author: PHILIP PRATT, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Randy Joe OWEN, et al., Defendants.
    Crim. No. 40020.
    United States District Court, E.D. Michigan, S.D.
    Nov. 4, 1985.

      Michael C. Leibson, Asst. U.S. Atty., U.S. Dept. of Justice, Detroit, Mich., for plaintiff.
    Richard P. Zipser, Richard Paul Zipser & Associates, P.C., Southfield, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

PHILIP PRATT, District Judge.

On April 15, 1985, a search warrant was issued by a United States Magistrate for the search of the premises at 4445 McDowell Road in Lapeer County, Michigan. This is the home of the defendant Randy Joe Owen, movant herein. The warrant sought:

[N]amely instrumentalities relating to the distribution of controlled substances, and including, but not limited to, notebooks, ledgers, and business records, together with currency and other fruits, miscellaneous papers, instrumentalities and evidence which are designed, intended and used as a means of committing a criminal offense, to wit: a violation of Title 21, United States Code, Section 841(a)(1), and the conspiracy to violate the above-enumerated section of the United States Code, Title 21, United States Code, Section 846.

The warrant was executed four days later on April 19, 1982 by agents of the Drug Enforcement Administration. Among the items seized were 49 weapons, large amounts of cash, marijuana and hashish, and various business records that are alleged to be related to a large-scale drug operation.

On April 14, 1984, twelve persons, Randy Joe Owen among them, were indicted by a grand jury on charges related to a large-scale marijuana distribution ring. Count One of the indictment charges all twelve with conspiracy to possess with intent to distribute and distribution of marijuana, in violation of 21 U.S.C. § 846. Count Two alleges that Owen engaged in a continuing criminal enterprise and seeks the forfeiture of all profits he obtained via the criminal enterprise, in accordance with 21 U.S.C. § 848(a)(2).

Defendant Owen now moves for suppression of the evidence seized in the April 19, 1982 search of his home. He challenges the warrant on four grounds: 1) that the affidavit did not support a probable cause determination; 2) the DEA agent who executed the affidavit intentionally and recklessly presented false information to the magistrate; 3) the warrant was stale when executed; and 4) the warrant failed to state with particularity the items to be seized.

The affidavit supporting the search warrant was executed by DEA Special Agent John Peterson. The affidavit is 103 pages long. The bulk of the affidavit tracks the activities of one James Carlberg. Several confidential informants informed affiant that they had personal knowledge that Carlberg was a drug dealer, and had either seen drugs at Carlberg’s place of business or home, or had knowledge of drug purchases made from him. The affidavit says that these informants gave sworn testimony before a federal grand jury consistent with the facts stated in the affidavit.

On February 20, 1982, Agent Peterson secured an order authorizing the interception of wire communications made to and from Carlberg’s Grand Rapids home. The affidavit contains excerpts of conversations between Carlberg and several people. These conversations were ambiguous, often referring to business transactions of an unspecified nature. Many details discussed in these conversations were corroborated by independent investigative work. At least two of the persons involved in the conversations with Carlberg had been arrested for possession of narcotics. Owen does not contest that the affidavit supplies probable cause that Carlberg was engaged in criminal activity.

The connection between Carlberg and Owen occupies a relatively small portion of the affidavit. The relevant portions describe the following activity. On March 14, 1982, Carlberg called an individual and told him he would be “looking at some bones today in Detroit” and that he wanted to show them to him the next day. Later that day, Carlberg spoke with Owen about a business transaction that was to be conducted at Owen’s home, the search of which is at issue here.

The contents of this conversation were corroborated by police surveillance. On March 14, 1982, Carlberg drove to Owen’s home, approximately a three-hour drive, driving at a speed of seventy miles per hour. Surveillance indicated that when Carlberg’s vehicle left Owen’s house, “the back end of the vehicle laid lower than on the way to Owen’s house.” On the return trip, Carlberg travelled at fifty-five miles per hour, obeying all traffic laws. This section of the affidavit, found in the last two pages, was added to the body of the affidavit at a later time and is the subject of Owen’s allegation that false and misleading material information is contained in the affidavit.

In a telephone conversation on March 17, 1982, Owen questioned Carlberg as to whether the latter had gotten “any money up.” Carlberg responded that he had not and that “I really got it all out there and I really didn’t get anything at all to speak of.” On March 21, 1982, Owen and Carl-berg once against discussed sums of money. Owen said that “if I can get this down there then I hope to pick up another one right away.” In between these conversations with Owen, Carlberg informed another individual that he had some “bones” for them to see.

A final conversation between Owen and Carlberg took place on March 23, 1982. They once again discussed the finances of a transaction and mentioned specific sums of money. Owen said the “count” was more than $50,000, and Carlberg responded that he had $16,000 when he got home and that Owen had apparently received $5,000 less than he was supposed to. Owen said he would “figure it all out ... and put it on the paperwork.” A court ordered pen register also revealed that between October 13, 1981 and January 4, 1982 twenty-six telephone calls were made from Carlberg’s home to the home of Owen.

Based upon the incidents outlined above, Agent Peterson concluded that he believed that on March 14, 1982 Carlberg paid Owen over $50,000 for approximately 200 pounds of marijuana and that as of March 23, 1982 he still owed Owen $5,000. Owen contends that the affidavit suggests only vague business transactions not linked to any drug deals. He argues the transaction in question concerned vintage automobiles, stamp collections, or gun collections, Carlberg and Owen being collectors of those items.

Owen’s first claim is that the affidavit did not supply sufficient probable cause to justify the issuance of a search warrant. The Supreme Court has recently addressed the standard for determining probable cause, abandoning the rigid application of Aguilar-Spinelli and adopting what has been called the “totality of the circumstances approach.” Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). Owen, however, asserts that Gates should not be retroactively applied to search warrants issued prior to the Gates decision and that the “two pronged test” of Aguilar-Spinelli should be applied.

While the Supreme Court has not expressly addressed the retroactivity of Gates, it has implicitly held it to be retroactive. In Massachusetts v. Upton, the question presented was whether a warrant issued in 1980, three years before Gates, was supported by an affidavit establishing probable cause. The Court upheld the warrant, applying Gates retroactively without comment. 104 S.Ct. 2085. The Sixth Circuit has also applied Gates retroactively to a “pre-Gates” search without directly commenting on the issue. United States v. Algie, 721 F.2d 1039 (6th Cir.1983).

The several courts that have directly addressed this issue have held that Gates may be retroactively applied. United States v. Mendoza, 727 F.2d 448 (5th Cir.1984); United States v. Little, 735 F.2d 1049 (8th Cir.1984); United States v. Estrada, 733 F.2d 683 (9th Cir.1984); United States v. Swingler, 758 F.2d 477 (10th Cir.1985). Applying Gates retroactively does not impact on the deterrent effect of the exclusionary rule.

