MARILYN BUCK, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-6316

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court of
Appeals For The Second Circuit

   Brief For The United States In Opposition

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A1-A6) is reported
at 888 F.2d 234.  An earlier opinion of the court of appeals (Pet.
App. A7-A14) is reported at 813 F.2d 588.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 20,
1989.  The petition for a writ of certiorari was filed on December 19,
1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether evidence seized in reliance on a search warrant should have
been suppressed on the ground that the description of the property to
be seized under the warrant was insufficiently particularized.

                               STATEMENT

   On April 11, 1984, an indictment was filed in the United States
District Court for the Southern District of New York charging
petitioner with conspiracy to violate the Racketeer Influenced and
Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. 1962(d)
(Count 1);  participation in the affairs of a racketeering enterprise,
in violation of 18 U.S.C. 1962(c) (Count 2);  armed bank robbery, in
violation of 18 U.S.C. 2113(a) and (d) (Counts 3, 4, 6 and 7);  and
murder during the commission of a bank robbery, in violation of 18
U.S.C. 2113(e) (Counts 5 and 8).  See Gov't C.A. Br. 4-5.  The
district court thereafter entered a pretrial order suppressing
physical evidence seized during a search of petitioner's apartment,
finding that the search warrant had failed to particularize the items
to be seized (Pet. App. A15-A41).  Following an interlocutory appeal
by the government, the court of appeals reversed the order suppressing
evidence, United States v. Buck, 813 F.2d 588 (Pet. App. A7-A14), and
this Court denied certiorari, 484 U.S. 857.

   After a six-month jury trial, petitioner was convicted on all
counts.  Petitioner was sentenced to concurrent 20-year terms of
imprisonment on the RICO and RICO conspiracy counts;  to a consecutive
30-year term of imprisonment on the murder charge alleged in Count 5;
and to a 30-year term of imprisonment on the murder charge alleged in
Count 8, to run consecutively to the sentences imposed on the RICO
counts, and concurrently with the sentence imposed on Count 5.  Gov't
C.A. Br. 7.  /1/ The court of appeals affirmed (Pet. App. A1-A6).

   1. The relevant facts, which are not in dispute, are summarized in
the opinions of the court of appeals (Pet. App. A2, A8-A10).
Petitioner was a participant in the "family," a militant organization
dedicated to the advancement of a political agenda through the
commission of violent crimes.  From 1976 to 1981, the "family"
committed a series of robberies and attempted robberies of armored
trucks in the New York-Connecticut area, resulting in the murders of
two guards and two police officers.  Petitioner served as a member of
the so-called "secondary team," a group consisting mostly of women,
who assisted in the robberies by scouting robbery targets, driving
get-away cars, planning escape routes, and renting "safe houses." Pet.
App. A2.

   On October 20, 1981, "family" members armed with automatic weapons
robbed a Brinks armored truck at a shopping mall in Nanuet, New York.
The robbers gathered $1.6 million from the truck, and in the process
killed one guard and wounded another.  An eyewitness reported to
police that the robbers had fled the scene of the crime in a U-Haul
truck.  Police officers located the U-Haul truck, but the robbers
escaped after a shoot-out that left two policemen dead.  According to
bystanders, the robbers fled in several cars and proceeded to a nearby
location where they transferred to another set of escape vehicles,
including a white Oldsmobile bearing the New Jersey license plate "594
PJV." Pet. App. A8.

   Although the white Oldsmobile eluded the police, officers traced
the license plate to "Carole J. Durant," at 166 Grove Street in North
Plainfield, New Jersey.  /2/ Investigating throughout the night of
October 20, officers learned that Leonard Tosto, and not petitioner,
resided at 166 Grove Street.  The police then spoke with Tosto.  He
told them that he knew "Durant";  that he had allowed her to register
her car at his address for insurance purposes;  and that "Durant"
actually lived in an apartment located at 223 Prospect Street, in East
Orange, New Jersey.  Tosto added that "Durant" had telephoned him late
in the day of the Nanuet robbery and had asked him to conceal her
whereabouts if he were contacted by the police.  Pet. App. A8-A9.

