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October 29, 1997

J.S.G. BOGGS, Plaintiff,
Lewis C. Merletti,1 Director, UNITED STATES SECRET SERVICE, et al., Robert F. Rubin, Secretary of the Treasury and Janet Reno, Attorney General, Defendants.

The opinion of the court was delivered by: LAMBERTH

 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' statements of points and authorities, affidavits, declarations and exhibits, and this court's in camera review of the property in dispute, plaintiff's motion for summary judgment is denied and defendants' motion for summary judgment is granted.



 J.S.G. Boggs ("Boggs") is an artist and academic with an appointment at Carnegie-Mellon University whose greatest acclaim -- in both the artistic and legal worlds -- derives from his drawings of United States and foreign currency ("Boggs Bills"). Many of these reproductions are actual size, trompe l'oeil pieces on which Boggs alters some of the design elements from genuine bills, such as replacing the signature of the Secretary of the Treasury with his own, changing the portrait on the front, or creating a denomination that does not exist. Boggs travels the country bartering his work for goods and services by explaining to merchants that he is an artist. Affidavit of J.S.G. Boggs at 2-3. His chosen means of artistic expression has been the subject of substantial of media interest, including coverage in The New York Times, The Washington Post and The London Times, as well as NBC, CBS, ABC and PBS television.

 The United States government has also taken an interest in Boggs' artistic pursuits, an interest which has been a source of significant consternation and frustration for him for almost all of this decade. The specific events relevant to this matter began in March 1991, when the Secret Service learned that Boggs was attempting to obtain merchandise from a Cheyenne, Wyoming K-Mart using one of his Boggs Bills. Declaration of Special Agent Jerry P. Henson at 2. Secret Service agents subsequently met with Boggs in his hotel room, and left this encounter with fifteen Boggs Bills samples. At that time Boggs was advised that the pieces appeared to be in violation of federal counterfeiting statutes. As of this date, the government has not returned the samples taken in Wyoming, alleging that they violate Chapter 25 of Title 18 of the U.S. Code and are contraband.

 In November 1992, the Secret Service became aware that Boggs had printed $ 1 million in Boggs Bills and was planning on using them in the greater Pittsburgh area as part of "Project Pittsburgh," in which Boggs was planning to ask people to spend the bills five times before taking them out of circulation. Affidavit of Thomas M. Abraham in Support of Application for Search Warrant at P 17. In December of that year, pursuant to a warrant issued by the chief magistrate of the Western District of Pennsylvania, Secret Service agents conducted a search of Boggs' person, studio and residence, seizing a large quantity of Boggs Bills as well as hundreds of other items. In a December 8, 1992 meeting with the Secret Service, Boggs was advised that many of the seized items appeared to be in violation of counterfeiting statutes and that prosecution was a possibility. On March 3, 1995, the United States Attorney for the Western District of Pennsylvania declined to prosecute Boggs. See Letter from Charles F. Flynn, Assistant U.S. Attorney, to Kent Yalowitz, Esq. (April 14, 1995) ("Flynn Letter"). As of this date, the government has not returned the Boggs Bills taken in Pittsburgh, alleging that they are contraband, though they have offered to return other items (presumed to be non-contraband) taken in the seizure.

 Plaintiff filed suit in September 1993, stating two claims for relief. In the first claim, plaintiff sought declaratory and injunctive relief, contending that the Secret Service's past actions and threatened prosecutions were causing him to suffer irreparable injury constituting a violation of his First Amendment rights. In Boggs v. Bowron, 842 F. Supp. 542 (D.D.C. 1993) ("Boggs v. Bowron"), aff'd, 314 U.S. App. D.C. 278, 67 F.3d 972 (D.C. Cir. 1995) (unpublished table decision) this court held that 18 U.S.C. ยงยง 474 and 504 -- the counterfeiting statutes which the Boggs Bills allegedly violate -- were both facially constitutional and constitutional as applied to Boggs. 842 F. Supp. at 562. Defendants were awarded summary judgment as a matter of law. Plaintiff now asks this court to address the second claim for relief and order the Secret Service to return the Boggs Bills seized in Cheyenne and Pittsburgh. The gravamen of Boggs' contention is that in executing these two seizures, the Secret Service failed to comply with the special procedural protections established for presumptively expressive materials. These protections include a more strictly applied warrant requirement and a right to a prior adversarial hearing on notice before an independent judicial officer. For the Secret Service's failure to comply with these protections, Boggs contends that the proper remedy is return of the items.


