UNITED STATES OF AMERICA, PETITIONER V. CARL A. FUCCILLO

   No. 86-1622

   In the Supreme Court of the United States

   October Term, 1986

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the First Circuit

            TABLE OF CONTENTS
   Question presented
   Opinions below
   Jurisdiction
   Statement
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-12a) is
reported at 808 F.2d 173.  The opinion of the district court (App.,
infra, 13a-22a) is reported at 634 F. Supp. 358.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 24a) was entered
on January 9, 1987.  On February 26, 1987, Justice Brennan extended
the time within which to file a petition for a writ of certiorari to
and including April 9, l987.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether evidence seized in reasonable reliance upon a search
warrant should be admissible, where the warrant is subsequently found
to be insufficiently particularized and the agents have seized certain
items that were not within the scope of the warrant.

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the First Circuit in this case.

                               STATEMENT

   On September 28, 1984, federal agents executed search warrants at
three premises owned by respondent.  In the course of the ensuing
searches, the agents seized a large quantity of stolen clothing.
Respondent was subsequently indicted on four counts of possession of
goods stolen from an interstate shipment, in violation of 18 U.S.C.
659;  one count of receipt of stolen goods moving in interstate
commerce, in violation of 18 U.S.C. 2315;  and one count of interstate
transportation of stolen goods, in violation of 18 U.S.C. 2314.
Respondent moved to suppress the seized evidence.  After a hearing,
the district court granted respondent's motion.  The government
appealed, and the court of appeals affirmed.  App., infra, 3a, 4a-5a.

   1. In support of its application for the search warrants in this
case, the government submitted the affidavit of Special Agent Frisoli
of the Federal Bureau of Investigation (FBI).  According to the
affidavit, two trailers containing 839 cartons of women's apparel and
accessories valued at approximately $500,000 were stolen from Women's
Specialty Retailing in Enfield, Connecticut, sometime between August
10 and 13, 1984.  Attached to the cartons were delivery slips
reflecting the stores that were to receive the merchandise.  Among the
stores listed on the delivery slips was Casual Corner. Aff. Paragraph
2;  App., infra, 3a-4a, 15a.

   According to the affidavit, a confidential informant reported that
on September 25, 1984, there was stolen women's clothing at three
premises owned by respondent:  Fashion Apparel Distributors (FAD), a
wholesale clothing distributor located in Revere, Massachusetts;
Fashions on Tremont (FOT), a retail clothing store located in Boston,
Massachusetts;  and a warehouse located in Milford, Massachusetts.
The informant reported that he or she had been inside FAD and the
warehouse and had observed Casual Corner women's clothing that the
informant knew to have been stolen.  Aff. Paragraphs 3, 6;  App.,
infra, 3a, 4a, 15a.

   To corroborate the informant's representations, an FBI agent
visited FOT on September 26, 1984.  The agent was accompanied by Anne
Sweeney, a manager of one of the Casual Corner stores.  During the
approximately 10 to 15 minutes that she spent in the store, Ms.
Sweeney observed about $6,000 worth of Casual Corner merchandise and
identified specific Casual Corner items.  Ms. Sweeney noticed that the
prices charged by FOT for the goods were substantially below their
market value.  She also observed three particular clothing labels that
were exclusive to Casual Corner and should not have been available at
FOT.  Finally, Ms. Sweeney spotted approximately 100 vests and 2
sweaters that were exclusive Casual Corner merchandise and from which
the labels had been removed.  Aff. Paragraph 4;  App., infra, 4a, 19a.

   On September 27, 1984, FBI agents performed surveillance at FAD and
observed a van belonging to FAD being loaded.  The agents followed the
van to the Milford warehouse, where the driver went inside.  The
agents then observed several racks of women's clothing inside the
warehouse.  Aff. Paragraph 9.