   After first verifying the building at 223 Prospect Street as
"Durant's" residence, New Jersey State Police Detective Richard Ryan
telephoned a municipal court judge at 6:00 a.m. on October 21, 1981,
to apply for a warrant to search "Durant's" apartment.  At the
beginning of the conversation, which was tape-recorded by the state
police, Detective Ryan gave a brief description of the Nanuet robbery
and murders.  The municipal judge asked for "some factual basis"
connecting the white Oldsmobile to the crime, and Detective Ryan
recounted the role of the car in the crime, the tracing of the license
plate number to Tosto's residence, and the information provided by
Tosto connecting the car to "Durant's" apartment at 223 Prospect
Street.  After placing Detective Ryan under oath, the municipal judge
telephonically authorized the search of the apartment.  As dictated by
the judge, the warrant stated (Pet. App. A9):

         Bench warrant issued verbally to Richard Ryan, on phone, to
      search premises 223 Prospect Street, East Orange, New Jersey,
      Apartment 1A, and to search person of Carol Durant and search
      warrant to seize any papers, things or property of any kind
      relating to previously described crime.

   At the judge's direction, Detective Ryan wrote down the warrant
language as dictated and submitted a written affidavit and search
warrant application to the judge later that day.  Pet. App. A9;  Gov't
C.A. Br. 130.

   In the ensuing search of petitioner's apartment, officers seized,
among other things, a semi-automatic rifle and pistol, various other
weapons, a make-up kit containing wigs and false mustaches, insurance
documents relating to the white Oldsmobile, and various diagrams and
paraphernalia for constructing home-made bombs.  Pet. App. A9-A10.

   2. The district court ordered the suppression of evidence seized
from petitioner's apartment, finding that the search warrant --
although supported by probable cause (Pet. App. A22) -- failed
sufficiently to particularize the items to be seized (id. at A33-A37).
 The court acknowledged that search warrants have often been upheld
that "allowed the executing officers a considerable degree of
discretion" through the use of "generic categories" and "catch-all
phrases" to describe the property to be seized (id. at A34-A35).  The
court held, however, that the warrant in this case -- authorizing the
seizure of "any papers, things or property of any kind" relating to
the Naunuet robbery -- was "deficient on its face" (id. at A36).  The
court explained that "the catch-all language" in the warrant "stands
alone," without a "specific list of items to be seized" (ibid.).  The
court also held that the exception to the exclusionary rule announced
in United States v. Leon, 468 U.S. 897 (1984), was inapplicable.  In
the court's view, the search warrant in this case was "too facially
deficient to be presumed valid" (Pet. App. A38).

   3. The court of appeals reversed the district court's suppression
order (Pet. App. A7-A14).  The court agreed that the search warrant
was impermissibly broad, in light of its exclusive reliance on
"general boilerplate terms" to describe the property to be seized (id.
at A12).  The court held, however, that there was no reason to
suppress the evidence seized by the officers in reliance on the search
warrant.  The court explained that the officers had "made considerable
efforts to comply with the dictates of the Fourth Amendment" in
applying for the search warrant (id. at A13).  "What the officers
failed to do," the court continued, "was to anticipate our holding
today that the particularity clause of the Fourth Amendment prohibits
the use of a catch-all description in a search warrant, unaccompanied
by any list of particular items or any other limiting language"
(ibid.).  In view of the "considerable ambiguity as to the exact
requirements of the particularity clause," the court of appeals stated
that "a reasonably well-trained police officer could not be expected
to know that the warrant issued by (the municipal judge) violated the
Fourth Amendment" (id. at A14).  The court therefore held that the
rule in Leon barred the suppression of the seized evidence.

