233 Broadway
New York, NY 10279
(212) 964-2544

570 W. Mr. Pleasant Ave., Suite 101
Livingston, NJ 07039
(973) 740-8944

Attorneys for Defendant John Cuff

One St. Andrew's Plaza
New York, NY 10007
(212) 791-0041

Andrew S. Dember
Sharon L. McCarthy
Assistant United States Attorneys
Attorneys for the United States



Defendant John Cuff moves this Court for an order suppressing evidence obtained by the United States by opening and photocopying Cuff's non-legal mail while Cuff was incarcerated at the Metropolitan Correctional Center (MCC) in Manhattan. Cuff maintains that the warrant-authorizing the search of his mail did not properly authorize waiver of the contemporaneous notice requirement of Fed.R.Crim.P. 41(d). For the reasons to be discussed, the Court rejects certain of Cuff's arguments but reserves decision on the motion pending supplemental briefing by the parties.


On July 12, 1996, a federal grand jury in the Southern District of New York indicted Cuff and others on various racketeering and conspiracy charges surrounding their alleged participation and membership in a criminal enterprise known as the "Preacher's Crew." The enterprise is alleged to have been involved in numerous acts of narcotics trafficking, robbery, extortion, assault, and murder. On August 12, 1996, Cuff was arrested and incarcerated at the MCC.

On August 23, 1996, Federal Bureau of Investigation Special Agent Joseph V. Walsh, Jr. met with a cooperating witness who informed Walsh that Cuff might be conducting criminal activities while at the MCC by using the mails. Walsh also reviewed tape-recorded telephone conversations made by Cuff from the MCC in which Cuff alluded to letters he sent to various persons that suggested criminal activities. Based upon this information, Walsh and Assistant United States Attorney Sharon L. McCarthy decided that monitoring Cuff's nonlegal mail while he was at the MCC would be useful.

On September 19, 1996, Walsh and McCarthy went before Magistrate Judge Leonard Bernikow of the Southern District of New York to request a search warrant. In their supporting affidavits, Walsh and McCarthy recounted the pertinent facts set forth above and each requested that Magistrate Judge Berriikow authorize the government to waive the usual requirement of contemporaneous or advance notice of any searches conducted pursuant to the warrant:

I further respectfully request, in order to avoid compromising the ongoing investigation described in the Walsh affidavit, that, for a period not to exceed seven days from the issuing date of the Order requested herein, the Court dispense with the Government's advance or contemporaneous notice requirement of the search. United States v. Villegas, 899 F.2d at 1337-38. I further respectfully request, upon subsequent application and good cause shown, that the Court permit the Government to extend the period of delay.

McCarthy Aft., 9/19/96 (Def. Not. Mot. Exh. B), ¶ 3; see also Walsh Aff., 9/19/96 (Def. Not. Mot. Exh. ¶ B.), 8. McCarthy's affidavit also requested that the warrants and their supporting affidavits be sealed for seven days and that the government have permission to extend the sealing upon good cause shown. Both affidavits were sworn to before, and signed by, Magistrate Judge Bernikow.

Magistrate Judge Bernikow issued the warrant authorizing the search of Cuff's incoming and outgoing mail. The warrant was issued for seven days, until September 26, 1996. On the face of the pre-printed form warrant, Magistrate Judge Bernikow struck out the portion of the form allowing nighttime searches, but did not strike the portion requiring that upon a seizure a copy of the warrant be left - - in effect, the notice requirement.

The delayed notice was subsequently extended nine times, each time based upon an affidavit, submitted by AUSA McCarthy asserting that Magistrate Judge Bernikow had granted the waiver of the contemporaneous notice requirement and had allowed the United States permission to apply for extensions; none of the subsequent extensions were made by Magistrate Judge Bernikow himself.1 The requests for extensions - - the affirmations by McCarthy - - did not request extension of the search authority, nor did they purport to recite probable cause for further search. Likewise, the orders signed by the Magistrate Judges, while authorizing the government to "continue to dispense with its advance or contemporaneous notice requirement of the sneak and peek search warrant issued on September 19, 1996," did not authorize an extension of the search authority nor did they recite a finding of probable cause for further search. On December 2, 1996, the United States informed Cuff's counsel of the warrant, and on December 5 the warrant and extension orders were unsealed. The United States did in fact screen and photocopy. Cuff's mail during the entire period between the initial warrant and the unsealing.