   The evidence at the suppression hearing disclosed that before they
appeared before a magistrate, the agents met with an Assistant United
States Attorney for about six hours to discuss and prepare an
application for the search warrants.  A federal magistrate then
reviewed the affidavit and warrant application for about 45 minutes
before issuing the warrants.  In the course of authorizing the
searches, the magistrate did not in any way intimate that the warrants
were insufficiently particularized.  C.A. App. 68-71, 80-81.  /1/ Each
of the warrants authorized the agents to seize the following property
(App., infra, 3a):

      "(C)artons of women's clothing, the contents of those cartons,
      lists identifying the contents of the cartons, and control slips
      identifying the stores intended to receive these cartons, such
      items being contraband and evidence of a violation of Title 18,
      United States Code, Section 659, Possession of Goods Stolen from
      Interstate Shipments."

   On September 28, FBI agents executed the warrants.  Accompanying
the agents during the searches were managers from Casual Corner
stores, whose function was "to identify clothing belonging to their
company that should not be for sale outside * * * Women's Specialty
Retailing." C.A. App. 72-74.  Sometime after the searches began, an
agent at the Milford warehouse called Agent Frisoli, who was at FAD,
and advised him that the agents had discovered clothing in the
warehouse beyond that which had been referred to in the warrant.  The
agent relayed to Frisoli the identifying numbers on the garments so
that Frisoli could determine if this clothing was also stolen.  After
Frisoli learned that this additional clothing had been discovered at
the warehouse, he searched for similar merchandise at FAD and
discovered that identical items were on the premises there.  Prior to
seizing any of it, Frisoli confirmed that nearly all the goods on the
premises had been stolen.  The only exceptions were certain sweat
shirts;  although those items had been sold to FAD, they had not yet
been paid for.  C.A. App. 76-80, 92.

   In all, the agents seized from FAD a large supply of stolen
merchandise, including 29 cartons of Casual Corner clothing, 111
Sassoon dresses, 130 men's corduroy sports jackets, and 4 empty boxes
with Casual Corner markings.  From FOT the agents seized additional
stolen apparel, including 200 sweaters, 72 blouses, and 64 pairs of
pants.  From the Milford warehouse the agents seized a quantity of
stolen women's clothing sufficient to fill about 504 cartons, as well
as stolen Sassoon skirts and men's corduroy jackets.  The agents later
returned the sweat shirts they had seized.  App., infra, 4a-5a;  C.A.
Supp. App. 1-2, 4-23;  C.A. App. 92.  /2/

   On May 9, 1986, the district court granted respondent's motion to
suppress (App., infra, 13a-22a).  The court held that "the warrants in
this case did not meet the particularity requirement of the Fourth
Amendment." In addition, the court found that "the government has
failed to show that the F.B.I. agents who executed the warrants acted
in good faith" (id. at 14a).

   2. The court of appeals affirmed (App., infra, 1a-2a).  It first
held (id. at 7a) that the warrants to search the three premises were
insufficiently particularized in that they "substantial(ly) fail(ed)
to specify as nearly as possible the distinguishing characteristics of
the goods to be seized." The court surmised (id. at 8a) that the
agents "clearly could have obtained specific information for
presentment to the magistrate and placement in the warrant which would
have enabled the agents executing the FAD and Milford warehouse
searches to differentiate contraband cartons of women's clothing from
legitimate ones." /3/ The court also found (id. 9a-10a) that the
warrant to search FOT was insufficiently particularized because
although Ms. Sweeney had seen particular items at FOT prior to the
search, the warrant did not identify those items.

   The court next refused (App., infra, 10a-12a) to find that the
agents had executed the searches in good faith under United States v.
Leon, 468 U.S. 897 (1984).  It held, first, that "(t)he good faith
exception * * * will not be applied unless the officers executing
search warrants, at the very minimum, act within the scope of the
warrants and abide by their terms" (App., infra, 10a-11a).  Because
the agents who searched FAD and the warehouse seized some clothing
that was not covered by the warrants, it held that the searches at
those locations were not performed in good faith (id. at 11a).  The
court also refused to find good faith in connection with the search at
FOT because the agents had failed to take "'every step that could
reasonably be expected of them'" in describing the items to be seized
(ibid., quoting Massachusetts v. Sheppard, 468 U.S. 981, 989 (1984)).
The court noted (ibid.) that the affidavit for the warrant indicated
that mailing labels had been attached to the cartons of clothing
before they were stolen;  the court held that the agents should have
obtained that information and included it in the warrant.  Moreover,
Ms. Sweeney had seen particular items at FOT prior to the search;  the
court held that the warrant should have specified this list of
merchandise.  Because of these omissions, the court held that the
warrant was "'so facially deficient -- i.e., in failing to
particularize the place to be searched or the things to be seized --
that the executing officers cannot reasonably presume it to be valid'"
(App., infra, 11a-12a (quoting Leon, 468 U.S. at 923)).

