author: PIERAS, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Jacqueline MOORES, Eugene Glass, David Carter, Defendants.
    Crim. No. 84-324 (JP).
    United States District Court, D. Puerto Rico.
    Sept. 6, 1985.

      J. Pedrosa, Asst. U.S. Atty., Hato Rey, Puerto Rico, for plaintiff.
    José A. Fuentes Agostini, San Juan, Puerto Rico, and Joseph Paglino, Miami, Fla., for defendants.
   ORDER

PIERAS, District Judge.

Defendant Moores has filed several motions requesting the dismissal of the case due to alleged violations of the Speedy Trial Act, 18 U.S.C. 3161, et seq.

Defendant was indicted on August 29, 1984 and a Motion to Dismiss was filed on September 4, 1985, 372 days later.

As the defendant correctly stated, the Speedy Trial Act requires that a defendant be brought to trial within seventy (70) days of either indictment or first appearance before a judicial officer, but the Act also permits the exclusions of delay periods caused by specific kinds of pre-trial activity from the computation of this seventy-day period.

Since the Motions to Dismiss have been duly presented under the Act (18 U.S.C. 3161, et seq.), the Court must review the course of events from indictment up to the filing of the motion to dismiss as of late in this case, September 4, 1985. United States v. Pringle, 751 F.2d 419, 429 (1st Cir.1984).

The exclusion of periods is not left by the Act as discretionary, for the statute sets out specifically what can be excluded and what is not to be excluded.

In order to clarify to all parties’ concern, we will first make a chronology on the major events occurring during the 372 days elapsed from the filing of the Indictment to the filing of the Motion to Dismiss. Although the defendant has filed three motions, we use the latest date since that motion is the only one that complies with the local rules of this Court and, besides, it is to defendant’s benefit since it was filed at the latest day.

I. The Chronology:

On August 29, 1984 an indictment was filed against the defendant Ms. Moores and her two co-defendants. (No mention is made as to the co-defendants in this order since their case was long disposed of). On August 31, a codefendant was arraigned. Three motions on behalf of the codefendant were filed on September 5, 1984, one motion on behalf of defendant filed on September 6, 1984, and the Arraignment of Ms. Moores held that same day; an Order by the U.S. Magistrate in relation to the physical health of the defendant was also entered on that date. On September 7, 1984, a Bail Reduction Hearing was held on expedite manner due to the health problems alleged by defendant and counsel. On September 19, 1984, a Minute was entered notifying the parties of a Status Conference before the Court for September 26, 1984. On that same date, a motion was filed by the defendant requesting a review of the conditions of release and an opposition filed on the 20th of September by the government. On the 24th of September, an Order was entered reducing the bail originally imposed. On that same date, 3 motions were filed on defendant’s behalf, including a Motion to Suppress. On the next day, the 25th day of September, four additional motions were filed by Ms. Moores, including a Motion to Dismiss for Lack of Jurisdiction. The Court met with counsel for the defendant on the 26th of September. The Court referred all motions filed to the U.S. Magistrate for a Report and Recommendation. The Government filed an Omnibus Reply to all pending motions the 15th day of October and an additional motion to destroy bulk evidence; in the meantime, the defendant filed two more motions that day. On October 19,1984, the Magistrate further amended the bail conditions and eliminated the cash bail requirement and substituted it for sureties. Defendant further filed 2 motions on the 19th, one on the 22nd, six on the 29th of October, and six on the 30th of October. The Court held a hearing on the 30th of October to consider several motions filed by defendant Moores. At the conclusion of the Hearing, the Court referred all pending motions to the U.S. Magistrate and scheduled Trial for December 3, 1984. On November 1st, 1984, the Court entered an Order pursuant to the Hearing held the previous day clarifying the bail conditions imposed.

Further motions were filed in November and, at this time, a codefendant moved the Court for a Change of Plea on the 13th day of November. The Change of Plea was held on that day. On' the 19th day of November, the Magistrate disposed of several non-dispositive motions and further filed a Report and Recommendation as to the dispositive motions. Defendant Moores filed a motion for continuance of trial and Speedy Trial waiver on the 27th day of November, together with an appeal of the Magistrate’s Report and Recommendation. The Court, on November 29, ordered the scheduling of a hearing on the motion for continuance and waiver of Speedy Trial for the day the trial was to be held, i.e., December 3, 1984. On November 30, defendant Moores requested our stay on the Magistrate’s Report and Recommendation. A Hearing was held on December 3, pursuant to defendant’s motion for continuance. The Court heard the evidence and made a finding in open Court in the best interest of justice to continue the trial as requested to March 6,1985. On December 7,1984, code-fendant Eugene Glass plead guilty to Count I of the indictment. On December 14, 1984, codefendant David Carter was sentenced and, on January 18, 1985, code-fendant Glass was sentenced. Defendant Moores filed several non-dispositive motions in January and February 1985; while on February 6, the government requested a mental exam of the defendant pursuant to Title 18 U.S.C. § 4244 to determine if she was able to assist counsel and her competency to stand trial. On February 20,1985, defendant replied requesting the exam to be either denied or performed in the Southern District of Florida. On the 21st of February, the Government replied requesting the exam. The Court entered an Order on the 1st of March ordering the defendant to appear before a local psychiatrist for a mental exam and further continued the trial to April 15,1985 to allow the psychiatrist an opportunity to render his report. The defendant, on March 19, 1985, filed a motion to dismiss the indictment due to violations of the Speedy Trial Act without any reasons nor memorandum. The government opposed this motion on the 29th of March and requested sanctions on the defendant for failure to comply with the local rules. On the 15th of April, 1985, a Hearing on the mental competency of defendant was held and, pursuant thereto, the Court entered two orders: 1) finding the defendant incompetent to stand trial and 2) committing the defendant for medical treatment pursuant to 18 U.S.C. 4241, et seq. Defendant Moores, immediately filed a Notice of Appeal, whereby the case was referred to the Court of Appeals. Even though the Court had lost its jurisdiction, counsel for the defendant attempted to hold an oral hearing regarding alleged violations of the Speedy Trial Act on May 1, 1985. On May 6, 1985, defendant filed a demand for discharge due to violations of the Speedy Trial Act or in the alternative, for an immediate Jury Trial. On May 20, 1985 defendant filed a motion to stay the Order of Committment pending appeal. The Court denied this Motion on the 23rd day of May. Pursuant to an Order from the Appeals Court, the government requested from the Court a Mental Competency Hearing on June 26, 1985. The Court, on June 28, scheduled a Hearing for the 22nd of July, but re-scheduled it on July 19 for the 23rd of July. On the 23rd of July, the Hearing is held and defendant is released upon a finding that she is now able to assist counsel. Trial is set for September 9, 1985 upon the request of defense counsel and the Court enters a finding pursuant to 18 U.S.C.

§ 3161(h)(8)(B)(iv). On the 4th of September, the defendant files the Motion to Dismiss for violations of the Speedy Trial Act.

II. The Computations:

We now consider how much of the 372 days is excludable under § 3161(h). The Act in § 3161(c)(1) states that the seventy-day period begins to run when the defendant first appears before a judicial officer or when the indictment is filed, whichever occurs later. In this case, Ms. Moores appeared before the U.S. Magistrate on the 18th day of August, 1984, but was not indicted until August 29, 1984. We begin our computation on the 29th of August and exclude this day under § 3161(h)(1) as a “proceeding concerning the defendant”. United States v. Brown, 736 F.2d 807, 808 (1st Cir.1984). For that same reason, September 6, 1984 is excluda-ble since the defendant was arraigned on that day and a bail hearing was held. On September 7, a further hearing was held before the U.S. Magistrate on an expeditiously manner as requested by defendant’s counsel and is also excluded for the same reasons.

The defendant, in its motion, correctly excludes under Section 3161(h)(1)(F) the time period between September 6 and September 14, 1984, the time of some pretrial motions filed by a codefendant, and the prompt disposition by the U.S. Magistrate. Our Appeals Court in United States v. Mitchell, 723 F.2d 1040 (1st Cir.1983), held that subsection (F) permits only such delay which is “reasonably necessary” from the time of filing to the time it is finally disposed of. Therefore, the eight days used by the Magistrate is clearly within the Mitchell rule. The time is thus excludable, however, the time excluded for the arraignment on the 6th and the hearing on the 7th are overlapping with this exclusion.

From the 15th of September to the 23rd of September, no further motions were filed; therefore, these days are not excludable. Defendant filed several motions on the 24th including a Motion to Suppress and other motions on the 25th, including a Motion to Dismiss, which open an excluda-ble on a reasonable necessary standard as set by the Mitchell rule.

The Court held a conference with the attorneys on the 26th day of September. The 26th is therefore excludable as “proceeding concerning the defendant”. The Court referred the motions pending before the Court to the U.S. Magistrate for a Report and Recommendation on that same day. The Government made a reply on the motions filed by defendant on October 15, 1984 and the defendant moved the Court for a hearing on the 19th of October and filed addendums on said date to the motions filed on the 24th and 25th of September, 1984. The parties, on the 29th of October, filed further memorandums and addendums to the pending motions. The Court, therefore, excludes all the period from the 24th of September to the 30th of October, for it fully complies with the reasonably necessary standard of the Mitchell rule. Overlapping is the Hearing held by the Court on October 30 to hear all new pending motions. At this Hearing, the Court granted the outside counsel to appear pro hac vice and ordered the local counsel to sign all motions tendered by the outside counsel. This day is therefore ex-cludable.

