UNITED STATES of America, Appellant, v. Allan Michael KLEIN et al., Defendants, Appellees, 565 F.2d 183

LAY, Circuit Judge. On March 5, 1975, a federal magistrate issued a warrant authorizing the search of a retail music store located in Somerville, Massachusetts, known as “D and L Limited”.

The warrant authorized the executing officer to seize “certain 8-track electronic tapes and tape cartridges which are unauthorized ‘pirate’ reproductions and also any commercial documentation and advertising materials relating thereto which are evidence of the commission of a criminal offense, to wit, the knowing and wilful infringement of copyrights secured by Title 17, United States Code, in violation of 17 U.S.C. § 104. . . . ” In execution of the warrant three FBI agents, with the assistance of two or three experts from the music recording industry, entered the business premises of D and L where they seized 1989 eight-track tapes which the agents believed to be unauthorized reproductions of copyrighted sound recordings.

Following the seizure a 10 count information was filed against the alleged owners of D and L, Allan Klein and Lawrence Weiner, charging them with selling unauthorized reproductions of copyrighted sound recordings in violation of 17 U.S.C. § 104. After pleading not guilty, the defendants filed a motion to suppress the tapes on the grounds that the warrant was issued in violation of the Fourth Amendment. The district court, the Honorable W.

Arthur Garrity, Jr., presiding, sustained the motion to suppress on two grounds: First, that the warrant did not comply with the Fourth Amendment in that it failed to circumscribe the executing officer’s discretion by particularly describing the things to be seized, and second, that the tapes were seized in violation of the principles of Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), since there was not a sufficient nexus between the crime charged and the items seized.

Because we find that the warrant insufficiently described the items to be seized we need not discuss the second basis for Judge Garrity’s holding; we affirm the ruling of the district court. The affidavit submitted to the issuing magistrate by Agent Saraceni of the FBI recites the facts which preceded the issuance of the warrant. In the affidavit Saraceni stated that on March 3 and 4, 1975, he entered defendant’s premises and on each occasion purchased an eight-track tape which he later determined was an unauthorized reproduction of copyright tapes.

Since neither the warrant nor the affidavit specifies how the so-called “pirate” tapes were to be identified, the defendants assert that the warrant is an illegal “general warrant” and that the tapes seized under the warrant must be suppressed. They rely on the often repeated language of Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927): The requirement that warrants shall particularly describe the .things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another.

As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. Id. at 196, 48 S.Ct. at 76. See also Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). The Marrón standard finds its derivation in Colonial America’s aversion to writs of assistance and general warrants which placed broad discretionary authority with British custom officials to search anywhere for smuggled goods and seize anything they pleased. See Weeks v.

United States, 232 U.S. 383, 389-91, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Boyd v. United States, 116 U.S. 616, 623-35, 6 S.Ct. 524, 29 L.Ed. 746 (1886). See also Stanford v. Texas, supra, 379 U.S. at 481-86, 85 S.Ct. 506; Marcus v. Search Warrant, 367 U.S. 717, 724-29, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Frank v. Maryland, 359 U.S. 360, 363-66, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959). The present warrant does not have all the indices of a general warrant. It is limited to a search of a particular place and to particular items, that is, certain eight-track tapes and cartridges located at D and L.

Neither the warrant nor the affidavit, however, sets out clear standards which assure the magistrate that the executing officer will be able to differentiate a pirate reproduction from a legitimate eight-track tape. Although Agent Saraceni recounted that, based on his experience, he had “noticed approximately 500 or more 8-track tapes [in the store] which . appeared to be unauthorized reproductions of commercial copyrighted tapes,” his affidavit does not reveal the basis of his experience or the means by which an executing officer could identify the tapes.

The transcript of the hearing before Judge Garrity provides no additional illumination on Saraceni’s identification methods. The affidavit therefore presented the magistrate with nothing more than a generic description of the items to be seized. Thus the fundamental issue before us is whether the generic description of a pirate tape is sufficient under the circumstances to comply with the Fourth Amendment. Relying solely on an Eighth Circuit opinion, Spinelli v.

