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United States v. Kepner

argued: March 15, 1988.


Appeal from the United States District Court For the District of New Jersey, D.C. Criminal No. 87-364.

Stapleton, Mansmann and Hunter, Circuit Judges.

Author: Hunter


HUNTER, Circuit Judge:

1. In this appeal, the United States seeks reversal of two pre-trial orders of the district court suppressing certain physical evidence, as well as live testimony in the prosecution of appellees Thomas Kepner and Mary Brown. Kepner and Brown, along with four co-defendants,*fn1 were charged in a 32-count indictment with violations of the RICO Act, 18 U.S.C. § 1962(c), (d), and also with the substantive offenses constituting the predicate acts. The district court suppressed various pieces of physical evidence because they were discovered under an overbroad search warrant and because they were not in plain view during the course of the search as authorized by a properly redacted warrant. The court suppressed the testimony under the "fruit of the poisonous tree" doctrine, as the witness whose testimony was suppressed was discovered because of the illegal seizure of physical evidence. Implicit in both of these suppression orders was a finding that the search had not been conducted in good faith reliance on the validity of the search warrant. For the reasons stated below, we reverse both suppression orders.


A. Factual History

2. As part of a continuing investigation into labor racketeering, on April 17, 1986, Special Agent Ronald Chance applied for a warrant to search Unit #506, Harbor Cove, 550 Bay Avenue, Somers Point, New Jersey ("the condominium"). The application and accompanying affidavit alleged probable cause to believe that the condominium contained evidence of violations of the Taft-Hartley Act, 29 U.S.C. § 186, and the mail fraud statute, 18 U.S.C. § 1341. Specifically, the affidavit described a scheme whereby money and other benefits were illegally being transmitted to Kepner from CGS, Inc. an employer of members of Local 350 of the International Association of Bridge, Structural, and Ornamental Iron Workers ("Local 350"). Such a scheme is explicitly prohibited by the Taft-Hartley Act. See 29 U.S.C. § 186(a)(2), (b)(1).*fn2

3. According to the affidavit, Agent Chance had learned that CGS had paid $130,000 to a consulting firm named Metro Atlantic Corp. Metro Atlantic had in turn paid money to its only three employees, one of them being Mary Brown. Finally, surveillance had shown that Kepner and Brown were frequent companions, spending about five hours a day together at the Harbor Cover condominium. Kepner and Brown had been observed entertaining some of Kepner's relatives at the condominium. Based on these allegations, Agent Chance concluded that a search of the condominium would discover evidence of an illegal relationship between Kepner and Brown, and between the two of them and the companies.

4. Chance's affidavit read, in relevant part:

24. Further, I have probable cause to believe that such search will result in the seizure of personal items of Kepner such as clothing, documents, records, diaries, and correspondence that establish his use and control of the condominium unit as well as his illegal receipt of the prohibited benefits.

Appendix at 53. The accompanying application, form however, used somewhat broader language, referring merely to the "documents, records and personal effects of Thomas Kepner, Mary Brown, and Robert Brown." Appendix at 43 (Robert Brown was thought to be an alias employed by Kepner). The magistrate discussed each paragraph of the affidavit with Chance before issuing the warrant, but in issuing it, he incorporated the broader language of the application rather than that of the affidavit. See Appendix at 41.

5. Chance led a team of officers in executing the warrant on April 22, 1986. The search team did not have a copy of Chance's affidavit with the warrant, but according to his testimony at the suppression hearing, Chance told the members of the search team that they were to look for evidence showing a relationship between Kepner and Brown or a relationship between the couple and the two companies. Further, Chance instructed the officers to notify him if they found anything which they thought to be covered by the warrant so that Chance could examine it and determine whether it could properly be seized. Appendix at 123.

6. During the search, Chance found documents relating to the ownership of the condominium. These documents let Chance to believe that Kepner and Brown were residing in an apartment in which Kepner had an illegal joint interest with an employer of Local 350 members. Appendix at 200-01, 221.

7. Later, while searching through a drawer of Mary Brown's bureau, Chance discovered an envelope addressed to Charles Cornell. The envelope, which had a floral pattern on the back, was addressed:

Mr. Charles Cornell

935 Ocean Avenue


Ocean City, New Jersey 08226

The postmark on the envelope was dated June 23, 1980. Inside this envelope was another envelope, with the same floral pattern, addressed to "Mary and Tom"; this second envelope contained a handwritten note from Brown's mother, which was signed "Love Always, Mom." Appendix at 408-12. Chance knew that Cornell was the head of a steel company employing members of Local 350. Having already come to suspect an illegal joint interest in one apartment, Chance decided to open ...

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