                               ARGUMENT

   Petitioner contends (Pet. 6-8) that evidence seized under a warrant
that lacks sufficient particularity cannot satisfy the "good faith"
standard articulated in United States v. Leon, 468 U.S. 897 (1984),
and Massachusetts v. Sheppard, 468 U.S. 981 (1984).  She also asserts
(Pet. 12-14) that the court of appeals' decision conflicts with the
approach taken by other circuits.  Neither contention has merit.  This
Court recently denied certiorari in a case raising substantially the
same issues, Norton v. United States, No. 88-1889 (Oct. 2, 1989), and
the same result is warranted here.

   1. Assuming, arguendo, that the search warrant in this case was
overly broad, the agents nevertheless acted in good faith in seizing
the evidence pursuant to the warrant.  In United States v. Leon,
supra, this 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.  That is particularly true,
the Court noted, "when an officer acting with objective good faith has
obtained a search warrant from a judge or a magistrate and acted
within its scope." Id. at 920.  The Court reasoned that, in such
circumstances, 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 search warrant is technically sufficient.  Id. at 921.

   The Court applied the same exception in the companion case of
Massachusetts v. Sheppard, supra, to a search warrant that
insufficiently described the items to be seized.  In Sheppard, the
trial judge suppressed evidence seized during the execution of a
search warrant that incorrectly identified the items to be seized as
evidence of a narcotics transaction, rather than a murder.  Relying on
Leon, this Court reversed, emphasizing that the officers had
demonstrated their good faith by submitting an affidavit to a judge
and thereafter relying on the judge's determination that the warrant
was sufficiently particularized.  468 U.S. at 989-991.  See also
Illinois v. Krull, 480 U.S. 340 (1987) (applying Leon to a state law,
later held invalid, that authorized a warrantless search, even though
the statute could have been more narrowly drawn).

   The same considerations that prompted this Court to apply the good
faith exception in Leon, Sheppard, and Krull are also present here.
As the court below concluded, it was not obvious that the property
description in the telegraphic warrant was unconstitutionally
overbroad since, at the time the warrant was issued, "the existing
cases left considerable ambiguity as to the exact requirements of the
particularity clause" (Pet. App. A14).  /3/ Moreover, as the court of
appeals also noted, the officers "performed reasonably under the
circumstances (in) collect(ing) all the 'descriptive facts' they could
in the middle of the night at an early point in the investigation"
(id. at A12), and thereafter making "considerable efforts to comply
with the dictates of the Fourth Amendment" (id. at A13) under
emergency conditions.  "What the officers failed to do was anticipate
(the court of appeals') holding * * * that the particularity clause of
the Fourth Amendment prohibits the use of a catch-all description in a
warrant, unaccompanied by any list of particular items or any other
limiting language" (ibid.).  That failure, as the court of appeals
correctly concluded, does not undermine the reasonableness of the
officers' reliance on the warrant duly issued by the municipal judge.
Nor does it render the warrant so "facially deficient" that the
executing officers could not have reasonably presumed that it was
valid.  Leon, 468 U.S. at 923.  See United States v. Luk, 859 F.2d
667, 677-678 (9th Cir. 1988);  United States v. Kepner, 843 F.2d 755,
763-764 (3d Cir. 1988);  United States v. Diaz, 841 F.2d 1, 6 (1st
Cir. 1988);  United States v. Gros, 824 F.2d 1487 (6th Cir. 1987);
United States v. Michaelian, 803 F.2d 1042, 1046-1047 (9th Cir. 1986);
 United States v. Weinstein, 762 F.2d 1522, 1531 (11th Cir. 1985),
cert. denied, 475 U.S. 1110 (1986).

   Because the district court and the court of appeals found that the
telephonic warrant was overbroad, petitioner contends that the
reasonable mistake exception adopted in Leon is automatically
inapplicable in this case.  That argument reads too much into Leon.
Leon held that suppression is appropriate when a search warrant is so
facially deficient in failing to particularize the things to be seized
that the executing officer could not reasonably presume that the
warrant is valid.  468 U.S. at 923.  But Leon did not hold that the
good faith exception is inapplicable simply because a warrant is later
found to be overbroad.  Instead, whether the exception will apply
"depend(s) on the circumstances of the particular case." Ibid.  In
this case, there was ample basis for the officers to believe that the
property description was adequately limited and that the warrant was
therefore not overbroad.  The court of appeals' ruling therefore is
consistent with the inquiry required by Leon.

