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LAVIN v. THORNTON

March 24, 1997

KEVIN F. LAVIN, Plaintiff against CLAUDIA B. THORNTON, and DAVID L. WALES, in their individual capacities, Defendants.


The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge :

 This is a Bivens1 civil rights action alleging violations of plaintiff's Second, Fourth and Fifth Amendment rights by a supervising agent of the Federal Bureau of Investigation ("FBI") and an Assistant United States Attorney ("AUSA") of this district. Defendants moved to dismiss the plaintiff's complaint under Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon which relief could be granted. Plaintiff, appearing pro se, responded to that motion by amending his complaint *fn2" to delete certain claims, while continuing to assert others. Both sides have submitted affidavits and other matters outside the pleadings. The case is now before the Court on cross-motions for summary judgment under Rule 56.

 Procedural Background

 In 1992 and early 1993, plaintiff Kevin Lavin "engaged in a sophisticated scheme to steal cash from hundreds of Citibank accounts." United States v. Lavin, 27 F.3d 40, 41 (2d Cir. 1994) (affirming Lavin's sentence following his conviction on a guilty plea to a charge of bank fraud). Lavin illicitly obtained the account numbers and personal identification numbers of Citibank customers, which he then programmed into credit cards, and used the credit cards to withdraw funds from automatic teller machines.

 The FBI undertook an investigation, assisted by Nassau County police. Defendant Claudia Thornton, a supervising FBI agent of nearly 14 years' service, headed the investigation. As the result of effective surveillance techniques, on March 12, 1993 the FBI arrested Lavin at a shopping center in Baldwin, New York. On March 25 a grand jury in this district indicted Lavin for bank fraud, the use of unauthorized access devices, and conspiracy to commit those offenses. AUSA David L. Wales, the other defendant in the instant case, presented the case to the grand jury.

 Documents in Lavin's possession at the time of his arrest led a team of three FBI agents headed by Thornton to a residence at 317 Park Avenue, Park Ridge, New Jersey, where the agents arrived in the early evening of March 12. That residence proved to be the home of Louis and Mary Lavin, the parents of Kevin Lavin. Kevin Lavin stayed at his parents' home on an intermittent basis, and kept some possessions there. Thornton and other agents conducted searches of the residence on March 12, March 13, and March 16, under circumstances more fully discussed infra. On each of these occasions, Louis Lavin executed a form consenting to the search. The agents seized a number of objects belonging to Kevin Lavin. Those objects included firearms, ammunition, and certificates of title to automobiles and other property.

 Following his indictment, Lavin moved before this Court (Keenan, J.) to suppress the evidence seized at his parents' home. AUSA Wales represented the government. Edward P. Jenks, Esq., a Criminal Justice Act panel attorney, represented Lavin. The government called Thornton as its only witness. The defense called Louis and Mary Lavin. The hearing focused upon the validity of the searches. The testimony paid particular attention to the nature and effect of the consents to search executed by Louis Lavin.

 Judge Keenan denied Lavin's motion to suppress. He found that "under the facts of this case, the FBI Agents received Mr. Lavin's consent to search on each of their three visits to the Lavin home." Opinion and Order dated November 27, 1992 at slip op. 13. Judge Keenan further concluded that the senior Lavins had authority, actual or apparent, to consent to a search of the areas occupied or used by Kevin Lavin. Id. at 13-14.

 As to plaintiff's firearms that the agents seized, Judge Keenan noted a discrepancy in the testimony as to whether the first two firearms were taken on March 12, as the Lavins said, or on March 13, as Thornton said. But Judge Keenan did not think it necessary to pursue that question, since "in any event, the firearms are not admissible on the Government's case against Kevin Lavin, as he has not been indicted for any weapons violations." Id. at slip op. 9-10.

 Following the denial of his motion to suppress, Lavin pleaded guilty to one count of bank fraud. He received a custodial sentence which the Court of Appeals affirmed and which he has now served, although he remains on supervised release.