The purpose of refusing to apply retroactively a new decision enforcing the exclusionary rule is to avoid penalizing police conduct when the police reasonably relied on existing judicial precedent. When a court determines that a particular police practice does not violate the Constitution, there is no reason not to apply the decision retroactively. [Citations omitted].

United States v. Estrada, 733 F.2d 683, 685 (9th Cir.1984). Further, Owen cannot ligitimately claim to have relied to his detriment on the expectation that Aguilar-Spinelli, not Gates, would be applied.

Defendants argue that Gates was a clear break with past doctrine and therefore should not be retroactive, but they do not claim (nor could they plausibly do so) that they in any way relied to their detriment on the previous rules as to probable cause. Those rules govern the conduct of officers and courts, not of the public, and the officers are seeking retroactivity here, not resisting it. Defendants did not plan any of their own conduct in reliance on rules of law governing the requisite specificity of affidavits for search warrants. It is therefore not unfair to them to apply the new rule. [Citations omitted].

United States v. Little, 735 F.2d 1049, 1054 (8th Cir.1984). Thus it is appropriate to use the standards set forth in Gates to analyze the warrant at issue here.

A search warrant, to be valid, must be supported by an affidavit establishing probable cause. The Supreme Court has held that probable cause is not to be analyzed with a “fixed and rigid formula.”

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The Sixth Circuit has recently held that “affidavits in support of an application for a search warrant are to be reviewed by both courts and magistrates in a realistic and common sense fashion.” United States v. Algie, 721 F.2d 1039, 1041 (6th Cir.1983).

The Supreme Court has given district courts a very restricted role in reviewing a magistrate’s determination of probable cause.

[T]he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed. [Citation omitted].

Illinois v. Gates, 103 S.Ct. at 2332. Where the reviewing court is faced with a close case, the decision should generally be in favor of upholding the warrant.

Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should largely be determined by the preference accorded to warrants. [Citation omitted].

Id. at 2331, n. 10. The Sixth Circuit has limited this court’s role in even stronger language, saying that the magistrate’s determination should be accorded “great deference” and should be disturbed only if “arbitrarily exercised.” United States v. Algie, 721 F.2d at 1041. More recently the Supreme Court told reviewing courts not to conduct a de novo determination of probable cause, “but only [are] to determine whether there is substantial evidence in the record supporting the magistrate’s decision____” Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 2085-86, 80 L.Ed.2d 721 (1984). The Upton court went on to say: “A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” Id. 104 S.Ct. at 2088. Consistent with these principles, the warrant in the present case must be examined to determine if the magistrate exercised his authority arbitrarily.

The bulk of the 103-page affidavit supporting the issuance of the warrant to search Owen’s home concerns the activities of Carlberg. Several confidential informants provided information concerning Carlberg’s activities. While the affidavit supplied no basis for assessing the reliability of the informants, much of their information was corroborated by independent investigative work. This could properly supply probable cause that Carlberg was engaged in criminal activities.

Our decisions applying the totality of circumstances analysis outlined above have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.

Illinois v. Gates, 103 S.Ct. at 2334. Owen has not seriously contested the affidavit’s sufficiency as to Carlberg.

The link between Carlberg and Owen is not facially strong. Owen was never observed buying, selling or transporting narcotics. In none of the telephone calls did Owen openly discuss narcotics transactions. However, seemingly innocent activity can provide probably cause to suspect criminal activity.

As discussed previously, probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands____ In making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty’ but the degree of suspicion that attaches to particular types of non-criminal acts.

Id. at 2335, N. 13. It was not unreasonable to suspect that Owen and Carlberg were discussing a drug transaction even though an alternate innocent explanation was also plausible. The trip to Owen’s home, the subsequent discussions involving large sums of money and the conversations between Carlberg and others implying that he had just received a shipment of something all reinforce the reasonable suspicion that a drug deal was taking place. The twenty-six telephone calls from Carlberg to Owen over a four-month period are also material to the determination of probable cause. The use of the word “bones” in and of itself suggests that the subject matter is illicit since a literal interpretation is not plausible and if the subject is in fact legitimate, a code word would hardly be necessary. Given the strong showing that Carlberg was engaged in marijuana trafficking, it is not unreasonable to infer that “bones” was a reference to quantities of marijuana.

If, as defendant suggests, each paragraph of the affidavit is viewed in isolation, nothing other than speculation is suggested. However, following the dictates of Gates, the four corners of the affidavit must be considered in total. United States v. Taylor, 716 F.2d 701 (9th Cir.1983). The Upton court, in reviewing an affidavit, concluded by saying that “[n]o single piece of evidence ... is conclusive. But the pieces. fit neatly together and, so viewed, support the magistrate’s determination.” Massachusetts v. Upton, 104 S.Ct. at 2088. That is essentially the case here. Given the limited role this court has in reviewing search warrants, the Court finds that the magistrate had a substantial basis for determining that there was a fair probability that contraband or evidence of a crime would be found at Owen’s home and that the magistrate did not arbitrarily exercise his authority in issuing a warrant for the search of that home.

In Owen’s second challenge to the search warrant, he alleges that Special Agent Peterson engaged in intentional falsity and reckless disregard for the truth in preparing the affidavit. Specifically, he claims that the two pages in which Carl-berg’s trip to Owen’s residence were set forth contained misrepresentations calculated to mislead the magistrate. The evidence supporting this claim is that the typeface and style of the last two pages of the affidavit differ from that of the rest of the document. It is alleged that these pages were supplied not by the affiant but rather by the Assistant United States Attorney’s office in Flint, Michigan. The government responds that these pages were indeed added later because of the extra time needed by Agent Peterson to receive the corroboration of Carlberg’s activities from the state police.

A warrant based on a knowing or reckless falsehood contained in the supporting affidavit is invalid. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Franks has not been negated by the new probable cause analysis set forth in Gates. United States v. Jenkins, 728 F.2d 396 (6th Cir.1984). The Supreme Court has expressly held that Franks has survived both Gates and the recently fashioned “good faith” exception to the exclusionary rule.

Deference to the magistrate, however, is not boundless. It is clear, first, that the deference accorded to a magistrate’s finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Franks v. Delaware, [citation omitted]

United States v. Leon, — U.S. -, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984).

A two-part test must be satisfied before a party making a Franks challenge to a facially valid search warrant can demand an evidentiary hearing to determine if there has in fact been government misconduct.

[WJhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.

Franks v. Delaware, 438 U.S. at 155, 98 S.Ct. at 2676. The defendant is not required to present clear proof at this stage.

Clear proof of deliberate or reckless omission is not required. See United States v. Chesher, 678 F.2d 1353, 1362 (9th Cir.1982). Such proof is reserved for the evidentiary hearing. Id. At this stage, all that is required is that the defendant make a substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading.

