CERTIFICATE OF INTERESTED PERSONS
U.S.A. v. _____________
No. ______________
	The undersigned counsel of record certifies that the persons having an interest in the outcome of this case are those listed below:
	1.	__________, Defendant-Appellant; 
	2.	___________, U.S. Attorney;
	3.	___________ and _________________, Assistant U.S. Attorneys, who represented Plaintiff-Appellee in the district court;
	4.	______________, who represented Defendant-Appellant in the district court;
	5.	_______________, Federal Public Defender; and	
	6.	_______________, Assistant Federal Public Defender, who represents Defendant-Appellant in this Court.
	This certificate is made so that the judges of this Court may evaluate possible 
disqualification or recusal.

	
____________________
Attorney for Defendant-Appellant

	REQUEST FOR ORAL ARGUMENT

	Defendant-Appellant _____________ requests oral argument pursuant to Federal Rule of Appellate Procedure 34(a) and Fifth Circuit Rule 34.2.  This appeal raises an important issue concerning the violation of _______ rights under the Fourth Amendment to the United States Constitution.  Resolution of the issue requires close scrutiny of the facts of the case.  Oral argument should be granted so that counsel for both parties can respond to any Court inquiries in this regard.

	TABLE OF CONTENTS
	Page

CERTIFICATE OF INTERESTED PERSONS	i

REQUEST FOR ORAL ARGUMENT	ii

TABLE OF AUTHORITIES

	Cases	iv

	Constitutional Provision	iv

	Statutes	iv

	Rules	iv

SUBJECT MATTER AND APPELLATE JURISDICTION	v

ISSUES PRESENTED FOR REVIEW	vi

STATEMENT OF THE CASE	1

	1.	Nature of the Case	1

	2.	Course of Proceedings and Disposition in the Court Below	1

	3.	Statement of Facts	2

SUMMARY OF THE ARGUMENTS	7

ARGUMENT AND AUTHORITIES

Law Enforcement Officers Acted Unreasonably When, While Executing a Search Warrant in a Multiple-Occupancy Building, They Entered a Locked Area That They Should Have Known Was Outside the Warrant's Scope.	8

CONCLUSION	11

CERTIFICATE OF SERVICE	11

	TABLE OF AUTHORITIES

	Page
Cases

Maryland v. Garrison,
  480 U.S. 79 (1987)	8, 9

Ornelas v. United States,
  116 S. Ct. 1657 (1996)	9

United States v. Jenkins,
  46 F.3d 447 (5th Cir. 1995)	8

United States v. Restrepo,
  994 F.2d 173 (5th Cir. 1993)	9, 10

Constitutional Provision

Fourth Amendment,
  United States Constitution	ii, 7, 8, 10

Statutes

18 U.S.C. § 922(g)(1)	1

18 U.S.C. § 3231	v

21 U.S.C. § 841(a)(1)	1

21 U.S.C. § 846	1

28 U.S.C. § 1291	5

Rules

Federal Rule of Appellate Procedure 4(b)	v

Federal Rule of Appellate Procedure 34(a)	ii

Fifth Circuit Rule 34.2	ii

	SUBJECT MATTER AND APPELLATE JURISDICTION
	1.  Subject Matter Jurisdiction in the District Court.  This case arose from the prosecution of an alleged offense against the laws of the United States.  The district court had jurisdiction of this case under 18 U.S.C. § 3231.
	2.  Jurisdiction in the Court of Appeals.  This is a direct appeal from a final decision of the U.S. District Court for the Western District of Texas, entering judgment of criminal conviction and imposing sentence under the Sentencing Reform Act of 1984.  This Court has jurisdiction of the appeal under 28 U.S.C. § 1291.
	Under Federal Rule of Appellate Procedure 4(b), a criminal defendant shall file notice of appeal in the district court “within 10 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by the Government.” In this case, written judgment was entered on November 16, 1995, and Defendant-Appellant filed notice of appeal the same day. 

	ISSUE PRESENTED FOR REVIEW
	Whether law enforcement officers acted unreasonably when, while executing a search warrant in a multiple-occupancy building, they entered a locked area that they should have known was outside the warrant's scope.

