Supreme Video, Inc. v. Schauz

927 F. Supp. 321

SUPREME VIDEO, INC., Plaintiff, v. Steven SCHAUZ, et al., Defendants.

No. 91-C-773.

United States District Court, E.D. Wisconsin.

May 14, 1996.

Jeff Scott Olson, Olson Law Office, Madison, WI, for Plaintiff.

Gregg T. Heidenreich, Stilp, Cotton & Wells, Milwaukee, WI, for Defendants.

DECISION AND ORDER

RANDA, District Judge.

This case is before the Court on the parties' cross-motions for summary judgment after remand from the 7th Circuit Court of Appeals. The facts remain as set forth in the Court's prior decision in the matter. See generally, Supreme Video, Inc. v. Schauz, 808 F.Supp. 1380 (E.D.Wis.1992) ("Supreme Video I"). By way of summary, defendants purchased three videotapes as part of a criminal investigation of a video store owned by the plaintiff, Supreme Video, Inc. ("Supreme Video"). The three videos bore the titles Alex Derenzys' Juicy Lucy, Wall to Wall the Way You Like It and Home Movie Productions. Juicy Lucy was a single-issue, non-serial work, and the other two videos were individual volumes within two multi-volume sets of videos bearing the serial titles Wall to Wall the Way You Like It and Home Movie Productions. A detailed description of these three videos in an affidavit submitted to a state court judge provided the basis for the issuance of a search warrant for the video store in question. The warrant authorized defendants to seize all "copies of the cassettes Wall to Wall the Way You Like It, Alex Derenzy's Juicy Lucy and Home Movie Productions...." When executing the search warrant, defendant Steven Schauz ("Schauz") informed the employee on duty that he, and the officers assisting him, intended to seize all of the videos within the two series entitled Wall to Wall the Way You Like It and Home Movie Productions, not just the two videos within those series which Schauz had purchased and reviewed.

Supreme Video filed this civil rights suit on July 15, 1992, claiming that Schauz and defendant James Thome ("Thome"), both City of Oshkosh police officers, violated Supreme Video's constitutional rights by conducting an illegal search and seizure at its store in Oshkosh, Wisconsin. Supreme Video sued Schauz and Thome in their personal capacities seeking compensatory and punitive damages, and in their official capacities seeking injunctive and declaratory relief. This Court held that Schauz and Thome were protected by the qualified immunity doctrine from any personal liability and that Supreme Video's failure to pursue available state procedures for securing the return of the videos at issue prevented it from seeking injunctive and declaratory relief. See generally, Supreme Video I. The 7th Circuit affirmed the Court's ruling on the qualified immunity issues, but found that the Court failed to properly address the claims for equitable relief. The case was remanded for reconsideration of those claims. See generally, Supreme Video, Inc. v. Schauz, 15 F.3d 1435 (7th Cir.1994) ("Supreme Video II"). With regard to the claim for injunctive relief, the 7th Circuit framed the issues on remand as follows:

Supreme Video is entitled to the return of its seized movies if: (1) the police seized more than single copies; (2) the seizure was not for the purpose of preserving the films as evidence in a criminal proceeding; (3) the seizure was not based on probable cause; or (4) there was not a prompt adversarial hearing after Supreme Video requested one.

Supreme Video II, 15 F.3d at 1442. The 7th Circuit ruled out relief based on points 1, 2 and 4, but specifically directed the Court to decide the "probable cause" issue on remand. Id. at 1442-43.

The claim for declaratory relief, in part like the claim for injunctive relief, requires a finding that the defendants "executed an unconstitutional search warrant" (due, for example, to the lack of "probable cause"). In addition, the claim requires a finding that declaratory relief is otherwise appropriate. The parties agreed that these remaining claims could be decided on summary judgment.

Central to both claims is the question of whether the search warrant at issue was constitutionally valid. Supreme Video attacks the warrant on two fronts, using the same approach it used before the 7th Circuit. First, Supreme Video argues that the warrant failed to "particularly describe" the things to be seized, insofar as the warrant only described the seizure of all "copies" of the two multi-volume video series and not all "volumes" of the same. Second, Supreme Video argues that there was no "probable cause" to seize any videotapes in addition to those which were actually reviewed by the defendants and summarized for the magistrate. The Court rejects both arguments.

