Opinion
No. 00-20176 D/Bre (M1)
January 9, 2002
ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court in connection with the report and recommendation of United States Magistrate Judge J. Daniel Breen regarding Defendant's motion for the return of certain items seized. The report and recommendation was filed on November 28, 2001. Magistrate Judge Breen recommends that the Court deny Defendant's motion for return of items seized.
On August 13, 2001, Defendant moved the Court to suppress the fruits of a search warrant and for the return of certain items seized pursuant to that warrant. The warrant at issue was based on an affidavit submitted to United States Magistrate Judge James Allen on March 24, 1997. The warrant authorized the search of a building located at 1080 West Rex Road in Memphis, Tennessee, identified by the government as the business address of Defendant. The items listed to be seized were those records, documents, and computer files relating to certain businesses, bond issues, David Namer, Larry E. Baresel, and Y.C. Laws.
On March 25, 1997, federal agents searched the premises and seized a large number of items. Among the many items seized were files relating to Defendant's mother, Grace Russo, his civil divorce, parking tickets, his wife's wedding dress, and a horse named Jingles. Defendant moved for the return of these specific files because they were personal files and, according to Defendant, beyond the scope of the search warrant. While it agreed to return the other files, the government objected to the return of the Russo files, arguing that Russo was a witness for the prosecution and a possible straw purchaser of certain residential property for Defendant.
On November 14, 2001, Magistrate Judge Breen recommended that the Court deny Defendant's motion to suppress the warrant. On December 7, 2001, the Court adopted the report and recommendation. Magistrate Judge Breen also directed the government to advise him within eleven (11) days from the entry of the report and recommendation whether it intended to retain the Russo files and, if so, of its reasons therefor.
On November 21, 2001, the government notified Magistrate Judge Allen of its intention to retain the Russo files because of their relevance to the charges of tax evasion and money laundering against Defendant. The government maintains that Namer placed in Russo's name his residence located at 5600 St. Joseph Fairway, and then made several hundred thousand dollars in improvements to the home using funds received through illegal activities. According to the government, the files all relate to the custody and control of the 5600 St. Joseph Fairway residence. For this reason, the government asserts that the Russo files are relevant to certain of the charged crimes.
On November 28, 2001, based on the government's representations, Magistrate Judge Breen found that the government's retention of the Russo files is warranted, and recommended that Defendant's motion for the return of the files be denied. Defendant objects to the magistrate judge's report and recommendation. Defendant argues that the initial seizure of the Russo files was beyond the scope of the search warrant, and, as they are "fruits of the poisonous tree," no use can be made of the files by the government.
The Fourth Amendment requires a "particular description" of the things to be seized to be included in a search warrant. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). This requirement "`makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.'" Stanford v. Texas, 379 U.S. 476, 485 (1965) (quoting Marron v. United States, 275 U.S. 192, 196 (1927)). Even a valid search warrant can turn invalid if officers "flagrantly disregard the limitations of the warrant."Brindley v. Best, 192 F.3d 525, 531 (6th Cir. 1999). The test is whether the officers' actions were reasonable. Id. (citing United States v. Lambert, 771 F.2d 83, 93 (6th Cir. 1985)).
Here, the search warrant authorized the executing officers to seize records, documents, and computer files relating to various businesses, bond issues, Defendant, Larry E. Baresel, and Y.C. Laws. The records, documents, and files sought were those related to the investigation of Defendant for securities violations, fraud, tax evasion, and money laundering. The documents in the Russo files pertained to the custody and control of the 5600 St. Joseph Fairway residence. Defendant's actions with respect to that residence were a part of the overall investigation into his allegedly criminal activities. Therefore, it was reasonable for the officers to seize the Russo files.
Based on a de novo review, the Court hereby ADOPTS the magistrate judge's report and recommendation and Defendant's motion to return items seized is DENIED.