United States, 382 F.2d 871 (8th Cir. 1967), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the government lightly brushes aside the district court’s ruling in favor of the defendants. In Spinelli the Eighth Circuit upheld a warrant for “bookmaking paraphernalia,” stating: When the circumstances of the crime make an exact description of the fruits and instrumentalities a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking. 382 F.2d at 886. This court took a similar approach in Calo v.

United States, 338 F.2d 793 (1st Cir. 1964), involving the generic description of “bet sheets . . . run down sheets . . . and like paraphernalia." Id. at 794. See also James v. United States, 416 F.2d 467, 472-73 (5th Cir. 1969), cert. denied, 397 U.S. 907, 90 S.Ct. 902, 25 L.Ed.2d 87 (1970); Nuckols v. United States, 69 App.D.C. 120, 122, 99 F.2d 353, 355 (1938), cert. denied, 305 U.S. 626, 59 S.Ct. 89, 83 L.Ed. 401 (1938). Perhaps more supportive of the government’s position is the language in this court’s decision in Vitali v.

United States, 383 F.2d 121 (1st Cir. 1967), which was followed by the Second Circuit in United States v. Scharfman, 448 F.2d 1352 (2d Cir. 1971), cert. denied, 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789 (1972). The Scharfman case involved a hijacked shipment of fur coats. After a tip concerning the location of the fur coats, the FBI obtained a warrant to search for “fur coats, stoles, jackets and other finished fur products . . . .” Id. at 1353 n. 1.

The Second Circuit held the description sufficient, quoting Vitali in support of its position: “Where goods are of a common nature and not unique there is no obligation to show that the one [sic] sought . . . necessarily are the ones stolen, but only to show the circumstances indicating this to be likely.” Id. at 1354, quoting Vitali v. United States, supra at 122. See also United States v. Averell, 296 F.Supp. 1004 (E.D.N.Y.1969) (seizure of thousands of undescribed hijacked wigs held constitutional). It must therefore be accepted that generic descriptions are sufficient in at least some cases.

In both Vitali and Scharfman there were, in addition to the facts which indicated the common nature and nonuniqueness of the items, circumstances indicating the likelihood that the goods seized were the goods stolen. In Vitali the affidavit supporting the search warrant established the similarity between a group of stolen watchbands and those known to be in the defendant’s possession.

The court then noted that: Having established similarity it was then enough that it appeared that the manufacturer-consignor sold only to the watch and watch band trade, in which defendant, and AAA Acceptance Corporation which occupied the premises, did not appear to be, and that the manufacturer had no record of sales to either of them. Vitali v. United States, supra at 122. Thus, a magistrate would have known that the executing officer, in seizing Speidel watchbands from an establishment not in the watch or watchband trade, was not likely to violate any personal rights.

In Scharfman a particular shipment containing hundreds of furs had been hijacked, an informant, “himself an experienced furrier,” alerted FBI agents to the fact that furs from the shipment were in the defendant’s premises, and an employee of the shipment’s owner positively identified a fur coat in defendant’s store as being part of the hijacked load.

Given these facts it could reasonably be inferred that a large collection of similar contraband was in the defendant’s possession and that for all practical purposes that collection could not be precisely described for the purpose of limiting the scope of the seizure. The present case is different in two important respects. First, the affidavit and the warrant failed to provide any before the fact guidance to the executing officers as to which tapes were pirate reproductions.

The two bases revealed to the magistrate to determine which were pirate tapes were (1) aural comparison to see if an authorized reproduction was identical with the suspect tape, and (2) investigation with holders of copyrights to see if the suspect reproductions were authorized. In each instance such investigation could occur only after seizure. The warrant does not reveal with any degree of certainty that authorized tapes will not be seized. Moreover, this defect could, we think, have been remedied if all the relevant information available to the government had been properly set forth.

We refer, see n. 5 to averments detailing the background and expertise in the field of detecting pirate tapes of the agent and such current indicia of illegality as the crudeness of tape jackets, the obscurity of recording company names, and the lack of known association of such a company with a known artist. The second distinction is even more crucial. While the level of particularity required in a warrant may decline when there is reason to believe that a large collection of similar contraband is present on the premises to be searched, there must be specific and detailed foundation for such a belief.

