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[NOT FOR PUBLICATION]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. Goodw
_______________

Assistant United States Attorney, on brief for appellee.

____________________

____________________

Per Curiam.
__________

grant

of summary

Plaintiff,

judgment in

Michael A. Crooker, appeals the

favor

of the

defendant, ATF

Agent Kenneth Varriale, in this

Six Unknown
Named Agents,
____________________________

challenged a

Bivens action, see Bivens v.

______
___ ______

403

U.S.

November 1991 search

388

(1971),

of, and seizure

that

of items

from, Crooker's residence and a seizure of an additional item

pursuant

to a

July

1992 search

district

court

estopped

from asserting several of the Bivens claims.

______

concluded

that

of

that residence.

Crooker

was

The

collaterally

As to

those Bivens claims not precluded by collateral estoppel, the

______

district

court

determined

constitutionally seized

that

the

as within the scope

items

had

been

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

on any ground supported by the record).

collateral

ground of

estoppel, affirming,

on the counts deemed

the November

precluded.

1991 seizure of

We pass the issue of

instead, on

qualified immunity, the grant

an alternative

of summary judgment

As to the

counts involving

antique firearms and

-2-

to affirm

the July

1992 seizure of

ammunition, Crooker has

failed to allege

violation of his own Fourth Amendment rights.

I.

The district court, in a comprehensive memorandum, dated

October

26,

background.

only

1994,

We

those facts

explained

set out

and

the

factual

an abbreviated

the procedural

and

procedural

version, outlining

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

searched

gun.

Pursuant

Crooker's

residence

firearms, ammunition,

seized, among

to

on

warrant,

Agent

November

8,

Varriale

1991,

for

and related material.

Agent Varriale

other things, several antique

and non-antique

firearms, numerous

rounds of ammunition, an

address book, a

firearms record card, and firearms publications.1

Crooker

possession of

In this

was indicted

on charges

firearms in violation

criminal proceeding,

____________________

of being

a felon-in-

of 18 U.S.C.

Crooker moved to

922(g).

suppress the

1.

As noted

search

of

in our
Crooker's

opening paragraph,
residence

there was a

conducted

in

second

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
______

issuance of

action,

Crooker does

the July 1992 warrant.

not contest

the

He claims only that the

July 1992 warrant did not authorize or encompass a seizure of

that ammunition.

-3-

evidence seized

had

in November

1991, arguing that

the warrant

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

in-possession

indictment,

Crooker

information charging him with

by

felon, in

dismissal

avoided

of

the

an

the

The

pled

of

guilty

to

an

conspiracy to possess firearms

of

18 U.S.C.

felon-in-possession

imposition

imprisonment.

imposed,

violation

the dismissal of the felon-

parties

eight-year sentence

for

By

indictment,

mandatory

agreed

371.

to,

the

15-year

and

the

Crooker

term

of

Judge

Tauro

charge to

which

Crooker pled guilty.

After

pleading guilty

in

his

criminal case,

Crooker

moved to lift

a stay that

Bivens action
______

against Agent

claims

duplicated

Crooker's

the

had been entered

Varriale.

allegations

in his

earlier

Some of the

forming

the

Bivens
______

basis for

suppression motion, i.e., that the application for

the 1991 search warrant included deliberate false statements,

that

the 1991 search

cause, and that

warrant.

Relying

warrant was not

the 1991

on Allen
_____

search exceeded the

v. McCurry, 449
_______

(collateral estoppel applies to

court

determined

in

the

supported by probable

scope of

U.S. 90

the

(1980)

1983 actions), the district

Bivens action
______

that

Crooker

was

collaterally estopped from relitigating the issues decided in

-4-

the

suppression

case.

of

The

Agent

concluding

counts

ruling previously

entered in

the criminal

district court granted summary judgment

Varriale

that the

were lawfully

as

to

the

remaining

items which were

seized

Bivens
______

the subject

or detained

or

in favor

claims,

of these

that, in

event, Agent Varriale was entitled to qualified immunity.

any

II.

Crooker

concluding

contends

that he

that

the

district

is collaterally

Haring v. Prosise, 462

______
_______

court

estopped.

U.S. 306 (1983), for

erred

He

in

cites to

the proposition

that entry of a guilty plea does not preclude a litigant from

bringing a civil claim based

arising out

on a Fourth Amendment violation

of the same set of operative facts.

