
USCA1 Opinion

	




        November 8, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 94-2183                                  MICHAEL A. CROOKER,                                Plaintiff, Appellant,                                          v.                              KENNETH VARRIALE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Michael A. Ponsor, U.S. District Judge]                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Michael Alan Crooker on brief pro se.            ____________________            Donald K. Stern,  United States  Attorney, and  Karen L.  Goodwin,            _______________                                 _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.  Plaintiff,  Michael A. Crooker, appeals the                 __________            grant  of summary  judgment in  favor  of the  defendant, ATF            Agent Kenneth Varriale, in this  Bivens action, see Bivens v.                                             ______         ___ ______            Six  Unknown   Named  Agents,  403  U.S.   388  (1971),  that            ____________________________            challenged a  November 1991 search  of, and seizure  of items            from, Crooker's residence and a seizure of an additional item            pursuant  to a  July  1992 search  of  that residence.    The            district  court  concluded  that  Crooker   was  collaterally            estopped  from asserting several of the Bivens claims.  As to                                                    ______            those Bivens claims not precluded by collateral estoppel, the                  ______            district   court   determined  that   the   items  had   been            constitutionally seized  as within the scope  of the warrant,            in plain view, and/or Agent Varriale was not liable as he was            entitled to qualified immunity.                 Upon careful review,  we conclude that summary  judgment            was appropriate on all counts; although as to certain counts,            we  affirm on grounds different from the district court.  See                                                                      ___            Four  Corners Serv. Station, Inc. v. Mobil Oil Corp., 51 F.3d            _________________________________    _______________            306, 314 (1st Cir.  1995) (appellate court is free  to affirm            on any ground supported by the record).  We pass the issue of            collateral  estoppel, affirming,  instead, on  an alternative            ground of  qualified immunity, the grant  of summary judgment            on the counts deemed  precluded.  As to the  counts involving            the November  1991 seizure of  antique firearms and  the July                                         -2-            1992 seizure of  ammunition, Crooker has  failed to allege  a            violation of his own Fourth Amendment rights.                                          I.                 The district court, in a comprehensive memorandum, dated            October  26,  1994,  explained  the  factual  and  procedural            background.   We  set out  an abbreviated  version, outlining            only  those facts  and  the procedural  history necessary  to            explain the basis for our determination.                 Crooker was released from  prison in February 1991 after            serving a 4-to-5 year state prison sentence for possession of            a machine  gun.    Pursuant  to  a  warrant,  Agent  Varriale            searched  Crooker's   residence  on  November  8,  1991,  for            firearms, ammunition,  and related material.   Agent Varriale            seized, among  other things, several antique  and non-antique            firearms, numerous  rounds of ammunition, an  address book, a            firearms record card, and firearms publications.1                 Crooker  was indicted  on charges  of being  a felon-in-            possession of  firearms in violation  of 18 U.S.C.    922(g).            In this  criminal proceeding,  Crooker moved to  suppress the                                            ____________________            1.  As noted  in our  opening paragraph,  there was a  second            search  of  Crooker's  residence  conducted  in  July   1992.            Pursuant to a separate warrant issued in the course of an IRS            investigation of Crooker for  filing false tax refund claims,            Agent Varriale assisted IRS agents in executing the July 1992            warrant and seized ammunition from an antique firearm.                 In  this Bivens  action,  Crooker does  not contest  the                          ______            issuance of  the July 1992 warrant.   He claims only that the            July 1992 warrant did not authorize or encompass a seizure of            that ammunition.                                         -3-            evidence seized  in November  1991, arguing that  the warrant            had  been issued without probable cause and that items seized            were  outside  the  scope of  the  warrant.    The motion  to            suppress was denied by Chief Judge Tauro.                 Thereafter, in exchange for  the dismissal of the felon-            in-possession   indictment,  Crooker   pled   guilty  to   an            information charging him with  conspiracy to possess firearms            by  a  felon, in  violation  of  18 U.S.C.     371.   By  the            dismissal  of  the  felon-in-possession  indictment,  Crooker            avoided  the  imposition  of  a  mandatory  15-year  term  of            imprisonment.    The  parties  agreed  to,  and  Judge  Tauro            imposed,  an  eight-year sentence  for  the  charge to  which            Crooker pled guilty.                 After  pleading guilty  in  his  criminal case,  Crooker            moved to lift  a stay that  had been entered  in his  earlier            Bivens action  against Agent  Varriale.   Some of the  Bivens            ______                                                 ______            claims  duplicated  the  allegations  forming  the  basis for            Crooker's  suppression motion, i.e., that the application for            the 1991 search warrant included deliberate false statements,            that  the 1991 search  warrant was not  supported by probable            cause, and that  the 1991  search exceeded the  scope of  the            warrant.  