UNITED STATES OF AMERICA, PETITIONER V. CARL A. FUCCILLO No. 86-1622 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit TABLE OF CONTENTS Question presented Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-12a) is reported at 808 F.2d 173. The opinion of the district court (App., infra, 13a-22a) is reported at 634 F. Supp. 358. JURISDICTION The judgment of the court of appeals (App., infra, 24a) was entered on January 9, 1987. On February 26, 1987, Justice Brennan extended the time within which to file a petition for a writ of certiorari to and including April 9, l987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether evidence seized in reasonable reliance upon a search warrant should be admissible, where the warrant is subsequently found to be insufficiently particularized and the agents have seized certain items that were not within the scope of the warrant. The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case. STATEMENT On September 28, 1984, federal agents executed search warrants at three premises owned by respondent. In the course of the ensuing searches, the agents seized a large quantity of stolen clothing. Respondent was subsequently indicted on four counts of possession of goods stolen from an interstate shipment, in violation of 18 U.S.C. 659; one count of receipt of stolen goods moving in interstate commerce, in violation of 18 U.S.C. 2315; and one count of interstate transportation of stolen goods, in violation of 18 U.S.C. 2314. Respondent moved to suppress the seized evidence. After a hearing, the district court granted respondent's motion. The government appealed, and the court of appeals affirmed. App., infra, 3a, 4a-5a. 1. In support of its application for the search warrants in this case, the government submitted the affidavit of Special Agent Frisoli of the Federal Bureau of Investigation (FBI). According to the affidavit, two trailers containing 839 cartons of women's apparel and accessories valued at approximately $500,000 were stolen from Women's Specialty Retailing in Enfield, Connecticut, sometime between August 10 and 13, 1984. Attached to the cartons were delivery slips reflecting the stores that were to receive the merchandise. Among the stores listed on the delivery slips was Casual Corner. Aff. Paragraph 2; App., infra, 3a-4a, 15a. According to the affidavit, a confidential informant reported that on September 25, 1984, there was stolen women's clothing at three premises owned by respondent: Fashion Apparel Distributors (FAD), a wholesale clothing distributor located in Revere, Massachusetts; Fashions on Tremont (FOT), a retail clothing store located in Boston, Massachusetts; and a warehouse located in Milford, Massachusetts. The informant reported that he or she had been inside FAD and the warehouse and had observed Casual Corner women's clothing that the informant knew to have been stolen. Aff. Paragraphs 3, 6; App., infra, 3a, 4a, 15a. To corroborate the informant's representations, an FBI agent visited FOT on September 26, 1984. The agent was accompanied by Anne Sweeney, a manager of one of the Casual Corner stores. During the approximately 10 to 15 minutes that she spent in the store, Ms. Sweeney observed about $6,000 worth of Casual Corner merchandise and identified specific Casual Corner items. Ms. Sweeney noticed that the prices charged by FOT for the goods were substantially below their market value. She also observed three particular clothing labels that were exclusive to Casual Corner and should not have been available at FOT. Finally, Ms. Sweeney spotted approximately 100 vests and 2 sweaters that were exclusive Casual Corner merchandise and from which the labels had been removed. Aff. Paragraph 4; App., infra, 4a, 19a. On September 27, 1984, FBI agents performed surveillance at FAD and observed a van belonging to FAD being loaded. The agents followed the van to the Milford warehouse, where the driver went inside. The agents then observed several racks of women's clothing inside the warehouse. Aff. Paragraph 9. The evidence at the suppression hearing disclosed that before they appeared before a magistrate, the agents met with an Assistant United States Attorney for about six hours to discuss and prepare an application for the search warrants. A federal magistrate then reviewed the affidavit and warrant application for about 45 minutes before issuing the warrants. In the course of authorizing the searches, the magistrate did not in any way intimate that the warrants were insufficiently particularized. C.A. App. 68-71, 80-81. /1/ Each of the warrants authorized the agents to seize the following property (App., infra, 3a): "(C)artons of women's clothing, the contents of those cartons, lists identifying the contents of the cartons, and control slips identifying the stores intended to receive these cartons, such items being contraband and evidence of a violation of Title 18, United States Code, Section 659, Possession of Goods Stolen from Interstate Shipments." On September 28, FBI agents executed the warrants. Accompanying the agents during the searches were managers from Casual Corner stores, whose function was "to identify clothing belonging to their company that should not be