On September 3, 1997, Cuff filed this motion to suppress any evidence produced during these searches, on the grounds that (1) the warrant did not authorize delayed notice, and (2) even if authorized, the search violated the Fourth Amendment and the Federal Rules of Criminal Procedure.

I. Notice Requirements

The provisions of the Federal Rules of Criminal Procedure governing search warrants require that advance or contemporaneous notice accompany execution of the search:

The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken.

Fed.R.Crim.P. 41(d). "Property" is defined "to include documents, books, papers, and any other tangible objects." Fed.R.Crim.P. 41(h).

The notice requirement of Rule 41(d) has been held by the Second Circuit, however, not to bar covert-entry searches for intangibles - - so-called "sneak and peek" warrants. See United States v. Pangburn, 983 F.2d 449, 453 (2d Cir. 1993); United States v. Villegas, 899 F.2d 1324, 1336-38 (2d Cir. 1990). In Villegas, the Second Circuit upheld a one-time search of a farm suspected as a drug manufacturing operation, in which the police were authorized by warrant to enter the premises "in order to take photographs but not physically to seize any tangible items of evidence at this time." Id. at 1330. The police were also granted permission to delay giving notice to the defendant for a period of seven days; this period was extended eight times, each time for a period of seven days and each request supported by a new affidavit setting forth the necessity for delayed notice. See id. at 1330-31.

Noting that "when nondisclosure of the authorized search is essential to its success, neither Rule 41 nor the Fourth Amendment prohibits covert entry," id. at 1336, the Villegas court held that a covert entry with delayed notice may be authorized. See id. However, where covert entry to seize intangibles is involved, the court held that "there must be some safeguard to minimize the possibility that the officers will exceed the bounds of propriety without detection," id., noting that this function was served in conventional (i.e., tangible) seizures by the Rule 41(d) receipt requirement. See id. at 1337.

The court thus fashioned two requirements for warrants authorizing covert-entry searches for intangibles. First, such a warrant may not issue unless officers "have made a showing of reasonable necessity for the delay." Id. This standard was expressly stated to be less rigorous than that required for wiretaps under Title III. Second, delayed notice may only be authorized for a "reasonable time," which, while determined on a case-by-case basis, may be no longer than seven days. See id. However, the issuing court may grant extensions for good cause, provided that each extension is based upon a "fresh showing of the need for further delay." Id.

A. Intangible v. Tangible Search

Cuff makes a number of attacks on the mail search in this case. First, Cuff contends that Villegas is inapposite to the search of his mail because it was not a search involving intangible items. Letters, Cuff asserts, "are tangible, material objects." Further, because the purpose of a letter is to convey a message to the reader, once the letter is read by agents, Cuff says, "for all intents and purposes the letter itself has been taken," notwithstanding the fact that the physical letter itself is not seized. See Def. Mem. at 24. The seizures, according to Cuff, are therefore tangible seizures subject to the notice requirements of Rule 41(d).

Cuff's argument is mistaken. As a first matter, although the Court is in agreement that it is the reading of the letters that effects the seizure in this case, it simply contorts the English language to describe that seizure as one of a "tangible" object. The tangible items - - the paper, the envelopes, etc. - - were not seized, only the information that resided thereupon. In fact, the procedure involved here - - entry, obtaining of information, and the forming of a photographic record of that information - - is virtually indistinguishable from the intangible search conducted in Villegas.

Moreover, as noted by the Villegas court, the delayed-notice provisions approved in that case were considered acceptable because a covert-entry search for intangibles "is less intrusive than a conventional search with physical seizure because the latter deprives the owner not only of privacy but also of the use of his property." Villegas, 899 F.2d at 1337. Such is also the case here - - although Cuff's privacy interests were invaded by the search, none of the letters were actually seized, and thus Cuff was not actually deprived of the use of his property. The immediate-notice provisions of Rule 41(d) were therefore not required in this case.