There was none here. Had Agent Sarace-ni’s affidavit detailed his expertise in this area, indicated the basis upon which he had concluded that 500 or more pirate tapes were on the premises (such as visual indicia noted above), and explained how those indi-cia identify pirate tapes to the trained ob-servor, a valid warrant could have been issued. Thus the government failed to meet two similar but significantly different tests.

It failed to establish that there was a large collection of contraband in the defendant’s store and it failed to explain the method by which it intended to differentiate that contraband from the rest of defendant’s inventory. Furthermore, the government failed to meet these tests in a situation in which the necessary additional information could easily have been presented to the magistrate without any undue burden on enforcement personnel.

Moreover, we do not believe that the particularity requirement of warrants can be fulfilled by the uninformed speculation of magistrates or even judges as to whether one form of contraband or another can be distinguished from legitimate similar products by agents who may or may not be experts in the field. We confess to having been ignorant of how pirate tapes can be distinguished from legal merchandise until informed by the United States Attorney at oral argument.

Similarly, it might be that some other form of contraband, black market drugs for example, is different in color, size, shape, and packaging from the regular commercial products. However, we do not see that this information is relevant if it is not presented to the magistrate before hand. A warrant for “stolen”, “pirate”, or “illegal” goods, be they watches, drugs, clothing, or tapes does not become sufficiently particular by after the fact explanations as to how these products were differentiated from legal merchandise when the seizures were carried out.

The decisions of the Supreme Court, although not directly in point, provide basic guidance as to when a generic description is sufficient. In Steele v. United States No. 1, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925), the Supreme Court, citing Elrod v. Moss, 278 F. 123 (4th Cir. 1921), announced that “the description [of] ‘cases of whiskey’ is quite specific enough to uphold a search warrant.” 267 U.S. at 504, 45 S.Ct. at 416. An examination of Elrod reveals, however, that this generic description was sufficient because whiskey was contraband during prohibition.

There was, therefore, no danger that a citizen would be deprived of his lawful property because of the imprecision of a generic description. Since Steele the Supreme Court has only indirectly confronted the constitutional propriety of generic descriptions. When the issue has been raised, it has been in the context of the First Amendment where free speech issues predominate. See Stanford v. Texas, supra, and Marcus v. Search Warrant, supra.

In Marcus the Court struck down a search warrant authorizing seizure of “obscene materials.” Although the Court’s emphasis concerned encroachment of First Amendment rights, the basic premise of the Marrón case was reiterated in condemning a warrant in which there exists “no guide to the exercise of informed discretion . . . ” of the executing officer. 367 U.S. at 732, 81 S.Ct. at 1716. Fundamental to the Court’s concern was what the court perceived as the impossibility of executing the warrant “with any realistic expectation that the obscene might be accurately separated from the constitutionally protected.” Id.

We find this language helpful here. The adequacy of a warrant cannot be considered in isolation from the underlying rationale for the warrant requirement. In United States v. Johnson, 541 F.2d 1311 (8th Cir. 1976), the Eighth Circuit held that “[t]he underlying measure of adequacy in the description is whether given the specificity in the warrant, a violation of personal rights is likely.” Id. at 1313.

Thus, we conclude that because the affidavit and the warrant failed to provide any before the fact guidance to the executing officers as to which tapes were pirate reproductions there exists a substantial and unjustifiable likelihood of a violation of personal rights. The probability of violation is enhanced when one considers the complex nature of the search and the fact that the place being searched is a retail outlet for sound recordings with thousands of tapes in stock.

In light of the information available to the agents which could have served to narrow the scope of the warrant and protect the defendants’ personal rights, the warrant was inadequate. Under the circumstances, we have no alternative other than to sustain the district court.

Judgment is affirmed. . 17 U.S.C. § 104 provides that: [A]ny person who willfully and for profit shall infringe any copyright secured by this title, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than $100 nor more than $1,000, or both, in the discretion of the court. . . . The complete affidavit read: My name is John Saraceni. I am a Special Agent, Federal Bureau of Investigation, Boston, Mass.