The Court granted ten (10) days to the government to reply to all new motions filed and ordered a Magistrate Report and Recommendation as to all motions pending. The U.S. Magistrate ruled and recommended on all motions on the 19th of November. This period is well within the Mitchell rule and we, therefore, exclude the period from November 1st to November 19th. The defendant filed a timely appeal on November 27, 1984. The time period from November 20 to the 26th is also excludable, for the rules allow both the government and the defendant ten (10) days to appeal as of right; therefore, we also exclude this time period.

The Court, on November 27, had before it a Report and Recommendation and an appeal therefrom which, under the Mitchell rule, could be extended up to December 27, 1984 and no longer. Since the Court did not act within the thirty (30) days sanctioned by the Appeals Court, the excludable is allowed only to the 27th of December. The Court now understands that the motion filed by the defendant on November 30, requesting a stay of the Magistrate’s Order in lieu of a Trial continuance requested due to the mental condition of defendant, has no effect and the Court should have decided the appeal within the thirty (30) days of the Mitchell rule. However, this oversight is of no consequence, since on December 3rd the Court held a hearing pursuant to defendant’s Motion for Continuance of Trial. The Court granted the continuance pursuant to § 3161(h)(8) and made the specific findings in the best interest of Justice over the objections of the government. Therefore, the continuance due to the mental incompetence claimed by defendant from December 3, 1984 to March 6, 1985 is all excluda-ble. The Speedy Trial waiver was not considered by the Court since the Act does not contemplate a Speedy Trial waiver as an alternative, for it is clear that no such waiver can be accepted under the Statute. See U.S. v. Pringle, supra, at 433-34.

On February 6, 1985, the Government requested a mental exam of the defendant. The Court ordered the mental exam of the defendant and continued the Trial until the defendant could be examined to determine her mental competency. The Act specifically allows an ex-cludable under § 3161(h)(1)(A). Therefore, the period from March 1st to April 15, 1985 is also excludable. We note an overlapping on the first six (6) days of March which are of no consequence. Defendant filed an unsupported Motion to Dismiss on March 19, which need not be addressed at this time. On April 15, a Hearing was held, whereby the parties stipulated the reports of both Dr. Cabrera (government’s doctor) and Dr. Gilbert (defendant’s doctor) as to the mental condition of the defendant and her inability to assist counsel in her own defense pursuant to 18 U.S.C. § 4241(d). The time that Ms. Moores was held as mentally incompetent is also excludable under § 3161(h)(4). Therefore, the period from April 15 to July 23, 1985 is also excludable. Overlapping with this exclusion is the delay due to the appeal filed by the defendant on April 15 and running up to the dismissal to August 7, 1985. See § 3161(h)(1)(E).

On the Hearing held July 23, 1985, the Court granted defendant’s request to hold trial on the 9th of September, rather than on the 30th of July or the 5th of August as proposed by the government. The Court specifically found under § 3161(h)(8)(B)(iv) that an opportunity should be given to the defendant since the ends of justice served by taking said action outweighed the best interest of the public and the defendant in a speedy trial. The defendant was then released pursuant to the bail conditions originally set. Consequently, the period from July 23 to September 9, 1985 is excludable.

An overlapping exists here too, since the defendant filed the Motion to Dismiss on September 4, 1985 and it is being decided today, September 6,1985. This time is also excludable.

III. Accounting:

We find a total of 16 days which are non-excludable:

August 30 to September 5,1984 . 7 days
September 15 to September 23,1984 . 9 days
Total:.16 days

For all the above stated reasons, the Motion to Dismiss for violations of the Speedy Trial Act is hereby DENIED.

IT IS SO ORDERED.


source: Caselaw Access Project

author: GLASSER, District Judge:

license: Public Domain

text:
    USAA CASUALTY INSURANCE COMPANY, Plaintiff, v. Christopher SCHNEIDER and John P. McEnroe, Jr., Defendants.
    No. 83 Civ. 5186.
    United States District Court, E.D. New York.
    Sept. 11, 1985.
    John Young, Porzio, Bromberg & Newman, New York City, for plaintiff USAA Cas. Ins. Co.
    William Sandback, Sandback & Birn-baum, Garden City, N.Y., for defendant Christopher Schneider.
    Martin London, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant John McEnroe.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

USAA Casualty Insurance Company (“USAA”) brings this action seeking a declaration that it is not obligated to insure John P. McEnroe, Jr. (“McEnroe”) for damages that may arise from an incident during a match at the 1983 United States Open Tennis Championship. Specifically, USAA wishes to be absolved from responsibility with regard to a suit brought by Christopher Schneider (“Schneider”), a spectator at that match. McEnroe, in return, argues that he is covered by a homeowner’s policy issued to him by USAA in April, 1983, to be effective for one year. This case is before me on cross-motions for summary judgment. Because “there is no genuine issue as to any material fact,” Fed.R.Civ.P. 56(c), summary judgment will be granted in favor of the plaintiff.

The pertinent facts of this case are set forth adequately by McEnroe:

2. On August 30, 1983, McEnroe competed in a first round match of the men’s singles against Trey Waltke. Throughout the match Schneider was pulling for McEnroe’s opponent, Waltke. In the third set, the score stood at one set apiece and each had two games in the third set. Waltke had service in the fifth game. They played the first point which was won by Waltke so that the score stood at 15-0.
3. After play on the point had been concluded and in response to Schneider’s repeated heckling, McEnroe departed from the playing court and approached the box in which Schneider was sitting. The two exchanged words. At the time of his departure, McEnroe’s hand waved in the air and some grains of rosin (a material used by athletes to absorb perspiration), flew in Schneider’s general direction. Schneider asserts he was touched by them. The altercation between the two men lasted several moments.
4.After conclusion of the incident, McEnroe returned to the playing court. The match resumed where it had left off in the fifth game of the third set, with Waltke leading McEnroe 15-0. Play continued for some time and McEnroe ultimately defeated Waltke in the five set match, by a margin of three sets to two.

Having bested Waltke on the tennis court that day, McEnroe was soon faced with two new court battles. In October, 1983 Schneider served McEnroe with a summons and complaint in a New York state court action, recounting the incident described above and seeking damages of $6,000,-000.00. In November, 1983, USAA, having been notified by McEnroe of his upcoming match with Schneider for the purpose of having USAA defend and indemnify him, brought this action.

The sole legal issue presented is whether the facts just described entitle McEnroe to protection under the homeowner’s policy mentioned earlier. The relevant portions of that policy are as follows:

SECTION II — LIABILITY COVERAGES

COVERAGE E PERSONAL LIABILITY

If a claim is made or a suit is brought against any insured for damages because of bodily injury ... to which this coverage applies, [USAA] will: a. pay up to [its] limit of liability for the damages for which the insured is legally liable; ...

SECTION II — EXCLUSIONS

1. Coverage E — Personal Liability ... do[es] not apply to bodily injury ...:
b. arising out of business pursuits of any insured ...
This exclusion does not apply to:
(1) activities which are ordinarily incident to non-business pursuits ...

USAA maintains that any injury that may have been sustained by Schneider “arose out of” McEnroe’s “business pursuits”, i.e., his competition in a professional tennis tournament, and is thus excluded from coverage. McEnroe argues that his interaction with Schneider, although occurring in the midst of a tennis match, is an activity “ordinarily incident to non-business pursuits,” and is therefore embraced by the exclusion.

In interpreting an insurance policy, it is a well-settled principle that “[w]hen the terms used are clear and unambiguous, they are generally to be taken and understood in their plain, ordinary and proper sense.” McGrail v. Equitable Life Assur. Soc., 292 N.Y. 419, 424, 55 N.E.2d 483, 486 (1944). Reading McEnroe’s homeowner’s policy “as a layman would read it and not as it might be analyzed by an attorney or insurance expert,” 13 Appleman, Insurance Law and Practice, § 7384 at 99 (1976), it is indisputable that the tennis match on August 30, 1983 was a “business pursuit” with regard to McEnroe and that any injury suffered by Schneider during the match “arose out of” this pursuit. As to the first point, there is simply no question that McEnroe is a professional tennis player who participated in the 1983 U.S. Open to compete for prize money and to advance his career. Indeed, in his answer, McEnroe concedes that “he played the August 30 match for the purpose of engaging in a business pursuit.” Answer of Defendant McEnroe II15.

As to the second point, however, McEnroe denies that “the incident ... arose out of a business pursuit within the meaning of the insurance policy.” Id. McEnroe argues that non-business activities do not become business pursuits, nor may they be said to arise out of such pursuits, simply because they occur in a business setting. See, e.g., Farmers Insurance Exchange v. Sipple, 255 N.W.2d 373, 375 (Minn.1977) (“Personal acts ... do not become part of a business pursuit ... merely because performed during business hours and on business property.”) Yet McEnroe’s own rendition of the facts belies the assertion that his altercation with Schneider was merely coincidental to the tennis match. The observation that “Schneider was pulling for McEnroe’s opponent” and the admission that McEnroe approached Schneider “in response to [his] repeated heckling” (emphasis added) make plain that, in ordinary parlance, the altercation did “arise out of” the tennis match. Put another way, “but for this business pursuit, the [altercation] would not have occurred.” Kermans v. Pendleton, 62 Mich.App. 576, 233 N.W.2d 658, 660 (1975).

