to any and all objections thereto, including objections based on the Fifth Amendment, in any proceeding, civil or criminal, which may be raised by the VonderAhes.
Id. at 372 (emphasis added).
Finally, the defendants rely on Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979) which involves the seizure of magazines, films, and other objects from a bookstore on the basis of a New York obscenity statute. Id. at 2321. An investigator purchased two reels of film from a bookstore which he believed to be obscene. Id. at 2322. He took the film to a Town Justice for a search warrant. The Town Justice agreed that the films were obscene and drew up a warrant for the seizure of the films. The Town Justice then proceeded to the bookstore with some state police investigators to view the other material in the store. The Town Justice viewed and found to be obscene 23 films, 4 peep-shows, and 397 magazines. Id. at 2322-23. As each item was seized, it was logged on the warrant. The Court held that the warrant was invalid because it did not even purport to describe particularly the things to be seized, Id. at 2324, and was a general warrant. Id. Furthermore, the Court found that the Town Justice did not manifest that neutrality and detachment required of a judicial officer when presented with a warrant for a search and seizure. Id. In the case before this Court, the warrant was proper and there is no allegation that the Magistrate lacked the neutrality and detachment required of a judicial officer.
Accordingly, the defendants' attempt to force the Court to focus exclusively on the material seized which is not being put into evidence is misguided. The cases relied on by the defendants show that where the warrant is valid, and severability is possible, only material which has been illegally seized is suppressed.
Nevertheless, some cases not cited by the defendants' team of attorneys do provide that at some point an entire search may become so unreasonable that its unreasonableness infects the seizure of each and every item asported. United States v. Fernandez, 430 F. Supp. 794, 801 (N.D.Cal.1976); United States v. Leta, 332 F. Supp. 1357 (M.D.Pa.1971). Accordingly, the Court shall examine the reasonableness of the entire search to be completely certain that justice is done in this case.
A. The Standard to be Applied.
The defendants argue that the standard to be applied to the searches of the Church's premises is "scrupulous exactitude." In support of this contention the defendants rely on the Supreme Court's decision in Stanford v. Texas, 379 U.S. 476, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965). In Stanford, Texas law enforcement officers obtained a warrant to search for evidence of violations of the Texas Suppression Act which outlawed the Communist Party. Id. at 477, 85 S. Ct. 506. The officers gathered up about half the books they found in the house including works of Karl Marx, Jean Paul Sartre, Theodore Draper, Fidel Castro, Earl Browder, Pope John XXIII and Mr. Justice Hugo L. Black. Id. at 479-80, 85 S. Ct. 506. The officers also seized private papers and documents including a marriage certificate, insurance policies, household bills and receipts and personal correspondence. Id. at 480, 85 S. Ct. 506. Although the warrant called for the seizure of, among other things, "records of the Communist Party" and "party list and dues payments," no such material was found. Id. at 480, 85 S. Ct. 506. The petitioner moved for the return of this property. Id. The Court ordered it returned on the ground that the warrant was a general warrant. Id. In the course of its opinion, the Court held that:
the constitutional requirement that warrants must particularly describe the "things to be seized" is to be accorded the most scrupulous exactitude when the "things" are books, and the basis for their seizure is the ideas they contain.