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December 30, 1976


The opinion of the court was delivered by: DITTER

 In this case, plaintiffs seek damages for the seizure and subsequent destruction of their property. The matter comes before me upon the motion of the defendants to dismiss the complaint or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 The complaint contains two distinct claims. First, Hans Vorhauer and Phyllis Vorhauer, his wife, seek damages against various named and unnamed special agents of the FBI for the allegedly illegal seizure of certain property from the Vorhauers' home. Secondly, they ask for damages from the United States for the allegedly wrongful destruction of this same property. *fn1" Jurisdiction is asserted under 28 U.S.C. § 1331 as to the individual agents and under the Tucker Act, 28 U.S.C. § 1346(a)(2), as to the United States. For the reasons stated below I conclude that summary judgment for the defendants must be granted on both of plaintiffs' claims.

 I. Factual Background

 The material facts as alleged in plaintiffs' amended complaint *fn2" are not in dispute. On February 25, 1970, plaintiff, Hans Vorhauer, was arrested by FBI agents at his home for theft of an interstate shipment of goods. At the same time and pursuant to a search warrant issued by a United States Magistrate, the plaintiffs' home was searched in an effort to locate a pair of handcuffs and documents relating to the stolen shipment. These things were never found, but the agents did seize numerous other items including a firearm, BB guns, tools, make-up, an address book, and various papers and documents. *fn3"

 On July 25, 1972, Hans Vorhauer pled guilty and was sentenced to a period of one year's imprisonment for possession of goods stolen from an interstate shipment, specifically three pairs of handcuffs which had been seized elsewhere. The next day, July 26, 1972, Mr. Vorhauer, through his attorney, Robert Scandone, Esquire, filed a petition in the criminal action for the return of the property seized at his home. The petition asserted that none of this property was contraband nor evidence in any pending or contemplated criminal prosecution. The government did not answer this petition until over a month later, September 5, 1972, at which time it stated:

Defense counsel and counsel for the government have conferred regarding the disposition of the above items both prior to and subsequent to the institution of the present Petition. It is the understanding of the government as a result of these discussions that in lieu of the return of these items to the defendant these items may be destroyed. (Government Response to Petition for Return of Seized Property, paragraph 3.)

 Although a copy of the government's response to the petition was mailed to Mr. Scandone four days earlier on September 1, 1972, he made no objection to it. An order for destruction was signed by Chief Judge Joseph S. Lord, III, of this court on September 7, 1972. Notice of the destruction order was received by Mr. Scandone, who in turn notified Vorhauer by mail addressed to the Federal Correctional Institute at Danbury, Connecticut, where Vorhauer was serving his sentence. However, prior to receipt of the notice Vorhauer was removed to the District of Columbia jail by U.S. Marshals. The authorities at Danbury returned the notification to Mr. Scandone, advising him that Mr. Vorhauer was no longer at that facility. On November 18, 1972, Mr. Vorhauer was released from federal custody and turned over to Pennsylvania authorities who lodged him at the State Correctional Institute at Dallas, Pennsylvania. Mr. Scandone finally learned of his client's whereabouts, sent the destruction notice to him, and Mr. Vorhauer received it on November 18, 1972. Mr. Vorhauer filed a notice of appeal of Chief Judge Lord's order two days later on November 20, 1972, but this was dismissed by the Court of Appeals as untimely. Plaintiff filed a motion in that court for reconsideration of the dismissal of his appeal and for a stay of Chief Judge Lord's order, but those were also denied, the Court of Appeals noting that the property had already been destroyed and that Mr. Vorhauer might have a remedy in the district court. Thereafter, plaintiffs instituted the instant suit.

 II. The Claim Against the Individual Agents

 The substantive basis for recovery against the FBI agents is Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), which allows damage actions to be brought against federal officers for violations of fourth amendment rights. As noted earlier, jurisdiction for this claim is founded upon 28 U.S.C. § 1331, which requires the amount in controversy to be over $10,000. After careful consideration of the entire record in this case, I conclude that plaintiffs' claim against the FBI agents must be dismissed for failure to satisfy this jurisdictional amount. In reaching this result, I am not unmindful of the solicitous attitude which courts have taken in placing a "value" on the deprivation of constitutional rights. See generally 14 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure § 3709 (1976). Nonetheless, in the unique circumstances of this case I am convinced to a legal certainty that plaintiffs have not sustained injury equal to or greater than $10,000. See St. Paul Mercury Indemnity Company v. Red Cab Company, 303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 845 (1938).

 Even accepting all the allegations of the complaint as true, the invasion of fourth amendment rights for which the plaintiffs may recover against the FBI agents is exceedingly minor. The reason is that the invasion of privacy entailed in the entry and search of plaintiffs' home were carried out pursuant to a duly authorized search warrant. There are no allegations that the warrant was issued on the basis of false statements, deliberate or otherwise, made by the agents to the magistrate. Rather, the only claim of illegality is that the information which was presented to the magistrate did not amount to probable cause for the search. In effect, the plaintiffs contend that the magistrate committed an error of legal judgment in issuing the warrant. But even if the magistrate should not have issued it, the agents were entitled to rely on the authority to search which the warrant conferred, at least in the absence of allegations, not present here, that it was facially defective. It is thus clear that the plaintiffs may not recover against the agents for the invasion of constitutionally protected privacy entailed in their entering the Vorhauers' residence to execute the search warrant. See, e.g., Commonwealth ex rel. Feiling v. Sincavage, 439 F.2d 1133 (3d Cir. 1971).

 Moreover, the Vorhauers may not recover against the agents on the theory that the search they conducted was more intrusive than necessary. This is not a case in which the officers continued the search after finding the items named in the warrant. Compare United States v. Highfill, 334 F. Supp. 700 (E.D. Ark. 1971). Here the agents never did find the item named in the warrant and so were entitled to continue searching until they had exhausted all possible areas of the residence where it might have been concealed. See Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure p. 264 (4th ed. 1974); Comment, 7 Conn. L. Rev. 346, 356 (1975). Since the handcuffs were small they might have been hidden in any area of the residence where the items that were in fact seized were found. Thus the plaintiffs have no claim against the agents for the search of these areas.

 It appears, then, that the only injury suffered by the plaintiffs which could possibly be charged to the officers is the deprivation of property which resulted from their seizure of the items not named in the warrant. *fn4" The combined value of the seized items hardly approaches $10,000. as plaintiffs implicitly admit by claiming only $2000. from the United States as compensation for their outright destruction. See part III of this opinion infra. Furthermore, the agents may not be held liable for the total value of the seized goods since their destruction was not brought about by those officers. At most, the officers can only be held responsible for the plaintiffs' being deprived of their property from the date of the seizure, February 25, 1970, until Chief Judge Lord signed the order of destruction on September 7, 1972, a period of approximately 30 months. It is inconceivable that the Vorhauers' loss of use of the seized ...

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