On 3/3/75 I spoke with Wayne Thomas, a salesman for Wamer/Electra/Atlantic, Inc., a subsidiary of Warner Communications, Inc. Thomas’ office is located at 110 H Commerce Way, Woburn, Mass. Thomas furnished me with an 8-track tape which was labeled “Jethro Tull War Child”. The. label says it was produced by “Bonanza Productions,” a division of Art Sales, Inc., of Georgia. Thomas told me he purchased this tape from “D and L Limited,” 239 Elm Street, Somerville, Mass., on 2/25/75, for $3.00 cash. On 3/3/75 I met with Mitch Huffman, District Sales Manager for Warner/Electra/Atlantic, Inc.

Huffmann produced another 8-track tape entitled “Jethro Tull War Child”, which he identified as being a genuine tape produced by another subsidiary of Warner Communications, Inc., to wit, Warner Brothers Records, Inc., in a joint venture with “Chrysalis Records”. We then played the Bonanza tape and the Warner Brothers-Chrysalis tape, and Mr. Huffman and I both found that the sounds on the two tapes appeared to be identical. On 3/3/75 I also spoke with William Straw, an attorney for Warner Brothers Records, Inc., 3701 Warner Boulevard, Burbank, Cal.

Straw told me that copyright certificate N19790 was issued by the U.S. Register of Copyrights to Warner Brothers Records, Inc., on 10/10/74, re the “Jethro Tull War Child” tape and that Warner Brothers, Inc., had not authorized Bonanza Productions or anyone else to reproduce any part of the “Jethro Tull War Child” tape. On 3/4/75 I went to D and L Limited, 239 Elm Street, Somerville, where I purchased an 8-track tape entitled “Helen Reddy Free and Easy” for $3.00 cash.

While on the premises I noticed approximately 500 or more 8-track tapes which, based upon my previous experience in this area, appeared to be unauthorized reproductions of commercial copyrighted tapes. On 2/13/75 I spoke with David Jackson, an attorney for Capitol Records, Inc., 1750 North Vine Street, Hollywood, California. Jackson advised me that the U.S. Register of Copyrights issued copyright certificate N20147 to Capitol Records, Inc., for “Helen Reddy Free and Easy” on 10/14/74, and that Capitol had not authorized anyone else to reproduce this tape.

On 2/13/75 I also obtained an 8-track tape from the New England Region Sales Manager for Capitol Records, Inc., James Johnson, of 235 Elm Street, Dedham. Johnson identified that tape as being an authorized production, manufactured by Capitol Records, Inc., of the copyrighted “Helen Reddy Free and Easy”. On 3/4/75 I listened to the tape that I purchased at D and L Limited and to the tape which I received from James Johnson on 2/13/75, and the sounds on the two tapes sounded identical. .

An affidavit may be referred to for purposes of providing particularity if the affidavit accompanies the warrant, and the warrant uses suitable words of reference which incorporate the affidavit. United States v. Womack, 166 U.S.App.D.C. 35, 49, 509 F.2d 368, 382 (1974), cert. denied, 422 U.S. 1022, 95 S.Ct. 2644, 45 L.Ed.2d 681 (1975); United States v. Lightfoot, 165 U.S.App.D.C. 177, 181, 506 F.2d 238, 242 (1974). In this case the warrant makes no reference to the affidavit. There is also no evidence on the record that the affidavit accompanied the warrant.

Thus the affidavit cannot be used to provide particularity. We do not decide the case on this ground, however, since even if the affidavit could be used, it would not provide sufficient particularity. . It is, of course, rudimentary that the validity of the warrant must be appraised by the facts revealed to the magistrate and not those later found to exist by executing officers. Whiteley v. Warden, 401 U.S. 560, 564-66, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Rice v. Wolff, 513 F.2d 1280, 1287 (8th Cir. 1975), rev’d on other grounds, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). .

At oral argument the United States Attorney stated that the characteristics of the pirate tapes possessed by defendants were visually “tell-tale.” He related that an authorized tape had an elaborately and professionally designed advertising jacket whereas pirate jackets were usually simply and crudely done. In addition, government counsel averred that someone familiar with the recording industry would know the legitimate recording companies and the musicians that recorded with a particular company.

For example, he stated an eight-track tape of Frank Sinatra which was not produced by the recording company with whom he records, and in fact is produced by an unknown company, would likely be a pirate tape. The warrant and affidavits did not mention any of these characteristics of pirate tapes. Furthermore, there is no indication on the face of the warrant that the people executing the warrant would be experts in the field. This information was not disclosed in the district court nor was the information given to the magistrate prior to execution of the warrant. .