B. The Facial Insufficiency of the Warrant

Cuff next contends that the warrant as issued by Magistrate Judge Bernikow did not authorize delayed notice - - i.e., that, on its face, it was a conventional warrant, not a "sneak and peek." Cuff is correct; nothing on the face of the warrant authorizes delayed notice of the search - - in fact, the warrant specifically includes, as part of its standard form language, a requirement that the executing officer "leav[e] a copy of this warrant and receipt for the property taken. . . . "Cuff Mot. Exh. B. As noted earlier, Magistrate Judge Bernikow struck out other portions of this standard form language but did not strike the notice provisions.

Cuff is incorrect, however, in his claim that this error on the face of the warrant requires suppression of the evidence. It is well-established that ministerial errors on the face of a search warrant do not require suppression of evidence obtained pursuant thereto if the executing officers had an "objectively reasonable basis" for the belief that the warrant authorized the search. See Massachusetts v. Sheppard, 468 U.S. 981,987-90, 104 S.Ct. 3424, 3427-29 (1984). In Sheppard, the issuing judge assured the requesting officer that the warrant sought was being authorized, but then the judge failed to make certain necessary corrections on the face of the warrant to conform the description of the "things to be seized" to those actually sought by the officer. Notwithstanding the failure of the warrant facially to meet the particularity requirement of the Fourth Amendment, the Court upheld the search because the officers were objectively reasonable in relying upon the assurances of the judge who issued the warrant. See id. at 989-90, 104 S.Ct. at 3428-29.

Much the same reasoning applies here. The affidavits presented to Magistrate Judge Bernikow in support of the warrant clearly requested delayed notice. In an affirmation submitted in opposition to this motion, AUSA McCarthy asserts that Magistrate Judge Bernikow did in fact read the supporting affidavits presented by her and Special Agent Walsh and also "commented on how unusual it was for him to see a sneak and peek warrant." McCarthy Aff., ¶ 5. That Magistrate Judge Bernikow understood the request for delayed notice is corroborated by the fact that he made the warrant good for seven days only - - the Villegas time limit - - rather than the ten-day limit of Fed.R.Crim.P. 41(c) (which is included in the standard form language on the warrant). The Court thus accepts AUSA McCarthy's affirmation that Magistrate Judge Bernikow understood the request was for a sneak and peek warrant and that he gave no indication that this request was being denied. In the absence of the Magistrate Judge's express statement to the contrary, the Court further finds that it was objectively reasonable for AUSA McCarthy and Special Agent Walsh to believe that delayed notice was authorized, and therefore suppression of the seized evidence is not required on this basis.

C. Failure to present fresh grounds for extension.

Cuff further argues that the extensions of the delayed notice sought by AUSA McCarthy were improperly granted because they did not "make a fresh showing of the need for further delay" as required by Villegas. See Villegas, 899 F.2d at 1337. Rather, Cuff claims, at least some of the extension requests "simply rehash and restate passages from prior letters." Def. Mem. at 25.

Contrary to the implication of Cuff's argument, nothing in Villegas suggests that the applicant for an extension of delayed notice may not rely, at least in part, on the same evidence which first justified the initial grant. The Villegas court was concerned that the delay of notice extend no longer than reasonably necessary, and to accomplish this goal the court thus limited the time frame for a delayed notice order to no more than seven days. Further, the court insisted that each extension be based on a "fresh showing" of the need for further delay. However, if the conditions which initially justified delayed notice (e.g., an ongoing investigation which would be compromised by notice) can be shown to still obtain seven days later, this Court does not understand Villegas to bar reliance on these reasons simply because they employ the same rationale as justified the original application. The important point is that the extensions should be independently justified and not simply a pro forma exercise.

As for the various extensions granted by the magistrate judges, this Court does not review that determination de novo but rather must uphold the extensions if there was a "substantial basis" for each. See id. at 1338. It appears to the Court that the affidavits presented on behalf of the extensions reasonably constitute grounds for further delayed notice, and thus the Court finds that the extensions of delay were properly authorized.