 Lavin filed two motions under Rule 41(e), Fed. R. Crim. P., to recover the seized firearms and accessories, as well as other personal documents and property. Judge Keenan dealt with those motions in an opinion dated September 22, 1994, which reflects the government's consent to the motions, with the exception of the firearms, which the government said could not be returned to Lavin as a convicted felon. Judge Keenan held that the firearms could be returned to a third party designated by Lavin, a direction that Lavin appealed and the Court of Appeals affirmed by summary order.

 This action followed. I need not consider plaintiff's original complaint, which asserted a number of claims, because he has amended it. The amended complaint is limited to plaintiff's claims that the FBI's seizure of plaintiff's firearms and other personal property was unreasonable, in violation of the Fourth Amendment, and that seizure of the firearms also implicates the Second and Fifth Amendments.

 Defendants, seeking summary judgment dismissing the amended complaint, rely upon the rule of Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), collateral estoppel, and principles of immunity from suit: qualified immunity in the case of Thornton, and absolute in the case of Wales.

 Factual Background

 While plaintiff's voluminous pleading and brief echo some of the arguments he made during the suppression hearing, plaintiff is bound by Judge Keenan's findings in that proceeding that the senior Lavins gave three separate, voluntary and valid consents to searches of their homes on March 12, 13 and 16, 1993, and that those consents extended to areas occupied or used by plaintiff. Therefore this discussion will not revisit certain factual aspects of the case.

 It is necessary, however, to consider the wording of the written consents signed by Louis Lavin. They were all on the same printed form, which FBI agents apparently carry around with them. Each of the three forms executed by Louis Lavin contained handwritten inserts specifying particular areas of the house where the agents could search. However, no alteration was made to a printed sentence in the form which reads: "These agents are authorized by me to take from my premises any letters, papers, materials or other property which they may desire." Thus, while the forms signed by Louis Lavin imposed limitations on the areas in the house where the agents could search, there was no limitation on the nature of the items they could seize in those areas.

 As noted by Judge Keenan in his suppression motion decision, there is a dispute about when Thornton and the other agents first removed firearms from the senior Lavins' home. It is common ground that the agents seized firearms on March 13 and 16. As to March 12, Thornton testified that they found firearms on that occasion, and Mr. Lavin asked Thornton to take them because "he didn't want them in his house," but Thornton declined, Tr. 276, because "they were not used in the commission of the crime, and from the rap sheets that we had, it indicated that he [Kevin Lavin] had no prior felony arrests." Tr. 286. This may be contrasted with the testimony of Louis Lavin, who said that on the evening of March 12 Thornton left with two firearms, stating that "she was taking them with her because Kevin was a convicted felon and he had no right to own weapons or rifles, something like that." Tr. 500.

 Clearly this testimony cannot be reconciled. The Lavins' version is supported by an affidavit dated March 16, 1992 by James Glynn, the FBI case agent, to a District of New Jersey Magistrate Judge in support of an application for a warrant to search Kevin Lavin's automobile, kept at his parents' residence. Agent Glynn stated at P 6 that "on March 12, 1992," the FBI recovered inter alia "one rifle, one shot gun" from the home. In a letter dated April 10, 1992 that AUSA Wales sent to defense counsel Jenks on the question of plaintiff's bail, Wales also said that on "March 12, 1992, the items the FBI recovered from the Lavins' home included "two firearms."

 Thornton and other agents returned to the Lavin residence during the late afternoon of March 13. It is common ground that on that occasion the agents seized firearms belonging to plaintiff. Thornton testified before Judge Keenan that before doing so, she received authorization from AUSA Wales. Thus Thornton testified on direct examination by that upon her return to the Lavins' home on March 13, the senior Lavins again asked her to remove plaintiff's rifle and shotgun. Tr. 286. Thornton went on to say that "we took them after we had talked to -- discussed it with you earlier in the day." Tr. 287. In context, the "you" must be a reference to Wales, who was conducting the examination.

 On cross-examination of Thornton by plaintiff's counsel, this transpired:

 
Q. You at one point saw a rifle and a shotgun, correct?
 
A. Yes.
 
Q. Now, that rifle and that shotgun were inside closed cases, is that right, in the foyer area?
 
A. No; that's not correct.
 
Q. They were not in boxes or not in cases?
 
A. The rifle was in a cardboard -- like the box that it is shipped in or is -- comes in from the store. The shotgun ...

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