Unpublished Disposition, 914 F.2d 264 (9th Cir. 1990)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 264 (9th Cir. 1990)

UNITED STATES of America Plaintiff-Appellant,v.Errol F. REMSING, Jerry H. Defoor Defendants-Appellees.

No. 89-30183.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1990.Decided Sept. 6, 1990.

Before RONEY* , FARRIS and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

The Government appeals from a district court order suppressing the evidence seized during searches made pursuant to several search warrants issued by an Alaska state magistrate. We affirm the decision of the district court that the warrants were: (1) obtained by a state game officer who intentionally misled the issuing magistrate, (2) not supported by probable cause, and (3) executed in an overly broad manner.

Of particular interest in this case is that every judicial officer who has reviewed these warrants--a state trial judge, a United States Magistrate, and the district judge--has found these warrants to be invalid.

Following an evidentiary hearing, the state court granted a motion to suppress, stating:

I think that the warrants were really poorly done, that the probable cause was extremely poor. And I think that the whole bucket of worms should be suppressed.... I believe they were the poorest search warrants that were ever issued that I've ever seen, by description and by probable cause, [and] that they don't sufficiently show reasons to get items.

Six weeks prior to the state court's ruling on the suppression motion, the seized evidence had been transferred to federal custody, so the state court was powerless to require the return of the seized evidence.

After a federal grand jury indictment of the defendants, a United States Magistrate recommended granting defendants' motions to suppress, saying:

The Magistrate finds that it was clear--in March, 1987--to any competent attorney or judge that the state warrants were absolutely beyond the pale; that is, each was utterly deficient on its face under Alaska law.

Following this Court's remand of the district court's adoption of the magistrate's recommendation, United States v. Remsing, 874 F.2d 614 (9th Cir. 1989), the district judge conducted a complete de novo review of all of the evidence. At the conclusion of that review, he said:

Frankly, after reading all the material, I was a bit surprised that the Government wanted it all to be read. Some of the material is--I never had understood before why Judge Connelly [the state judge] and Magistrate Aschenbrenner [the U.S. Magistrate] were so upset. That it is upsetting and disturbing is not reason for suppression. That requires, particularly on the federal side, much more precise and detailed analysis.

He then made a detailed analysis and concluded that all of the evidence seized during these searches should be suppressed.

The record is voluminous and the arguments pinpoint details which need not be recited here. We find that the record supports the ultimate decision, which, to a large extent, rests on credibility choices, and on findings of controlling facts, which the Government has failed to show are clearly erroneous. United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.), cert. denied, 469 U.S. 824 (1984); United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir. 1988) (applying clearly erroneous standard to a district court's conclusion that a search warrant was executed as a "fishing expedition").

In 1986, Sergeant Michael Mayberry of the Alaska Fish and Wildlife Protection Division began to investigate Dr. Errol Remsing for possible game violations. In May of that year, Mayberry obtained from State Magistrate Hessian a warrant to place a hidden transmitting device on Dr. Remsing's aircraft. In August, Mayberry obtained from the same magistrate a warrant extending the use of that device. These warrants have come to be called the "bird dog warrants."

Continuing his investigation, Sergeant Mayberry obtained three more warrants in January 1987, this time from State Magistrate Slater: to search Dr. Remsing's dental office, airplanes, and residence. Mayberry himself participated in the ensuing residence search. Based on his examination of material seized in these searches, Sergeant Mayberry sought and obtained from Magistrate Slater an additional warrant to search the residence. Based, in turn, on material seized in that search, Mayberry directed another state game officer to apply to Magistrate Slater for a further warrant to search the residence. The application was granted, and additional evidence was seized in the subsequent search.

In granting the motions to suppress, the district court did not limit its consideration to those warrants producing evidence that the Government sought to use, but also considered Sergeant Mayberry's conduct in obtaining the "bird dog warrants." The district court reasoned that intelligent judicial review was possible only if the whole record were examined, and that consideration of Sergeant Mayberry's conduct concerning the "bird dog warrants" was essential to evaluation of his credibility concerning the later warrants.