The factual setting of this case also undermines McEnroe’s reliance on the clause excepting “activities which are ordinarily incident to non-business pursuits” from the reach of the “business pursuits” exclusion. McEnroe contends that his altercation with Schneider should be considered a non-business activity because it was a “frolic and detour” from the tennis match, not in furtherance of any business pursuit. Citing a line of cases involving various pranks and practical jokes, McEnroe asserts that a “momentary deviation from ... ‘business pursuits’ — ... horseplay ... — should be classified as an activity ordinarily incident to non-business pursuits_” State Farm Fire & Cas. Co. v. National Union Fire Ins. Co., 87 Ill.App.2d 15, 230 N.E.2d 513, 515 (1967). Whether or not these cases are correctly decided, they are simply inappo-site to the facts at issue. McEnroe can claim a “momentary deviation” from his business pursuit only by defining that pursuit far too narrowly. Unlike the occupations involved in the “horseplay” cases— State Farm, supra (elevator repairman), Morrill v. Gallagher, 370 Mich. 578, 122 N.W.2d 687 (1963) (general manager), Jackson v. Lajaunie, 270 So.2d 859 (La.1972) (service station operator) — professional tennis is a form of entertainment whose very existence depends on the participation of third parties, its fans. McEnroe’s attempt to describe his business pursuit as including only the course of play, and excluding all interaction with spectators, is unrealistic. The attitude of the fans, whether hushed in a close match, or effusive in their support of a local favorite, is integral to the business of professional tennis. Likewise, like a baseball player doffing his cap after a home run, or a wide receiver dancing in the end zone after a touchdown, a tennis player plies his trade and gains an audience not only by gracefully executing lobs and passing shots, but also by graciously accepting the cheers of the crowd after a hard-fought victory.

The understanding that the business of tennis is not confined solely to the game of tennis is not lost on those who promote that business. The Tournament Regulations of the Men’s International Professional Tennis Council provide, for example, that “[a] player participating in the finals of a tournament ... must attend and participate in the final ceremonies after the match ...” Art. V, § I. Perhaps more to the point are rules directing that players shall not verbally or physically “abuse any ... spectator ... within the precincts of the tournament site.” Art. V, §§ Q, R. Violations of these latter rules during a match may subject the player to penalties ranging from a warning to a default of the entire match. Art. V, §§ Q, R. V. Because the incident with Schneider could have had an immediate and substantial effect on McEnroe’s business pursuit, i.e., the tennis match in which he was participating, it defies common sense to argue that this .business pursuit was somehow suspended for the “several moments” during which the incident took place. Instead, the only reasonable conclusion is that, in the unambiguous language of the policy at issue, any injury that Schneider may have suffered did arise out of McEnroe’s business pursuit.

For the reasons stated herein, plaintiff’s motion for summary judgment is granted.

So Ordered.

      . Schneider, though nominally a defendant, has taken no part in these proceedings.

      . Pursuant to Local Rule 3(g), each party has submitted a statement of the material facts which it considers undisputed.

      .In his separate suit against McEnroe, Schneider alleges that the substance was "saw-dust type material.” This discrepancy has no relevance to the outcome of this case.

      . At oral argument, it was stipulated that tennis is a spectator sport.


author: JENKINS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. George Lee MAYER, Robert Schrack, William O. Ransom, Defendants.
    No. CR 85-66J.
    United States District Court, D. Utah, Central Division.
    Sept. 16, 1985.

      Bruce C. Lubeck, Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff.
    G. Fred Metos, Stephen R. McCaughey, Kenneth R. Brown, Salt Lake City, Utah, for defendants.
   MEMORANDUM OPINION AND ORDER

JENKINS, Chief Judge.

This matter came before the court on the defendants’ motions to suppress evidence. It raises several issues about the validity of a warrantless search of an airplane and an airplane hangar.

On July 31, 1985, the court received evidence and heard arguments on the motions. Bruce Lubeck appeared for the United States. Stephen McCaughey appeared for the defendant Robert Schrack, Kenneth R. Brown appeared for the defendant William 0. Ransom, and G. Fred Metos appeared for the defendant George Lee Mayer. The defendants Ransom and Mayer were present. The defendant Schrack, having failed to return to a half-way house to which he had been confined, did not participate in the motions.

The United States offered three witnesses: Michael Allen Crew, the customs officer who directed the search; Christian Ron-now, a Utah state circuit judge who, over the telephone, authorized the search; and Raymond C. Goodwin, a lieutenant in the Beaver County sheriffs office who participated in the search. The defendants presented no evidence. At the conclusion of the arguments, the court denied the defendants’ motions to suppress. The court found that the defendants had not demonstrated that they had a reasonable expectation of privacy in either the airplane or the hangar. Accordingly, the court found that, on the record then before the court, the defendants’ fourth amendment rights had not been violated. However, the court denied the motions without prejudice and gave the defendants leave to file the motion a second time.

On August 20, 1985, this matter came before the court on the defendants’ renewed motions to suppress. Once again, Bruce Lubeck appeared for the United States, Kenneth Brown appeared for the defendant William 0. Ransom, and G. Fred Metos appeared for the defendant George Lee Mayer. The defendants Ransom and Mayer were present. No one appeared for the defendant Robert Schrack, who apparently was still at large.

At this hearing, the parties stipulated that the witnesses who testified at the pri- or hearing were not required to testify again, and that if they did testify, they would testify exactly as they had before. The United States then presented four additional witnesses: Gerald R. Young, a customs radar operator; Darrell J. Hjerbe, a customs electronics sensor systems operator; John R. Cole, a customs pilot; and David A. Pauli, a special agent with the Drug Enforcement Administration. The defendants also each testified briefly.

At the conclusion of arguments on the motions, the court reserved ruling on the motions. Now, after reviewing the transcripts of the two hearings, and after examining the memoranda submitted by the parties, the court enters this memorandum opinion.

I. FINDINGS OF FACT

On April 5, 1985, just before sundown (about 6:55 p.m. MST), a United States Customs radar operator stationed at Davis Monthan Air Force Base in Southern Arizona detected an unidentified aircraft flying northbound through a military restricted area about 58 miles north of the Mexican border. The plane was not equipped with an operating transponder, an electrical device that helps radar operators to identify a specific aircraft. At the time it was first detected, the plane was flying at a low altitude, it was coming from an unpopulated area, and it was traveling in a direction that was inconsistent with air travel normally found in the area. Between the border and the point at which the radar operator first detected the airplane, there are two small, unlighted airfields.

The radar operator then instructed a customs Cessna Citation jet stationed at Davis Monthan to pursue the unidentified airplane. He also instructed a Cessna 210 airplane stationed in Phoenix to travel north to assist in chasing the suspect target. The radar operator directed the Citation jet to the point at which the jet’s crew made visual contact with the suspect airplane. The Citation, which was equipped with both radar and a forward looking infrared sensor, moved in close enough to identify the target as a high wing, single engine aircraft.

The Citation followed the target from the time it made visual contact until the target landed in Milford, Utah. During the trip to Milford, the target turned its navigational lights off and on twice, and then, about 30 to 40 minutes before landing, extinguished all its lights. It then landed without using landing lights or navigational lights. During the period of time that the navigational lights were out, the Citation kept track of the target by using the forward looking infrared equipment. From the time the target first appeared on the radar screen until it landed, it maintained a constant course. After the target landed at Milford, the Citation crew watched the aircraft being pushed into a hangar at the airport.

About five minutes later, the customs Cessna 210 arrived and landed. Before landing, Agent Crew, one of the customs agents on board the 210, had contacted the Beaver County Sheriffs office and asked the local authorities to detain any people in the area of the hangar. Lieutenant Goodwin of the Beaver County Sheriffs Office had already arrived at the hangar and had detained Ransom, one of the defendants. After landing, Agent Crew questioned Ransom. He first asked Ransom how long he had been there and what he was doing. Ransom responded that he had been there about an hour and he was waiting for his brother-in-law to fly into the airport to do some work in the Milford area. Crew then asked Ransom whether any other aircraft had landed since he had been there. Ransom said “No,” and asked to see his attorney. Crew then handcuffed and searched Ransom and placed him in Lieutenant Goodwin’s police car.

The Citation pilot then directed Agent Crew to the hangar in which the suspect plane had been pushed. The hangar had been locked from the outside with a padlock. Crew shined a flashlight through a three by five inch hole in the bottom of one of the hangar doors. Through the hole he could see a single-engine airplane and two pairs of legs moving around.

At that time, Lieutenant Goodwin advised Agent Crew that it was possible to obtain a telephonic search warrant from a state judge in Cedar City. Crew testified at the hearing that although he felt he had “more than enough cause for a customs search,” he “saw no reason that [obtaining a search warrant] would hurt.” Transcript, July 31, 1985, p. 22. Crew and Goodwin then telephoned Christian Ron-now, a Utah state circuit judge. After they recited to him the facts as set forth above, he told them that they had more than enough probable cause for a search warrant and that they could go ahead and search the hangar and the aircraft. At that time, the judge also informed the officers that he had no recording equipment. The United States concedes that Crew and Goodwin did not comply with the procedural requirements to obtain a telephonic search warrant under Utah law. It is also evident that at least Goodwin knew that they had not complied with those procedural requirements.