United States v. Stanert, 762 F.2d 775, 781 (9th Cir.1985). Owen has not mustered substantial evidence that the affidavit contained false statements that would have misled the magistrate. Owen does not deny that the state police did observe Carl-berg drive to Owen’s house. Neither did the affiant Special Agent Peterson, mislead the magistrate by claiming to have personal knowledge of the events recited in those pages of the affidavit. United States v. Davis, 714 F.2d 896, 899 (9th Cir.1983). That this part of the affidavit was prepared at a different time than other parts of the document, and on a different typewriter, is not substantial evidence that false statements are contained in the affidavit. The only falsehood to which Owen points is that the police could not have possibly observed a height difference in Carlberg’s truck when he left Owen’s home.

Assuming Owen is correct on this point, he must still show that if that challenged paragraph is deleted from the affidavit, the warrant would then fail for want of probable cause. United States v. Jenkins, 728 F.2d 396 (6th Cir.1984); United States v. Boyce, 601 F.Supp. 947 (D.Minn.1985); United States v. Pay den, 609 F.Supp. 1273 (D.N.Y.1985). Whether or not Carlberg’s pickup truck was lower after leaving Owen’s home is not crucial to finding the magistrate had a substantial basis for finding probable cause to issue the search warrant. Given the great deference this court must pay to the magistrate’s decision, the adjusted affidavit would still support a determination of probable cause. Owen’s request for a Franks evidentiary hearing is, therefore, DENIED.

Defendant’s third claim is that the warrant was “stale” because it was issued and executed three weeks after the last contact; between Carlberg and Owen. The last contact between Owen and Carlberg recited in the affidavit occurred on March 23, 1982. The affidavit does discuss other events involving Carlberg, but not Owen, up until April 15, 1982. The warrant was issued on April 15, 1982, and it was executed on April 19, 1982.

This short passage of time cannot render the warrant stale. In Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1975), the Court concluded that a three-month delay between the completion of certain transactions and the ensuing searches did not preclude a determination that evidence of crime was still contained in the defendant’s office. The Court stressed that the facts of each individual case must be considered. Andresen v. Maryland, 427 U.S. at 478-79, n. 9, 96 S.Ct. at 2747-48, n. 9. In Andresen, the Court concluded that it was reasonable to expect that such records would be maintained at the defendant’s office despite the passage of time given the fact that they were prepared in the ordinary course, and that other circumstances in the case supported the belief that the records were contained in the office.

Likewise, in the present case, the investigation was continuing despite the fact that Carlberg did not have any contact with Owen after March 23, 1982. Further, conversations with Owen and Carlberg indicated that Owen did keep “paperwork” on these transactions, and there is nothing in the record that would indicate that these records would not have been contained in Owen’s home only weeks later. Given these factors, and that the passage of time was only three weeks, defendant’s “staleness” argument fails.

Defendant’s fourth allegation is that the warrant authorizing the search of his home was overbroad. The Fourth Amendment dictates that “no warrant shall issue [unless] particularly describing the ... thing to be seized.” The warrant must be drawn to prevent a “general exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). As to what is to be taken, nothing may be left to the discretion of the officers executing the warrant. Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976). These standards are to be interpreted in a commonsense and realistic fashion, in light of the total atmosphere of the case. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Williams, 351 F.2d 475 (6th Cir.1965), cert. denied 383 U.S. 917, 86 S.Ct. 910, 15 L.Ed.2d 671.

The warrant at issue before this court commands the seizure of:

[N]amely instrumentalities relating to the distribution of controlled substances, and including, but not limited to, notebooks, ledgers, and business records, together with currency, and other fruits, miscellaneous papers, instrumentalities and evidence which are designed, intended and used as a means of committing a criminal offense, to wit: a violation of Title 21, United States Code, Section 841(a)(1) and conspiracy to violate the above-enumerted section of the United States Code, Title 21, United States Code, Section 846.

The Court concludes, with due regard to the deference accorded warrants, that the warrant does not satisfy the particularity requirement of the Fourth Amendment.

The language “instrumentalities relating to the distribution of controlled substance” was impermissibly vague. The task of determining what items fell within the broad category of “instrumentalities” fell to the executing officers. The warrant offered no guidelines to limit or instruct the discretion of the officers. The scope of the warrant was not narrowed by the use of terms of art, e.g., “paraphernalia”, in United States v. Johnson, 541 F.2d 1311 (8th Cir.1976), nor were the controlled substances that these instrumentalities were allegedly related to identified. See e.g., United States v. Coppage, 635 F.2d 683 (8th Cir.1980) [authorizing seizure of methamphetamine and items relating to its manufacture]; United States v. Williams, 633 F.2d 742 (8th Cir.1980) [specifying cocaine].

Warrants far more detailed that the one at bar have been held to be invalid. In United States v. Townsend, 394 F.Supp. 736 (E.D.Mich.1975), this Court suppressed evidence seized pursuant to a warrant describing “stolen firearms, app. ten (10), which are stored in the above location ...” The language “controlled substances” was held impermissibly vague where the government knew that heroin was the object of the search. United States v. Perez, 562 F.Supp. 574 (D.N.J.1982). A warrant authorizing the seizure of “material evidence” of crimes involving amphetamines was held to give agents too much discretion. United States v. Crozier, 674 F.2d 1293 (9th Cir.1982). See e.g., Application of Lafayette Academy, Inc., 610 F.2d 1 (1st Cir.1979); United States v. Roche, 614 F.2d 6 (1st Cir.1980).

The warrant cannot be upheld on the theory that a more precise description of the suspected items was not possible. United States v. Townsend, supra; United States v. Gomez-Soto, 723 F.2d 649 (9th Cir.1984); United States v. Dennis, 625 F.2d 782 (8th Cir.1980). The supporting affidavit explicitly alleges that the defendant was engaged in the sale of marijuana. Nor can the government rely on the affidavit to supply the specificity absent in the warrant, as there is nothing in the record to show that the affidavit accompanied the warrant. United States v. Roche, 614 F.2d 6 (1st Cir.1980); United States v. Hillyard, 677 F.2d 1336 (9th Cir.1982); United States v. Johnson, 541 F.2d 1311 (8th Cir.1976). The initial catch-all phrase of the warrant is impermissibly vague.

The balance of the warrant, authorizing the seizure of various documents and papers, was equally defective. Generic descriptions of documents have been held to be acceptable where that clause is appended to a warrant which was otherwise very detailed. Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1975); In Re Search Warrant Dated July 4, 1977, Etc., 572 F.2d 321 (D.C.Cir.1977), appeal after remand, 667 F.2d 117, cert. denied 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 441. In the instant case, the generic description of documents does not benefit from specificity elsewhere in the warrant. The warrant in its entirety fails to meet the Fourth Amendment requirement that the things to be seized be particularly described.