 A. The Seizures Did Not Violate the Constitution

 1. The Cheyenne "Encounter" Was Not a Seizure

 Plaintiff claims that in the Cheyenne seizure, "the government acted without a warrant. Under Roaden [ Roaden v. Kentucky, 413 U.S. 496, 504-05, 37 L. Ed. 2d 757, 93 S. Ct. 2796 (1973)], that ends the matter." Plaintiff's Statement of Points and Authorities at 9. This court does not agree that the constitutional analysis can be so summarily concluded. The validity of the government's conduct in Cheyenne first turns on whether the events that transpired in March 1991 constitute a Fourth Amendment "seizure" such that the warrant requirement is triggered. Consent is one of the major established exceptions to the warrant requirement, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); United States v. Lewis, 287 U.S. App. D.C. 306, 921 F.2d 1294, 1300 (D.C. Cir. 1990). The possibility that both the entry into the hotel room and the seizure of the samples were done with Boggs' consent is implicated by both the government's and Boggs' depiction of the Cheyenne encounter.

 According to plaintiff's Rule 108(h) Statement of Material Facts as to Which There is No Issue, P 10, the authorities "appeared at Boggs' hotel room door without a warrant. They left with fifteen pieces of Boggs' art." The court is asked to conclude from this two sentence description of the encounter and nothing else that an unconstitutional search and seizure occurred. The government, on the other hand, construes the initial appearance and entry of the agents as a "visit." See Defendants' Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment at 2. As to the taking of the sample reproductions of Boggs' work, the Secret Service contends that Boggs voluntarily handed over the samples. Id.

 Even taking the two characterizations and all of the evidence before the court in the light most favorable to plaintiff, this court does not find that the events that transpired in Cheyenne constitute a Fourth Amendment seizure such that the warrant requirement was triggered. First, there is no indication from any of the materials offered in support of plaintiff's summary judgment motion that the government's initial entry into the hotel room was anything but consensual. In Boggs' complaint, he states only that the Secret Service "appeared at [my] hotel room door . . ." Plaintiffs Verified Complaint P 11. The Secret Service, in describing the entry into the room, states, "upon knocking on the door, identifying ourselves and explaining the purpose of our visit, Mr. Boggs invited us into his room." Declaration of Special Agent Jerry P. Henson at P 7 ("Henson Declaration"). These two characterizations are not incompatible, let alone contradictory, as the Secret Service's description of their entry does include an "appearance" at the hotel room door. The fact that plaintiff has not offered any evidence that the agents' entry into the room was nonconsensual, or at all contrary to Agent Henson's portrayal, leads this court to conclude that there is no such evidence. The fact that Boggs may have been surprised or less than delighted by the Secret Service visit at the moment of their arrival does not by itself implicate the Fourth Amendment warrant requirement. This court cannot hold, in the absence of at least some evidence to the contrary, that the Secret Service's entry into Boggs' Cheyenne hotel room was a nonconsensual entry requiring the agents to have previously obtained a warrant.

 Having concluded that the entry into the room was consensual and did not trigger the Fourth Amendment warrant requirement, the second question to address is whether Boggs' relinquishment of the fifteen samples was also consensual. Boggs' complaint states that in response to their demand for his entire inventory of art, Boggs offered the agents a single example of each type of work. Verified Complaint at P 11. After what Boggs describes as "several hours of tense negotiation, during which it appeared to Boggs that he would be arrested and prosecuted for the content of his art," the agents agreed to take only fifteen Boggs Bills samples. Id.

 Agent Henson's description of what transpired diverges from Boggs' account:

Boggs was asked if he had samples of his reproductions available in his room. He provided a quantity of reproductions that he obtained from a briefcase in his room. . . . Mr. Boggs was advised that the reproductions appear to be in violation of counterfeiting statutes and were subject to seizure. At no time during this visit was Mr. Boggs ever threatened with arrest. However, Mr. Boggs was requested to ...

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