After concluding this conversation with Judge Ronnow, Crew yelled to the men inside the hangar to pound on the door if they wanted to get out. The men inside pounded on the door. Lieutenant Goodwin then told Ransom that he and Crew had obtained a search warrant to enter the hangar and that if Ransom had a key they would not have to cut the lock off. Ransom told Goodwin that the key to the hangar was in his watch pocket on the right side. Goodwin found the key where Ransom said it would be and opened the hangar. At some point, Ransom was informed of his Miranda rights. It simply is not clear whether his rights were read to him before or after he told them where the key was. Accordingly, the court finds that Ransom was not informed of his right to remain silent until after he had indicated where the key to the hangar could be found.

Inside the hangar the government officers found the other two defendants, Mayer and Schrack; a high wing, single-engine airplane; 29 bales of marijuana; a 200-gal-lon fuel tank with hoses and fittings; an electric gasoline pump; two two-way radios; a pair of night vision goggles; and several tools on a work bench at the back of the hangar. Inside the airplane itself, the officers found marijuana debris, another pump and some fittings, and numerous aeronautical maps. All three defendants were arrested and the evidence was seized.

The defendant Mayer had subleased the hangar in November 1984 from Omni Cartwright. Mayer had given Ransom a key and had given him permission to store tools in the hangar. In exchange for the right to store tools in the hangar, Ransom had done concrete work for Mayer. Ransom actually stored tools in the hangar, which was kept locked at all times. At the time of the search itself, the hangar was locked. Based on this evidence, the court finds that both Ransom and Mayer had a subjective expectation of privacy in the hangar and its contents.

Ransom, Mayer, and Schrack were each indicted with one count of conspiracy to possess marijuana with the intent to distribute, and with one count of possession of marijuana with intent to distribute. Ransom and Mayer have filed motions to suppress all evidence seized as a result of the search of the hangar and the airplane. In addition, Ransom has filed a motion to suppress all statements he made at the time of the search.

II. MOTIONS TO SUPPRESS THE EVIDENCE SEIZED DURING THE SEARCH OF THE AIRPLANE AND THE HANGAR

The Fourth Amendment to the Constitution of the United States provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or thing to be seized.

It is well settled that “searches conducted outside the judicial process, without pri- or approval by judge or magistrate are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). It is equally well settled that when a federal agent conducts a search in violation of a defendant’s fourth amendment rights, any evidence seized during the search cannot be admitted in a criminal trial against that defendant. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Here, the United States admits that its attempt to obtain a telephonic search warrant fell short and that the search was conducted without a valid warrant. Accordingly, the evidence seized during the search must be suppressed unless the search was “reasonable” under one of the established exceptions to the requirement that a search be conducted pursuant to a valid search warrant.

A. Good Faith

In a preliminary matter, the United States argues that the exclusionary rule does not apply here because the officers acted in good faith. This contention is frivolous at best. The circumstances of this case are wholly different from the circumstances in United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the case in which the Supreme Court announced the good faith exception to the exclusionary rule. In Leon, the officers relied on a facially valid search warrant, and conducted the search relying in good faith on the validity of the warrant. Under those circumstances, applying the exclusionary rule to suppress evidence would not have deterred inappropriate police conduct in the future, so the Court determined that the salutary purpose of the exclusionary rule would not be served if the evidence were suppressed.

In this case, Crew and Goodwin did not rely on a facially valid warrant. In order to obtain a valid telephonic search warrant in Utah, an officer must read to the magistrate the contents of the warrant (referred to as the duplicate original warrant), and, after the magistrate has approved the contents of the warrant, the officer must sign the warrant with the magistrate’s name. Utah Code Ann. § 77-23-4(2) (1982). In addition, the magistrate must record the warrant as it is read to him, and he must then sign what he has recorded. In this case, the officers did not comply with the statute. The officers read nothing to the magistrate. Nothing was signed and nothing was returned. The magistrate did not record what was related to him. No duplicate original was made out or kept by the officers. Accordingly, there was no facially valid warrant on which Crew and Goodwin could have relied.

The United States contends that the police cannot be expected to know the procedures for obtaining a valid telephonic search warrant. This argument is novel. The State of Utah has created a means by which law enforcement officers in remote areas can obtain a search warrant on short notice without being in the actual presence of the magistrate. The law was written specifically to assist officers who work in less populated regions of the state and who would be hampered in their duties if they were unable to obtain a search warrant whenever a magistrate is not close by. However, those officers can benefit from the procedure only if they know what it is. Knowing that it exists is not enough. In essence, the United States takes the position that the well-known legal maxim “ignorance of the law is no excuse” does not apply to law enforcement officials. This court refuses to adopt such an untenable position. It is not “good faith conduct” to rely on a telephonic search warrant which is patently invalid and which an officer should know is patently invalid.

Even if the court were to adopt the position the United States urges, it would not benefit the United States here. Officer Goodwin testified that he had previously obtained telephonic search warrants, and that he knew the procedural requirements. An officer who knows that a telephonic search warrant was not obtained in compliance with the law, but nevertheless relies on that warrant to conduct a search, is not acting in good faith.

The purpose of the exclusionary rule is to deter official misconduct in the future. In Leon, the Supreme Court concluded that applying the exclusionary rule in that case would not promote that objective. In this case, suppressing the evidence would promote that objective by deterring police officers from ignoring the procedural requirements necessary to obtain a valid telephonic search warrant. Requiring the officer to read the contents of the warrant to the magistrate and requiring the magistrate to record what was read to him allows a reviewing court to determine whether probable cause had been established. Without the writings, the court is left, as it is here, with differing versions of what was said. Accordingly, the court rejects the government’s argument and holds that the good faith exception to the exclusionary rule does not apply when the procedures for obtaining a telephonic search warrant are ignored.

B. Reasonable Expectations of Privacy

The United States next asserts that the defendants did not have a reasonable expectation of privacy in either the airplane or the hangar, and hence, the defendants have no right to challenge the search. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court ruled that a defendant’s right to challenge a search no longer depends on traditional notions of standing. Instead, the court must determine whether the ‘search” was a constitutionally protected one. In making that determination, the court must answer two inquiries: First, did the defendant have an actual, subjective expectation of privacy in the object of the search, and second, does society recognize that expectation of privacy to be reasonable? Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). See also, Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The court has previously found that both Ransom and Mayer had a subjective expectation of privacy in the hangar and its contents. Accordingly, the controlling inquiry is whether that expectation is one that society recognizes to be reasonable.

In Rakas, the Supreme Court stated that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.” 439 U.S. at 143-44, n. 12, 99 S.Ct. at 430-31, n. 12. In other words, if a defendant has a legal right to exclude others from the object of the search, society will recognize that his expectation of privacy in the object of the search is reasonable. Here, the defendant Mayer had subleased the hangar and had paid rent for it. As a sublessee, he had a legal right to exclude others from the hangar. Accordingly, his expectation of privacy in the hangar and in its contents was an expectation that society recognizes to be reasonable.

Ransom’s expectation was also one that society recognizes to be reasonable. Mayer, who had a leasehold interest in the hangar, had given Ransom permission to store tools in the hangar. More importantly, Mayer had also given Ransom a key. With that key, Ransom had the ability — as well as the legal right — to prevent others from entering the hangar. Under these circumstances, society recognizes that Ransom’s expectation of privacy in the hangar and its contents was reasonable.

The Court of Appeals’ holding in United States v. Hansen, 652 F.2d 1374, 1384 (10th Cir.1981), does not require a contrary finding. In that case, Hansen’s possession of a key was not enough to demonstrate a reasonable expectation of privacy in the room the key opened. He had expressly denied having any interest in that room, and he testified that the key did not belong to him. Ransom, however, has expressed an interest in the hangar, and he has actually used the key to exclude others from the hangar.

Both Mayer and Ransom had a reasonable expectation of privacy in both the hangar and its contents. Accordingly, the search was a constitutionally protected one, and both Mayer and Ransom have “standing” to move to suppress the evidence obtained during the search.

C. Exigent Circumstances

The United States next argues that the officers were entitled to search the hangar because of the existence of exigent circumstances. The law on exigent circumstances is also well settled. “[A] warrant-less entry for some limited purposes is permissible if police officers have probable cause to search the residence and exigent circumstances are present.” United States v. Cuaron, 700 F.2d 582, 586 (10th Cir.1983). In order to justify a search under the exigent circumstances exception, the United States must establish (1) that the officers had probable cause to search the hangar and its contents, and (2) that exigent circumstances existed. Because the court finds that exigent circumstances did not exist and that there was sufficient time to obtain a warrant, it is not necessary to determine whether the officers had probable cause in the context of this motion.

Exigent circumstances exist when the societal costs of obtaining a warrant sufficiently outweigh the reasons for prior recourse to a neutral magistrate. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). The courts have found exigent circumstances to exist when there was danger of flight or escape, when there , was danger of harm to the police or the public, and when there was a risk of loss, destruction, removal, or concealment of evidence. In this case, there was no opportunity for escape. The suspects were locked inside a hangar with no way to get out unless someone from the outside of the hangar let them out. In addition, there was no danger of harm to the police or the public. Although the government argues in its memoranda that drug runners are known to carry weapons, no one testified that he believed himself to be in any danger.