With respect to the "bird dog warrants," the court found that Sergeant Mayberry had failed to disclose the informant's past unreliability, falsely represented that he had "personally" verified the informant's reliability (when in fact the unsuccessful verification attempt had been made by other officers), took liberties with the facts and their sequence, and falsely asserted that Dr. Remsing had a criminal record, all in order to fabricate a probable cause showing.

With respect to the airplane, dental office, and initial residence search warrants, the district court found that Sergeant Mayberry's claim to possess information that Dr. Remsing was guiding non-resident hunters for material remuneration was deceptive because (1) Mayberry had no evidence that Dr. Remsing ever received money from non-residents and (2) Mayberry's legal theory, that trading hunts constituted "material remuneration" within the meaning of the guide statute (Alaska Statute 08.54.240; see 1976 Alaska Session Laws ch. 106 Sec. 8), was a novel one that should have been disclosed to the magistrate. The district court also found that Mayberry had committed deceptions with respect to the informant, by failing to disclose that the informant had provided consistently unreliable information in the past and had "a financial interest in causing trouble for Dr. Remsing." The financial interest determination was based on the court's finding that the informant was a registered guide, with an economic interest in having the maximum number of animals within his exclusive territory for his clients to shoot, and thus an incentive to hinder even the activities of those hunting legally there.

As to the warrants themselves, the district court found that they were not supported by probable cause. This conclusion rested principally on the court's determination that the applications for the dental office, airplane and residence search warrants, which were identical, failed to exhibit "intellectual seriousness" since they failed to supply any basis for believing that the particular evidence sought would be found in the particular places described. The two later warrants for further searches of the residence were found to be "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 488 (1963).

With respect to the searches of the residence, the district court found that their scope exceeded any reasonable interpretation of the warrants' scope, since the officers conducting the searches engaged in wholesale rummaging through material having no possible connection with illegal hunting activities, or even activities taking place during the period specified in the warrants. The court found that the warrants were a pretext for a general search, see United States v. Rettig, 589 F.2d 418 (9th Cir. 1978), whose breadth was not dictated by practical considerations, distinguishing United States v. Tamura, 694 F.2d 591 (9th Cir. 1982). Finally, concluding that it could not identify the discrete evidence that would have been obtained had the searches been kept within proper bounds, the court ordered the suppression of all the evidence obtained in the searches.

A careful review of the record, consideration of the briefs and oral argument, reveals that, contrary to the Government's argument, the district court's decision is fully supported by the record.

The Government urges that it is entitled to avoid suppression based on the exclusionary rule's good faith exception announced in United States v. Leon, 468 U.S. 897 (1984). This argument fails for three reasons. First, the same officer who was found to have deliberately and recklessly misled the issuing magistrate played a key role in executing the warrants. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978); cf. Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984) ("it was the judge, not the police officers, who made the critical mistake"). The Government acknowledges in its brief that Sergeant Mayberry participated in the residence search, the fruits of which make up the lion's share of the evidence ordered suppressed. Second, the warrants' underlying affidavit failed to state facts sufficient to justify the conclusion that evidence would probably be found in the places described, and therefore the other officers' reliance on those warrants was unreasonable. Leon, 468 U.S. at 923; United States v. Hove, 848 F.2d 137, 139-40 (executing deputy could not reasonably rely on warrant where its supporting affidavit, signed by another officer, failed to explain why incriminating evidence would be found in place to be searched). Third, the searches were found to have exceeded the bounds of the warrants and the district court said:

Under the circumstances, it is not possible for the Court to identify after the fact the discrete items of evidence which would have been discovered had the agents kept their search within bounds permitted by the warrant, and therefore all evidence seized during the search must be suppressed.

The "plain view" exception to the warrant requirement is not helpful to the Government, since (1) this exception applies only where the police "did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed," Horton v. California, --- U.S. ----, 110 L. Ed. 2d 112, 123 (1990) and (2) even assuming the initial residence warrant gave the police a valid right to be there, " [i]f the scope of the search exceeds that permitted by the terms of [the] warrant ..., the subsequent seizure is unconstitutional without more." Horton, 110 L. Ed. 2d at 125.

AFFIRMED.

 *

Honorable Paul H. Roney, Senior Circuit Judge, U.S. Court of Appeals for the Eleventh Circuit, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3