                   REASONS FOR GRANTING THE PETITION

   In United States v. Leon, 468 U.S. 897, 922 (1984), the court held
that "the marginal or nonexistent benefits produced by suppressing
evidence obtained in objectively reasonable reliance on a subsequently
invalidated search warrant cannot justify the substantial costs of
exclusion." The court of appeals refused to apply the rule in Leon to
any of the three searches at issue in this case.  With respect to the
search at FOT, the court found that the agents did not "take every
step that could reasonably be expected of them" in describing the
items to be seized (App., infra, 11a).  The court also refused to
apply Leon to the searches at FAD and the warehouse, because in
executing those searches the agents seized a quantity of items that
were outside the scope of the warrants.  The decision below thus
raises two issues of considerable and recurring importance concerning
the application of the good faith exception in Leon.

   First, in holding that the agents did not act in good faith because
of a lack of particularity in the warrant to search FOT, the court of
appeals significantly misread the Leon case and effectively held the
agents to a standard of near perfection in the drafting of warrants.
The court's application of Leon in this case is in sharp conflict with
the approach followed in other circuits.  This case presents an
appropriate vehicle to resolve the substantial differences among the
circuits in the application of Leon to warrants that are found to be
insufficiently particularized.

   Second, the court of appeals misread Leon when it concluded that
agents cannot be acting in good faith when some of the items they
seize are outside the four corners of the warrant.  Leon itself
imposes no such limitation, nor could it without departing from prior
decisions of this Court.  Because this aspect of the court of appeals'
decision is also contrary to other circuit law, review by this Court
is warranted.

   1. In the Leon case the Court held that the exclusionary rule
"cannot be expected, and should not be applied, to deter objectively
reasonable law enforcement activity" (468 U.S. at 919).  This is
particularly true, the Court added, "when an officer acting with
objective good faith has obtained a search warrant from a judge or
magistrate and acted within its scope" (id. at 920 (footnote
omitted)).  The Court reasoned that in such cases the deterrent value
of the exclusionary rule is vitiated by the fact that "an officer
cannot be expected to question the magistrate's probable-cause
determination or his judgment that the form of the warrant is
technically sufficient" (id. at 921).

   The Court noted that there were nevertheless some circumstances in
which the executing officer would have "no reasonable grounds for
believing that the warrant was properly issued" (468 U.S. at 923).  In
those unusual cases "(s)uppression * * * remains an appropriate
remedy" (ibid.).  In particular, the Court stated that suppression
could be ordered in cases in which the agent misled the magistrate
with known false information;  cases in which the magistrate "wholly
abandoned his judicial role";  cases in which probable cause was "so
lacking * * * as to render official belief in its existence entirely
unreasonable" (citation omitted);  and, finally, cases in which "a
warrant may be so facially deficient -- i.e., in failing to
particularize the * * * things to be seized -- that the executing
officers cannot reasonably presume it to be valid" (ibid.).  The
selection of these examples, we submit, makes it clear that when an
agent secures a search warrant, suppression is appropriate only when
the magistrate or agent has wholly abdicated his professional
responsibilities.  In such instances, the exclusionary rule "bear(s)
(its) heavy burden of justification" and "pay(s) its way by deterring
official lawlessness." Illinois v. Gates, 462 U.S. 213, 257-258 (1983)
(quoted in Leon, 468 U.S. at 907-908 n.6).