Similarly, there was no danger that evidence would be destroyed. The government argues that evidence could have been flushed down a toilet or put in the fuel tank of the airplane. However, not a single witness testified that he was concerned that evidence might be destroyed before a search warrant could be obtained. Not a single witness testified that he believed the hangar—an enclosure not much larger than the airplane itself—even had a toilet or sink in it. Not a single witness expressed any concern whatsoever that anyone believed the evidence would be destroyed if they did not act quickly.

Even if the police had reasonably believed there was a risk that evidence would be destroyed, there was sufficient time to obtain a telephonic search warrant. “[Tjrial courts must consider the availability of a telephone warrant in determining whether exigent circumstances existed, unless the critical nature of the circumstances clearly prevented the effective use of any warrant procedure.” Cuaron, 700 F.2d at 589. In this case, there obviously was an opportunity to obtain a warrant by telephone. Crew and Goodwin tried to do just that. Their utter failure to follow required procedures does not create exigent circumstances when the circumstances are not otherwise exigent. Accordingly, the search cannot be justified under the exigent circumstances exception.

D. Border Search.

Finally, the United States argues that the search was justified as a search at the functional equivalent of the border. It is well settled that a customs agent may, without a warrant and without probable cause, stop and search someone crossing an international border to determine whether that person is entitled to enter the country and to determine whether that person is carrying contraband. Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). In Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973), the Supreme Court stated that “[w]hatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well.” As an example, the Court suggested that "a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.” Id. at 273, 93 S.Ct. at 2539.

There are several distinct subclasses of border searches that are commonly confused. One, known as a “search at the functional equivalent of the border,” is a search at the first practicable point after a person has entered the country, even though that point may be hundreds or perhaps thousands of miles from the border. Id. A second subclass, known as the “extended border search,” takes place when customs agents follow a suspected smuggler in hopes of netting others. Alexander v. United States, 362 F.2d 379 (9th Cir.), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966). A third, based on United States v. Weil, 432 F.2d 1320 (9th Cir.1970), cert. denied, 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971), is a Search of something known not to have crossed the border, justified because the customs agents are reasonably certain that it contains something that has crossed the border. This case involves two of these subclasses: a TFeii-type search at the functional equivalent of the border.

The Eleventh Circuit has fashioned a three-part test to determine whether a search is at the functional equivalent of the border. United States v. Carter, 760 F.2d 1568, 1576 (11th Cir.1985). First, the officers conducting the search must be reasonably certain that the object of the search had crossed an international border. Second, the search must take place at the first practicable point after the border was crossed. And third, there must have been no time or opportunity for the object of the search to have changed materially since the time of the crossing — that is, the officers conducting the search must be reasonably certain that contraband was not placed in the object of the search after the border was crossed.

The only genuine dispute in this case is over whether the officers were reasonably certain that the object of the search — the airplane — had crossed an international border. Since a search was not possible until the plane landed, the court is satisfied that the search took place at the first practicable point after the alleged border crossing. In addition, the court is satisfied that there was not time or opportunity for the object of the search to have changed materially from the time of the crossing until the plane was placed in the hangar. The plane was under constant surveillance from the time it was first discovered until it was placed in the hangar.

This case presents an additional twist not found in most other border search cases: The court must determine what the object of the search was. Although the government argues that the plane was the object of the search, the plane had been pushed into a hangar before it was searched. Obviously, no one suggests that the hangar had recently crossed an international border. Therefore, even assuming the plane itself had crossed the border, can a border search be expanded to cover the small hangar and its contents, or must the search be limited to the plane itself? And if the search cannot be expanded to cover the hangar and its contents, is the search of the plane then prohibited because the plane was part of the contents of the hangar?

A line of cases originating in the Ninth Circuit offers considerable guidance. In United States v. Weil, 432 F.2d 1320, 1323 (9th Cir.1970), the court stated:

It seems obvious to us that the right of customs agents to search a vehicle without probable cause is not confined to vehicles that have crossed the border. For example, if customs agents see a vehicle cross the border, and see the occupant then transfer parcels from that vehicle to another that has not crossed the border, the agents surely have a right to search the latter vehicle.

This court finds the reasoning of the Ninth Circuit to be persuasive. It is settled law that “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U.S. 606, 616, 97 S.Ct. 1972, 1978, 52 L.Ed.2d 617 (1977). It is true that placing a parcel that had been carried across the border into a vehicle heightens the expectation of privacy in the parcel. However, the court finds that such a heightened expectation is not sufficient to make an otherwise reasonable search unreasonable. The search is still a border search. A contrary holding would unnecessarily hamper customs agents from securing the nation’s borders.

The court can find no distinction, for purposes of this motion, between a parcel placed in a car and an airplane placed in a hangar. The same principles apply. Accordingly, the court holds that when customs agents are reasonably certain that an airplane has crossed an international border, a warrantless search of the airplane as soon as possible after the plane has landed is reasonable under the fourth amendment even though the airplane had been pushed into a hangar. In addition, the court holds that when customs agents are reasonably certain that an airplane has crossed an international border and that the airplane has been pushed into a hangar, a warrantless search of the hangar and its contents in connection with a search of the plane is also reasonable.

Therefore, the controlling inquiry in the court’s determination of whether the search was at the functional equivalent of the border is whether the officers were reasonably certain that the airplane had crossed an international border. The Ninth Circuit has defined “reasonable certainty”:

While the “reasonable certainty” required has not been precisely defined, it has been noted that “ ‘reasonable certainty’ is clearly a higher standard than that of probable cause.” United States v. Kessler, 497 F.2d 277, 279 (9th Cir.1974). See also United States v. Bates, 533 F.2d 466 (9th Cir.1976). It is, however, directed to a different question: if the customs agents are reasonably certain that a boat crossed the border, the boat may be subjected to a border search without any cause at all to believe that any crime is being committed. We do not believe that “reasonable certainty” is so much stricter than probable cause as to require that the agents have knowledge of facts which prove a border crossing beyond a reasonable doubt. We conclude that the only modification of ordinary probable cause required is that the totality of the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information be sufficient in light of their experience to warrant a firm belief that a border crossing has occurred.

United States v. Tilton, 534 F.2d 1363, 1366 (9th Cir.1976) (emphasis in original).

In this case, the court finds that the information the officers relied on was trustworthy, that the totality of the facts and circumstances within the officers’ knowledge were sufficient in light of their experience to warrant a firm belief that a border crossing had occurred. The plane was first discovered in a restricted area where it should not have been. It was coming from an unpopulated area. It was flying at a low altitude. It was flying in a direction that was inconsistent with the usual pattern of traffic in the area. It did not have a transponder. From the time it was discovered until the time it landed, it continued on a constant course. These facts, taken together gave the customs officers reason to believe that the plane came from beyond the border. The officers’ experience in evaluating these facts immediately suggested to them that they had discovered smuggling activity. The defendants’ efforts to conceal the plane by turning off its running lights 30 to 40 minutes before landing, when considered in light of the other facts known to the customs officers, fortified the officers’ belief. The court finds that all this information, when considered as a whole, was sufficient to satisfy the reasonable certainty test.

The defendants suggest that turning off the running lights supports an inference of smuggling activity from within the country as much as it supports an inference of smuggling activity from Mexico. If that were the only fact available to the officers, the court would agree. However, when considered with all the information available to the officers at the time, the fact that the lights were turned off for 30 or 40 minutes before landing, and the fact that the defendants landed the aircraft without benefit of lights, colored all of the facts known and fortified the officers’ belief that the plane had crossed the border.

The defendants also argue that the plane could have come from one of the two small airfields south of the point that the plane was first discovered. Although that may have been possible, the court finds that the totality of the circumstances suggested it was not likely. The mere existence of the two airfields is not sufficient to prevent the government from satisfying the reasonable certainty test. The test is reasonable certainty, not absolute certainty.

Finally, the defendants assert that in order to satisfy the reasonable certainty test, the customs officers must locate the plane prior to its crossing the border. The court disagrees. In United States v. Adams, 569 F.2d 924 (5th Cir.1978), cert. denied, 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (1978), the court found that there was reasonable certainty that a truck had crossed the border even though the truck, which was traveling on a road parallel to the border, was first discovered a short distance from the border. Fresh mud on the sides of the truck indicated to the officers that the track had come from the riverbed.

The court has been unable to find a case involving an airplane that was not located before it crossed the border or that did not have a foreign point of departure. See United States v. Garcia, 672 F.2d 1349 (11th Cir.1982) (plane located prior to crossing border); United States v. Ivey, 546 F.2d 139 (5th Cir.), cert. denied sub nom., Taglione v. United States, 431 U.S. 943, 97 S.Ct. 2662, 53 L.Ed.2d 263 (1977) (plane seen in the British West Indies prior to being spotted in the United States). The court nevertheless finds that based on the totality of the circumstances, the officers had sufficient information in light of their experience to warrant a firm belief that a border crossing has occurred.

The defendants rely heavily on United States v. Brennan, 538 F.2d 711 (5th Cir.1976), cert. denied, 429 U.S. 1092, 97 S.Ct. 1104, 51 L.Ed.2d 538 (1977). In Brennan, a plane left the Melbourne Regional Airport at 11:00 a.m. and travelled in a southwesterly direction. Radar contact with the plane was lost over Miami. About 13V2 hours later the plane landed again at Melbourne. The court concluded that the contact with the border was “simply too atten-tuated ... to support this search as one occurring at the functional equivalent of an international border.” Id. at 715.