Relying  on Allen  v. McCurry, 449  U.S. 90  (1980)                                  _____     _______            (collateral estoppel applies to   1983 actions), the district            court  determined  in  the  Bivens action  that  Crooker  was                                        ______            collaterally estopped from relitigating the issues decided in                                         -4-            the  suppression  ruling previously  entered in  the criminal            case.  The  district court granted summary judgment  in favor            of  Agent  Varriale  as   to  the  remaining  Bivens  claims,                                                          ______            concluding  that the  items which were  the subject  of these            counts  were lawfully  seized  or detained  or  that, in  any            event, Agent Varriale was entitled to qualified immunity.                                         II.                 Crooker  contends  that  the  district  court  erred  in            concluding  that he  is collaterally  estopped.  He  cites to            Haring v. Prosise, 462  U.S. 306 (1983), for  the proposition            ______    _______            that entry of a guilty plea does not preclude a litigant from            bringing a civil claim based  on a Fourth Amendment violation            arising out  of the same set of operative facts.  The Prosise                                                                  _______            Court held, inter alia, that since  a plea can be accepted on                        _____ ____            the basis of inadmissible evidence, the legality of  a search            is not "necessarily  determined" by  a guilty plea.   Id.  at                                                                  ___            316.    We need  not consider  whether  the issues  raised by            Crooker were  precluded by  any adjudication in  the criminal            case,2  because we  affirm on  alternative grounds  -- namely                                            ____________________            2.  We  note, however, that the Prosise Court stated that one                                            _______            concern  which  animated  its  decision  was  the  desire  to            preserve judicial resources.  "The rule [rejected in Prosise]                                                                 _______            would  require an  otherwise  unwilling party  to try  Fourth            Amendment questions to the hilt and prevail in state court in            order  to preserve the mere possibility of later bringing a              1983  claim in  federal court."   Prosise,  462 U.S.  at 322.                                              _______            Further,  the Court noted that  in the case  before it, there            was  "no   repetitive  use  of  judicial   resources  and  no            possibility  of  inconsistent  decisions  that  could justify            precluding  the bringing of such  claims."  Id.  at 322 n.11.                                                        ___                                         -5-            qualified immunity  -- the district court's  grant of summary            judgment on the counts it deemed precluded.  See Four Corners                                                         ___ ____________            Serv.  Station, Inc., 51 F.3d at 314 (appellate court is free            ____________________            to affirm on any ground supported by the record).                 Qualified   immunity    shields   government   officials            performing discretionary  functions from liability  for civil            damages so long  as their conduct  "does not violate  clearly            established  statutory  or constitutional  rights of  which a            reasonable  [police officer]  would have  known."   Harlow v.                                                                ______            Fitzgerald, 457 U.S. 800, 818 (1982).  The qualified immunity            __________            defense sweeps  broadly,  protecting  "all  but  the  plainly            incompetent or those who knowingly  violate the law."  Hunter                                                                   ______            v.  Bryant, 502  U.S.  224,  229  (1991) (quoting  Malley  v.                ______                                         ______            Briggs,  475 U.S. 335, 341  (1986)).  As  this court recently            ______            explained,                      appellate   assessment  of   a  qualified                      immunity  claim  is apportioned  into two                      analytic components.  First, if the right                      asserted  by  the plaintiff  was "clearly                      established" at  the time of  its alleged                      violation, we are required to assume that                      the right was recognized by the defendant                      official;  second,  we   will  deny   the                      immunity claim if  a reasonable  official                      situated in the same circumstances should                      have   understood  that   the  challenged                      conduct violated that established right.            Hegarty v.  Somerset County,  53 F.3d  1367,  1373 (1st  Cir.            _______     _______________            1995) (quoting Burns v.  Loranger, 907 F.2d 233,  235-36 (1st                           _____     ________                                            ____________________            Of course, Crooker's litigation of the suppression motion did            require the expenditure of scarce judicial resources.                                         -6-            Cir. 1990) (citations omitted)).  In the context of qualified            immunity, summary  judgment  is warranted  if  the  plaintiff            fails  to generate  a  trialworthy issue  by undermining  the            evidence  supporting  the  defendant   officer's  objectively            reasonable  belief that  his actions  were lawful.   