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UNITED STATES v. SHIELDS RUBBER CORP.

November 13, 1989

UNITED STATES OF AMERICA
v.
SHIELDS RUBBER CORPORATION, WILLIAM F. MAHON, DENNIS E. HOUGGY, JOSEPH R. SHARY, JAMES E. FOX, WILLIAM A. ABBOTT, WILLIAM O'NEIL HUNT, JOSEPH W. SCHU, REXFORD D. KNOWLES, JAMES N. KLEHM, JAMES C. HARTMAN, Defendants



The opinion of the court was delivered by: SMITH

 D. BROOKS SMITH, UNITED STATES DISTRICT JUDGE.

 On July 12, 1989, a grand jury empaneled for this District returned a thirty-count indictment against the above-named defendants for alleged violations of federal customs laws, chiefly concerning the removal of country of origin markings from imported rubber hoses. See 19 U.S.C. ┬ž 1304.

 All defendants except William Abbott have filed a variety of pretrial motions, which we address seriatim. Where applicable, all defendants join in each other's motions.

 Motions to Suppress

 Shields Rubber Corporation, joined by the other defendants, asserts that the search warrant used by the Customs Service in its search of the Shields Rubber Corporation offices at 137 Fort Pitt Boulevard, Pittsburgh, Pennsylvania, was invalid for three reasons. First, Shields Rubber asserts that the search warrant is overbroad and therefore a general warrant forbidden by the Fourth Amendment. See Andresen v. Maryland, 427 U.S. 463, 478-82, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). Secondly, Shields Rubber asserts that the government violated its rights by conducting a search without a warrant when the warrant affiant, Thomas J. Hoffman, Special Agent of the United States Customs Service, directed a confidential informant to seize documents from the Shields Rubber Corporation offices. See United States v. Walther, 652 F.2d 788, 792 (9th Cir. 1981). Third, Shields Rubber asserts that the search warrant affidavit is defective, because it fails to set forth adequate indicia of the confidential informant's reliability and basis of knowledge, see Aquilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1968), and because the information contained in the affidavit is stale. See United States v. Forsythe, 560 F.2d 1127 (3d Cir. 1977). We held a suppression hearing, at which the warrant affiant testified, to address the claims that the confidential informant acted as a government agent in removing documents from the offices of Shields Rubber. Having heard the testimony of the warrant affiant, we find as a matter of fact that the confidential informant was not acting at the direction of Special Agent Thomas Hoffman when he obtained records of Shields Rubber. In fact, the evidence convinces us to the contrary, that the confidential informant produced no documentary material which had been obtained from Shields Rubber after May 7, 1985, when the confidential informant first was contacted by Special Agent Hoffman to set up the meeting held on May 10, 1985.

 With respect to defendants' argument that the search warrant capias clause is overbroad and insufficiently specific, Third Circuit jurisprudence permits the use of generic classifications in a search warrant where an item by item description is not feasible. United States v. Christine, 687 F.2d 749, 753 (3d Cir. 1982). This is in keeping with the general requirement that search warrants be interpreted practically, not hypertechnically. See e.g. United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).

 The warrant permits the seizure of four categories of items (1) business records of various kinds with respect to foreign imported products, specifically relating to the purchase, importation, handling, or sales of imported foreign manufactured hose and rubber products; (2) foreign made hose which is unmarked or improperly marked; (3) tools used for removing country of origin markings; and (4) "any other property" which constitutes evidence of the offenses of violation of customs laws. No serious argument could be made that items in category (1), (2) or (3) are not described with sufficient particularity to allow an officer executing a search to decide with certainty whether an item was or was not to be seized, and as the Supreme Court ruled in Andresen v. Maryland, supra, 427 U.S. at 479-82, with respect to a clause even more general than that described in category (4) in the instant matter, a general clause allowing search and seizure of "other fruits" of evidence of a crime specifically described does not invalidate an otherwise proper search warrant. See United States v. Christine, 687 F.2d at 753.

 With respect to the argument that the confidential informant's reliability and basis of knowledge are not adequately set forth in the warrant affidavit, we note initially that it is the affidavit as a whole which must contain sufficient indicia of probable cause, only one factor of which is the reliability and basis of knowledge of a person supplying confidential information. See Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Furthermore, when considered as a whole, the information provided by the confidential informant, including Shields Rubber documents containing in the documents themselves indications that Shields Rubber personnel were directing employees to remove country of origin markings, adequately set forth a basis from which the magistrate approving the warrant could properly conclude that the informant was reliable and had a basis of knowledge for his assertions that Shields Rubber management was issuing instructions to employees to remove country of origin markings. The confidential informant's reliability was also corroborated by an undercover purchase by the affiant of hose which appeared to have had markings removed, by a similar report from a second confidential source, this one a current employee at Shields Rubber Company, and by a customs inspection of three shipments of industrial hose which did not conform to marking requirements.

 Finally, defendants argue that the warrant affidavit's information was too "stale" to supply probable cause for a search in August 1986. Overlooking the information supplied by a confidential informant only a week before the search, there was physical evidence that Shields Rubber continued to violate marking requirements as recently as July 18, 1986, and had been violating marking requirements before May of 1985. The duration of the alleged pattern of violations, together with the common knowledge that businesses maintain both inventories and business records over extended periods of time, support an inference that the items sought by the search would remain on the Shields Rubber premises much longer than in a case, for instance, involving the storage of a single item of stolen property, or of a single delivery of controlled substances. We conclude that the information in the warrant was not "stale".

 The motions to suppress are denied.

 Motion for Bill of Particulars

 Because the government has supplied the specific regulations alleged to have been violated, the defendants' request for a Bill ...


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