This case is different from Brennan. In Brennan the available information could not have supported a “firm belief” that the plane had crossed the border. Had an untested informant not given customs officers a tip, there would have been no reason to believe that the plane had crossed a border rather than come from Des Moines. It was possible that the plane had crossed a border — indeed, the informant had said the plane was going to leave the country — but that possibility did not satisfy the reasonable certainty test. Here, as indicated above, the test is satisfied. Nothing in Brennan changes the court’s conclusion.

Accordingly, the search of the airplane and hangar in Milford, Utah, was reasonable under the fourth amendment. The evidence seized during that search is admissible against the defendants in their criminal trial.

III. MOTION TO SUPPRESS THE STATEMENTS MADE BY THE DEFENDANT RANSOM

The fifth amendment to the Constitution of the United States provides that “No person ... shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), the Court held:

[T]he prosecution may not use statements, whether exculpatory or inculpato-ry, stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way.

In the years following Miranda, the courts have frequently reaffirmed the principle that when a police officer takes a suspect into custody and asks him questions without first informing him of his rights, any statements the suspect makes before being informed of his rights cannot be introduced as evidence in his criminal trial. Berkemer v. McCarty, — U.S. -, 104 S.Ct. 3138, 3145, 82 L.Ed.2d 317 (1984).

In this case, the government has not demonstrated that the defendant was informed of his rights prior to being questioned. Therefore, the sole inquiry is whether, at the time he was questioned, the defendant was in custody — whether he had been deprived of his freedom in any significant way. The evidence on this point is sketchy. The defendant himself did not testify about whether he believed that he was free to go. What testimony the court heard from the government indicates that the interrogations were custodial.

Without question, the second conversation (the conversation about the key to the hangar) took place after the defendant was in custody. He had been handcuffed and placed in a patrol car. Accordingly, any statements he made at that time must be suppressed.

At the time the defendant was first questioned about his presence at the airport, he had been searched but not yet handcuffed. However, as soon as he asked to see his attorney, he was handcuffed and placed in the patrol car. The fact that he gave no answer that would suggest he was involved in criminal activity but was immediately arrested after asking to see his attorney, suggests that at the time he was questioned, he was not free to leave. This suggestion is reinforced by Agent Crew’s testimony that he had directed Goodwin to detain Ransom until Crew could question him. All of this leads the court to conclude that even during the initial questioning, Ransom was in custody. At that point, the officers had an obligation to inform him of his rights. Their failure to do so requires this court to suppress the statements Ransom made at that time.

IY. CONCLUSION AND ORDER

For the reasons stated in this opinion, the court finds that the evidence seized during the search of the hangar and the airplane is admissible against the defendants. However, the statements that the defendant Ransom made in response to the officers’ questions must be suppressed. Accordingly, the defendant Mayer’s motion to suppress is DENIED, and the defendant Ransom’s motion to suppress is GRANTED IN PART and DENIED IN PART.

      . The United States admits that it was lawful for the defendants’ aircraft not to be equipped with an operable transponder. See 14 C.F.R. § 91.24 (1985).

      . Although the radar operator was unable to tell from his radar screen what the airplane’s altitude was, the radar operator did testify that the radar had the capacity to "see” into Mexico if an airplane is high enough. The court infers from the fact that the plane was not discovered until it was 58 miles north of the border that the plane was flying low enough to cause the curvature of the earth to block the radar until the plane reached the point at which it was discovered.
      The defendants argue that because radar with the capacity to locate targets in Mexico did not locate the defendants' airplane until it was 58 miles north of the border, the court must conclude that the plane did not come from the border. In making that argument, the defendants disregard the limitation of the radar in locating objects blocked from the "view” of the radar by the curvature of the earth.

      . Judge Ronnow testified that both Crew and Goodwin mentioned the existence of marijuana. Both Crew and Goodwin testified that they said nothing at all about the. existence of marijuana. Because this court does not have to determine whether probable cause for the search existed, it is not necessary to resolve this conflict in testimony.

      . Federal Rule of Criminal Procedure, Rule 41(c)(2) also allows a federal law enforcement officer to obtain a telephonic search warrant from a federal magistrate. That rule does not allow a state magistrate to issue a telephonic search warrant, although it does not prohibit a state magistrate from issuing a telephonic search warrant pursuant to state law. Because the parties admit and the court finds that the telephonic search warrant issued pursuant to state law was invalid, the court does not consider the defendants’ contention that the evidence must be suppressed in the federal court if a telephonic search warrant is issued by a state magistrate.

      . In this case, the customs agents were assisted by Beaver County sheriff deputies. That is permissible so long as the search is “executed under the authority and direction of those agencies having jurisdiction in safeguarding the borders.” United States v. Alfonso, 759 F.2d 728, 735 (9th Cir.1985). Cf. United States v. Soto-Soto, 598 F.2d 545, 549 (9th Cir.1979) (border search conducted by the FBI violates fourth amendment). The court finds that the search was under the authority and direction of the customs agents.

      . It is true that the search itself did not take place for about a half hour, and that during the hiatus the plane was in a hangar. However, the court does not consider realistic the possibility that contraband could have been placed on the plane while it was in the hangar. As is more fully explained later in the court’s opinion, the search of the hangar was also justified under border search principles.
      It is also true that the plane was not discovered until it was 58 miles north of the border. Accordingly, it is possible that the plane could have picked up contraband after crossing the border but before being discovered. The court finds that if the officers were reasonably certain that the plane had come from Mexico, the possibility that it stopped at a point north of the border to pick up contraband would be so unlikely that the customs agents could have concluded with reasonable certainty that there was no time or opportunity to place contraband on board the airplane after crossing the border.

      . LaFave, in his treatise on the fourth amendment, suggests that although a Weil-type search is “more intrusive because not done as a matter of routine at a border checkpoint, it seems that ordinarily there will be reasonable suspicion of wrongdoing flowing from the reasonable certainty of entry without inspection.” 3 W. La-Fave, Search and Seizure: A Treatise on the Fourth Amendment 302-03 (1978).

      . Because The informant was untested, his tip was not sufficiently reliable to be used as information to support a search at the functional equivalent of the border.

      . Although the seargh of the hangar and the airplane followed a violation of the defendant’s constitutional rights, the subsequent search was not the fruit of a poisonous tree. Without the key, the officers would have cut the lock off and searched the hangar anyway.


author: LARSON, Senior District Judge.

text:
    MENTAL HEALTH ASSOCIATION OF MINNESOTA, et al., Plaintiffs, v. Margaret M. HECKLER, Secretary of the United States Department of Health and Human Services, Defendant.
    Civ. No. 4-82-83.
    United States District Court, D. Minnesota, Fourth Division.
    Sept. 17, 1985.

      Mark Bohnhorst and Martha A. Eaves, St. Paul, Minn., for plaintiffs.
    Mary L. Egan, Minneapolis, Minn., for defendant.
   ORDER

LARSON, Senior District Judge.

Plaintiffs’ motion for a partial award of attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. §§ 2412(a), 2412(b) and 2412(d)(l)(A)(EAJA) was heard on August 29, 1984. The court has considered the affidavits and the memoranda and arguments of counsel. Defendant’s memorandum has stated no objection to the request for costs. Plaintiffs maintain that their costs are allowable under any and all of the three sections of the Equal Access to Justice Act cited above as well as under 28 U.S.C. § 1920. See, Welsch v. Likens, 68 F.R.D. 589, 595 (D.Minn.1975) aff'd 525 F.2d 987 (8th Cir.1975). Defendant does not advance any arguments to the contrary, and plaintiffs will be allowed their costs. Defendant contests the amount of the fees and liability.

I. THE AMOUNT OF FEES REQUESTED.

Defendant objects to the amount of the fee requested on two grounds. First, defendant objects to the hourly rate. Plaintiffs request fees at the rate of $85.00 per hour. Defendant claims that plaintiffs are not entitled to receive even $75.00 per hour. This argument is without merit. Plaintiffs have documented their petition adequately. Moreover, after taking evidence covering 23% of the attorneys in this community, the court in Rajender v. University of Minnesota, 546 F.Supp. 158, 167 (D.Minn.1982), determined that the range of hourly rates in 1982 for associates of less experience than plaintiffs’ counsel was $60.00 to $100.00, with an average of over $85.00. The quality of representation in this case, the novelty and complexity of the litigation and the result obtained justify the hourly rates of $85.00. Defendant objects that $85.00 per hour exceeds the maximum of $75.00 set by the Equal Access to Justice Act. The legislative history, however, makes clear that Congress contemplated upward adjustments in this figure to account for inflation. See, Action on Smoking and Health v. CAB, 724 F.2d 211 (D.C.Cir.1984). This may be an appropriate case for an upward adjustment. Additionally, insofar as fees are based upon bad faith, the EAJA contains no maximum.

The court has decided to limit the hourly rate to $75.00. Plaintiffs have not asked for a multiplier, though because of the high quality of the work of counsel in developing the factual issues a multiplier could be justified. The court is not aware of any case under EAJA where a multiplier has been discussed. The limitation of $75.00 per hour under EAJA (except for bad faith) would appear to preclude a multiplier for quality.

Second, defendant objects to payment of any fees to three legal organizations which assisted plaintiffs’ counsel with enforcement of the court’s order. Such counsel were permitted access to the otherwise private files of class members only upon associating with plaintiffs’ counsel in this case and upon agreeing to subject themselves to the jurisdiction of this court. These organizations performed the same work which the principal lawyers performed in monitoring compliance with the order and functioned as the alter egos of principal counsel. Defendant states no objection to the time spent by the principal attorneys on the same tasks. Defendant’s objection is not well taken.