	STATEMENT OF THE CASE
	1.	Nature of the Case.
	Defendant-Appellant _______ entered a conditional plea of guilty to drug and firearms charges, reserving the right to appeal the trial court's denial of his motion to suppress evidence seized from his business. ____ argues that his motion should have been granted because the law enforcement officers' search of the multi-occupancy building that housed his business was overbroad.  The warrant authorized the search of only one business in the building, ___________. ____ contends that the officers should have known they were entering a separate business when they scaled a ten-foot wall and crawled through a hole to reach a locked area that housed part of _______ business, _________. ____ argues that the district court's denial of his suppression motion must be reversed, his convictions vacated, and his case remanded for further proceedings.
	2.	Course of Proceedings and Disposition in the Court Below.
	A grand jury indicted ____ and his brother on drug offenses, and ___ on additional firearms offenses.  The indictment charged that ____ conspired with his brother and others to possess cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One); that ____ possessed cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count Two); that he used and carried firearms during and in relation to a drug-trafficking offense, in violation of 18 U.S.C. 924(c) (Count Four); and that he was a convicted felon who possessed firearms, in violation of 18 U.S.C. § 922(g)(1) (Count Five).  (1 R. 11–15.) __________ in Travis County, Texas.  After a hearing, the district court denied the motion, and ____ entered a conditional plea of guilty to Counts Two and Five of the indictment, expressly reserving in writing the right to appeal the denial of his motion to suppress.  (1 R. 167–72; S.R. 130–31, 135–36, 145–46.)  
	Based on an offense level of 35 and ______ criminal history category of VI, the presentence investigation report calculated the guideline sentencing range as 292–365 months' imprisonment.  (P.R. paras. 50, 68, 98, at 16, 19, 24.)  The district court sentenced ____ to concurrent imprisonment terms of 360 months' imprisonment on Count Two and 120 months' imprisonment on Count Five, to be followed by five years' supervised release.  (1 R. 181, 185; S.R. 175.)  The court also imposed a $20,000 fine on Count Two, and special assessments totalling $100.  (1 R. 182, 184; S.R. 176.) _____ appealed.  (1 R. 186.)
	3.	Statement of Facts.
	After his arrest for possession of crack cocaine in October 1994, a “cooperating defendant” told Austin, Texas police that he had purchased the cocaine from ________ at __________ brother's business, ______________.  (1 R. 37–39; 2 R. 59–61; Gov't Ex. 1; R. Excerpt 2.)  This informant took government agents to the building where _________ was located and “pointed out the building which house[d] several individual shops.”  (1 R. 39; 2 R. 59–61; Gov't Ex. 1.)  The building's street address was ___________.  (1 R. 39; Gov't Ex. 1; R. Excerpt 2.)
	The informant accompanied undercover policeman ______ to ___________ and introduced him to the ____ brothers.  (1 R. 40–41; 2 R. 59–60; S.R. 33; Gov't Ex. 1; R. Excerpt 2.)  Officer bought small amounts of crack cocaine from _________ there on __________ and _____________.  (1 R. 40–41; Gov't Ex. 1; R. Excerpt 2.)  On two other occasions Officer visited the _______________ address and attempted to buy cocaine, but was unsuccessful.  (S.R. 34–35.)
	Police investigation revealed that the building at ______________ shared utilities with the building next door at __________; the utilities account for both buildings was held by __________.  (S.R. 9–10.)  Telephone service at _________ was listed to ________________ and there was service for only one telephone.  (S.R. 10.)  
	_____________, the real estate agent and businessman who owned and managed _________, testified that, had anyone asked him, he would have said that two businesses operated out of that address.  (S.R. 81–82, 86.) ___________ was one business; the other was ___________, operated by ___________.  (S.R. 83.)  No one contacted _____ to inquire about who leased __________; DEA Agent __________ worried that a landlord might “snitch us off that we're coming to execute a search warrant.”  (S.R. 11.)  
	About two months after Officer purchased cocaine at ________, Agent _____________ applied for a warrant to search that address.  (1 R. 32, 40–41; Gov't Ex. 1; R. Excerpt 2; S.R. 32–33.) _________ claimed that, at the time he applied for the search warrant, he believed that ___________ housed only one business, ______________; his affidavit, however, recounted that the address housed multiple shops.  (S.R. 13.)  The warrant __________ obtained authorized police to search “the business known as ___________, aka: ____________, located at _______.”  (1 R. 46; Gov't Ex. 1; R. Excerpt 2.) 
	Law enforcement officers executed the warrant on February 9, 1995.  (S.R. 71.)  When they arrived, they found a large L-shaped building with an office at either end of it.  (S.R. 8, 66.)  The building had separate entry doors at either end, and large bay doors in between; several vehicles were in the building, behind the bay doors.  (S.R. 9.)  According to ________, ___________ rented bays 1 and 2 for his business and ____________ rented bays 3, 4, and 5 for his business.  (S.R. 86–87.)  
	A large diagram of the building was admitted at the hearing as Government's Exhibit 2.  (S.R. 33–34.)  A reduced version of that diagram appears on the next page.

