the additional process for obscenity warrants -- that a law enforcement officer will use his or her own internal definition of "prurient interest" or "patently offensive" to restrain speech based upon a mere dislike of the speech -- is practically nonexistent here. The criteria that renders something as counterfeit does not require reaching a legal conclusion, but rather a factual one. When a determination can be made entirely on observation rather than evaluation, the traditional warrant requirement is sufficient, even when presumptively protected materials are at issue.
Perhaps the most apt analogy to the instant case is not obscenity seizures, but rather warrants issued in child pornography cases where a determination of potential violations of applicable law can be made on the basis of mere observation. The courts have held that probable cause determinations in the child pornography area can be made solely on the basis of affidavits even though potentially expressive speech could be restrained when the affiance is wrong. "Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison [to the legal determination as to whether materials are obscene], is a factual determination that leaves little latitude to the officers." United States v. Kimbrough, 69 F.3d 723, 727-28 (5th Cir. 1995); United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993) (noting that while there is some chance of a mistaken seizure, generally, "most minors look like minors and most adults look like adults, and most of the time most law enforcement officers can tell the difference."); United States v. Smith, 795 F.2d 841 (9th Cir. 1986). The child pornography holdings demonstrate that courts do not require more rigorous procedural safeguards or an adversarial hearing prior to seizure when law enforcement officers have objective and non-evaluative criteria by which to make their determinations. Similarly, in order to demonstrate probable cause in support of the Boggs warrant, all that had to be ascertained was that the bills were in the likeness of United States currency, that they were in color, or that they were of an impermissible size. Such objective criteria obviate the necessity for anything more than the standard Fourth Amendment inquiry required for issuance of a warrant.
Substantial deference is given to a magistrate's determination that probable cause exists. Massachusetts v. Upton, 466 U.S. 727, 733, 80 L. Ed. 2d 721, 104 S. Ct. 2085 (1984); United States v. Vaughn, 265 U.S. App. D.C. 301, 830 F.2d 1185, 1187 (D.C. Cir. 1987); United States v. Desantis, 802 F. Supp. 794, 803 (E.D.N.Y. 1992) (noting that a magistrate's finding of probable cause is in and of itself a factor tending to uphold the validity of a warrant). It is this court's conclusion that the information contained in Secret Service Agent Thomas Abraham's Affidavit in Support of Application for Search Warrant ("Abraham Affidavit") provided a legally sufficient basis for the magistrate to issue the warrant authorizing the Pittsburgh search and seizure. In a November 20, 1992 conversation, Boggs admitted to Abraham that, pursuant to "Project Pittsburgh," he had printed $ 1 million of Boggs Bills and that he would circulate them in Pittsburgh over the next two years. Abraham Affidavit P 17. Having seen Boggs Bills before -- specifically, the fifteen Boggs Bills taken in Wyoming -- Abraham was able to conclude that they were "sufficiently similar to genuine bills that they satisfy the test of similitude" in violation of 18 U.S.C. § 474 para. 5, that they were color reproductions, and that they were approximately the same size as genuine bills, in violation of 18 U.S.C. § 474, para. 6 and 18 U.S.C. § 504 (printing of photographic likenesses). Abraham Affidavit P 18. This court also holds, based on the above analysis, that the affidavit was, by itself, a legally adequate basis upon which the magistrate could make the probable cause determination. As the warrant was supported by probable cause and did not require additional procedural protections prior to its issuance, this court holds that the Pittsburgh seizure did not violate plaintiff's First Amendment rights.
Finally, in challenging the validity of the Pittsburgh seizure, Boggs takes issue with the quantity of Boggs Bills seized, arguing that the Secret Service should have only taken the one or two samples needed for evidentiary purposes. Boggs points to Huffman, 470 F.2d at 392, and Fort Wayne Books, 489 U.S. at 63 in support of the proposition that only a single copy of an expressive item should be seized for the purpose of preserving it as evidence for a criminal prosecution. See also Heller v. New York, 413 U.S. 483, 492, 37 L. Ed. 2d 745, 93 S. Ct. 2789 (1973). This court concludes that plaintiff's analogy to these cases misses an important distinction between the instant case and the obscenity seizures. A court can properly perform its evaluative function as to whether a given book, film or photograph is obscene with just one or two copies of the suspect material. If other copies exist, the First Amendment dictates that those copies should remain available to the public pending a judicial determination of illegality. In this case, however, each Boggs Bill is sufficiently unique such that individual judicial determinations are required as to whether each one violates the relevant counterfeiting statutes. A review of just a "sample" bill could potentially result in an over-broad determination that all of Boggs' work "in the image of money" violates 18 U.S.C. § 474 and is therefore contraband, even if that is not actually the case. The closer analogy to the obscenity area would be if a bookstore sold several allegedly obscene books or if a theater was showing multiple allegedly obscene movies at one time. In such a case, a seizure could include one copy of each of the suspect items and not contravene the First Amendment, provided that the warrant described the areas to be searched and items to be seized with sufficient particularity. Because the Boggs Bills are sufficiently unique such that individual determinations of their legality must be made, the Secret Service was within its right to seize all of the Boggs Bills, and this court will not apply the Fort Wayne Books rule for mass seizures in a context in which it its rationale cannot properly be applied.