   The simple failure to take every reasonable step to particularize a
warrant cannot amount to the kind of default that justifies the heavy
hand of suppression.  The Court's recent decision in Illinois v.
Krull, No. 85-608 (Mar 9, 1987), makes that point clearly.  In that
case, the Court held that the Leon exception applies to a seizure
undertaken pursuant to a statute that was later declared
unconstitutional.  The Court rejected the argument (slip op. 18-19)
that the statute vested so much discretion in the seizing officer that
the officer could not reasonably suppose the statute to be valid.
Although the Court noted certain additional restrictions on the
officer's discretion that might have been put into the statute, it
held that these alterations in the statute were "not so obvious that
an objectively reasonable police officer would have realized the
statute was unconstitutional without them" (slip op. 19 (footnote
omitted)).  The officer's reliance on the statute, even without the
additional safeguards, was thus "in objective good faith" (ibid.).

   In the present case, the court of appeals upheld the suppression
order because, in the court's view, the agents did not take every
reasonable step to narrow the warrants.  Even if such an exacting
standard were otherwise appropriate under Leon, we believe that the
court of appeals' quarrel with the warrants in this case was
unjustified.

   To be sure, the warrants in this case were broad in scope.  But it
is difficult to imagine how the warrants could have been drafted more
narrowly without imposing inappropriate limitations on the items to be
seized.  The court of appeals made two suggestions as to how the
warrants could have been more narrowly drafted, but both of those
suggestions were plainly flawed.  The court first suggested (App.,
infra, lla) that the warrants should have included the mailing labels
that had been attached to the cartons of women's clothing before they
were stolen.  The affidavit in this case, however, disclosed that the
labels on some of the clothes had been removed prior to the search,
and the agents had every right to infer that the mailing slips would
have been removed as well.  /4/ The court next suggested that the
warrant to search FOT should have listed the items observed by Ms.
Sweeney.  That suggestion also misses the mark.  Ms. Sweeney saw those
items in a 10- or 15-minute visit to the store;  there was every
reason to anticipate that additional stolen merchandise would be found
there as well.  There was no reason to limit the warrant to the
specific items that Ms. Sweeney observed, even if those items could
have been identified with the precision that the court of appeals
seems to have expected.

   The agents in this case thus faced a dilemma.  A narrowly drafted
warrant, along the lines suggested by the court of appeals, might well
have omitted much, if not all, of the stolen property that the agents
clearly had probable cause to seize.  On the other hand, a broadly
worded warrant was vulnerable to attack if a defendant or a court
could subsequently devise a formula that would describe all the
property for which the agents had probable cause, yet define that
catefory more narrowly than the warrants in this case.  In light of
the court of appeals' failure to suggest how the warrants might
properly be narrowed without omitting a potentially large portion of
the stolen goods, the magistrate can hardly be faulted for having
selected the language that was used in the warrants, even though that
language was broad.  And for the same reason, the agents surely cannot
be criticized for having concluded that the formula approved by the
magistrate satisfied the requirements of the Fourth Amendment.

   Even if the agents were held to a high standard of familiarity with
the technical features of search and seizure law, it would have been
reasonable for them to believe that the warrants in this case were
sufficiently particularized.  In United States v. Scharfman, 448 F.2d
1352 (1971), cert. denied, 405 U.S. 919 (1972), the Second Circit
approved a virtually indistinguishable warrant that was issued under
nearly identical circumstances.  In Scharfman a truck loaded with
several hundred furs was hijacked.  Thereafter, an informant advised
the FBI that furs from that shipment could be found in the defendant's
stores.  An employee of one of the shippers confirmed this tip by
identifying one fur at one of the defendant's stores as part of the
stolen shipment.  The court of appeals upheld a warrant that
authorized the agents to search for and seize "fur coats, stoles,
jackets and other finished fur products" (448 F.2d at 1353 n.1).  The
court rejected the claim that the warrant was insufficiently
particularized.  It held (id. at 1354 (citation omitted)) that
"(w)here goods are of a common nature and not unique there is no
obligation to show that the ones sought * * * necessarily are the ones
stolen, but only to show the circumstances indicating this to be
likely." /5/ To insist no greater specificity in the warrant, the
court reasoned, would reward the defendant for his own stealth.  "(I
)t is inconceivable that by mixing legitimately obtained (goods) with
the stolen merchandise so as to make them virtually indistinguishable,
the defendant could invalidate the seizure because more specificity
has become impossible" (id. at 1354 n.3).