for sale outside * * * Women's Specialty Retailing." C.A. App. 72-74. Sometime after the searches began, an agent at the Milford warehouse called Agent Frisoli, who was at FAD, and advised him that the agents had discovered clothing in the warehouse beyond that which had been referred to in the warrant. The agent relayed to Frisoli the identifying numbers on the garments so that Frisoli could determine if this clothing was also stolen. After Frisoli learned that this additional clothing had been discovered at the warehouse, he searched for similar merchandise at FAD and discovered that identical items were on the premises there. Prior to seizing any of it, Frisoli confirmed that nearly all the goods on the premises had been stolen. The only exceptions were certain sweat shirts; although those items had been sold to FAD, they had not yet been paid for. C.A. App. 76-80, 92. In all, the agents seized from FAD a large supply of stolen merchandise, including 29 cartons of Casual Corner clothing, 111 Sassoon dresses, 130 men's corduroy sports jackets, and 4 empty boxes with Casual Corner markings. From FOT the agents seized additional stolen apparel, including 200 sweaters, 72 blouses, and 64 pairs of pants. From the Milford warehouse the agents seized a quantity of stolen women's clothing sufficient to fill about 504 cartons, as well as stolen Sassoon skirts and men's corduroy jackets. The agents later returned the sweat shirts they had seized. App., infra, 4a-5a; C.A. Supp. App. 1-2, 4-23; C.A. App. 92. /2/ On May 9, 1986, the district court granted respondent's motion to suppress (App., infra, 13a-22a). The court held that "the warrants in this case did not meet the particularity requirement of the Fourth Amendment." In addition, the court found that "the government has failed to show that the F.B.I. agents who executed the warrants acted in good faith" (id. at 14a). 2. The court of appeals affirmed (App., infra, 1a-2a). It first held (id. at 7a) that the warrants to search the three premises were insufficiently particularized in that they "substantial(ly) fail(ed) to specify as nearly as possible the distinguishing characteristics of the goods to be seized." The court surmised (id. at 8a) that the agents "clearly could have obtained specific information for presentment to the magistrate and placement in the warrant which would have enabled the agents executing the FAD and Milford warehouse searches to differentiate contraband cartons of women's clothing from legitimate ones." /3/ The court also found (id. 9a-10a) that the warrant to search FOT was insufficiently particularized because although Ms. Sweeney had seen particular items at FOT prior to the search, the warrant did not identify those items. The court next refused (App., infra, 10a-12a) to find that the agents had executed the searches in good faith under United States v. Leon, 468 U.S. 897 (1984). It held, first, that "(t)he good faith exception * * * will not be applied unless the officers executing search warrants, at the very minimum, act within the scope of the warrants and abide by their terms" (App., infra, 10a-11a). Because the agents who searched FAD and the warehouse seized some clothing that was not covered by the warrants, it held that the searches at those locations were not performed in good faith (id. at 11a). The court also refused to find good faith in connection with the search at FOT because the agents had failed to take "'every step that could reasonably be expected of them'" in describing the items to be seized (ibid., quoting Massachusetts v. Sheppard, 468 U.S. 981, 989 (1984)). The court noted (ibid.) that the affidavit for the warrant indicated that mailing labels had been attached to the cartons of clothing before they were stolen; the court held that the agents should have obtained that information and included it in the warrant. Moreover, Ms. Sweeney had seen particular items at FOT prior to the search; the court held that the warrant should have specified this list of merchandise. Because of these omissions, the court held that the warrant was "'so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid'" (App., infra, 11a-12a (quoting Leon, 468 U.S. at 923)). REASONS FOR GRANTING THE PETITION In United States v. Leon, 468 U.S. 897, 922 (1984), the court held that "the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." The court of appeals refused to apply the rule in Leon to any of the three searches at issue in this case. With respect to the search at FOT, the court found that the agents did not "take every step that could reasonably be expected of them" in describing the items to be seized (App., infra, 11a). The court also refused to apply Leon to the searches at FAD and the warehouse, because in executing those searches the agents seized a quantity of items that were outside the scope of the warrants. The decision below thus raises two issues of considerable and recurring importance concerning the application of the good faith exception in Leon. First, in holding that the agents did not act in good faith because of a lack of particularity in the warrant to search FOT, the court of appeals significantly misread the Leon case and effectively held the