II. THE APPROPRIATENESS OF THE PARTIAL FEE AWARD PLAINTIFFS SEEK.

Plaintiffs are requesting a partial award of fees, covering the time devoted to proving the facts of the case and assuring compliance with the order. Plaintiffs do not seek fees for legal work expended in overcoming various legal defenses of the Secretary asserted here and in the Court of Appeals. These legal defenses related to subject matter jurisdiction, sovereign immunity and scope of relief. On February 8, 1984, the Court of Appeals denied a request for appellate attorneys’ fees in this case. Plaintiffs concede that this order necessarily implies that the Court of Appeals considered the legal defenses to be reasonable. These defenses represent distinct legal positions through which the government sought to avoid all or part of the relief requested, irrespective of the lawfulness or egregiousness of its underlying conduct. See, Spencer v. N.L.R.B. 712 F.2d 539, 554 & n. 54, 565-67 (D.C.Cir.1983) (exhaustion, standing, mootness, subject matter jurisdiction).

The government asserted not only the legal defenses, it also defended on the facts. Plaintiffs maintain that the factual defense was totally unjustified and in bad faith. They thus seek fees for their factual work in this litigation, while conceding that they will not receive compensation for overcoming the legal defenses.

It is appropriate to allow fees as to the government’s unreasonable positions while at the same time denying fees with respect to reasonable positions. While the courts appear divided over the meaning of the term “position” under 28 U.S.C. § 2412(d)(1)(A), they are unanimous in approving the approach advocated by plaintiffs. See, Goldhaber v. Foley, 698 F.2d 193, 197 (3rd Cir.1983) (underlying conduct); Cinciarelli v. Reagan, 729 F.2d 801, 805 (D.C.Cir.1984) (litigation position); Dougherty v. Lehman, 711 F.2d 555, 560 (3rd Cir.1983); Ellis v. United States, 711 F.2d 1571, 1576 (Fed.Cir.1983); Spencer v. N.L.R.B., 712 F.2d 539, 556 n. 62 (D.C.Cir.1983). This court will adopt that methodology.

Plaintiffs also claim that in apportioning fees the court should adopt the principles of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Where work was devoted to advancing the litigation as a whole or where factual proofs related both to the reasonable positions and the unreasonable positions of the government, the appropriateness of awarding fees should turn on the nature of the relief obtained. The court agrees that this is the proper approach and is consistent with the Goldhaber line of cases.

The relief obtained in this case was extraordinary and complete. Plaintiffs estimate that the class has already been benefited in an amount exceeding $30 million, and defendant does not suggest that this estimate is unreasonable. This was a case of first impression involving difficult legal and factual issues. This litigation appears to have aided in a fundamental alteration in disability policies toward the mentally ill at the national level and the abandonment of plainly unlawful policies which were inflicting great harm. Under the Hensley approach the partial fee requested by plaintiffs is proper.

III. PLAINTIFFS ARE PREVAILING PARTIES.

Plaintiffs clearly prevailed in this case. Defendant claims, however, that plaintiffs did not prevail in one aspect of the litigation. Defendant claims that the Court of Appeals granted her substantial relief and modified this court’s orders by-limiting relief to persons “actually” aggrieved by the presumption. This argument relates to the issue litigated before this court on March 31, 1983, at which time the court rejected the Secretary’s argument. Subsequent to the March 31, 1983 order, the Secretary issued instructions which granted relief to all persons who were possibly aggrieved by the unlawful standard. These instructions grant relief to all persons denied on the basis of a determination involving an assessment of residual functional capacity — i.e., to all medical-vocational denials or cessations. The order of the Court of Appeals grants relief to precisely the same group — to those terminated or denied on the basis of an RFC determination, to those for whom the unlawful standard “possibly” had an effect. Mental Health Ass ’n of Minnesota (MHAM) v. Heckler, 720 F.2d 965, 974 (8th Cir.1983).

The Court of Appeals excluded all cases other than medical-vocational denials, e.g., cases denied on the basis that the individual was engaging in substantial gainful activity. Id., at n. 20. These cases were not covered by the instructions issued under this court’s order, but the Court of Appeals may not have known this, since those instructions were not part of the designated record.

The order narrowing the scope of the class must be interpreted in light of the Eighth Circuit’s understanding of the class definition. The Court stated that the class included all those terminated or denied “on the basis that such individuals are capable of engaging in substantial gainful activity.” Id., at 967, n. 2. Such a class would include numerous persons denied or terminated either because they were working or because their impairment was only slight— persons for whom no RFC assessment would ever be performed. Considering the Circuit Court’s understanding of class scope and the Supreme Court’s concerns as to overly-broad class definitions, id., at 973, n. 19, the Eighth Circuit’s order clarifying class scope is not surprising. There is no merit, however, to the assertion that the Court granted the Secretary any relief on the appeal. Indeed, the Secretary herself has not changed her instructions issued in accord with the March 31, 1983 order.

IV. LIABILITY FOR FEES PURSUANT TO 28 U.S.C. § 2412(d)(1)(A).

A. The Standards for Determining Substantial Justification.

The parties agree that the standard for this court to apply in determining whether the position of the United States was substantially justified is set forth in Iowa Express Distribution, Inc. v. National Labor Relations Board, 739 F.2d 1305 (8th Cir.1984). The question of whether the position of the government was substantially justified is essentially one of reasonableness in law and fact. Id, at 1308.

In assessing the reasonableness of the government’s position, Iowa Express directs that the court look beyond the litigation posture of the agency and scrutinize the underlying conduct as well. Iowa Express adopts the “totality of the circumstances” approach to assessing the “position” of the United States. This approach is a formulation of the so-called “underlying conduct” approach, which requires that the court look both at the underlying conduct and at the litigation position of the agency. See, also Cornella v. Schweiker, 741 F.2d 170 (8th Cir.1984); United States v. 341.45 Acres of Land, 751 F.2d 924 (8th Cir.1984).

B. The Underlying Conduct was Unreasonable.

Defendant’s imposition of the presumption in dispute in this case was unreasonable and unjustifiable. The presumption denied benefits to severely impaired persons who were obviously unable to work. Defendant’s policy was perceived by mental health professionals throughout the nation as irrational and wrong. It lacked a scientific or medical foundation; it was without any colorable or rational basis. The policy resulted in severe and irreparable harm, re-hospitalizations and re-institu-tionalizations, loss of medications and disruption of medical care. The policy was inflicted upon those least able to protect their own rights and interests within the administrative process, upon those who would be most harmed simply by attempting to pursue that process. Defendant inflicted severe harm on her most vulnerable clients...

The extent or pervasiveness of the policy also dictates a finding of unreasonableness. The court has rejected the almost zero percent error rate alleged in defendant’s March 31, 1983 testimony. The results of examinations by objective and neutral observers also contradict the Secretary. The General Accounting Office found a potential error rate of 100%. The Administrative Law Judges were reversing 80% of cessation cases. When cases of class members were reevaluated by the disability determination services pursuant to this court’s order, reversal rates in cessation cases were as high as 70%. Even for applicants, the disability determination services on reevaluation are finding more than 50% to be eligible.

The length of the deprivation is a further factor indicating unreasonableness. In many cases eligible recipients and claimants will have to wait for as long as three years before receiving the benefits to which they are entitled.

The policy was unreasonable because of the lack of candor in its implementation. Though it was clear to the Social Security Administration employees and agents in the Chicago regional office and in the state disability determination service offices that the presumption was consistent with national office policy, the national office failed or refused to promulgate this policy for public scrutiny in official policy documents. Chief Judge Weinstein of the Eastern District of New York has found that the underlying conduct of the agency constituted a “covert policy”, a “fixed clandestine policy”, a “confidential policy”, a ‘■sub-rosa policy”, a “back door policy”, a “de facto secret regulation”, a “surreptitious undermining of the law.” City of New York v. Heckler, 578 F.Supp. 1109, 1115, 1116, 1118 (E.D.N.Y.1984), affrm. Court of Appeals, Second Circuit, August 27, 1984. Those findings are entirely consistent with the evidence in this case as it bears on the underlying conduct of the agency here.

The underlying conduct of the defendant during the time that this case was pending between filing of the complaint and issuance of the preliminary injunction was unreasonable. Through the filing of this lawsuit, if not much earlier, the agency was specifically notified of the existence and nature of the unlawful standard and of the harm created thereby. Defendant had seven months from the filing of the complaint to the issuance of the court’s order to put its house in order by rescinding the presumption unambiguously. She did not do so. Defendant states that plaintiffs failed to settle the case. The responsibility for administration of the agency is upon defendant; that responsibility is not diminished or excused by defendant’s dissatisfaction with plaintiffs’ negotiating position.

Defendant’s failure to rescind the unlawful presumption while the case was pending was unreasonable. This underlying conduct is inconsistent with defendant’s argument that the Chicago region was confused about national policy. If the national office was committed to the requirements of law and was specifically aware of plainly unlawful instructions, why did it not act? Why was the alleged confusion allowed to persist?

The underlying conduct is also unreasonable because it culminated in the issuance of a memorandum, by the highest levels of policy makers within the agency, addressed to the very issue in litigation before this court, which shows that plaintiffs’ allegations were correct. According to that memorandum, there were “never” to be allowances for class members. This document was withheld from the court at the time of trial and directly contradicts defendant’s litigation position.