	Deputy Sheriff____________ entered ______________ at the front (bottom of diagram on previous page), and walked towards the back (top of diagram on previous page), where he found a locked area behind Bay door 5.  (S.R. 70–71, 77–79.)  When __________ was unable to enter the area through Bay 5's locked door, Austin Police Officer _____________ gained entry by scaling a ten-foot wall and crawling through a hole at the top of it.  (1 R. 156, 159–60; S.R. 57, 77–78.) ___________ testified that it was common to find locked areas when conducting searches, and that it was standard operating procedure to break into such areas when executing a warrant.  (S.R. 79.)
	__________ arrived while the search was in progress and ________ asked whether he had keys to the locked area.  (S.R. 43–44, 75–77.) _______said that area was ________, and _________ denied having keys to it.  (S.R. 75–76.)  After officers had already gained entry to the locked area, and unlocked the door from the inside, ________ decided to see whether any of _________ keys fit the door to Bay 5.  (S.R. 45, 75, 77–78.)  None did.  (S.R. 74–75, 79.)
	The search of __________, including a car registered to ______ that was parked in the building, produced cocaine and a small amount of marihuana.  (P.R. paras. 21–22, at 10.)  Approximately six ounces of the cocaine was found in a filing cabinet that was stored in the separate office area in Bay 5.  (P.R. para. 21, at 10; S.R. 45; Gov't Ex. 3.)  While law enforcement officers searched _________, other officers searched _________ home and they arrested him nearby.  (2 R. 7–8; S.R. 30.)  In __________ wallet, officers found a business card for _____________ at _____________; the phone number on the card was the same number listed for __________________.  (S.R. 13.)  

	SUMMARY OF THE ARGUMENT
Law Enforcement Officers Acted Unreasonably When, While Executing a Search Warrant in a Multiple-Occupancy Building, They Entered a Locked Area That They Should Have Known Was Outside the Warrant's Scope.
	A confidential informant told law enforcement agents that________ sold crack cocaine at his brother's business.  The informant took agents to the multiple-occupancy building located at _______________ where he claimed the cocaine was sold.  He said the building housed several individual shops, including ______________, the business owned by _____________.  Based on this information, a search warrant for ___________ business was obtained.  
	The law enforcement officers who executed the search warrant did not confine their search to _____________ business, however.  When they discovered a locked area that housed part of ___________ business, ___________, one officer scaled a ten-foot wall and crawled through a hole in a wall to reach that locked and separate area.  This overbroad execution of the warrant was unreasonable because the officers were on notice that the building housed multiple shops.  When they encountered a locked area they could not enter, they knew or should have known that that area was not part of the business they were authorized to search.  Execution of the warrant under these circumstances violated ____________ Fourth Amendment right against unreasonable search and seizure.