   2. Petitioner next contends (Pet. 12-13) that the Ninth and First
Circuits have ruled that the exception adopted in Leon is inapplicable
to overbroad search warrants as a matter of law.  That claim is
mistaken.  Although those courts may have followed such an approach at
one time, subsequent decisions by those courts have shown that they
examine this question on the facts of each case and that they have
held that Leon may be applicable when a warrant is found to be
overbroad.

   a. As petitioner notes (Pet. 12), several Ninth Circuit cases
refused to apply the good faith exception when officers relied on
search warrants later found to be impermissibly general.  See United
States v. Dozier, 844 F.2d 701, 708 (1988), cert. denied, 109 S. Ct.
312 (1989);  United States v. Spilotro, 800 F.2d 959, 968 (1986);
United States v. Crozier, 777 F.2d 1376, 1381 (1985).  On the other
hand, in United States v. Luk, 859 F.2d 667 (9th Cir. 1988), the
warrant, which authorized law enforcement officers to seize a broad
range of corporate documents stored at the defendant's home, was held
"unconstitutionally overbroad" (id. at 676 & n.6), but the court
nevertheless refused to suppress the evidence, noting that the
officers had reasonably relied on the warrant.  As the court
explained, the warrant was supported by a 22-page affidavit that
"related the results of an extensive investigation." Id. at 677.
Although the affidavit could not cure the overbroad warrant, the court
found that the affidavit was "evidence of good faith" because it
"provided the particularity that the warrant lacked" and because the
officers relied on the affidavit in conducting their search.  Id. at
677-678.

   Likewise, in United States v. Michaelian, 803 F.2d 1042 (9th Cir.
1986), the warrants for a broad range of personal and business records
were found to be impermissibly general "in light of the lengthy IRS
investigation and detailed knowledge provided (to the agents by
certain informants)." Id. at 1046 n.1.  The court of appeals applied
the good faith exception, however, finding that the warrants did not
"approximate the degree of facial deficiency which would preclude
objective reasonable reliance by federal agents," id. at 1047, even
though the warrants could have been more specific.  See also Center
Art Galleries - Hawaii, Inc. v. United States, 875 F.2d 747, 753 (9th
Cir. 1989) (noting that Leon applies unless "(t)he warrants were so
overbroad that * * * no agent could reasonably rely on them").

   b. The First Circuit has followed a similar course.  In United
States v. Fuccillo, 808 F.2d 173, cert. denied, 482 U.S. 905 (1987),
that court refused to apply the good faith exception on two grounds:
the agents who executed the warrant exceeded the scope of the warrant
(by seizing men's clothing as well as women's clothing, even though
the warrant only authorized seizure of the latter), and the agents did
not take "'every step that could reasonably be expected of them'" in
describing the items to be seized.  808 F.2d at 177-178 (citation
omitted).  After Fuccillo, however, the First Circuit in United States
v. Diaz, 841 F.2d 1, 6 (1988), applied Leon in the context of a search
conducted in reliance on a warrant later found to be overbroad.
Accordingly, it now appears that the First Circuit, like the Ninth
Circuit, examines each case on its facts and does not regard the Leon
doctrine as per se inapplicable to overbroad warrants.

   c. Petitioner also claims (Pet. 13) that the Tenth Circuit has held
that Leon is inapplicable to overbroad warrants, but the case she
cites, United States v. Leary, 846 F.2d 592 (1988), did not adopt any
such rule.  Leary found overbroad a warrant that authorized the
seizure of all "records and correspondence" relating to the illegal
exportation of arms, even though the affidavit supporting the warrant
disclosed probable cause as to a single, readily identifiable illegal
transaction.  Id. at 600-606.  The court noted that the case
"present(ed) a different factual situation" than that in the instant
case.  The court held that the officers could not reasonably have
relied on the warrant in Leary, because the expansive description of
the property to be seized bore no relationship to the limited probable
cause showing.  In so holding, the court did not purport to rule that
officers may not rely in good faith on an overbroad warrant;  it
merely held that the officers' reliance was unreasonable on the facts
of that case.