C. Boggs' Claim for the Return of the Boggs Bills
Plaintiff's rationale for challenging the above seizures is that he seeks return of the items currently held by the Secret Service. Boggs accurately notes that the proper remedy for the unconstitutional seizure and retention of property is return of the material. Huffman, 470 F.2d at 392; United States v. Pryba, 163 U.S. App. D.C. 389, 502 F.2d 391, 404 n.97 (D.C. Cir. 1974). Having now determined that neither the Cheyenne nor the Pittsburgh seizures were improperly authorized or violative of plaintiff's constitutional rights, Boggs may not claim entitlement to the return of the seized items on that basis.
This court nonetheless elects to address plaintiff's claim for the return of the Boggs Bills. "The general rule is that seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have terminated." United States v. Farrell, 196 U.S. App. D.C. 434, 606 F.2d 1341, 1343 (D.C. Cir. 1979) (quoting United States v. LaFatch, 565 F.2d 81, 83 (6th Cir. 1977); see also Cooper v. City of Greenwood, 904 F.2d 302, 304 (5th Cir. 1990). Because the government has declined to prosecute plaintiff in either the District of Wyoming or the Western District of Pennsylvania, the criminal proceedings are effectively terminated, and Boggs has a right (subject to the qualifications described below) to make a claim for the return of his goods.
Furthermore, the length of time that has elapsed between the seizures and the government's final decision not to prosecute -- almost two years -- mitigates in favor of plaintiff's claim for the return of his goods. See Eckstein v. Cullen, 803 F. Supp. 1107, 1116 (E.D. Va. 1992) (noting that the duration of a seizure implicates the First Amendment when expressive materials are at issue); United States v. Premises Known as 608 Taylor Avenue, Apartment 302, 584 F.2d 1297, 1302 (3d Cir. 1978) (stating that the government can retain possession for only a reasonable time).
Whether or not Boggs is entitled to the return of his art turns on this court's determination as to whether the Boggs Bills are contraband. Individuals have no property right in contraband materials and contraband materials may not be returned to them. United States v. Jeffers, 342 U.S. 48, 52, 96 L. Ed. 59, 72 S. Ct. 93 (1951); Trupiano v. United States, 334 U.S. 699, 710, 92 L. Ed. 1663, 68 S. Ct. 1229 (1948). Notably, this is true whether or not the initial seizure of the property was improper, and whether or not any person connected with the seizure has been convicted of a crime. Id.
Contraband is divided into two types. The first is "contraband per se," which are objects that are inherently unlawful to possess, such as cocaine and other illegal narcotics. "One cannot have a property right in that which is not subject to legal possession." City of Greenwood, 904 F.2d at 304-05. For contraband per se, no forfeiture action need be filed for the government to retain the items; the government owns the items upon seizure. United States v. 37.29 Pounds of Semi-Precious Stones, 7 F.3d 480, 485 (6th Cir. 1993).
Derivative contraband, on the other hand, are items that are not inherently unlawful but become unlawful based upon the use(s) to which to which they have been put. An automobile used in furtherance of a felony is the paradigm example of derivative contraband. See, e.g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699-700, 14 L. Ed. 2d 170, 85 S. Ct. 1246 (1965). Derivative contraband may only be forfeited pursuant to a statute, and such statutory forfeitures require notice and an opportunity to be heard. See Degen v. United States, 517 U.S. 820, 135 L. Ed. 2d 102, 116 S. Ct. 1777, 1780 (1996); United States v. James Daniel Good Real Property, 510 U.S. 43, 48-62, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993). Absent statutory authority for the forfeiture of derivative contraband, it must be returned, as there is no authority for the continued detention of the item by the government. United States v. Wilson, 176 U.S. App. D.C. 321, 540 F.2d 1100, 1104 (D.C. Cir. 1976). Statutory authorization for the forfeiture of counterfeit paraphernalia is found in 18 U.S.C. § 492.