Dean  v.                                                                 ____            Worcester, 924 F.2d 364, 367 (1st Cir. 1991).            _________                 The rights which Crooker says were violated -- the right            to  be free  from a  search conducted  pursuant to  a warrant            premised on  deliberate misstatements,  the right to  be free            from a search conducted pursuant to  a warrant unsupported by            probable cause  and the right  to be  free from a  search for            items not adequately described in  the warrant -- are clearly            established.  Franks v. Delaware, 438 U.S. 154, 164-65 (1978)                          ______    ________            (reciting that the Fourth Amendment demands a factual showing            sufficient to comprise probable cause and demands that  it be            a  truthful showing); Krohn v. United States, 742 F.2d 24, 26                                  _____    _____________            (1st Cir. 1984) (same);  Berger v. New York, 388 U.S.  41, 55                                     ______    ________            (1967)  (reciting the  Fourth Amendment's requirement  that a            warrant  particularly describe  the  things  to  be  seized);            United  States v. Morris, 977  F.2d 677, 681  (1st Cir. 1992)            ______________    ______            (same), cert. denied, 113 S.  Ct. 1588 (1993).  Consequently,                    ____________            our  analysis  turns on  whether  a police  officer  in Agent            Varriale's  position reasonably could  have believed that his            actions did not violate those rights.  As regards the actions            surrounding   the   1991  search   warrant,   an  objectively                                         -7-            reasonable   officer  could  have  believed  that  Varriale's            actions did not violate clearly established law.                 Crooker contends that the following statement, submitted            by Agent Varriale in support of the 1991 warrant application,            was deliberately false:                      In  my  experience,   it  is  common  for                      individuals   who  are   prohibited  from                      legally possessing firearms--but who wish                      to do  so illegally--to have  a household                      or  family  member  or  associate  who is                      properly  licensed  to possess  firearms,                      make purchases of firearms and ammunition                      which  are  then  in  fact  used  by  the                      prohibited person.   In this way  persons                      who    are   prohibited    from   legally                      possessing firearms are  able to  possess                      firearms without creating  any record  of                      transactions in  their name.  Based on my                      training and experience,  I believe  that                      such  a ruse  is likely  where, as  here,                      significant  amounts  of  ammunition  are                      being  received  through mail  orders and                      the purchasing party  need not appear  in                      person.            Crooker argues that this statement is false because it is not            "common"  for  prohibited  individuals  to  buy  firearms and            ammunition  through family  members  and that  the amount  of            ammunition  bought was  not  "significant."   He proposed  to            demonstrate that such schemes were not "common," by comparing            the  large number of lawful  gun owners in  the United States            with the small number of  "straw-purchasing" schemes detected            each year by  law enforcement.3   And he  contended that  the                                            ____________________            3.  Crooker  neither   produced  such  data,   nor  requested            additional time within which to  do so.  See Fed. R.  Civ. P.                                                     ___            56(f).                                         -8-            amount   of   ammunition  purchased   could  not   be  termed            "significant"  when compared with the 2,000 - 6,000 pounds of            ammunition Crooker's supplier shipped daily.                 Crooker's  claims  fall   far  short  of   generating  a            trialworthy dispute as to whether Agent Varriale deliberately            supported  his warrant  application  with false  information.            Rather,  his argument amounts to  little more than a semantic            game.  Crooker produced absolutely no evidence  to refute the            statement  that  Agent  Varriale,  based  on his  experience,            considered firearms purchases by close family members to be a            common  method  by which  prohibited  individuals attempt  to            acquire firearms illegally.   A law enforcement officer, with            experience in such matters,  could reasonably conclude that a            particular pattern of criminal  behavior was "common" without            undertaking a  statistical analysis encompassing  all firearm            purchases in  the United  States.   And a reasonable  officer            reasonably  could  conclude  that  the  fifty-one  boxes   of            ammunition which were delivered to Crooker's residence during            the previous four months  represented a "significant"  amount            of ammunition.                 Crooker's  second  claim  is  that  the  search  of  his            premises  violated  the  Fourth  Amendment because  the  1991            search warrant  was not  supported by  probable cause.   Once            again,  we inquire  whether  a reasonable  officer, in  Agent                                         -9-            Varriale's position, reasonably  could have  believed that  a            search did not violate Crooker's rights.                 In  United States  v.  Leon, 468  U.S.  897 (1984),  the                     _____________      ____            Supreme  Court held  that  evidence seized  under an  invalid            warrant, believed in good  faith to be valid by  the officers            who  executed   it,  should  not  be   suppressed  under  the            exclusionary rule.   