   In light of the judicial approval of the warrant in Scharfman, the
agents in this case had even less reason to second-guess the
magistrate's judgment that the warrants to search respondent's
premises were sufficiently narrow.  /6/ See Illinois v. Krull, slip
op. 18-19 & n.16 (fact that Supreme Court of Indiana approved a
similar statute was evidence that officer's reliance upon the Illinois
statute was reasonable).  Cf. Leon, 468 U.S. at 919-920 n.20 ("The
objective standard we adopt * * * requries officers to have a
reasonable knowledge of what the law prohibits.").  More generally,
however, the court of appeals' insistence that the agents take every
reasonable step to narrow the warrant breaks faith with Leon by
requiring the agents to exercise a degree of drafting skill bordering
on perfection.  The court's approach overlooks the often complex and
technical nature of the particularity requirement.  Whether a warrant
is sufficiently particular depends upon the relationship between the
probable cause stated in the affidavit and the description in the
warrant of the items to be seized.  In any given case, a question can
always be raised whether the "fit" between the probable cause and the
warrant is sufficiently close.  That is the kind of judgment that
agents are not trained to make and on which they have every right to
defer to the magistrate's decision to issue the warrant.

   2. The First Circuit's application of the good faith exception to
warrants lacking sufficient particularity is in conflict with the
decisions of several other circuits.  The Second Circuit considered
this issue in its recent decision in United States v. Buck, No.
86-1500 (Mar. 10, 1987).  In the course of investigating an armored
car robbery in that case, agents traced the get-away car to a house in
New Jersey and secured a warrant to search the house for "any papers,
things or property of any kind relating to (the) previously described
crime" (slip op. 1803).  The court of appeals held that the warrant
was insufficiently particularized in that the agents "clearly did not
insure that all the known facts were included in the warrant" (id. at
1808).  Nevertheless, expressly noting that its holding was in
conflict with decisions of the First Circuit in this case and the
Ninth Circuit in another case (id. at 1809-1810 n.1), the court of
appeals found that the agents had acted in good faith under Leon.  The
court noted (id. at 1810) that the "officers in this case made
considerable efforts to comply with the dictates of the Fourth
Amendment." /7/ All the officers failed to do, the court held, was to
anticipate the court's ruling that "the use of a catch-all description
in a search warrant, unaccompanied by any list of particular items"
would be insufficient (ibid.).  But that failure did not constitute
bad faith because "the law was unsettled" on this issue and "a
reasonably well-trained police officer could not be expected to know
that the warrant issued by (the magistrate) violated the Fourth
Amendment" (ibid.).  The court accordingly held (id. at 1810-1811)
that "(t)he exclusionary rule's deterrent function is not served by
penalizing officers who rely upon the objectively reasonable legal
conclusions of an issuing judge."

   The application of Leon by the First Circuit is also at odds with
the approach adopted by the Eleventh Circuit in United States v.
Accardo, 749 F.2d 1477 (1985), cert. denied, No. 85-518 (Nov. 4,
1985).  /8/ There, the court of appeals vacated a district court order
suppressing evidence because of a warrant's lack of particularity.
The Eleventh Circuit held that on the facts presented at the
suppression hearing, good faith had been established.  The agents
"submitted a detailed affidavit to a magistrate," and that affidavit
alleged "a pervasive fraud" that "justif(ied) a more flexible reading
of the fourth amendment particularity requirement" (749 F.2d at
1480-1481).  Moreover, the affidavit "was reviewed by several
attorneys in the U.S. Attorney's office," and the magistrate "found
probable cause and issued the warrants" (id. at 1480).  /9/ See also
United States v. Weinstein, 762 F.2d 1522 (11th Cir. 1985), cert.
denied, No. 85-1508 (Apr. 7, 1986) (applying a good faith standard to
a search warrant challenged as overbroad).