Finding the warrant unconstitutionally vague does not end this Court’s analysis. The fruits of a search executed pursuant to an illegal but facially valid search warrant obtained with objective good faith are admissible. United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); United States v. Savoca, 761 F.2d 292 (6th Cir.1985). In Leon, the Court wrote that “[tjhe Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands ...” Leon, — U.S. -, 104 S.Ct. at 3412. The Court did identify several situations in which illegally seized evidence would still be excluded. A warrant based upon a knowing or reckless falsehood contained in the supporting affidavit is invalid under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and is still inadmissible after Leon. Id. 104 S.Ct. at 3417. Evidence issued by a “rubber stamp” magistrate is also excludable. Id. 104 S.Ct. at 3417. Finally, if the supporting affidavit was “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” the evidence so seized is inadmissible. Id. 104 S.Ct. at 3422. None of these three exceptions to the “good faith” rule apply in the case at bar. This Court has already determined that the warrant was supported by probable cause, and has rejected defendant Frank’s claim.

The final exception to the Leon “good faith” rule is applicable to the case at bar.

Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or things to be seized — that the executing officers cannot reasonably presume it to be valid.

Leon, 104 S.Ct. at 3422. The Supreme Court has provided guidance as to when officers may reasonably presume an unconstitutionally vague search warrant to be valid. Massachusetts v. Sheppard, — U.S. -, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). In Sheppard, the authorities relied upon a warrant which directed them to:

[Sjearch for any controlled substance, article, implement or other paraphernalia used in, for, or in connection with the unlawful possession or use of any controlled substance ...

Sheppard, — U.S. -, 104 S.Ct. at 3427, n. 2. The warrant was held to be unconstitutionally vague by the courts below, a ruling which the Supreme Court did not disturb. The Court held that the officers reasonably relied on the illegal warrant and therefore the illegally seized evidence should be not excluded. Any error in failing to meet the particularity requirement of the Fourth Amendment, the Court held, was committed by the judge, not the officers. Id. 104 at 3429. See, United States v. Accardo, 749 F.2d 1477 (11th Cir.1985). The warrant before this Court does not transgress the limitation on the “good faith” rule described by the Supreme Court in Sheppard. While it did violate the Fourth Amendment requirement of particularity, it was not so “facially deficient” that the executing officers “could not reasonably presume it to be valid.” The evidence seized pursuant to the illegal warrant is admissible.

The defendant’s final claim is that the 49 weapons should be excluded as having been outside the scope of the warrant. Not all objects seized pursuant to an invalid but reasonably relied upon warrant are admissible under the “good faith” rule.

Our discussion of the deterrent effect of excluding evidence obtained in reasonable reliance on a subsequently invalidated warrant, assumes, of course, that the officers properly executed the warrant and searched only those places and for those objects that it was reasonable to believe were covered by the warrant.

Leon, — U.S.-, 104 S.Ct. at 3419, n. 19. Generally, if police officers seize evidence that is not specified in the warrant, a court may suppress that evidence because it is beyond the scope of the authorized search. This general rule, however, is not without exceptions. The “plain view” exception to the warrant requirement permits the seizure of items not listed in a warrant, but discovered inadvertently during the execution of a valid search warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Sixth Circuit recently reviewed the elements of this doctrine.

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Supreme Court initially explored the plain view doctrine. In that plurality opinion, the Court stated that in order to seize evidence pursuant to the ‘plain view’ exception, executing officers must demonstrate (1) a prior valid intrusion, (2) an inadvertent discovery, and (3) that the evidence of an unlawful act was ‘immediately apparent to them.’ The Coolidge analysis, which has been completely adopted by this Court, see United States v. Gray, 484 F.2d 352 (6th Cir.1973), cert. denied, 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974); United States v. Truitt, 521 F.2d 1174 (6th Cir.1975) was reaffirmed by the Supreme Court in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

United States v. McLernon, 746 F.2d 1098, 1123 (6th Cir.1984).

The seizure of the 49 weapons at issue here did not arise pursuant to a prior valid intrusion. The Court has already held that the search warrant was unconstitutionally vague. The finding of “good faith” pursuant to Leon does not alter the illegality of the search, but merely limits the applicability of the exclusionary rule. While this Court has not found any cases applying the “good faith” exception to the “plain view” doctrine, the reasoning of Leon is applicable. The Court noted that:

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right.

Leon, 104 S.Ct. at 3419. Here there is no evidence that the officer’s presence in Owen’s house was due to such conduct. Thus, while the officers’ intrusion into Owen’s home was not lawful, their good faith reliance on the facially valid search warrant obviates the need to apply the exclusionary rule.

The incriminating nature of the evidence seized pursuant to the “plain view” doctrine must be “immediately apparent.” In a recent plurality opinion the Supreme Court said that there must be “probable cause to associate the property with criminal activity.” Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983). The Sixth Circuit has since held that a reviewing court must:

[Determine whether, under the circumstances of each case, probable cause was both ‘immediate’ and ‘apparent’ to the executing officers from the nature of the object viewed. We believe that this standard is mindful of the Supreme Court’s constant warning that any exception to the Fourth Amendment’s Warrant Clause be ‘carefully delineated.’ [citations omitted]
The requirement that probable cause be ‘immediate’ from the discovery of the object specifically averts the ‘danger inherent in such a situation that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.’ See Brown, 103 S.Ct. at 1546, (Stevens, J. Concurring). As a reviewing court, we best obviate the risk of prolonged, warrant-less rummaging by objectively determining whether at the time of discovery the officer had probable cause to connect the item with criminal behavior____ Where an executing officer’s probable cause to connect the viewed item with criminal behavior is not both ‘immediate’ and ‘apparent,’ however, the individual’s interests in retaining possession of property and in maintaining privacy, [citation omitted], and society’s interest in lawful enforcement activity, [citation omitted], are greatly compromised.

United States v. Szymkowiak, 727 F.2d 95, 98 (6th Cir.1984). In Szymkowiak, the Court held that the officers’ probable cause to connect a seized rifle with criminal activity was not immediate because they had to enlist the aid of a weapons expert who was not himself sure if possession of the weapon was illegal. The Court also noted that there was no “nexus” between the warrant, which authorized the seizure of certain stolen property, and the seized weapon. Id., 727 F.2d at 98.

Szymkowiak reaffirmed the earlier Sixth Circuit case of United States v. Gray, 484 F.2d 352 (6th Cir.1973), cert. denied, 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974). In Gray, the seizure of rifles inadvertently discovered by officers pursuant to a valid search warrant authorizing seizure of “any intoxicating liquors or materials used in the manufacture of intoxicating liquors” was declared unconstitutional. The Court held that there was “no nexus between the rifles and the crimes of selling or possessing intoxicating liquor without a license; nor did the officers at that time have any knowledge that the rifles were evidence of any other crimes.” Gray, 484 F.2d at 355. The Eighth Circuit has held that a weapon discovered pursuant to a valid search warrant for controlled substances cannot be seized absent a nexus between the weapon and some crime.