Leon explicitly noted  that the standard                                 ____            of "objective reasonableness"  used in assessing a  qualified                                           ____ __ _________ _  _________            immunity defense  should be  used to determine  when evidence            ________ _______            seized  under  a  technically  invalid  warrant,  should   be            excluded.  Id. at 922.  The Court stated,                       ___                      [I]n most  such cases, there is no police                                                      __ ______                      illegality and thus nothing to deter. . .                      __________                      . In the ordinary case, 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.     '[O]nce  the                      warrant   issues,   there  is   literally                      nothing  more the  policeman  can  do  in                      seeking to  comply with the law.'   Stone                                                          _____                      v.  Powell,  428  U.S.  465,  498  (1976)                          ______                      (Burger, C.J. concurring).            Id. at 921 (emphasis added).            ___                 In Malley v. Briggs, 475 U.S. 335 (1986), the Court made                    ______    ______            clear  that the Leon analysis serves as well in the qualified                            ____            immunity  analysis  applicable  to  police  officers  in  the            position of Agent Varriale.                      [W]e  hold  that  the  same  standard  of                      objective reasonableness  that we applied                      in  the context of  a suppression hearing                      in Leon, [468  U.S. 897 (1984),]  defines                         ____                      the   qualified   immunity  accorded   an                                         -10-                      officer  whose  request  for   a  warrant                      allegedly   caused  an   unconstitutional                      arrest.      Only   where   the   warrant                      application is so  lacking in indicia  of                      probable  cause  as  to  render  official                      belief  in  its  existence  unreasonable,                      Leon,  [468 U.S.] at 923, will the shield                      ____                      of immunity be lost.            Id. at 344-45 (footnote omitted).            ___                 The  Leon Court  set  forth three  circumstances wherein                      ____            good-faith  reliance  upon  a neutral  magistrate's  probable            cause  determination   could  not   be  found.     First,  in            circumstances  where  the  police  submitted   affidavits  in            support  of  the warrant  application,  which  they knew,  or            should have known,  were false.  Id.  at 923.  The  affidavit                                             ___            submitted in support of the 1991 search  warrant contained no            such statements.  Second,  the police cannot place good-faith            reliance  upon  a  warrant issued  by  a  magistrate who  has            "wholly  abandoned his judicial role."  Id.  There is no such                                                    ___            suggestion in  this case.   Third,  the police  cannot assert            good-faith  reliance on a warrant  issued on the  basis of an            application  which 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."   Id.  The  1991 warrant                                                   ___            issued for  Crooker's residence  was entirely regular  on its            face.   Consequently,  in  executing the  1991 warrant  Agent            Varriale was  entitled to place good-faith  reliance upon the                                         -11-            search  warrant,  as  an  objectively  reasonable  basis  for            executing the warranted search of Crooker's residence.                 Crooker's third  claim is  that the search  conducted by            Agent  Varriale exceeded  the  scope  of  the warrant.    The            warrant  authorized a  search for  "ammunition  and firearms,            possession  of  which constitute  a  violation  of Title  18,            United  States Code,  Section  922(g),  firearms  maintenance            equipment, records of  purchases, deliveries and receipts  of            firearms and ammunition, including  invoices, bills of sale .            . . and correspondence which constitute evidence of violation            of [18 U.S.C.   922(g)]."                 Crooker  first  contends  that  seizure  of  the  modern            firearms was outside the scope of the warrant, because  Agent            Varriale  did not  have probable  cause to  believe that  the            firearms actually  belonged to him (and  hence were possessed            in  violation of   922(g)) and not Susan Bartnicki, with whom            he was living  at the time of  the November 1991 search  (and            who   was  not   barred   from  possession   by      922(g)).            Nonetheless, a  reasonable officer could reach the conclusion            that the firearms were possessed by Crooker based upon 1) the            fact that Crooker had signed for and tendered the payment for            ten boxes of ammunition,  2) the fact that the  firearms were            within  Crooker's residence and 3)  the fact that  the key to            the gun safe was hanging in Crooker's bedroom.                                         -12-                 Crooker  also  contends  that  the  seizure  of  antique            firearms was outside  the scope of the warrant,  because they            are not  within the  purview of    922(g).   See 18  U.S.C.                                                           ___            921(a)(3), (16) (defining antique firearms and exempting same            from definition  of "firearms"  regulated under    922).   