   The Eighth Circuit's decision in United States v. Faul, 748 F.2d
1204 (1984), cert. denied, 472 U.S. 1027 (1985), is also contrary to
the approach employed by the First Circuit.  Faul involved an exchange
of gunfire between United States marshals and a group of suspects.
After the exchange, a warrant issued to seize from the farmstead of
one of the suspects "any and all firearms, ammunition, grenades,
crossbows, rocket launchers and other explosive devices." The
defendants claimed that this category was overbroad.  The court of
appeals disagreed, noting that "(a)rguably, all of the firearms seized
were relevant until ballistics examinations had been performed" (748
F.2d at 1219).  In any event, the court held, the seizure would be
justified under Leon.  Id. at 1220 n.11.  Although, under the First
Circuit's test, the agents undoubtedly could have narrowed the scope
of the warrant -- based on the kinds of weapons used at the shoot-out
-- the court of appeals held that Leon did not impose so rigid a
requirement.

   Finally, in the Ninth Circuit's most recent decision in this area,
that court appears also to depart from the application of Leon adopted
by the First Circuit in the present case.  United States v.
Michaelian, 803 F.2d 1042 (1986).  The Michaelian case involved a
search for records reflecting a violation of the tax laws for certain
specific years.  Like the First Circuit in this case, the district
court had found the warrants to be too general "in light of the
lengthy IRS investigation and detailed knowledge provided (to the
agents by certain informants)" (803 F.2d at 1046 n.1).  The court of
appeals did not challenge this judgment, holding instead that the
seizure was made in good faith.  The court noted (id. at 1047) that
the warrants did not "approximate the degree of facial deficiency
which would preclude objective reliance by federal agents." The
records to be seized were limited to particular years and the
categories of records to be seized were not unlimited.  Moreover, the
warrants were subjected to "four levels of attorney review." Ibid.
Thus, although the warrants undoubtedly could have been made more
specific (as the district court found, in a ruling not disturbed by
the court of appeals), the Ninth Circuit upheld the seizure on good
faith grounds.  /10/

   3. The fact that the agents seized certain items that were outside
the terms of the warrant did not justify the court of appeals in
finding an absence of good faith.  In the first place, we do not see
how the agents' decision to seize items that were in plain view can
possibly bear on the question whether the terms of the warrants were
sufficiently narrow.  Although the court of appeals purported to base
its contrary decision on the language of the Leon decision, there is
nothing in that case to support the court of appeals' position.  /11/
Moreover, it is well established that if agents who are executing a
search warrant encounter contraband or stolen property in plain view,
they may lawfully seize that property.  See, e.g., Coolidge v. New
Hampshire, 403 U.S. 443, 465-467 (1971);  United States v. Ellison 793
F.2d 942, 948 (8th Cir. 1986), cert. denied, No. 86-5484 (Nov. 3,
1986);  United States v. Fawole, 785 F.2d 1141, 1145 (4th Cir. 1986).
In any event, even when agents have improperly seized items that are
not within the terms of a warrant, the appropriate remedy is to
suppress only those items that are within the scope of the warrant.
See Waller v. Georgia, 467 U.S. 39, 43-44 n.3 (1984);  Andresen v.
Maryland, 427 U.S. 463, 482 n.11 (1976).  See also United States v.
Offices Known As 50 State Distributing Co., 708 F.2d 1371, 1376 (9th
Cir. 1983), cert. denied, 465 U.S. 1021 (1984);  United States v.
Wuagneux, 683 F.2d 1343, 1354 (11th Cir. 1982), cert. denied, 464 U.S.
814 (1983).

