                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-24-2009

In Re:Search Warrant
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3689




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Recommended Citation
"In Re:Search Warrant " (2009). 2009 Decisions. Paper 1704.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1704


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                                                   NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                 Nos. 07-3689, 07-3721, 07-3722,
                   07-3723, 07-3724, 07-3725


        IN RE: SEARCH WARRANTS EXECUTED ON:
   309 PRIMOSE LANE, HANOVER, PENNSYLVANIA 17731

            Avery Sollenberger, Dena Sollenberger and
                      Wendell Sollenberger,

                                                   Appellants in No. 07-3689


        IN RE: SEARCH WARRANTS EXECUTED ON:
95 NORTH ALLWOOD DRIVE, HANOVER, PENNSYLVANIA 17731

                        Gary Sollenberger,

                                                   Appellant in No. 07-3721


        IN RE: SEARCH WARRANTS EXECUTED ON:
   309 PRIMOSE LANE, HANOVER, PENNSYLVANIA 17731

     Gary Sollenberger, Avery Sollenberger, Dena Sollenberger
                    and Wendell Sollenberger,

                                                   Appellants in No. 07-3722


        IN RE: SEARCH WARRANTS EXECUTED ON:
   309 PRIMOSE LANE, HANOVER, PENNSYLVANIA 17731

                        Gary Sollenberger,

                                                   Appellant in No. 07-3723
                 IN RE: SEARCH WARRANTS EXECUTED ON:
            309 PRIMOSE LANE, HANOVER, PENNSYLVANIA 17731

                                Avery L. Sollenberger,

                                                           Appellant in No. 07-3724


                 IN RE: SEARCH WARRANTS EXECUTED ON:
            309 PRIMOSE LANE, HANOVER, PENNSYLVANIA 17731

                                Wendell Sollenberger,

                                                           Appellant in No. 07-3725


                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                        (Nos. 1:05-MC-0151, 1:05-MC-0152,
                           1:05-MC-0153, 1:05-MC-0154,
                           1:05-MC-0155, 1:05-MC-0156)
                   Honorable Christopher C. Conner, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                   March 6, 2009

                BEFORE: BARRY and GREENBERG, Circuit Judges,
                       and ACKERMAN, District Judge*

                               (Filed: March 24, 2009)




*The Honorable Harold A. Ackerman, Senior Judge of the United States District Court
for the District of New Jersey, sitting by designation.

                                          2
                                  OPINION OF THE COURT


GREENBERG, Circuit Judge.

       These matters come on before this Court on appeals from an order of the District

Court dated and entered on August 13, 2007, denying motions under Fed. R. Crim. P.

41(g) for the return of property seized pursuant to search warrants. The movants

in the District Court and the appellants in this Court are Avery Sollenberger, Dena

Sollenberger, Gary Sollenberger, and Wendell Sollenberger (collectively the

“Sollenbergers”). The District Court explained the complete background of the matter in

its comprehensive opinion and, accordingly, we do not repeat what that Court set forth.

We, however, do point out that, after the hearing in the District Court on the Rule 41(g)

motions, a grand jury indicted all four Sollenbergers for tax offenses, and, after the

District Court denied the motions, Avery, Gary, and Wendell were tried and found guilty

while Dena was tried and acquitted.

       The case is unusual in that even though the Sollenbergers brought the proceedings

in the District Court, they indicate in their brief that it is their “position that the . . . Court

. . . lacked subject matter jurisdiction” because the warrants pursuant to which the agents

made the searches “were facially defective in direct violation of the Fourth Amendment.”

Moreover, the Sollenbergers contend that the District Court lacked jurisdiction because

they had not been indicted when the warrants were issued, the searches made, and the

                                                 3
motions for the return of property filed.1 Appellants’ br. at 11. The Sollenbergers

initially address our jurisdiction by indicating that ordinarily we would have jurisdiction

under 28 U.S.C. § 1291 on an appeal from “a final order imposed in a motion for return

of property pursuant to” Rule 41(g). Appellants’ br. at 2. They then argue that if we

accept their contention that the District Court did not have “subject matter and/or in

personam jurisdiction” the August 13, 2007 order from which they have appealed would

be void and we “would likewise lack appellate jurisdiction.” Id.

       We, of course, first address our own jurisdiction for if we do not have jurisdiction

then all we could do on the appeals would be to announce that we do not have jurisdiction

and dismiss the appeals. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95,

118 S.Ct. 1003, 1012-13 (1998). Thus, if we did not have jurisdiction we certainly could

not declare the District Court’s order to be void, a remedy that the Sollenbergers seek

from us on this appeal. We, however, do have jurisdiction under 28 U.S.C. § 1291

because, regardless of whether the District Court had jurisdiction, it attempted to exercise

jurisdiction and it entered a final order. Inasmuch as we determine that we do have

jurisdiction we next will determine whether the District Court had jurisdiction for, as we

repeatedly have indicated, on an appeal we must examine the district court’s jurisdiction.




  1
   It is not clear to us how it would be useful to the Sollenbergers if the District Court did
not have jurisdiction because in the absence of jurisdiction all that Court could have done
would have been to dismiss the proceedings, thus leaving the property the Sollenbergers
were seeking to recover in the hands of the Government.

                                              4
See, e.g., United States v. Higgs, 504 F.3d 456, 457 (3d Cir. 2007) (“This Court has an

obligation to inquire sua sponte into its own and, necessarily, into the jurisdiction of the

District Court to enter the order on appeal.”). We conclude that the District Court did

have jurisdiction, see United States v. Premises Known as 608 Taylor Ave., 584 F.2d

1297, 1299-1300 n.3 (3d Cir. 1978), and thus we will consider the appeals on their merits.

       We will affirm substantially for the reasons that the District Court set forth in its

August 13, 2007 opinion, as the opinion fully addresses the issues involved in this case

and we are in agreement with the Court’s conclusions. In reaching our result we accept

the Government’s concession predicated on United States v. Mills, 991 F.2d 609, 612

(9th Cir. 1993), that we exercise plenary review,2 but we nevertheless are struck by the

District Court’s careful analysis of the facts in the case, which it explains as follows:

       These findings are based on testimonial and documentary evidence
       presented at the hearing on the motions, as well as on affidavits proffered in
       support of the motions. The findings substantially reflect the testimony
       given by the government agents. The court notes that during the course of
       the hearing, the Sollenbergers attempted to impeach the credibility of IRS
       Special Agents Klinte J. Keppley and Chris Hueston. However, the
       testimony of these agents was largely supported by that of four agents
       whose credibility was not impeached, namely IRS Special Agents
       Christopher D. Kegerreis, Ernest S. Binder, Martin McLaughlin, and Kelvin
       Bowser. Given this degree of corroboration, the court finds the testimony
       of all six agents to be credible and resolves in favor of the agents any
       conflicts in testimony between the Sollenbergers and the agents.



  2
    The Government may be too generous to the Sollenbergers as the Mills court said that
“[w]e review the district court’s interpretation of Rule 41(e) [now Rule 41(g)] de novo.”
Mills, 991 F.2d at 612. In our view a court’s factual findings are a different thing than its
interpretation of court rules.

                                              5
App. at 4. Notwithstanding the District Court’s careful analysis of the facts, when we

read the Sollenbergers’ brief and compared it to the District Court opinion we had the

sense that they almost were describing different cases. In any event, we believe that we

should accept the factual findings as the District Court made them.

      The order of August 13, 2007, will be affirmed.




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