We            affirm  summary judgment  for  Agent Varriale  on this  count            because,  in any event, Crooker  did not allege any violation            of  his Fourth Amendment right with respect to the seizure of                ___            the antique firearms.   "Fourth Amendment rights are personal            rights which, like some  other constitutional rights, may not            be  vicariously asserted."   Alderman  v. United  States, 394                                         ________     ______________            U.S.  165, 174  (1967).   The Fourth  Amendment's prohibition            against  unreasonable seizures protects a possessory interest            in  property.    "[A]  seizure  deprives  the  individual  of            dominion  over his  or her  person or  property."   Horton v.                                                                ______            California, 496 U.S.  128, 133 (1990).4  Although Crooker has            __________            claimed  that, even as a convicted felon, he may lawfully own            and possess antique firearms, he alleged in the Bivens "Third                                                            ______            Amended  Complaint"  that  the  particular  antique  firearms            seized  pursuant to  the  November 1991  warrant belonged  to                                            ____________________            4.  Of  course, the  Fourth  Amendment also  protects against            unreasonable searches.  "A  search compromises the individual            interest in  privacy."  Horton, 496 U.S. at 128.  Crooker had                                    ______            a legitimate expectation in  the privacy of his home.  As the            searching officers had a  valid search warrant and discovered            the antique firearms  during the  course of,  and within  the            permissible  scope of,  their  authorized  search for  modern            firearms,   however,  Crooker's  privacy   interest  was  not            violated.                                         -13-            Bartnicki,  who is not a party to this complaint.  Similarly,            Crooker  may not complain about the seizure of the ammunition            taken from an antique  firearm during the course of  the July            1992  search  as  he  has  alleged  that  that  firearm   and            ammunition belonged to Bartnicki.5                 As to the remaining items seized under the 1991 warrant,            we agree with the district court.6  The address book and  the            firearms record card and handwritten notes were either within            the scope  of the warrant authorizing the seizure of "records            of  purchases,  deliveries  and  receipts  of  firearms   and            ammunition, including .  . . correspondence  which constitute            evidence  of  violation  of  Title 18,  United  States  Code,            Section 922(g)" or legitimately seized as being within "plain            view."  We further  agree that, in any event,  Agent Varriale            was  entitled  to  qualified  immunity because  a  reasonable            officer in Varriale's position  could so believe.  Similarly,            we conclude  that the legal papers  and firearms publications            (counts which  the district court found  barred by collateral            estoppel) were constitutionally seized as within the scope of            the  warrant, in  plain view,  or that,  in any  event, Agent            Varriale is entitled to qualified immunity.                                            ____________________            5.  Crooker was never charged in his criminal proceeding with            the unlawful possession of any of the antique firearms seized            in November 1991 or the ammunition seized in July 1992.            6.  We also  agree with the district  court's conclusion with            respect  to  Crooker's complaint  about  the  detention of  a            package from Shooter's Equipment Company.                                         -14-                 Finally, although not raised as a  separate count in his            Bivens  complaint, during  the course  of the  district court            ______            proceedings Crooker  complained about the  retention of items            seized.   Whether  Agent Varriale was  personally responsible                                                   __________            for the retention of the items and had authority to order the                    _________            return of items taken in the search  and, thus, is the proper            defendant  with respect  to such  a claim  is of  some doubt.            See, e.g., Go-Bart Co. v. United States, 282 U.S. 344, 354-55            _________  ___________    _____________            (1931) (reciting that because  the United States Attorney had            control  of  the prosecution,  the  papers  seized were  held            subject  to  his  control  and  direction,  although  in  the            immediate care and  custody of the officer  who seized them);            Thompson  v.   Williamson,  962  F.2d  12   (8th  Cir.  1992)            ________       __________            (unpublished  per  curiam)  (affirming  summary  judgment  in            Bivens  action seeking  return  of property  in favor  of FBI            ______            agent who alleged  that he could not release property without            approval of AUSA).  In any event,  Crooker has not been clear            as to which items he refers.   He, of course, is not entitled            to the return of  any contraband.  And, insofar as Crooker is            referring to the antique firearms seized in November 1991 and            the  ammunition seized  in  July 1992,  Crooker's failure  to            establish that  he is the rightful owner,  see supra, defeats                                                       ___ _____            this  claim.   Finally,  insofar as  he  may be  referring to            personal  papers, Crooker  now states  that his  property has                                         -15-            been returned.   We conclude, therefore,  that this claim  is            moot.                 Affirmed.                 _________                                         -16-