Courts have often invalidated warrants which failed to include even a generic description of the property to be seized. In Rice v. United States, 24 F.2d 479 (1st Cir. 1928), for example, this circuit overturned a warrant authorizing an agent “to search and ascertain if any fraud upon the internal revenue service has been or is being committed in or upon or by use of said premises.” Id. at 480. This circuit had previously held constitutionally inadequate the grant of authority to “enter said premises . . . to investigate and search into and concerning said violations. . . . ” Giles v.

United States, 284 F. 208, 213 (1st Cir. 1922). In the present case the part of the warrant authorizing seizure of “materials relating thereto which are evidence of the commission of a criminal offense ... in violation of 17 U.S.C. § 104 . . is highly suspect under these decisions. We confine our decision however, to the seizure of the tapes. . As Judge Garrity observes in his district court opinion: The effect of the execution of the search warrant in this case was to put the defendants out of business as a practical matter. About 80% of the defendants’ tape inventory was seized.

A ten-count information was eventually filed, including charges based upon tapes seized during the search in question, but no more than a fraction of the nearly 2,000 tapes seized would be admissible in any event. . . . We are apprehensive lest the process of the court be used to impose severe economic sanctions upon businessmen suspected of criminal offenses independently of criminal sanctions surrounded by due process of law. . The dissent assumes the magistrate was informed of the agent’s alleged prescience to distinguish the pirate reproductions from the legitimate tapes.

This overlooks that the agents told the magistrate that they possessed only two limited after the fact bases to determine whether the seized tapes were actually illegal reproductions. Furthermore, it is well settled that an affidavit cannot be rehabilitated in post-arrest hearing by information known to the agents but not disclosed to the magistrate. See Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). . The court in Elrod v.

Moss, 278 F. 123 (4th Cir. 1921), held: The protection of the rights of the accused does not require that the Constitution be construed to exact the same degree of particularity of description in search warrants for contraband liquors, because there is no right of property in contraband liquor, and hence there can be no danger to the citizen of being deprived of property which he is lawfully entitled to hold against the state. Id. at 129. . In analyzing a similarly non-specific warrant, the Illinois Supreme Court, in People v.

Prall, 314 Ill. 518, 145 N.E. 610 (1924), stated: The most serious defect, however, is the want of particular description of the property sought to be seized. The warrant issued to the sheriff described the property as “certain automobile tires and tubes,” and directed the sheriff to search the premises of plaintiff in error for “said stolen goods and chattels.” In the case of stolen property which can be readily described, the Constitution requires a description sufficiently particular to identify the articles sought to be seized. Frost v. People, 193 Ill. 635, 61 N.E. 1054, 86 Am.St.Rep. 352.

A minute and detailed description of the property to be seized is not required, but the property must be so definitely described that the officer making the search will not seize the wrong property. Where, as in the case of gambling paraphernalia, the purpose is not to seize specified property, but only property of a specified character, which by reason of its character is contraband, a description by designating its character is sufficient.

In this case, however, the property described is “certain automobile tires and tubes,” which is property that may be found in great quantities and which is subject of lawful trade in every city in the United States. There is no effort to identify these tires and tubes by name, number, color, size, or material. . . . There was nothing in the warrant which gave the sheriff information by which he could select certain property within the description in the warrant and refuse to take other property equally well described in the warrant. The warrant was insufficient . Id. at 522-23, 145 N.E. at 612 (emphasis added). .

The context and size of the seizure differentiate this case from the heroin analogy suggested by our brother in dissent. We must reemphasize that we are dealing here with a mass seizure of most of the inventory of a retail establishment. In the typical heroin seizure pursuant to a warrant, if the police officer is over-zealous or incorrect in his judgment that the substance he seized is heroin, he is likely to have deprived the defendant of a few ounces of sugar or talcum or some other similar substance.

We can hardly imagine a mass seizure of heroin in the context of a business with large quantities of similar products. Certainly in the example we noted supra at page 9 of a search for black market drugs, we would require a more carefully defined description in a warrant than “unlicensed amphetamines” before we permitted a mass search and seizure of a retail pharmacy’s inventory.