C. The Litigation Position was Unreasonable.

Defendant’s litigation position in defense of the underlying agency action was not substantially justified. Defendant argues that it never denied that there was “confusion” within the Chicago region as to the proper standards and policies for evaluating class members. Plaintiffs, however, did not allege that there was “confusion”. Plaintiffs alleged that there was a firm and definite standard being applied within the region. The defense was in substance an outright denial of the allegations in this case, a denial through which defendant placed upon plaintiffs the heavy burden of proving the facts.

This defense also constituted an affirmative assertion that insofar as the region believed that class members could “never” be allowed, it was wrong, and that the national office position was to the contrary. This defense was unwarranted because it was fundamentally untruthful.

The Secretary argues that her trial position assumed that an incorrect standard was being applied in the Chicago region, that she did not attempt to adduce any substantial evidence to contradict the facts, and that “the Secretary never disputed the fact that an incorrect standard for adjudicating mental impairment claims of younger workers was being applied in the Chicago region.” These assertions are without merit. This court found on December 22, 1982 that the Secretary had failed to adduce any “substantial” evidence in support of her position as to the facts. The finding that she had failed to succeed does not support a conclusion that she did not try to succeed.

In every brief filed in this court in which the existence of the standard was an issue, the Secretary adamantly denied the facts. Thus on May 20,1982 the Secretary stated:

The Secretary will show the Court that the “new standard” plaintiffs claim is used in adjudicating disability claims in which a mental impairment is alleged does not exist.

On October 26, 1982, defendant stated:

The Social Security Administration (SSA) has not established the standard alleged by the complaint, nor are the claims of younger individuals with mental impairments not meeting or equal to the listing of impairments adjudicated in accordance with the policy identified by plaintiffs.

On December 3, 1982, defendant filed a Memorandum arguing the following:

... The evidence shows that the alleged “new” standard — that younger individuals that do not meet the listings of impairments are per se able to engage in substantial gainful activity and, thus, are not disabled — does not exist.

The heading of the principal argument developed in defendant’s December 10, 1982 memorandum was: “The evidence does not establish the existence of a ‘new standard’.” These quotations are illustrative and not exhaustive. They are representative of the arguments advanced during trial. They reflect defendant’s principal litigation position as to the facts.

Defendant argued that the state agency memoranda did not mean what plaintiffs and defendant’s own witnesses conceded they meant. Defendant disputed the facts by attempting to create an aura of confusion as to each witness called during seven days of trial and by attempting to point to individual cases and statistical evidence to prove that class member claims could be allowed within the Chicago region. Defendant withheld data during trial and asserted the difficulty of attempting to “prove a negative”. Defendant vigorously denied the facts of the case and contested the truthfulness of plaintiffs’ allegations.

Defendant asserted that it was fully committed to following the sequential evaluation process outlined in the regulations and that in each instance the documents relied upon by plaintiffs directed that the sequential evaluation process was to be followed. Plaintiffs, however, did not claim that defendant was instructing its agents not to follow the sequential process. The defense that defendant’s agents uniformly were directed to go through all of the steps in the process failed to address the allegations in the case.

Finally, defendant asserted that only its official policy issuances constituted the “policy” of the agency and that plaintiffs could not establish the existence of a new policy because the documents upon which plaintiffs relied did not constitute official policy issuances. Plaintiffs claimed and proved that a standard having the same practical force and effect as a formal policy was being employed and that this standard subverted and trivialized the function to be served by the sequential evaluation process. In this context, defendant’s litigation position amounts to the assertion that an agency can undermine and violate the intent of its own regulations with impunity, so long as it is careful to instruct its employees to follow the steps outlined in the regulations. This is not a reasonable position.

With respect to the proof of the underlying facts in this case and the defenses to that proof, neither the underlying conduct of the agency nor the positions taken in court are supportable. Defendant has failed to meet its heavy burden of showing justification either for its underlying conduct or for its litigation position.

Y. LIABILITY FOR FEES PURSUANT TO 28 U.S.C. § 2412(b).

Plaintiffs also seek fees pursuant to 28 U.S.C. § 2412(b) on the basis of “bad faith” in defendant’s litigation of the facts. During one of the days of trial in this case, top policymakers at the national office of the SSA issued an unequivocal statement that persons such as members of the class here should “never” be allowed benefits. As noted above, this document was not revealed to the court, and it substantially contradicted the truthfulness of facts being adduced by defendant here. In their application for fees, plaintiffs specifically alleged that the existence of this document gives rise to a strong inference of bad faith litigation on the part of defendant and that in the absence of a full and credible explanation this court would be warranted in making a finding of bad faith.

Though the inference of bad faith stands unrebutted the court is reluctant to conclude that responsible government officers acted in bad faith. The court has decided on an hourly rate of $75.00 and this resolves the matter for the present.

VI. THE FEBRUARY 8, 1984 ORDER AND THE DOCTRINE OF THE LAW OF THE CASE.

Defendant asserts that no fees should be awarded because, according to defendant, the February 8, 1984 order of the Court of Appeals, denying fees solely for the work done on appeal, is completely controlling. The Court of Appeals entered a one-sentence order denying appellate fees on the basis that the court found “the position” of the defendant to be substantially justified, though in error. This order is a part of the mandate to this Court.

Defendant argues that the Eighth Circuit has adopted a “totality of the circumstances” test to determine the reasonableness of the position of the United States. Iowa Express, supra. It follows, claims defendant, that the order denying fees on appeal was based upon the Court’s scrutiny of the total circumstances of the case and that the Court of Appeals has determined that the entire position of the government, including the underlying action and the litigation position as to the facts, was reasonable.

The Court of Appeals has endorsed the “totality of circumstances” or “underlying action” definition for the term “position” under the Equal Access to Justice Act. It did so, however, only on July 11, 1984, observing:

Considerable uncertainty has surrounded the question of which government position must be substantially justified.... The Eighth Circuit has not yet decided which government position—litigation or prelitigation—is to be considered to determine substantial justification under the EAJA.

Iowa Express, at 1309. The court cannot agree with defendant that the mandate was specifically premised upon the totality of the circumstances/underlying action theory. At the time the mandate issued, the law was in a state of considerable uncertainty.

Whether or not the February 8, 1984 order is controlling, as urged by defendant, depends upon application of the doctrine of the law of the case. Under that doctrine, a lower court is bound by the mandate of the Court of Appeals as to all matters actually decided by the higher court. Sprague v. Ticonic National Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939); Thornton v. Carter, 109 F.2d 316, 319 (8th Cir.1940). The court is bound, however, only to the extent that the Court of Appeals actually decided an issue, and the lower court may consider and decide any matters left open by the mandate. Quern v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 1148 n. 18, 59 L.Ed.2d 358 (1979). Where the mandate is silent as to an issue, the law of the case doctrine applies only if the Court of Appeals decided the question by necessary implication. Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1320 (5th Cir.1978). On an appeal from the grant or denial of a preliminary injunction, the doctrine is of quite limited scope, especially as to the factual issues which necessarily are interim and provisional in that procedural posture. U.S. v. U.S. Smelting, Refining & Mfg. Co., 339 U.S. 186, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950); Benson Hotel Corp. v. Woods, 168 F.2d 694, 697 (8th Cir.1940).

Defendant has not shown that the facts actually were litigated on the appeal. The issues raised on appeal were essentially legal in character; those legal issues were determined against the background of this court’s findings, which were not challenged on appeal though they were vigorously contested below.

The February 8, 1984 order of the Court of Appeals can fairly be interpreted as expressing no opinion as to the reasonableness of the underlying facts or factual litigation position. The factual holding urged by defendant is not necessarily implied in the order. Since the order was entered on an appeal from a preliminary injunction, to interpret the order as expressing a final determination as to the factual defense is unwarranted. This is particularly true as to the question of defendant’s litigation position which the court ascertains in part from briefs and arguments which were not part of the record on appeal. This court remains free to consider the reasonableness of defendant’s underlying conduct and litigation posture de novo, and it has done so.

The foregoing constitute the Court’s Findings of Fact and Conclusions of Law.

IT IS ORDERED:

Plaintiffs are awarded their costs and expenses, and reasonable attorneys’ fees against defendant in the following amounts:

1. Southern Minnesota Regional Legal Services, Inc. for its costs and expenses, $26,821.15.

2. Mental Health Law Project, Inc. for its costs and expenses, $13,577.00.

3. Southern Minnesota Regional Legal Services, Inc. as reasonable attorneys’ fees, $116,962.50.

4. Mental Health Law Project, Inc. as reasonable attorneys’ fees, $53,981.25.

5. William Messinger, for his costs, $48.35.

6. William Messinger, as reasonable attorneys’ fees, $1,327.50.

7. The Ohio Legal Rights Service, as reasonable attorneys’ fees, $520.00.

8. The Legal Aid Society of Cleveland, as reasonable attorneys’ fees, $5,917.50.

9. The Michigan Protection and Advocacy Services for Developmentally Disabled Citizens, Inc. for its costs, $1,345.50.

10. The Michigan Protection and Advocacy Services for Developmentally Disabled Citizens, Inc. for its reasonable attorneys’ fees, $7,666.50.

LET JUDGMENT BE ENTERED ACCORDINGLY