Court held, inter alia, that since

_____ ____

The Prosise
_______

a plea can be accepted on

the basis of inadmissible evidence, the legality of

is not "necessarily

316.

We need

Crooker were

case,2

determined" by

not consider

precluded by

because we

a guilty plea.

whether

the issues

any adjudication in

affirm on

a search

Id.
___

at

raised by

the criminal

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

unwilling party

require an

otherwise

to try

Fourth

Amendment questions to the hilt and prevail in state court in

order
1983

to preserve the mere possibility of later bringing a

claim in

Further,
was

Prosise,
_______

the Court noted that

"no

possibility
precluding

federal court."

repetitive
of

use

in the case

of

inconsistent

462 U.S.

judicial
decisions

the bringing of such

-5-

claims."

at 322.

before it, there

resources

that
Id.
___

and

no

could justify
at 322 n.11.

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

performing discretionary

damages so long

established

reasonable

shields

functions from liability

as their conduct

statutory

government

"does not violate

or constitutional

[police officer]

would have

Fitzgerald, 457 U.S. 800, 818 (1982).

__________

rights of

known."

officials

for civil

clearly

which a

Harlow v.
______

The qualified immunity

defense sweeps

broadly,

protecting

incompetent or those who knowingly

v.

Bryant, 502
______

Briggs,
______

U.S.

224,

229

475 U.S. 335, 341

"all

but

the

plainly

violate the law."

(1991) (quoting

(1986)).

As

Hunter
______

Malley
______

v.

this court recently

explained,

appellate
immunity

assessment
claim

by

into two

First, if the right

the plaintiff

established" at

qualified

is apportioned

analytic components.
asserted

of

the time of

was "clearly
its alleged

violation, we are required to assume that

the right was recognized by the defendant
official;

second,

immunity claim if

we

will

deny

a reasonable

the

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)).

immunity, summary

judgment

In the context of qualified

is warranted

if

the

plaintiff

fails

to generate

evidence

supporting

reasonable

trialworthy issue

the

belief that

defendant

his actions

by undermining

the

officer's

objectively

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

premised on

from a

search conducted

deliberate misstatements,

from a search conducted pursuant to

probable cause

and the right

a warrant

the right to

be free

a warrant unsupported by

to be

items not adequately described in

established.

pursuant to

free from a

search for

the warrant -- are clearly

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

truthful showing); Krohn v. United States, 742 F.2d 24, 26

_____
_____________

(1st Cir. 1984) (same);

(1967)

warrant

(reciting the

Berger v. New York, 388 U.S.

______
________

41, 55

Fourth Amendment's requirement

that a

particularly describe

the

things

to

United States v. Morris, 977

______________
______

F.2d 677, 681

(same), cert. denied, 113 S.

____________

Ct. 1588 (1993).

our

analysis

Varriale's

turns on

whether

a police

be

seized);

(1st Cir. 1992)

Consequently,

officer

in Agent

position reasonably could

have believed that his

actions did not violate those rights.

As regards the actions

surrounding

the

1991

search

-7-

warrant,

an

objectively

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,

individuals

who

it
are

is

common

prohibited

for
from

legally possessing firearms--but who wish

to do

so illegally--to have

a household

or

family

properly

member

or

licensed

associate

to possess

who is

firearms,

make purchases of firearms and ammunition

which

are

then

in

prohibited person.
who

are

fact

In this way

prohibited

possessing firearms are

firearms without creating
transactions in

a ruse

significant
being

is likely
amounts

received

of

the

persons
legally

able to

possess

any record

of

Based on my

I believe
where, as

that
here,

ammunition

through mail

the purchasing party

by

from

their name.

training and experience,

such

used

are

orders and

need not appear

in

person.

Crooker argues that this statement is false because it is not

"common"

for

prohibited

ammunition

through family

ammunition

bought was

not

individuals

members

to

buy

and that

"significant."

firearms and

the amount

of

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

each year by

"straw-purchasing" schemes detected

law enforcement.3

And he

contended that

the

____________________

3.

Crooker

neither

produced

additional time within which to

56(f).

-8-

such
do so.

data,

nor

See Fed. R.
___

requested
Civ. P.

amount

of

ammunition

"significant"

purchased

could

not

be

termed

when compared with the 2,000 - 6,000 pounds of

ammunition Crooker's supplier shipped daily.