D. First Amendment concerns

Cuff also suggests that Villegas is distinguishable because in this case his personal communications are involved, and thus the First Amendment comes into play. However, as Cuff admits, the Supreme Court has held that higher standards of probable cause are not required merely because the material sought is presumptively protected by the First Amendment. See New York v. P.J. Video, 475 U.S. 868, 875, 106 S.Ct. 1610, 1615 (1986). This Court likewise sees no reason why a higher standard of "reasonable necessity" for delayed notice should be applied. To the extent that the Supreme Court has held that Fourth Amendment strictures must be scrupulously followed where First Amendment concerns are raised, see, e.g., Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511-12 (1965), it is clear that the Court's concern has been the shielding of First Amendment-protected activities from undue government interference. Thus, for example, the particularity requirements of the Fourth Amendment must be applied with exactitude when the seizure, involves books and the basis for seizure is the ideas contained therein. See id.. In Cuff's case, however, the Court fails to see how the delayed notice in any way interfered with his First Amendment activities, for his letters were forwarded to their destinations. To be sure, Cuff's privacy interests are implicated, but those are precisely the interests which the Villegas court took into account in crafting the outlines of permissible sneak-and-peek warrants, and this Court sees no reason why those standards are not fully apposite here.

E. The breadth of the warrant.

Finally, Cuff urges that his case is distinguishable from Villegas because, "rather than the time-limited and focused intrusion" of Villegas, the search of Cuff's mail was "ongoing and indiscriminate." It is true that the search in Villegas was a one-time search. The Court sees no reason, however, why anything in that decision turned on that fact. The balancing of interests conducted by the Villegas court appears equally applicable to Cuff's search, and thus the Court rejects Cuff's argument insofar as the delayed notice is concerned.

However, Cuff's argument fairly raises concerns about whether the breadth of the search violates the particularity and probable cause requirements of the Fourth Amendment. The Fourth Amendment requires that a search warrant "particularly describ[e] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. This requirement is rooted in the Framers' abhorrence of the "general warrant" - - i.e., a warrant which gave the executing officer freedom to undertake an "indiscriminate rummaging through citizens' personal effects." United States v. George, 975 F.2d 72, 75 (2d Cir. 1992). The particularity requirement serves two closely related functions: (1) it "enable[s] the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize," id., and (2) it limits the scope of the search to those places and things supported by probable cause. See id. at 76; see also Wayne R. LaFave, Search and Seizure 513 (1996) ("The requirement of particularity is related to the probable cause requirement, in that - at least under some circumstances - - the lack of a more specific description will make it apparent that there has not been a sufficient showing to the magistrate that the described items are to be found in a particular place.").

The particularity requirement was examined at some length in the seminal Supreme Court case of Berger v. New York., 388 U.S. 41, 87 S.Ct. 1873 (1967). At issue was a search warrant, issued pursuant to the New York eavesdropping statute, which authorized the installation of an electronic bugging device in the petitioner's office for a period of 60 days. The Court held the warrant overbroad under the Fourth Amendment and noted the statute's many infirmities:

First, . . . , eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the "property" sought, the conversations, be particularly described. The purpose of the probable cause requirement of the Fourth Amendment, to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has or is being committed, is thereby wholly aborted. Likewise the statute's failure to describe with particularity the conversations sought gives the officer a roving commission to "seize" any and all conversations. . . As with general warrants, this leaves too much to the discretion of the officer executing the order. Secondly, authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous (24 hours a day) period the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation. Moreover, the statute permits, and there were authorized here, extensions of the original two-month period . . . on a mere showing that such extension is "in the public interest." . . . This we believe insufficient without a showing of present probable cause for the continuance of the eavesdrop. Third, the statute places no termination date on the eavesdrop once the conversation sought is seized. This is left entirely in the discretion of the officer.

Id. at 58-59, 87 S.Ct. at 1883-84. The Court went on to also note the absence of any showing of circumstances to justify the lack of notice and the failure to require a return on the warrant. See id. at 59, 87 S.Ct. at 1884.

