The opinion of the court was delivered by: WERKER
In a memorandum decision of September 19, 1978 the court, after conducting a hearing, granted a motion to suppress a briefcase and its contents as illegally searched under United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). Subsequently a factual dispute arose concerning whether a "Columbia" spiral notebook
was taken by government agents from that briefcase or from defendant's residence, which had been searched pursuant to a search warrant. This issue necessitated a further hearing that commenced on September 20 and continued the following day. Based upon the evidence adduced at the hearings, I have concluded that the government has not sustained its burden of proving by a preponderance of the evidence, See United States v. Matlock, 415 U.S. 164, 177-78 & n. 14, 94 S. Ct. 988, 996, 39 L. Ed. 2d 242 (1974), that the notebook was lawfully seized from the residence. Rather, I find that the notebook was taken from the briefcase; the following constitutes my findings of fact.
Agent Mattson was the first officer to open the briefcase after the arrest of defendants Schaller and Buckle. He did so in the truck, with the light on, and saw envelopes, papers, a toothbrush and toothpaste, a check statement or deposit slip, a calculator, and a spiral notebook. He did not recall having seen the Columbia notebook, government exhibit 101, inside the briefcase and testified that the spiral notebook he had seen was much smaller. Although the parties agreed that government exhibits 108 and 109, two small spiral notebooks, were removed from the briefcase, Mattson could not recall two and only recalled having seen one when he looked into the case. Later that evening at the Kingston police barracks he gave the briefcase to agent Siegel. Mattson was not present when Siegel opened it back at Drug Enforcement Administration ("DEA") headquarters in New York City during the early morning hours of February 1, 1978. The next time he saw the items from the briefcase was February 10, 1978 at headquarters when Siegel sealed the calculator and two small spiral notebooks to be used as evidence. At the time Siegel sealed these items Mattson did not see the Columbia notebook come out of the briefcase. From February 1 until February 10 the briefcase and its contents were stored in Siegel's office vault where Mattson had observed the case during those ten days. Mattson indicated that everyone in his DEA group has access to the vault.
On the evening of the arrest investigator Van Wagenen was responsible for execution of the search warrant for Schaller's house. He was not present when the truck was stopped. Afterwards he went with about six or seven officers to Schaller's residence. At that time agent Siegel arrested Joan de la Cova and they left for the Kingston police barracks while Van Wagenen remained at the house with other officers to search it. He instructed each officer not to remove or handle any piece of evidence without his seeing and inventorying it first. One officer went upstairs to ensure that no one had remained in the house and called Van Wagenen to join him. In one room large burlap bags of marijuana were found. Van Wagenen proceeded from room to room and in an office on the second floor discovered large amounts of marijuana and many written records. He took a yellow suitcase from the house to carry the seized records which were all gathered from the upstairs room. He also made an inventory of items seized, although he stated that several items he recalled seizing were not listed on the inventory sheet. Van Wagenen recalled seizing a Columbia spiral notebook he had initialed, but stated, when shown the disputed Columbia notebook exhibit 101 without his initials, that he did not recall seizing it. When asked if he recalled having seen more than one Columbia notebook, Van Wagenen answered in the negative. He indicated that he very briefly looked into the books as he seized and inventoried them; when asked if based upon his twenty years of work experience he would take note of computations concerning marijuana transactions in such books, he answered that he would. After being confronted with the Columbia notebook exhibit 101, he answered in the affirmative when asked if the computations contained therein obviously referred to marijuana and if he would describe the entries as "ledgers." He also stated that if he had seen that book, noticed what was in it and had Not initialed and dated it, he had "goofed." Van Wagenen continued that he had not checked through the suitcase to see if all items were marked, and also had not initialed three address books since their covers were not conducive to ink, although he had numbered them on the inventory sheet. When shown a red check book in the name of John Schaller II, Van Wagenen did not specifically remember it although he had seized checks that were not loose. When questioned concerning Schaller's briefcase, he indicated that he had not seen it on the night the search was made.
When Van Wagenen was finished packing items into the yellow suitcase he gave the suitcase to officer Hansen, at Schaller's residence, between 1 and 2 a.m. on February 1. Van Wagenen never saw the yellow suitcase again until September 21, 1978 and had no idea how many people in the interim had inserted and removed items from it. Additionally, Siegel informed him approximately two to three weeks after the latter became involved in the investigation that Siegel could not speak to him about the items seized, although recently Siegel had asked Van Wagenen for a signed copy of the more brief inventory return on the search warrant.
The agent who ultimately obtained possession of both the briefcase and the yellow suitcase, Siegel, also testified at the hearings. He revealed how the suitcase, briefcase, and the contents of each were dealt with at DEA headquarters in New York City.
Siegel did not remember at what point he received the briefcase from agent Mattson but recalled having gotten it before 3 a.m. on February 1. He did not recall anyone else having had possession of it. At DEA headquarters he locked it in his office safe and accompanied the defendants to the Metropolitan Correctional Center. Upon returning to headquarters he removed the briefcase from the safe and opened it, at approximately 5 or 6 a.m. Siegel was alone at this time. He saw a toothbrush with a container and a small spiral ledger book. He stated, when shown the Columbia notebook exhibit 101, that that Columbia notebook was not in the briefcase when he obtained custody of it. At headquarters he did not make an inventory of the contents but put them back into the briefcase and placed the briefcase in the safe again because he felt that the contents might be considered evidence.