Crooker's

claims

fall

far

short

of

generating

trialworthy dispute as to whether Agent Varriale deliberately

supported

Rather,

game.

his warrant

application

his argument amounts to

with false

little more than a semantic

Crooker produced absolutely no evidence

statement

that

Agent

information.

Varriale,

based

on his

to refute the

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

purchases in

reasonably

statistical analysis encompassing

the United

could

States.

conclude

that

all firearm

And a reasonable

the

fifty-one

officer

boxes

of

ammunition which were delivered to Crooker's residence during

the previous four months

represented a "significant"

amount

of ammunition.

Crooker's

premises

violated

search warrant

again,

second

the

was not

we inquire

claim

is

Fourth

that

of

the

probable cause.

a reasonable

-9-

search

Amendment because

supported by

whether

the

officer, in

his

1991

Once

Agent

Varriale's position, reasonably

could have

believed that

search did not violate Crooker's rights.

In

Supreme

United States
_____________

Court held

v.

that

warrant, believed in good

who

executed

it,

exclusionary rule.

should

Leon, 468
____

U.S.

evidence seized

897 (1984),

under an

faith to be valid by

not

be

suppressed

Leon explicitly noted

____

the

invalid

the officers

under

the

that the standard

of "objective reasonableness"

immunity defense
________ _______

should be

seized

technically

under

excluded.

Id. at 922.
___

[I]n most

used in assessing a
____ __ _________ _

used to determine

invalid

qualified
_________

when evidence

warrant,

should

The Court stated,

such cases, there is no police

__ ______

illegality and thus nothing to deter. . .

__________
. In the ordinary case, an officer cannot
be expected to question
probable-cause
judgment

determination

or

his

that the form of the warrant is

technically

sufficient.

warrant

issues,

nothing

more the

seeking to
v.

the magistrate's

Powell,
______

'[O]nce

there

is

policeman

literally
can

comply with the law.'

428

U.S.

465,

(Burger, C.J. concurring).

Id. at 921 (emphasis added).

___

the

498

do

in

Stone
_____
(1976)

be

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

position of Agent Varriale.

[W]e

hold

that

the

same

objective reasonableness
in

the context of

in Leon, [468
____
the

qualified

standard

of

that we applied

a suppression hearing

U.S. 897 (1984),]

immunity

-10-

defines

accorded

an

in

the

officer

whose

allegedly
arrest.

request

caused

an

Only

belief
Leon,
____

cause
in

its

warrant

unconstitutional

where

application is so
probable

for

the

warrant

lacking in indicia
as

to

render

existence

of

official

unreasonable,

[468 U.S.] at 923, will the shield

of immunity be lost.

Id. at 344-45 (footnote omitted).

___

The

Leon Court
____

good-faith

cause

reliance

determination

circumstances

support

of

where

set

forth three

upon

a neutral

could

the

the warrant

not

police

be

circumstances wherein

magistrate's

found.

submitted

application,

which

probable

First,

in

affidavits

in

they knew,

or

should have known,

were false.

Id.
___

at 923.

submitted in support of the 1991 search

such statements.

reliance

"wholly

upon

the police cannot place good-faith

warrant issued

good-faith

application

this case.

by

"so

to particularize

things to

be seized

reasonably presume it

issued for

Third,

reliance on a warrant

which was

affidavit

warrant contained no

abandoned his judicial role."

suggestion in

failing

Second,

The

magistrate who

Id.
___

There is no such

the police

issued on the

facially deficient

the

-- that

place to

cannot assert

basis of an

-- i.e.,
____

in

be searched

or the

the executing officers

cannot

to be valid."

Crooker's residence

has

Id.
___

The

1991 warrant

was entirely regular

on its

face.

Consequently,

Varriale was

in

executing the

entitled to place good-faith

1991 warrant

Agent

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

warrant

authorized a

possession

United

of

the

scope

search for

which constitute

States Code,

equipment, records of

Section

of

the warrant.

"ammunition

and firearms,

violation

922(g),

The

of Title

firearms

18,

maintenance

purchases, deliveries and receipts

firearms and ammunition, including

of

invoices, bills of sale .

. . and correspondence which constitute evidence of violation

of [18 U.S.C.