   Thus, the difference between the result below and the results in
the cases cited by petitioner turn on a difference in the facts, not a
disagreement over the relevant legal principles.  While petitioner is
correct that some post-Leon decisions of various circuits conflicted
at one time with the approach taken here, /4/ that conflict now
appears to have abated as the circuits have continued to address this
subject.  Subsequent case law has shown that the First and Ninth
Circuits now resolve Leon claims in this context on a case-by-case
basis and have eschewed any per se rule that officers cannot be found
to have reasonably relied on a warrant that is later found to be
overbroad.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   ROBERT J. ERICKSON

      Attorney

   FEBRUARY 1990

   /1/ Because petitioner's bank robbery and armed bank robbery
convictions on Counts 3, 4, 6, and 7 merged for sentencing purposes
with her murder convictions on Counts 5 and 8, the district court did
not impose sentence on those counts.  Gov't C.A. Br. 7 n.*.

   /2/ "Carole J. Durant" proved to be an alias used by petitioner.
Pet. App. A9.

   /3/ Indeed, it is not clear that the search warrant was overbroad
at all.  The requirement that a warrant contain a particularized
description of the property to be seized includes "a practical margin
of flexibility" depending on the facts of each case.  United States v.
Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982) (collecting cases),
cert. denied, 464 U.S. 814 (1983).  Both this Court and the various
courts of appeals have flexibly construed the particularity
requirement to allow the seizure of broadly described property
categories pertaining to a specifically identified crime.

   For example, in Andresen v. Maryland, 427 U.S. 463, 479-482 (1976),
this Court upheld the validity of a search warrant that allowed the
seizure of "other fruits, instrumentalities and evidence of crime at
this (time) unknown." That property description did not render the
warrant impermissibly general, the Court stated, since it was clear
from the context of the warrant that the phrase authorized the seizure
only of items pertaining to a specifically identified scheme to
defraud.  Various courts of appeals -- including the Second Circuit,
in which this case was prosecuted, and the Third Circuit, in which the
search occurred -- have also approved warrants containing similarly
broad property descriptions.  See, e.g., United States v. Johnson, 690
F.2d 60, 65 (3d Cir. 1982), cert. denied, 459 U.S. 1214 (1983) (any
"paper, articles or things which are the instruments of a criminal
offense (of manufacturing drugs)");  United States v. Timpani, 665
F.2d 1, 4-5 (1st Cir. 1981) ("any and all records relating to
extortionate credit transactions" and "gambling paraphernalia and
gambling records");  United States v. Osborne, 630 F.2d 374, 378 (5th
Cir. 1980), cert. denied, 450 U.S. 934 (1981) (money order machine and
"any other evidence relating to the (described) armed robbery");
United States v. Cortellesso, 601 F.2d 28, 30-33 (1st Cir. 1979),
cert. denied, 444 U.S. 1072 (1980);  United States v. Dunloy, 584 F.2d
6, 8 (2d Cir. 1978) (cocaine and "all * * * documents, records and
other evidence of distribution and possession with intent to
distribute narcotic drug controlled substances").

   /4/ In our certiorari petition in Fuccillo, we pointed out that the
decision in the present case was in conflict with Fuccillo -- which
was, at the time, the leading First Circuit decision -- as well as
with several Ninth Circuit decisions that pre-dated Michaelian.
86-1622 Pet. 14-17.  We noted that the decision in Michaelian appeared
to be consistent with the majority position that the good faith
exception can be applied to warrants found to be overbroad.  Id. at
16-17.