Around 3 p.m. on February 1 agent Hansen brought the yellow suitcase to Siegel's office. Siegel returned from court about an hour thereafter and did not recall whether he opened the suitcase at that time or several days later. He used his locker rather than his office safe to store the suitcase due to its size. When Siegel opened the unlocked suitcase it either contained Van Wagenen's inventory list or the inventory was on his desk with the suitcase. He removed the items from the suitcase and attempted to match them to the list. He did not proceed in any particular manner in doing this, and he noticed discrepancies between the list and the contents. For example, he found a spiral notebook with Van Wagenen's initials on it but no number, so he wrote the numerals 21 on it after verifying that the inventory list specified number 21 as a spiral notebook. He could not locate the objects listed by Van Wagenen on the list as numbers 34 and 35. (The Assistant United States Attorney found item number 34 in the suitcase lining and item number 35 behind a legal pad immediately prior to the hearing and produced those items.) Item 30 on Van Wagenen's list was a Columbia spiral notebook. Siegel picked up the now disputed exhibit 101 Columbia notebook. Van Wagenen's initials and the number 30 were missing from the face of the book so Siegel wrote the numerals 30 on the book cover to make it correspond with Van Wagenen's item 30 on the inventory list. After this was done, however, he saw another Columbia notebook which was already numbered 30 and which did contain Van Wagenen's initials. Despite this he left the number 30 he had written on exhibit 101, and he never questioned Van Wagenen about why there were two Columbia notebooks although only one appeared on Van Wagenen's list. When asked where the briefcase items were located while he was sorting these suitcase items, Siegel replied that to the best of his knowledge they were in his office safe. After Siegel was finished sorting the suitcase items he placed them back into the suitcase and put the suitcase in his locker.
Subsequently, on February 9 and 10, Siegel, with agent Mattson, removed the evidentiary materials from the suitcase and the briefcase, inserted the items into plastic bags, sealed them, and placed evidence stickers on them to indicate the date of sealing. This was the first time Siegel made a list of the items in the briefcase. During the almost 10 day period between his first look into the briefcase on February 1 at 5 or 6 a.m. and the time he removed the briefcase's contents for sealing, Siegel said that he may have removed the briefcase once or twice from the safe. He also stated that he could not say whether he took it out at all and just could not recall.
Undisputed evidence at the hearing revealed that some of the items from the briefcase were sealed into evidence by Siegel and Mattson on the same day that items seized from the house and placed in the yellow suitcase were sealed into evidence. Mattson testified that he did not recall the Columbia notebook exhibit 101 having been taken out of the briefcase the day it was sealed; Siegel, when asked about the fact that items from both the suitcase and the briefcase were sealed the same day, indicated that he was positive that he did not commingle the contents.
Defendant Schaller testified at the suppression hearings of September 18 and September 21. His testimony from the September 18 hearing is particularly relevant since at that time the parties were unaware of the existence of any factual dispute concerning the contents of the briefcase. At that time Schaller described how he and defendant Buckle were arrested and the briefcase seized. He then described the contents of the briefcase as a red checkbook, calculator, toothbrush, bank forms, business cards, miscellaneous items and three spiral notebooks, one of which was a large one that had printed "Columbia University" on the outside and had his name on it. He also stated that he had asked agent Greeley, an arresting officer, for his checkbook back on the night of the arrest. This was done in the hopes of retrieving the entire briefcase instead.
Schaller again testified on September 21 that his Columbia notebook, exhibit 101, was in the briefcase the night the case was seized from the truck. He said that he had brought the notebook and a calculator up from New York City to Hurley in the briefcase. While in his house at Hurley on the afternoon of January 31 he removed the notebook, some yellow sheets, and the calculator. On a page of the notebook denominated "third shipment" he made notations. The page containing the words "third shipment" was an inventory referring to the bales of marijuana to be loaded that evening in the truck bound for New York City. Schaller made notations next to the bales listed on the "third shipment" page to indicate the individual to whom the bales would be taken and to mark off the weight sent. He stated that he used the calculator to keep a running count of the weights. This was done on Schaller's dining room table after the bales of marijuana were placed on the floor of that room. Schaller stated that when he was finished, he put the calculator and Columbia notebook exhibit 101 back into his briefcase. He did this because if an individual were to reject a bale of marijuana upon receipt, he would have to make a notation to that effect in the notebook in order to keep an accurate inventory. Schaller indicated that there was no doubt in his mind that the Columbia notebook exhibit 101 was in his briefcase at the time of his arrest. He was also certain that his red personal checkbook was in the briefcase along with the Columbia notebook. When asked about why he would carry in his briefcase a notebook containing so complete an inventory, including transactions dating back to 1976, Schaller indicated that the briefcase was the place he used to keep current records. To use his words, the briefcase was his "traveling office."
Agent Greeley was questioned as to whether Schaller had asked for his checkbook or briefcase. At first he answered in the negative and upon further questioning stated that he really could not ...