	ARGUMENTS AND AUTHORITIES
Law Enforcement Officers Acted Unreasonably When, While Executing a Search Warrant in a Multiple-Occupancy Building, They Entered a Locked Area That They Should Have Known Was Outside the Warrant's Scope.
	The Fourth Amendment requires that search warrants “particularly describ[e] the place to be searched and the persons or things to be seized.”  U.S. Const. amend. IV.  By limiting search warrant authorizations to specific areas for which there is probable cause to search, the particularity requirement helps to prevent general exploratory searches that the Fourth Amendment was designed to prevent. Maryland v. Garrison, 480 U.S. 79, 84 (1987).  
	The warrant in this case authorized law enforcement officers to search the business known as ____________, located at ____________.  As the district court found, the warrant proved to be overbroad.  The building at ___________ was a multiple-occupancy building that housed more than one business.  The warrant's execution was also overbroad; once law enforcement officers arrived at the building, it became obvious that ____________, the business named in the warrant, was not the only business in the building.  Instead of confining their search to ___________, the officers scaled a ten-foot wall and crawled through a hole to reach a locked and separate area—an area that housed part of__________,___________________.  Execution of the warrant under these circumstances violated ________ Fourth Amendment right against unreasonable search and seizure.
	A.	Standard of Review.
	This Court reviews a district court's ruling on a motion to suppress under a two-tiered standard.  United States v. Jenkins, 46 F.3d 447, 451 (5th Cir. 1995). The district court's factual findings are reviewed for clear error; the court's ultimate conclusion as to the constitutionality of law enforcement action is reviewed de novo.  Id.; see Ornelas v. United States, 116 S. Ct. 1657 (1996). _______ challenges the reasonableness of the manner in which the search warrant was executed.  This is a constitutional issue, reviewed de novo.  See Garrison, 480 U.S. 79, 84 (reasonableness of the manner in which warrant executed is a “constitutional issue”); cf. United States v. Restrepo, 994 F.2d 173, 188 (5th Cir. 1993) (court reviews de novo reasonableness of officer's reliance on warrant issued by magistrate).
	B.	The Law Enforcement Officers' Failure to Realize the Overbreadth of the Search Warrant Was Not Reasonable.
	The district court found that the warrant in this case was “overbroad,” but nonetheless valid, because government agents neither knew nor had reason to know that there were two separate businesses at _____________ at the time the warrant application was made.  (1 R. 164; S.R. 130.)  When a warrant is overbroad, the validity of a search pursuant to that warrant “depends on whether the [executing] officers' failure to realize the overbreadth . . . was objectively understandable and reasonable.”  Garrison, 480 U.S.79, 84.
	In Garrison, agents obtained a search warrant for “the premises known as 2036 Park Avenue third floor apartment.”  480 U.S. 79, 80.  After the officers began to search the third floor, they found that there were actually two apartments located there.  Id. at 86.  The Supreme Court held that the officers were obligated to stop their search as soon as they discovered that there were two separate units on the third floor.  Id. at 87.  In this case, officers who executed the warrant did not stop their search when they discovered a locked area that should have alerted them to the existence of a separate business that was not included within the warrant's authorization.  
	When officers arrived at ______________, they found a building that had two separate entrances.  (S.R. 9.)  The officers were on notice that the building housed more than one business because the affidavit accompanying the search warrant plainly indicated that the building at ____________ was a multiple- occupancy building.  The affidavit stated that an informant took agents to the building located at ______________—a “building that house[d] several individual shops,” including _____________, the business named in the affidavit.  (1 R. 39; Gov't Ex. 1; R. Excerpt 2.)  The affidavit was attached, and incorporated into the search warrant; consequently, the officers must be charged with knowledge of its contents.  See Restrepo, 994 F.2d 173, 188 (affidavit information considered to determine whether executing officers' actions were reasonable).
	The officers entered ___________ though a door that was open for business, and passed through two other opened doors without encountering any obstruction.  (S.R. 72–73.)  At the back of the building, however, the officers discovered a locked area that they could not enter.  (S.R. 73.)  Instead of halting the search, one officer scaled a ten-foot wall and crawled through a hole in the wall to reach that area.  (1 R. 159; S.R. 73, 76–78.)  This action was unreasonable in light of the facts that the officers knew or should have known.  Their entry into _____ locked and separate area in _______ went beyond the warrant's authorization, and violated ______ Fourth Amendment rights.  The district court's ruling that the search was reasonable must be reversed.

	CONCLUSION
	For these reasons, the district court's denial of ______ suppression motion must be reversed, his convictions must be vacated, and the case remanded for further proceedings.
	Respectfully submitted.

	__________________________
	Federal Public Defender
	Attorney for Defendant-Appellant

	CERTIFICATE OF SERVICE
	I certify that I served two copies of the foregoing Brief of Defendant-Appellant on ________, U.S. Attorney for the _______ District of Texas (Attn: Assistant U.S. Attorney ______________), by mailing them to his office at _________________  on _________________________.

	

Attorney for Defendant-Appellant