The record fails to reveal a sufficient factual basis which would have given the officers reasonable cause to believe the pistol was contraband, [citation omitted]. There was no nexus between the pistol and the crime of unauthorized distribution of a controlled substance. Similarly, the record does not indicate that the officers at the time of the initial search were motivated by any specific, reasonable cause to believe the pistol was evidence of any crime.

United States v. Clark, 531 F.2d 928, 932 (8th Cir.1976) See, United States v. Laferrera, 596 F.Supp. 362 (S.D.Fla.1984). A court in this district held that the incriminating nature of an inadvertently seized weapon was immediately apparent because the defendant was a convicted felon for whom it was illegal to possess a weapon. United States v. Winston, 373 F.Supp. 1005, 1008 (E.D.Mi.1974). Another court has held that seizure of weapons during a search for controlled substances was valid only when coupled with the knowledge that the defendant was a parolee. United States v. Blakeney, 579 F.Supp. 1197 (D.D.C.1983).

In the instant case, there has been no evidence that it was immediately apparent to the executing officers that the weapons they seized were connected to a crime. The mere presence of the weapons in Owen’s home does not give rise to probable cause that he used them in the distribution of controlled substances. This is underscored by the fact that the government admits that it knew the defendant was a gun collector, making the connection between the weapons and his suspected involvement in narcotics even more tenuous.

As the incriminating nature of the weapons was not immediately apparent, the plain view doctrine is inapplicable and the evidence suppressed. The balance of the items, while seized pursuant to an unlawful warrant, are admissible pursuant to the “good faith” exception. Defendant’s motion to suppress is granted in part and denied in part.

IT IS SO ORDERED.

      . The Aguilar-Spinelli test applied whenever an affidavit relied on an informant’s tip. The affidavit first had to establish the informant’s “basis of knowledge” and, second, it must establish the veracity of the informant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . The Sixth Circuit has held that while information obtained from pen registers cannot be the sole basis for establishing probable cause, it is relevant and should be considered with other evidence. United States v. Algie, 721 F.2d at 1043, n. 6.

      . There is no suggestion that these pages were added after the warrant was issued.

      . The case at bar is distinguishable from those where the language of the warrant was vague, but left nothing to the discretion of the executing officers. The issue there was not over-breadth, but rather whether the language was supported by probable cause. United States v. Savoca, 761 F.2d 292, 298 (6th Cir.1985); Worthington v. United States, 726 F.2d 1089 (6th Cir.1984, Conti, J. concurring).

      . The particularity requirement was addressed before the "good faith” rule in order to provide the authorities guidance in this area.
      If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good faith issue ... Even if the Fourth Amendment question is not one of broad import, reviewing courts could decide in particular cases that magistrates under their supervision need to be informed of their errors and so evaluate the officers’ good faith and only after finding a violation.

        United States v. Leon, — U.S.-, 104 S.Ct. at 3422-3423.

      . The Sixth Circuit recently reaffirmed its holding in Gray that there must be a nexus between the evidence seized pursuant to the plain view doctrine and the crime being investigated. Donta, Jr. v. Hooper, et al., 774 F.2d 716 (6th Cir.,1985). In Donta, the court was addressing the issue of good faith immunity in a 42 U.S.C. § 1983 action. As the search and seizure complained of took place in 1978, the court applied the law as it stood in 1978. However, in relying upon Gray, the court gave no hint that the passage of time would dictate a different outcome in Gray. This interpretation is reinforced by the strong endorsement of Gray in Szymkowiak and McLernon, supra.

      . The Court is aware of those decisions holding that weapons discovered in controlled substances searches are almost by definition incriminating. United States v. Reed, 726 F.2d 339 (7th Cir.1984); United States v. Jefferson, 714 F.2d 689 (7th Cir.1983). The Sixth Circuit, however, as well as other Circuits have been unwilling to adopt such a per se rule and decide each case on its particular facts. For instance, it has been held that the inadvertent seizure of a "sawed off’ shotgun is permissible because there is almost no legal use for such a weapon. United States v. Truitt, 521 F.2d 1174 (6th Cir.1974). It is also important to distinguish "plain view” cases which involve the legality of the seizure, from those discussing the relevance during trial of items seized. See e.g., United States v. Marino, 658 F.2d 1120 (6th Cir.1981).

      . New details have been provided as to the seizure of the weapons. Both defendant and the government have simply identified them as a gun collection. Absent any evidence to the contrary, this- Court must assume that there was nothing unusual in either the location or the type of weapons that would indicate that they were anything other than a gun collection.

      . The government argues that the weapons would have been "inevitably discovered” pursuant to Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). However, the government has presented no evidence, nor have they requested an evidentiary hearing to do so, that can establish by a “preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ...” Nix, 467 U.S. at -, 104 S.Ct. at 2509.


source: Caselaw Access Project

author: MOTLEY, Chief Judge.

license: Public Domain

text:
    GAY VETERANS ASSOCIATION, INC., John Paine and Robert Walden, Plaintiffs, v. The AMERICAN LEGION — NEW YORK COUNTY ORGANIZATION, Reginald B. Allen, Jr., individually and in his capacity as Parade Chairman of the American Legion — New York County Organization; Anthony F. Tuccillo, individually and in his capacity as Adjutant of the American Legion — New York County Organization; City of New York; Edward I. Koch, individually and in his capacity as Mayor of the City of New York; New York City Police Department: Benjamin Ward, individually and in his capacity as Commissioner of the New York City Police Department; Robert J. Johnson, Jr., Gerard J. Kerins, Tosano J. Simonetti, J. Johnson, Henry A. Harrison, and John Doe, individually and in their capacities as officers of the New York City Police Department, Defendants.
    No. 85 Civ. 8339 (CBM).
    United States District Court, S.D. New York.
    Nov. 6, 1985.

      Lambda Legal Defense Fund and Education Fund, Inc., David H. Braff, Sherryl E. Michaelson, Steven L. Holley, Teitelbaum & Hiller, P.C. by William Hibsher, New York City, for plaintiffs.
    Frederick A.O. Schwarz, Jr., Corp. Counsel by Marilyn Richter, Robert Ligansky, Asst. Corp. Counsel, New York City, for New York City defendants.
    Casimir F. Sojka, New York City, Francis L. Giordano, Brooklyn, N.Y., for American Legion defendants.
   OPINION

MOTLEY, Chief Judge.

Plaintiffs, the Gay Veterans Association, Inc. [“Gay Veterans”] and two of its officers, Robert Walden, Secretary, and John Paine, President, have commenced this action against the New York County American Legion, the Mayor of the City of New York and various other defendants seeking injunctive and other relief. The action is brought pursuant to 42 U.S.C. sections 1983, 1985(3) and 1986. Plaintiffs, pursuant to an order to show cause, have moved for a preliminary injunction directing defendants to permit the Gay Veterans to participate in the 1985 Veterans Day Parade or, in the alternative, requiring the City to revoke the permit issued to the Legion and to issue a parade permit to the Gay Veterans instead. Defendant New York County American Legion [“American Legion”] has moved to dismiss this action. For the reasons set forth below, plaintiffs’ motion for preliminary injunction is denied. Defendant American Legion’s motion to dismiss also is denied.