Crooker

922(g)]."

first

contends

that

seizure

of

the

modern

firearms was outside the scope of the warrant, because

Varriale

did not

have probable

cause to

believe that

Agent

the

firearms actually

belonged to him (and

in

922(g)) and not Susan Bartnicki, with whom

violation of

hence were possessed

he was living

who

was

not

Nonetheless, a

at the time of

barred

the November 1991 search

from

possession

by

(and

922(g)).

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,

within

2) the fact that the

Crooker's residence and 3)

the fact that

the gun safe was hanging in Crooker's bedroom.

-12-

firearms were

the key to

Crooker

also

contends

firearms was outside

are not

within the

that

the

seizure

the scope of the warrant,

purview of

922(g).

of

antique

because they

See 18
___

U.S.C.

921(a)(3), (16) (defining antique firearms and exempting same

from definition

affirm

because,

of

of "firearms"

summary judgment

for

in any event, Crooker

regulated under

Agent Varriale

922).

on this

We

count

did not allege any violation

his Fourth Amendment right with respect to the seizure of

___

the antique firearms.

"Fourth Amendment rights are personal

rights which, like some

be

vicariously asserted."

U.S.

165, 174

against

in

other constitutional rights, may not

"[A]

over his

California, 496 U.S.

__________

claimed

The Fourth

v. United States, 394

______________

Amendment's prohibition

unreasonable seizures protects a possessory interest

property.

dominion

(1967).

Alderman
________

seizure

or her

deprives

person or

128, 133 (1990).4

the

individual

property."

of

Horton v.
______

Although Crooker has

that, even as a convicted felon, he may lawfully own

and possess antique firearms, he alleged in the Bivens "Third

______

Amended

Complaint"

that

seized

pursuant to

the

____________________

the

particular

November 1991

antique

firearms

warrant belonged

to

4.

Of

course, the

Fourth

Amendment also

protects against

unreasonable searches.

"A

interest in

Horton, 496 U.S. at 128.

______

privacy."

search compromises the individual

a legitimate expectation in
searching officers had a
the antique firearms
permissible
firearms,

scope of,
however,

Crooker had

the privacy of his home.

As the

valid search warrant and discovered

during the

course of,

their

authorized

Crooker's

privacy

and within

search for
interest

the

modern
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

1992

search

as

he

firearm during the course of

has

alleged

that

that

the July

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

of the warrant authorizing the seizure of "records

purchases,

deliveries

and

receipts

ammunition, including .

. . correspondence

evidence

of

of

violation

Title 18,

of

firearms

and

which constitute

United

States

Code,

Section 922(g)" or legitimately seized as being within "plain

view."

was

We further

entitled

to

agree that, in any event,

qualified

immunity because

Agent Varriale

reasonable

officer in Varriale's position

we conclude

(counts which

could so believe.

that the legal papers

Similarly,

and firearms publications

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

respect

to

agree with the district

Crooker's complaint

court's conclusion with

about

package from Shooter's Equipment Company.

-14-

the

detention of

Finally, although not raised as a

Bivens
______

complaint, during

proceedings Crooker

seized.

Whether

the course

separate count in his

of the

complained about the

Agent Varriale was

district court

retention of items

personally responsible
__________

for the retention of the items and had authority to order the
_________

return of items taken in the search

defendant

with respect

to such

and, thus, is the proper

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

subject

to

his

immediate care and

Thompson
________

v.

(unpublished

Bivens
______

control

and

curiam)

action seeking

agent who alleged

approval of AUSA).

962

F.2d

(affirming

return

12

seized were

although

in

the

who seized them);

(8th

summary

of property

held

Cir.

1992)

judgment

in favor

in

of FBI

that he could not release property without

In any event,

as to which items he refers.

to the return of

direction,

custody of the officer

Williamson,
__________

per

papers

Crooker has not been clear

He, of course, is not entitled

any contraband.

And, insofar as Crooker is

referring to the antique firearms seized in November 1991 and

the

ammunition seized

establish that

this

claim.

personal

in

July 1992,

Crooker's failure

he is the rightful owner,

Finally,

papers, Crooker

insofar as

now states

-15-

he

to

see supra, defeats

___ _____

may be

referring to

that his

property has

been returned.

moot.

Affirmed.
_________

We conclude, therefore,

that this claim

is

-16-