agents to a standard of near perfection in the drafting of warrants. The court's application of Leon in this case is in sharp conflict with the approach followed in other circuits. This case presents an appropriate vehicle to resolve the substantial differences among the circuits in the application of Leon to warrants that are found to be insufficiently particularized. Second, the court of appeals misread Leon when it concluded that agents cannot be acting in good faith when some of the items they seize are outside the four corners of the warrant. Leon itself imposes no such limitation, nor could it without departing from prior decisions of this Court. Because this aspect of the court of appeals' decision is also contrary to other circuit law, review by this Court is warranted. 1. In the Leon case the Court held that the exclusionary rule "cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity" (468 U.S. at 919). This is particularly true, the Court added, "when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope" (id. at 920 (footnote omitted)). The Court reasoned that in such cases the deterrent value of the exclusionary rule is vitiated by the fact that "an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient" (id. at 921). The Court noted that there were nevertheless some circumstances in which the executing officer would have "no reasonable grounds for believing that the warrant was properly issued" (468 U.S. at 923). In those unusual cases "(s)uppression * * * remains an appropriate remedy" (ibid.). In particular, the Court stated that suppression could be ordered in cases in which the agent misled the magistrate with known false information; cases in which the magistrate "wholly abandoned his judicial role"; cases in which probable cause was "so lacking * * * as to render official belief in its existence entirely unreasonable" (citation omitted); and, finally, cases in which "a warrant may be so facially deficient -- i.e., in failing to particularize the * * * things to be seized -- that the executing officers cannot reasonably presume it to be valid" (ibid.). The selection of these examples, we submit, makes it clear that when an agent secures a search warrant, suppression is appropriate only when the magistrate or agent has wholly abdicated his professional responsibilities. In such instances, the exclusionary rule "bear(s) (its) heavy burden of justification" and "pay(s) its way by deterring official lawlessness." Illinois v. Gates, 462 U.S. 213, 257-258 (1983) (quoted in Leon, 468 U.S. at 907-908 n.6). The simple failure to take every reasonable step to particularize a warrant cannot amount to the kind of default that justifies the heavy hand of suppression. The Court's recent decision in Illinois v. Krull, No. 85-608 (Mar 9, 1987), makes that point clearly. In that case, the Court held that the Leon exception applies to a seizure undertaken pursuant to a statute that was later declared unconstitutional. The Court rejected the argument (slip op. 18-19) that the statute vested so much discretion in the seizing officer that the officer could not reasonably suppose the statute to be valid. Although the Court noted certain additional restrictions on the officer's discretion that might have been put into the statute, it held that these alterations in the statute were "not so obvious that an objectively reasonable police officer would have realized the statute was unconstitutional without them" (slip op. 19 (footnote omitted)). The officer's reliance on the statute, even without the additional safeguards, was thus "in objective good faith" (ibid.). In the present case, the court of appeals upheld the suppression order because, in the court's view, the agents did not take every reasonable step to narrow the warrants. Even if such an exacting standard were otherwise appropriate under Leon, we believe that the court of appeals' quarrel with the warrants in this case was unjustified. To be sure, the warrants in this case were broad in scope. But it is difficult to imagine how the warrants could have been drafted more narrowly without imposing inappropriate limitations on the items to be seized. The court of appeals made two suggestions as to how the warrants could have been more narrowly drafted, but both of those suggestions were plainly flawed. The court first suggested (App., infra, lla) that the warrants should have included the mailing labels that had been attached to the cartons of women's clothing before they were stolen. The affidavit in this case, however, disclosed that the labels on some of the clothes had been removed prior to the search, and the agents had every right to infer that the mailing slips would have been removed as well. /4/ The court next suggested that the warrant to search FOT should have listed the items observed by Ms. Sweeney. That suggestion also misses the mark. Ms. Sweeney saw those items in a 10- or 15-minute visit to the store; there was every reason to anticipate that additional stolen merchandise would be found there as well. There was no reason to limit the warrant to the specific items that Ms. Sweeney observed, even if those items could have been identified with the precision that the court