FACTS

Congress decided in 1919 to designate November 11 as a national holiday, Veterans Day, to honor those individuals who have served in the Armed Forces of the United States, placing their lives and welfare at risk in the defense of this country. 5 U.S.C. section 6103(a). In addition, New York State and New York City have recognized Veterans Day as an official holiday. See, e.g., New York General Construction Law, section 24. Section 12 of the New York General City Law provides that the City may expend monies to observe Veterans Day in cooperation with veterans’ organizations.

Since 1923, the American Legion has held .a Veterans Day parade in Manhattan. The parade now commences at 9 A.M. at 39th Street and Fifth Avenue, and finishes at the Eternal Light Monument which commemorates the American Expeditionary Forces in France during World War I. This monument is located at 24th Street. A ceremony consisting of speeches, wreath and flag laying, and a moment of silent prayer immediately follow the parade at the monument.

In addition to the American Legion’s parade, several other organizations have ceremonies in New York City on Veterans Day. On November 10, the Federation of World War Veterans of France holds a rally in Riverside Park to commemorate World War II victories and to honor World War I and II Veterans. On November 11, the Vietnam Veterans of America will hold a memorial service in Abingdon Square Park. In Queens, Post 422 of the American Legion will hold a ceremony in Daniel Beard Park. The United Veterans’ Committee will hold a parade and ceremony in Memorial Park in the Bronx. The United War Veterans Memorial and Executive Committee will hold a ceremony in Pelham Bay Park. (Testimony of Chief Kerins; Affidavit of Frank Leslie, Assistant Counsel of the New York City Department of Parks and Recreation, paragraphs 2-8.) The American Legion’s parade is the only parade in Manhattan, the hub of New York City. The City of New York does not provide funding for any these events, including the American Legion’s parade. The City, in fact, presently has no official City celebration of Veterans Day other than giving its employees the day off from work. (Testimony of Chief Kerins; Affidavits of Marilyn Richter, Assistant Corporation Counsel, paragraph 12; Frank Leslie, paragraph 10; Linda Cahill, Special Assistant to the Mayor and Director of the May- or’s Office of Special Projects and Events.)

Each year the American Legion procures a permit from the City of New York for the parade as required pursuant to section 435-9.0 of the New York City Adminstrative Code. The defendant New York City Police Department reserves the permit for the American Legion since it is an annual event. Chief Gerard J. Kerins, a defendant in this action, stated that permits are reserved for traditional parades. A traditional parade is one for which a parade permit has been issued to the same group or organization for two or more years. He testified that by utilizing this method of issuing permits, the City is able to estimate in advance the police manpower it will require to govern the parade. It also provides the City with a means to determine who should receive a permit when two parties with conflicting goals seek a parade permit for the same route.

In 1984, the Gay Veterans sought permission of the American Legion to participate in the Veterans Day Parade. (Testimony and Affidavit, paragraph 12 of Robert Walden.) Receiving no response from the American Legion, plaintiffs complained to the Mayor. Lee Hudson, assistant to Herbert P. Rickman, Special Assistant to the Mayor, arranged a meeting between representatives of the American Legion and the Gay Veterans. The Legion advised the Gay Veterans that parade participants were members of the American Legion. (Affidavit of Herbert P. Rickman, Paragraphs 3 & 4).

The official parade program for the 1984 American Legion Parade, however, indicates that several veteran groups not affiliated with the American Legion participated in the American Legion parade. In addition, the program also provides that the parade is conducted by the American Legion “under the auspices of the City of New York.” (Plaintiff’s Exhibit “6”.) Philip Kaplan, Master of Ceremonies and past Post Commander of the New York County American Legion, testified that the parade was not held under the auspices of New York City, and that although this phrase had been included on other programs for many years, it was an error. He testified that the American Legion received no financial support from the City and paid all of its costs in sponsoring the parade.

On January 2, 1985, the Gay Veterans filed two applications with the New York Police Department for a parade permit. The first application requested permission to march down Fifth Avenue from 39th Street to the Eternal Light Monument on November 11, 1985 at 10:00 A.M. This is the same time and place that the American Legion holds its annual parade down Fifth Avenue. The request was disapproved by Chief Kerins on the grounds that this was a new parade for Fifth Avenue and that there is “a traditional Veterans Day Parade held on November 11, 1985.” (City Defendants’ Exhibit “A”.)

Plaintiffs’ second application sought a permit for a parade to start at Jeanette Park on Water Street and to finish at the Eternal Light Monument on 24th Street. The permit was disapproved because the parade would result in a “complete disruption of traffic in the financial district during a work day” and manpower requirements for the parade at the time, date and location would be excessive. (City Defendants’ Exhibit “B”.) Chief Kerins testified that many businesses are open on Veterans Day and that plaintiffs’ request for a parade three and one-half miles long would be excessively disruptive to business. Chief Kerins recommended disapproval of the parade because it would deplete already scarce personnel resources and further disrupt traffic. (City Defendants’ Exhibit “B”.) He testified that the Police Department would prefer one Veterans Day parade but that two parades would be manageable if they were held on' parallel routes or if one parade was held following the other. Plaintiffs never sought a permit for another parade route, although the City-defendants have agreed to issue them a permit for another location in Manhattan.

On July 23, 1985, defendant Reginald B. Allen, Jr., Parade Chairman of the New York County American Legion, filed an application requesting a permit for the organization’s Veterans Day Parade. The request was granted. On August 21, the Gay Veterans wrote to defendant Anthony P. Tuccillo, Adjutant of the American Legion, requesting to be included in the 1985 parade. The letter also provided that the Gay Veterans “insist on being allowed to carry our banner, which clearly identifies us as gay veterans.” By letter dated September 25, 1985, defendant Tuccillo “categorically denied” plaintiffs request to participate in the parade carrying the Banner. (Walden Affidavit, Exhibits “A” and “B”.)

On September 28, 1985, plaintiffs wrote to Mayor Koch, requesting that the City revoke the permit issued to the American Legion on the ground that it discriminated against the Gay Veterans. (Walden Affidavit, Exhibit “I”.) The Mayor has refused to revoke the permit. By letter dated October 9, 1985, however, Mayor Koch wrote to defendant Tuccillo, expressing his “sincere hope that [the American Legion] reconsider [its] position in this matter.” The Mayor stated:

I have always believed that those who served our country honorably and were so discharged from the service have a right and almost an obligation to display their pride on Veterans Day. All those who served and sacrificed in defense of the nation deserve to be honored — regardless of their religious beliefs, ethnic background or sexual orientation. All veterans should be entitled to march on November 11 regardless of their particular organizational affiliation.