I. DESCRIPTIVE PARTICULARITY

On this issue, Supreme Video focuses, as it did on appeal, on the fact that the warrant called for the seizure of all "copies of the videotapes Wall to Wall the Way You Like It ... and Home Movie Productions", the critical word being the term "copies". Supreme Video argues that use of the word "copies", instead of "volumes", failed to particularly describe the seizure of the entire multi-volume Home Movie and Wall to Wall video sets. Moreover, Supreme Video argues that the 7th Circuit already decided the issue by virtue of language in its opinion directing police officers to use the term "volumes" in all future warrants seeking the seizure of a multi-volume video series:

... we ... agree with the district court that the defendants should be immune from civil liability. We should note, however, that the term "volumes" is grammatically correct when referring to movies within a series, and although Schauz' usage was objectively reasonable at the time, after the publication of this opinion police officers should confine future usages of the terms "copies" and "volumes" in affidavits supporting search warrants to their more traditional dictionary definitions.

Supreme Video II, 15 F.3d at 1442. Supreme Video fails to acknowledge, however, that the foregoing language was contained in the 7th Circuit's discussion of the "probable cause" issue, not the "descriptive particularity" issue. In fact, the 7th Circuit stated that, even assuming the terms "copies" and "volumes" were distinct concepts, they were not "central" to the particularity issue and only "became relevant" in the context of deciding whether or not the defendants intentionally or recklessly misrepresented material information in their application for a search warrant. Id. at 1439, 1441. That issue, though related, is separate from the particularity issue. Therefore, the Court does not read the 7th Circuit's opinion as requiring a finding that the warrant failed to particularly describe the things to be seized.

The Court approaches the "descriptive particularity" issue for purposes of injunctive relief in much the same manner as the 7th Circuit approached the issue for purposes of qualified immunity. That is, the question is not whether the term "copies" particularly described the seizure of all "volumes" of the Home Movie and Wall to Wall video sets. Rather, the question is whether the warrant's general references to the series titles Wall to Wall the Way You Like It and Home Movie Productions, without specifying any individual volumes within those two series, particularly describes the seizure of each volume in the series. The 7th Circuit found that such an interpretation was reasonable and would not expose a police officer to personal liability:

An objectively reasonable officer could have reasoned as follows: (1) the warrant authorizes the seizure of Wall to Wall the Way You Like It and Home Movie Productions; (2) the only movies with those titles each are followed by a volume number; so therefore (3) Wall to Wall the Way You Like It and Home Movie Productions each refers to the entire series, allowing seizure of all movies within each series.

Supreme Video II, 15 F.3d at 1440. Of course, a "reasonable interpretation" of the law for purposes of a qualified immunity defense to a 4th Amendment claim may not prove to be the established law for purposes of assessing a 4th Amendment violation. However, the 7th Circuit's finding that "an objectively reasonable officer could have reasoned" the way Officer Schauz did in this case cannot be ignored. Such a holding goes a long way towards establishing what is sufficient and what is practical under the unique circumstances of a particular case. In addition, this interpretation of the language makes the most sense. No particular volume within either series is referenced in the warrant, so there simply was no basis for the officer to seize only one volume and no others, as argued by Supreme Video. The only reasonable interpretation was to seize the entire series.¹ Supporting the Court's decision is the 7th Circuit's decision in Sequoia Books, Inc. v. McDonald, 725 F.2d 1091 (7th Cir.1984), cert. denied, 469 U.S. 817, 105 S.Ct. 83, 83 L.Ed.2d 31 (1984), which stands for the proposition that a warrant need not list the actual title or issue of every book, magazine or movie to be seized so long as the warrant contained other language which sufficiently described and/or limited what was to be seized. Here, a reference to the generic titles of the two series provided the requisite particularity for defendants to seize the volumes found under those titles.²

II. PROBABLE CAUSE

Finding that the warrant adequately described the seizure of all the different volumes within each video series, the question becomes whether the magistrate had probable cause to issue a warrant authorizing the seizure of all these volumes despite the fact that only one volume from each series had been reviewed. The Court finds that he did. As it did in its first decision on the qualified immunity issue, the Court relies upon the appellate court decisions in In re Search of Kitty's East, 905 F.2d 1367 (10th Cir.1990) and Sequoia Books, Inc. v. McDonald, 725 F.2d 1091 (7th Cir.1984), discu...