of appeals seems to have expected. The agents in this case thus faced a dilemma. A narrowly drafted warrant, along the lines suggested by the court of appeals, might well have omitted much, if not all, of the stolen property that the agents clearly had probable cause to seize. On the other hand, a broadly worded warrant was vulnerable to attack if a defendant or a court could subsequently devise a formula that would describe all the property for which the agents had probable cause, yet define that catefory more narrowly than the warrants in this case. In light of the court of appeals' failure to suggest how the warrants might properly be narrowed without omitting a potentially large portion of the stolen goods, the magistrate can hardly be faulted for having selected the language that was used in the warrants, even though that language was broad. And for the same reason, the agents surely cannot be criticized for having concluded that the formula approved by the magistrate satisfied the requirements of the Fourth Amendment. Even if the agents were held to a high standard of familiarity with the technical features of search and seizure law, it would have been reasonable for them to believe that the warrants in this case were sufficiently particularized. In United States v. Scharfman, 448 F.2d 1352 (1971), cert. denied, 405 U.S. 919 (1972), the Second Circit approved a virtually indistinguishable warrant that was issued under nearly identical circumstances. In Scharfman a truck loaded with several hundred furs was hijacked. Thereafter, an informant advised the FBI that furs from that shipment could be found in the defendant's stores. An employee of one of the shippers confirmed this tip by identifying one fur at one of the defendant's stores as part of the stolen shipment. The court of appeals upheld a warrant that authorized the agents to search for and seize "fur coats, stoles, jackets and other finished fur products" (448 F.2d at 1353 n.1). The court rejected the claim that the warrant was insufficiently particularized. It held (id. at 1354 (citation omitted)) that "(w)here goods are of a common nature and not unique there is no obligation to show that the ones sought * * * necessarily are the ones stolen, but only to show the circumstances indicating this to be likely." /5/ To insist no greater specificity in the warrant, the court reasoned, would reward the defendant for his own stealth. "(I )t is inconceivable that by mixing legitimately obtained (goods) with the stolen merchandise so as to make them virtually indistinguishable, the defendant could invalidate the seizure because more specificity has become impossible" (id. at 1354 n.3). In light of the judicial approval of the warrant in Scharfman, the agents in this case had even less reason to second-guess the magistrate's judgment that the warrants to search respondent's premises were sufficiently narrow. /6/ See Illinois v. Krull, slip op. 18-19 & n.16 (fact that Supreme Court of Indiana approved a similar statute was evidence that officer's reliance upon the Illinois statute was reasonable). Cf. Leon, 468 U.S. at 919-920 n.20 ("The objective standard we adopt * * * requries officers to have a reasonable knowledge of what the law prohibits."). More generally, however, the court of appeals' insistence that the agents take every reasonable step to narrow the warrant breaks faith with Leon by requiring the agents to exercise a degree of drafting skill bordering on perfection. The court's approach overlooks the often complex and technical nature of the particularity requirement. Whether a warrant is sufficiently particular depends upon the relationship between the probable cause stated in the affidavit and the description in the warrant of the items to be seized. In any given case, a question can always be raised whether the "fit" between the probable cause and the warrant is sufficiently close. That is the kind of judgment that agents are not trained to make and on which they have every right to defer to the magistrate's decision to issue the warrant. 2. The First Circuit's application of the good faith exception to warrants lacking sufficient particularity is in conflict with the decisions of several other circuits. The Second Circuit considered this issue in its recent decision in United States v. Buck, No. 86-1500 (Mar. 10, 1987). In the course of investigating an armored car robbery in that case, agents traced the get-away car to a house in New Jersey and secured a warrant to search the house for "any papers, things or property of any kind relating to (the) previously described crime" (slip op. 1803). The court of appeals held that the warrant was insufficiently particularized in that the agents "clearly did not insure that all the known facts were included in the warrant" (id. at 1808). Nevertheless, expressly noting that its holding was in conflict with decisions of the First Circuit in this case and the Ninth Circuit in another case (id. at 1809-1810 n.1), the court of appeals found that the agents had acted in good faith under Leon. The court noted (id. at 1810) that the "officers in this case made considerable efforts to comply with the dictates of the Fourth Amendment." /7/ All the officers failed to do, the court held, was to anticipate the court's ruling that "the use of a catch-all description in a search warrant, unaccompanied by any list of particular items" would be insufficient (ibid.). But that failure did not constitute bad faith because "the law was unsettled" on this issue and "a reasonably well-trained police officer could not be expected to know that the warrant issued by (the magistrate) violated the Fourth Amendment" (ibid.). The court accordingly held (id. at 1810-1811) that "(t)he exclusionary rule's deterrent function is not served by penalizing officers who rely upon the objectively reasonable legal conclusions of an issuing judge." The application of Leon by the First Circuit is also at odds with the approach adopted by the Eleventh Circuit in United States v. Accardo, 749 F.2d 1477 (1985), cert. denied, No. 85-518 (Nov. 4, 1985). /8/ There, the court of appeals vacated a district court order suppressing evidence because of a warrant's lack of particularity. The Eleventh Circuit held that on the facts presented at the suppression hearing, good faith had been established. The agents "submitted a detailed affidavit to a magistrate," and that affidavit alleged "a pervasive fraud" that "justif(ied) a more flexible reading of the fourth amendment particularity requirement" (749 F.2d at 1480-1481). Moreover, the affidavit "was reviewed by several attorneys in the U.S. Attorney's office," and the magistrate "found probable cause and issued the warrants" (id. at 1480). /9/ See also United States v. Weinstein, 762 F.2d 1522 (11th Cir. 1985), cert. denied, No. 85-1508 (Apr. 7, 1986) (applying a good faith standard to a search warrant challenged as overbroad). The Eighth Circuit's decision in United States v. Faul, 748 F.2d 1204 (1984), cert. denied, 472 U.S. 1027 (1985), is also contrary to the approach employed by the First Circuit. Faul involved an exchange of gunfire between United States marshals and a group of suspects. After the exchange, a warrant issued to seize from the farmstead of one of the suspects "any and all firearms, ammunition, grenades, crossbows, rocket launchers and other explosive devices." The defendants claimed that this category was overbroad. The court of appeals disagreed, noting that "(a)rguably, all of the firearms seized were relevant until ballistics examinations had been performed" (748 F.2d at 1219). In any event, the court held, the seizure would be justified under Leon. Id. at 1220 n.11. Although, under the First Circuit's test, the agents undoubtedly could have narrowed the scope of the warrant -- based on the kinds of weapons used at the shoot-out -- the court of appeals held that Leon did not impose so rigid a requirement. Finally, in the Ninth Circuit's most recent decision in this area, that court appears also to depart from the application of Leon adopted by the First Circuit in the present case. United States v. Michaelian, 803 F.2d 1042 (1986). The Michaelian case involved a search for records reflecting a violation of the tax laws for certain specific years. Like the First Circuit in this case, the district court had found the warrants to be too general "in light of the lengthy IRS investigation and detailed knowledge provided (to the agents by certain informants)" (803 F.2d at 1046 n.1). The court of appeals did not challenge this judgment, holding instead that the seizure was made in good faith. The court noted (id. at 1047) that the warrants did not "approximate the degree of facial deficiency which would preclude objective reliance by federal agents." The records to be seized were limited to particular years and the categories of records to be seized were not unlimited. Moreover, the warrants were subjected to "four levels of attorney review." Ibid. Thus, although the warrants undoubtedly could have been made more specific (as the district court found, in a ruling not disturbed by the court of appeals), the Ninth Circuit upheld the seizure on good faith grounds. /10/ 3. The fact that the agents seized certain items that were outside the terms of the warrant did not justify the court of appeals in finding an absence of good faith. In the first place, we do not see how the agents' decision to seize items that were in plain view can possibly bear on the question whether the terms of the warrants were sufficiently narrow. Although the court of appeals purported to base its contrary decision on the language of the Leon decision, there is nothing in that case to support the court of appeals' position. /11/ Moreover, it is well established that if agents who are executing a search warrant encounter contraband or stolen property in plain view, they may lawfully seize that property. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 465-467 (1971); United States v. Ellison 793 F.2d 942, 948 (8th Cir. 1986), cert. denied, No. 86-5484 (Nov. 3, 1986); United States v. Fawole, 785 F.2d 1141, 1145 (4th Cir. 1986). In any event, even when agents have improperly seized items that are not within the terms of a warrant, the appropriate remedy is to suppress only those items that are within the scope of the warrant. See Waller v. Georgia, 467 U.S. 39, 43-44 n.3 (1984); Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976). See also United States v. Offices Known As 50 State Distributing Co., 708 F.2d 1371, 1376 (9th Cir. 1983), cert. denied, 465 U.S. 1021 (1984); United States v. Wuagneux, 683 F.2d 1343, 1354 (11th Cir. 1982), cert. denied, 464 U.S. 814 (1983). The court of appeals' belief that the seizure of some items in plain view precludes a finding of good faith is in conflict with the decision of the Tenth Circuit in United States v. Medlin, 798 F.2d 407 (1986). Rejecting the analysis applied by the First Circuit, the court of appeals in Medlin held (798 F.2d at 411) that unless a seizure outside the scope of the warrant reflects a "flagrant disregard for the limitations of a search warrant," the items seized under the warrant in good faith may be severed from the rest and offered into evidence. The decision of the First Circuit in this case therefore conflicts with the approach employed by other circuits in applying this Court's decision in Leon, both by insisting on a precise description of the items to be seized and by gauging the reasonableness of the description of the items in the warrant according to the agents' conduct in subsequently executing the search. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General LAWRENCE S. ROBBINS Assistant to the Solicitor General APRIL 1987 /1/ "C.A. App." refers to petitioner's appendix in the court of appeals. /2/ "C.A. Supp. App." refers to respondent's supplemental appendix in the court of appeals. /3/ In particular, the court faulted the agents for failing to include in the warrant "information identifying the store that was receiving the goods, including the store number, name and address" (App., infra, 9a). The court suggested (ibid.) that instead of listing simply "cartons of women's clothing," the warrant could have listed "cartons of women's clothing from Casual Corner stores" (the intended destination of the stolen shipment) or "cartons of women's clothing from Women's Specialty Retailing" (the company from which the shipment was stolen). /4/ The mailing slips would, of course, have made it crystal clear to anyone who saw them that the merchandise was stolen. /5/ The court noted (448 F.2d at 1354) that "if the searching agents entered a specified location with thousands of garments on the premises but the warrant itemized only a few hundred which had been allegedly stolen, the task of identifying and seizing the specific garments would have required a legion of fur experts to perform the task in a reasonable period." /6/ In fact, in three of its prior decisions, the First Circuit had cited the Scharfman case as an example of a sufficiently particularized warrant. See United States v. Cortellesso, 601 F.2d 28, 31 (1979), cert. denied, 444 U.S. 1072 (1980); Montilla Records of Puerto Rico, Inc. v. Morales, 575 F.2d 324, 326 (1978); United States v. Klein, 565 F.2d 183, 187-188 (1977). /7/ In particular, the Second Circuit noted (United States v. Buck, slip op. 1810) that the agents had "soght out a neutral magistrate; * * * tape-recorded the conversation with the magistrate to assure accuracy; * * * outlined the crime for the magistrate; * * * described the evidence that led them to the house in East Orange; (and) the detective was placed under oath by (the magistrate) and swore to the truth of his assertions." /8/ The Second Circuit noted this conflict with the Eleventh Circuit in its decision in the Buck case. See slip op. 1809-1810 n.1. /9/ Because the district court has not expressly considered the issue of good faith, the court of appeals remanded for further proceedings to consider any other evidence that might bear on the good faith issue. /10/ On the other hand, in three other cases the Ninth Circuit refused to find good faith in the context of warrants that it held to be insufficiently particularized. See United States v. Spilotro, 800 F.2d 959 (1986); United States v. Washington, 797 F.2d 1461 (1986); and United States v. Crozier, 777 F.2d 1376 (1985). /11/ The court of appeals found support in Leon only by quoting a portion of that opinion out of context. The court of appeals stated (App., infra, 11a (emphasis added) (quoting 468 U.S. at 918 n.19)) that the "good faith exception 'assumes, of course, that the officers properly executed the warrant and searched only those places and for those objects that it was reasonable to believe were covered by the warrant.'" But this Court did not say in Leon that "the good faith exception" depended on that assumption; rather, what turned on that assumption was the Court's "discussion of the deterrent effect of excluding evidence obtained in reasonable reliance on a subsequently invalidated warrant" (468 U.S. at 918 n.19). The Court made clear that the deterrence benefits of the exclusionary rule are "particularly" lacking "when an officer acting with objective good faith has obtained a search warrant * * * and acted within its scope (468 U.S. at 920 (footnote omitted)). The Court did not say that deterrence would somehow become well served if those same agents seized some items in plain view, in addition to seizing a quantity of merchandise in objective good faith reliance on a search warrant.