warrant, the same authority that permits the seizure of merchandise could have been given. Instead, the authority to seize records only exists as to those which are themselves instruments of crime and then only as an incident to a lawful arrest.
The more searching the analysis, the more the law is examined in the light of the facts, the more ludicrous any pretended legality becomes. Obviously there was no consent to or justification for any seizure, much less to the total seizure which occurred.
5. Despite the agents' good faith, the evidence must be suppressed.
I found as a fact in this case that Agents O'Kane and Friedrich acted in good faith -- that is, they did not deliberately misstate their authority to Molt. Unfortunately, this does not right the wrong which follows from their unlawful conduct.
The Fourth Amendment "was intended to protect the 'sanctity of a man's home and the privacies of life,' Boyd v. United States, 116 U.S. 616, 630, 29 L. Ed. 746, 6 S. Ct. 524 (1886), from searches under unchecked general authority" (footnote omitted). Stone v. Powell, 428 U.S. 465, 482, 96 S. Ct. 3037, 3046, 49 L. Ed. 2d 1067 (1976). The exclusionary rule is a judicially created means of effecting those rights. In Stone, supra, Justice Powell, writing for the majority, stated that the purpose of applying the rule is to deter law enforcement officials from violating the Fourth Amendment and, in the long run, to encourage them to incorporate Fourth Amendment ideals into their value systems. But he also recognized that application of the rule deflects from the truth-finding process and often affords a guilty defendant an undeserved windfall, particularly where the error committed by the police official is minimal. Justice White, urging a modification of the rule, added that when law enforcement personnel have acted in good faith and on reasonable grounds, the exclusion of evidence can have no deterrent effect and the only consequence is to keep unimpeachable and probative evidence from the fact-finder.
It may be that Stone presages a modification in the harsh effect of automatic exclusion in the face of a Fourth Amendment violation. If that be so, this is not the minimal error, reasonable grounds case to introduce such a change. Here the agents' conduct was not incidental or accidental, but was planned and prolonged. Even under any balancing test,
the conduct was of such magnitude and significance that highly relevant evidence must be withheld from the trier of fact. I must suppress because the importance of deterring future unlawful activity of this type transcends the regrettable effect that exclusion may have on the possibility of successfully prosecuting Molt.
6. The evidence seized pursuant to the search warrant is fruit of a poisoned tree and must be suppressed.
It is clear from a reading of Agent O'Kane's affidavit of probable cause for the January 21, 1975, search warrant that heavy reliance was placed on the records unlawfully seized at the Exchange the week before. Aside from some sketchy information received from the New York Customs office, a reference to two fines Molt had paid,
and a statement that Molt possessed a reptile on the endangered species list, Agent O'Kane's allegations were premised on 16 exhibits to his affidavit. These exhibits were all documents which Agent O'Kane had carried away from the Exchange. It follows that the evidence obtained pursuant to the warrant was secured by exploitation of the initial illegality, is fruit of a poisoned tree, and must be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
In addition, this is not a case where "the connection between the lawless conduct of the . . . [agents] and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint.'" Id. at 481, 83 S. Ct. at 417, quoting Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 268, 84 L. Ed. 307 (1939). Agents O'Kane and Friedrich continued their investigation until January 21, 1975, when they secured the warrant, but none of the information gained in this interim was used as support for probable cause. Thus, the evidence seized on January 22, 1975, was not secured "by means sufficiently distinguishable to be purged of the primary taint" (citation omitted). Id. at 488, 83 S. Ct. at 417.
7. The motion to dismiss the indictment must be denied.
Defendant has moved to dismiss the indictment on the ground that the pre-indictment delay in this case has caused substantial prejudice to his right to a fair trial.
There was a long delay -- over 30 months
-- but the mere passage of time is insufficient to cause dismissal. Not only must defendant demonstrate that he suffered actual prejudice, he must also show that the government used the delay solely to gain tactical advantage over him. United States v. Lovasco, 431 U.S. 783, 788-796, 97 S. Ct. 2044, 2048-2052, 52 L. Ed. 2d 752 (1977); United States v. Marion, 404 U.S. 307, 324-25, 92 S. Ct. 455, 465-66, 30 L. Ed. 2d 468 (1971). Defendant has failed to carry this burden. Here the prosecutor waited until he was completely satisfied that he should prosecute and would be able to establish guilt beyond a reasonable doubt. Therefore, there is no basis to dismiss the indictment.
I find the evidence discovered in the warrantless search must be suppressed. Molt did not consent to the search, but merely acquiesced to a claim of legal authority that was completely misrepresented. Even if he did consent, the agents acted beyond their authority in seizing Molt's documents. The seizure was not justified under any exception to the requirement of a warrant. Moreover, the agents' good faith conduct will not preclude application of the exclusionary rule. As a result of the illegal seizure without a warrant, the subsequent seizure pursuant to a warrant was fruit of a poisoned tree and must be suppressed. However, there has been no showing that the delay between the government's learning of Molt's alleged illegal activities and the return of the indictment provides any basis for dismissal.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 444 F. Supp.]
AND NOW, this 19th day of January, 1978, after consideration of the testimony produced at the suppression hearing and the briefs and arguments of counsel, it is hereby ordered that:
1.defendant's motion to suppress all the evidence obtained from him on January 14, 1975, and January 22, 1975, is granted; and
2. defendant's motion to dismiss the indictment on the grounds of pre-indictment prejudicial delay is denied.