(Walden Affidavit, Exhibit “J”.) The American Legion apparently did not respond to the Mayor’s impassioned plea for equality of recognition and acceptance of all who died or risked their lives for us all.

Plaintiffs then commenced this action against defendants New York County American Legion, Reginald B. Allen, Jr. and Anthony F. Tuccillo [“American Legion defendants”], and the City of New York, Mayor Koch, New York City Police Department, Benjamin Ward, Commissioner of the New York City Police Department, Robert J. Johnson, Jr., Gerard J. Kerins, Tosano J. Simonetti, J. Johnson, Henry A. Harrison, and John Doe, officers of the New York City Police Department [“City Defendants”].

DISCUSSION

LACHES

The City defendants argue that plaintiffs’ claims for preliminary injunctive relief and damages should be dismissed under the doctrine of laches. This action was commenced on October 23, 1985, less than three weeks before Veterans Day.

Laches, an equitable doctrine, is applicable if the following requirements are established: (1) inexcusable delay or lack of diligence on the part of plaintiff, and (2) injury to defendant due to plaintiff’s inaction. Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 543, 5 L.Ed.2d 551 (1961). The facts of each case must be considered in determining whether the doctrine of laches should be applied to the facts of the particular case. Whether or not laches exists is addressed to the sound discretion of the trial judge. Czaplicki v. The Heogh Silvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387 (1956); Gardner v. Panama Railroad Co., 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31 (1951).

Plaintiffs, by commencing their action and seeking preliminary relief less than three weeks before the parade, have placed a strain on the already overtaxed resources of the court. In addition, defendants, in opposing the preliminary injunction application, have been faced with the difficult task of addressing important constitutional issues and preparing for an evidentary hearing in just a few days.

Part of the delay, however, is attributable to the actions of American Legion defendants who did not advise plaintiffs that they would not be allowed to march in the Veterans Day parade until September 25, 1985. While this court does not condone last minute applications for preliminary relief, particularly in a case such as this where difficult issues of law must be addressed by all parties and decided by the court, the equitable doctrine of laches should not be a bar to the preliminary relief sought by plaintiffs in this case. Plaintiffs were lulled into believing that the intervention of the Mayor’s office and the Mayor’s generally supportive view of the civil rights of homosexuals would be sufficient to persuade the American Legion of the merits of their position. Accordingly, the motion of the City defendants to dismiss this motion on the ground of laches is denied.

AMERICAN LEGION’S MOTION TO DISMISS

Defendant American Legion — New York County, Reginald B. Allen, Jr. and Anthony F. Tuccillo, have moved to dismiss the action because, they assert, plaintiffs are not veterans. According to the American Legion defendants, plaintiffs only want to participate in the parade “to showcase their lifestyle and have others recognize it.” Relying on the certificate of incorporation of plaintiff, Gay Veterans Association, Inc. (American Legion Defendants’ Exhibit A), the American Legion defendants allege the organization is merely a social club. Since the certificate of incorporation does not indicate that the Gay Veterans have organized for patriotic reasons, or does not limit membership to only veterans, American Legion defendants contend that preliminary relief must be denied and the action dismissed.'

Evidence presented at the evidentary hearing, however, establishes that membership in the Gay Veterans is limited to veterans and those currently serving in the Armed Forces of the United States. See Constitution of Gay Veterans Association, Inc., Plaintiffs’ Exhibits “1” and “2”. Pri- or to approval of any application for membership in the Gay Veterans Association, a prospective member must show his or her Form DD-214 or other document indicating attachment to or separation from a branch of the Armed Forces. In addition, plaintiff Robert Walden, Secretary of the organization, testified that among the activities undertaken by the association are visiting gay veterans in Veterans Administration hospitals, assisting its members in receiving benefits due to them from the Veterans Administration, assisting gay males and lesbians currently serving in the Armed Services, and participating in patriotic events, such as the Vietnam Veterans Parade held in New York City in May, 1985 and a Memorial Day wreath laying ceremony at the Tomb of the Unknown Soldier in Arlington National Cemetery on Memorial Day. See also Affidavit of John Paine, Exhibits “D”, “E”, “G”, and “K”. The evidence clearly establishes that plaintiff, Gay Veterans Association, Inc., is a veterans organization, dedicated to assisting its members and honoring those who have served in the Armed Forces of this country. Accordingly, American Legions’ defendants motion to dismiss the complaint on the ground that plaintiff is not a bona fide veterans’ organization is denied.

PRELIMINARY INJUNCTION

Plaintiffs, in order to obtain a preliminary injunction, must demonstrate irreparable harm and either a likelihood of success on the merit or substantial questions going to the merits to make them fair ground for litigation, coupled with a balance of hardship tilting in their favor. Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984); Sierra Club v. Hennessy, 695 F.2d 643, 647 (2d Cir.1982).

“ ‘The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Olivieri v. Ward, 766 F.2d 690, 695 (2d Cir.1985) (Kearse, J., dissenting), citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976); 414 Theatre Corp. v. Murphy, 499 F.2d 1155, 1160 (2d Cir.1974). In the absence of preliminary relief, plaintiffs would be denied the opportunity to march in the American Legion’s Veterans Day parade on November 11, 1985. Such injury would be irreparable. Therefore, the issues before the court are whether plaintiffs can demonstrate a likelihood of success on the merits of their First Amendment claim, or at least serious questions on the merits and a balance of hardships tilting in their favor.

In considering the merits of plaintiffs’ claims, it is evident that plaintiffs, as a matter of law, will not prevail on their claims brought pursuant to 42 U.S.C. sections 1985(3) and 1986. Under the most expansive interpretation of these provisions a plaintiff, in order to support a claim under these sections, must be a member of a statutorily protected class. See, e.g., Lapin v. Taylor, 475 F.Supp. 446 (D.Hawaii 1979) (“Whistle blowers” are “class” within meaning of section 1985(3) since federal legislation provides them with special protection). Other courts have defined “class” more narrowly, holding the class protected by this provision must be possessed of discrete, insular and immutable characteristics comparable to those characterizing classes such as race, national origin and sex. Savina v. Gebhart, 497 F.Supp. 65 (D.Md.1980); Orshan v. Anker, 489 F.Supp. 820 (E.D.N.Y.1980).

In DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d 327, 332-33 (9th Cir., 1979), the Ninth Circuit held that gay males and lesbians do not constitute a “class” within the meaning of section 1985(3). The court stated:

While [section] 1985(3) has been liberated from the now anachronistic historical circumstances of reconstruction America, we may not uproot [section] 1985(3) from the principle underlying its adoption: the Governmental determination that some groups require and warrant special federal assistance in protecting their civil rights. This underlying principle must continue to determine the coverage of [section] 1985(3).