   The court of appeals' belief that the seizure of some items in
plain view precludes a finding of good faith is in conflict with the
decision of the Tenth Circuit in United States v. Medlin, 798 F.2d 407
(1986).  Rejecting the analysis applied by the First Circuit, the
court of appeals in Medlin held (798 F.2d at 411) that unless a
seizure outside the scope of the warrant reflects a "flagrant
disregard for the limitations of a search warrant," the items seized
under the warrant in good faith may be severed from the rest and
offered into evidence.  The decision of the First Circuit in this case
therefore conflicts with the approach employed by other circuits in
applying this Court's decision in Leon, both by insisting on a precise
description of the items to be seized and by gauging the
reasonableness of the description of the items in the warrant
according to the agents' conduct in subsequently executing the search.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   LAWRENCE S. ROBBINS

      Assistant to the Solicitor General

   APRIL 1987

   /1/ "C.A. App." refers to petitioner's appendix in the court of
appeals.

   /2/ "C.A. Supp. App." refers to respondent's supplemental appendix
in the court of appeals.

   /3/ In particular, the court faulted the agents for failing to
include in the warrant "information identifying the store that was
receiving the goods, including the store number, name and address"
(App., infra, 9a).  The court suggested (ibid.) that instead of
listing simply "cartons of women's clothing," the warrant could have
listed "cartons of women's clothing from Casual Corner stores" (the
intended destination of the stolen shipment) or "cartons of women's
clothing from Women's Specialty Retailing" (the company from which the
shipment was stolen).

   /4/ The mailing slips would, of course, have made it crystal clear
to anyone who saw them that the merchandise was stolen.

   /5/ The court noted (448 F.2d at 1354) that "if the searching
agents entered a specified location with thousands of garments on the
premises but the warrant itemized only a few hundred which had been
allegedly stolen, the task of identifying and seizing the specific
garments would have required a legion of fur experts to perform the
task in a reasonable period."

   /6/ In fact, in three of its prior decisions, the First Circuit had
cited the Scharfman case as an example of a sufficiently
particularized warrant.  See United States v. Cortellesso, 601 F.2d
28, 31 (1979), cert. denied, 444 U.S. 1072 (1980);  Montilla Records
of Puerto Rico, Inc. v. Morales, 575 F.2d 324, 326 (1978);  United
States v. Klein, 565 F.2d 183, 187-188 (1977).

   /7/ In particular, the Second Circuit noted (United States v. Buck,
slip op. 1810) that the agents had "soght out a neutral magistrate;  *
* * tape-recorded the conversation with the magistrate to assure
accuracy;  * * * outlined the crime for the magistrate;  * * *
described the evidence that led them to the house in East Orange;
(and) the detective was placed under oath by (the magistrate) and
swore to the truth of his assertions."

   /8/ The Second Circuit noted this conflict with the Eleventh
Circuit in its decision in the Buck case.  See slip op. 1809-1810 n.1.

   /9/ Because the district court has not expressly considered the
issue of good faith, the court of appeals remanded for further
proceedings to consider any other evidence that might bear on the good
faith issue.

   /10/ On the other hand, in three other cases the Ninth Circuit
refused to find good faith in the context of warrants that it held to
be insufficiently particularized.  See United States v. Spilotro, 800
F.2d 959 (1986);  United States v. Washington, 797 F.2d 1461 (1986);
and United States v. Crozier, 777 F.2d 1376 (1985).

   /11/ The court of appeals found support in Leon only by quoting a
portion of that opinion out of context.  The court of appeals stated
(App., infra, 11a (emphasis added) (quoting 468 U.S. at 918 n.19))
that the "good faith exception 'assumes, of course, that the officers
properly executed the warrant and searched only those places and for
those objects that it was reasonable to believe were covered by the
warrant.'" But this Court did not say in Leon that "the good faith
exception" depended on that assumption;  rather, what turned on that
assumption was the Court's "discussion of the deterrent effect of
excluding evidence obtained in reasonable reliance on a subsequently
invalidated warrant" (468 U.S. at 918 n.19).  The Court made clear
that the deterrence benefits of the exclusionary rule are
"particularly" lacking "when an officer acting with objective good
faith has obtained a search warrant * * * and acted within its scope
(468 U.S. at 920 (footnote omitted)).  The Court did not say that
deterrence would somehow become well served if those same agents
seized some items in plain view, in addition to seizing a quantity of
merchandise in objective good faith reliance on a search warrant.