Consequently, the question that must be resolved is as to whether the Boggs Bills
are either contraband per se, derivative contraband or non-contraband. In Boggs v. Bowron, this court expressly stated that "no determination has been made as to whether any items within the portfolio [the samples from Wyoming] constitute contraband." Boggs v. Bowron, 842 F. Supp. at 561 n.42. At that time, such a decision would have been premature, as no final determination had been reached as to whether plaintiff would be prosecuted. Now that the United States Attorney has decided not to prosecute in either jurisdiction, the court will consider whether the Boggs Bills are contraband and therefore automatically forfeited to the government, or should be returned to the plaintiff. For reasons that will became apparent below, this court will analyze the samples seized in Cheyenne separately from those seized in Pittsburgh.
1. The Cheyenne Boggs Bills
In Boggs v. Bowron, this court had the opportunity to examine the fifteen samples that Boggs relinquished in Wyoming. The court found that those Boggs Bills were in "the general pattern of general currency, including portraits in the middle, federal reserve seals and numbers, treasury seals and numbers, signature blocks and numeric features, in the size and color similar to genuine currency." Boggs v. Bowron, 842 F. Supp. at 561. The court further concluded "that a jury would be justified, if not compelled, to find that these items were in the likeness and similitude of genuine United States currency." Id.
These conclusions from Boggs v. Bowron are binding on the court in the instant case. Having determined that a jury would be compelled to find that the fifteen Cheyenne Boggs Bills violate 18 U.S.C. § 474, para. 5, which proscribes the possession or custody of items made or executed after the similitude of United States obligations, the court must now rule that those bills are contraband per se. Counterfeit bills are among the most obvious forms of contraband as their mere possession, without more, is unlawful. See 37.29 Pounds of Semi-Precious Stones, 7 F.3d at 485. The instant case is precisely the type of situation that the contraband per se forfeiture rule is intended to address. If mere possession of an item is a crime, the government's return of that item would make the recipient a criminal, and a court cannot enter an order that would lead to such a result.
Based upon its factual conclusions from Boggs v. Bowron, this court must now hold that the fifteen Boggs Bills seized in Cheyenne are contraband per se. Consequently, they are hereby forfeited to the United States without forfeiture procedures.
2. The Pittsburgh Boggs Bills
This court may not rely on the holding in Boggs v. Bowron to conclude that the Boggs Bills
seized in Pittsburgh are contraband, as these bills had not been previously examined by this court. As explained in Part II.A.2., the Boggs Bills are sufficiently unique such that individual determinations as to whether they violate 18 U.S.C. §§ 474, 481, 504 and 31 C.F.R. § 411.1 are required. The Secret Service contends that this court's examination of the seized items "would lead the Court to conclude from its own observation that the reproductions are in the likeness and similitude of genuine United States currency." Defendants' Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment at 4. Defendants, in their briefing of this matter, "invited" this court to examine the Boggs Bills and rule on the basis of its own observations. The court "accepted" this "invitation," and conducted an in camera review of all of the Pittsburgh materials on October 23, 1997.
Having examined all of the disputed Boggs Bills seized in Pittsburgh (Exhibits B, C, and D from Defendant's In Camera Submission and Declaration of Counterfeit Specialist Richard L. Outland), this court concludes that all of the items that the Secret Service contends are contraband are, to this court's satisfaction, reproductions of genuine currency of the United States or reproductions of genuine foreign currency. Each are in the likeness and similitude of genuine currency and therefore in violation of 18 U.S.C. §§ 472 or 481. Each reproduction has the general design and appearance of genuine United States or foreign currency. None of the pieces in dispute meet the size and coloration exemptions of 18 U.S.C. § 504 and 31 C.F.R. 411.1. This court is therefore compelled to hold that items 1, 2 and 56 of the 81 reproductions of item 5 in Exhibit B are contraband; that items 1, 2, 3, 4, 5, and 6 in Exhibit C are contraband; and that items 1, 4, 5, 8, 13-16, 18, 19, 22-24 and the novelty items (except the oversize $ 2 note) from Exhibit D are contraband. These items are therefore forfeited to the United States without the necessity of forfeiture procedures.
A separate order shall issue this day.
Royce C. Lamberth
United States District Judge
This matter comes before the court on cross-motions for summary judgment on plaintiff's claim for the return of his seized property. Upon consideration of the parties' cross-motions and oppositions thereto, affidavits, declarations and exhibits, and this court's in camera review of the property in question, and it appearing that no genuine issue of material fact remains to be decided, it is hereby
ORDERED that plaintiff's motion for summary judgment is DENIED, and it is
FURTHER ORDERED that defendants' motion for summary judgment is GRANTED, and it is
FURTHER ORDERED that this action is dismissed with prejudice.
Royce C. Lamberth
United States District Court