Although the Berger court was dealing with an electronic bugging device, the decision does not appear to turn on the particular technology involved. Rather, the Court's concern was for the fact that eavesdropping "involves an intrusion on privacy that is broad in scope," id. at at 56, 87 S.Ct. at 1882, and for that reason must be circumscribed by "precise and discriminate" requirements. Id. at 58, 87 S.Ct. at 1883. The New York statute, said the Court, was a "broadside authorization" which, "rather than being 'carefully circumscribed' so as to prevent unauthorized invasions of privacy actually permits general searches by electronic devices, the truly offensive character of which was first condemned in Entick v. Carrington and which were then known as 'general warrants."' Id. (citations omitted).

It was in response to Berger (and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967)) that Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §2510-20, which placed federal controls on wiretapping and electronic aural surveillance. See United States v. Biasucci, 786 F.2d 504, 510 (2d Cir. 1986) (Congress intended to adopt the constitutional criteria of Berger and Katz in formulating Title III). The essential safeguards of Title III include the following requirements: (I) the judge issuing the warrant must find that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous," 18 U.S.C. §2518(3)(c); (2) the warrant must contain "a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates," 18 U.S.C. §2518(4)(c); (3) the warrant may not approve the interception "for any period longer than is necessary to achieve the objective of the authorization," 18 U.S.C. §2518(5); and (4) the search must be "conducted in such a way as to minimize the interception of communications not otherwise subject to interception" and "must terminate upon attainment of the authorized objective." 18 U.S.C. §2518(5). These four safeguards have been imported from Title III into other contexts as Fourth Amendment requirements. See, e.g., United States v. Falls, 34 F.3d 674, 680 (8th Cir. 1994) (video surveillance); United States v. Koyomeiian, 970 F.2d 536, 542 (9th Cir. 1992) (same); Biasucci, 786 F.2d at 510 (same).

Although, of course, the mail surveillance complained of here does not involve electronic devices, there are certain similarities. The search of Cuff's mail represents, like a wiretap, the continuous interception of a stream of communication. The interception of numerous pieces of mail, like the interception of numerous communications on a wiretap, represents a series of seizures supported by a single showing of probable cause. Like a wiretap, in which each conversation must be at least initially intercepted before it can be determined that it is not within the scope of the warrant, the determination of whether a piece of Cuff's mail represented a targeted communication entails at least a limited interception.

For these reasons, the Court believes that Cuff's motion raises serious concerns about whether the search of his mail was constitutionally valid absent the types of safeguards provided by Title III. However, as the parties have focused their arguments solely on the notice issue, the Court is unwilling to decide the Fourth Amendment issues without further opportunity for briefing on these issues and others that may bear on them - - including, but not limited to, whether Cuff's status as an detainee affects his Fourth Amendment rights in this context; whether the government had authority to continue the search beyond September 26, 1996, and if so, whether these extensions (as opposed to the extensions of the delay of notice) were supported by probable cause2; whether, and to what extent, suppression is the proper remedy for any violations; and whether any good faith exceptions apply.

In sum, the Court rejects Cuff's arguments for suppression based on lack of notice, but reserves decision on the motion pending further briefing on the Fourth Amendment issues noted above. Defendant Cuff is directed to submit a further letter brief on the above issues, not to exceed fifteen pages, by October 14. The United States may reply by similar letter brief by October 28. A reply by Cuff, if any and not to exceed five pages, may be submitted by November 4.


Dated: New York, New York September 29, 1998




1The delayed notice provision was extended on September 26, 1996, by Magistrate Judge Douglas F. Eaton; on October 3 by Magistrate Judge Theodore H. Katz; on October 10 by Magistrate Judge Ronald L. Ellis; on October 17 by Magistrate Judge Henry Pitman; on October 24 by Magistr. ate Judge Naomi Reice Buchwald; on October 31 by Magistrate Judge Michael H. Dollinger; on November 6 by Magistrate Judge Sharon E. Grubin; on November 15 by Magistrate Judge Andrew J. Peck; and on November 22 by Magistrate Judge James C. Francis IV.

2In the motion papers before the Court, the parties have not attached the papers submitted for an extension of the search warrant; before the Court are only requests for extensions of the delay of notice.