Id. at 333.

The Ninth Circuit noted that “suspect” or “quasi-suspect” classifications have not been given to gay males or lesbians. In addition, Congress has rejected attempts to pass legislation providing this group with special protection. Id. Accordingly, pursuant to the current state of the law, it appears plaintiffs will not prevail on their claims under section 1985(3). Since section 1986 refers to the class of persons protected by section 1985, it also is apparent that plaintiffs will not prevail on their section 1986 cause of action. Consequently, there is an absence of any serious questions on the merits in regards to these claims.

Plaintiffs’ cause of action predicated on 42 U.S.C. section 1983, alleges that the American Legion defendants and City defendants conspired together to deprive plaintiffs of their constitutional right to freedom of expression and equal access to a public forum. To prevail on their 1983 claim, plaintiffs must establish (1) that defendants subjected plaintiffs to a deprivation of a federally protected right; (2) that the defendants acted “under color of law”, and (3) that plaintiffs are protected “persons” within the meaning of the statute. Barrett v. United States, 689 F.2d 324, 221 (2d Cir.1982), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983). It is undisputed that plaintiffs are “persons” under section 1983. It also is undisputed that the defendant City officials acted under color of state law. It is further undisputed that the Mayor urged the American Legion to permit plaintiffs’ members to march in the parade identifying themselves by their banner. It is likewise uncontested that the Mayor offered and still offers to sit down with plaintiffs and work out an alternative route for plaintiffs’ parade on the same day. Furthermore, plaintiffs were permitted to march during the one City sponsored ticker-tape parade held in honor of veterans, the Vietnam Veterans Parade in May. (Affidavit of Herbert P. Rickman, paragraphs 5-6.) There is consequently insufficient evidence to support plaintiffs’ conspiracy theory.

It is undisputed that the American Legion will not permit plaintiff to march in the parade carrying their banner indicating that its members are gay veterans, while other organizations which participate in the parade are permitted to carry banners or flags with their names on it. There is, however, insufficient evidence of action “under color of law.” The City of New York provides no funding to the American Legion or its Veterans Day parade. The parade is not the only event of the day or an official event. It is just one of many ceremonies held throughout New York City to commemorate Veterans Day.

The City did deny plaintiffs’ request for a parade permit for a parade down Fifth Avenue on the ground that at that date, time and hour, the American Legion traditionally held its parade. The First Amendment requires that a policy concerning the issuance of parade permits be (1) content neutral, (2) narrowly tailored to serve significant government interests, and (3) leave open ample alternative channels for communication. Clark v. Community For Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 3096, 82 L.Ed.2d 221 (1984).

The City’s decision to deny the Gay Veterans the permit for a parade down Fifth Avenue, however, was not because of any discriminatory animus, or an attempt to deprive plaintiffs of their First Amendment rights, but because, as a matter of administrative policy, it reserves certain routes, dates, times and places for what have become annual events. For instance, a parade permit is reserved for the New York County Board of the Ancient Order of Hibernians for the St. Patricks Day Parade on March 17. A permit will be issued for no other parade on Fifth Avenue other than the Gay Pride Parade on the last day of June. Fifth Avenue is reserved on Labor Day for the parade of the New York City Central Labor Council AFL-CIO. Any group is eligible for priority after it has held two parades. (Testimony of Chief Kerins.) Thus, the evidence indicates that the permit issued to the American Legion was pursuant to a content-neutral standard. See Tacynec v. City of Philadelphia, 687 F.2d 793 (3d Cir.1982).

Furthermore, the evidence indicates that the tradition system serves a significant government interests in New York. It allows the police to determine their man-power needs in advance. In addition, according to Chief Kerins, if permits were issued on a first come, first served basis as suggested by plaintiffs, friction could develop between the many ethnic groups who have parades in the City, as they raced to the precinct window to file for the best parade route. Moreover, this system serves the constitutional rights of the spectators who desire to witness the huge annual parades. See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).

The Police Department’s decision to deny the request for a permit for a parade commencing up Water Street was reasonable. While Veterans Day is a public holiday, many businesses are open, including retail stores. A parade three and one-half miles long through the City’s financial district and business areas would cause a significant disruption of traffic. Since there are other alternative routes available to the plaintiffs in the City, the denial of the permit did not constitute a violation of the First Amendment.

It is not disputed that the mere issuance of a permit does not constitute state action. Although the American Legion is given a priority as to the issuance of a permit for a Fifth Avenue parade on the morning of November 11, 1985, other groups also are given a priority. As indicated previously, a permit is reserved for the Gay Pride Parade on the last Sunday in June in order to allow the Gay community the opportunity to express its views. Since society’s interests in order dictate that all groups seeking to parade cannot do so at the same time or place, the granting of a preference as to a particular time and site is not enough to convert the acts of the American Legion into state action.

Plaintiffs argue that the American Legion parade is a public forum because its purpose is to celebrate a public holiday, Veterans Day, in a public street. This, however, does not turn a private parade into a public forum. Under New York law, the sponsorship of parades to celebrate Veterans Day is not an exclusively public function. The evidence presented at the hearing also indicates that even traditionally it was not an exclusive governmental function. (Testimony of Philip Kaplan). While the City, pursuant to the New York General City Law, may spend money for Veterans Day observances, it is not required to and does not do so.

Plaintiffs rely on North Shore Right to Life v. Manhassett American Legion, 452 F.Supp. 834 (E.D.N.Y.1978), in which Chief Judge Weinstein held that the refusal of the American Legion to allow a controversial organization to march in the local Memorial Day parade constituted state action in violation of the group’s civil rights. In that case, the Town of North Hempstead had granted the American Legion permission to conduct a parade on Memorial Day for many years. This parade, however, was in a small town and the entire community participated in the parade. It was not only a Memorial Day parade, it was the town’s annual parade. This is not true of American Legion’s Veterans Day parade in New York City. Ample alternative channels for communication exist for plaintiffs as demonstrated by the fact that other veterans’ organizations hold ceremonies commemorating the holiday throughout the City.

In addition, Chief Judge Weinstein relied on Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), where the Supreme Court held:

Conduct that is formally ‘private’ may become so entwined with governmental character as to become subject to the constitutional limitations placed upon state action____ [Wjhen private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.

Id. at 299.

Since Chief Judge Weinstein’s decision, however, the Supreme Court has provided further guidelines in determining whether the actions of a private group constitute state action. In Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982), the Court ruled that in determining whether a private actor is performing a public function the court must consider “whether the function performed has been ‘traditionally the exclusive prerogative of the state.’ ” Id. (citations omitted). The mere performance of a public function does not make the acts of a private entity state action. Id.

In this case, the sponsorship of parades to celebrate public holidays, even Veterans Day, has not been traditionally an exclusively governmental function. Accordingly, based on the evidence and law, this court must find for the purposes of the preliminary injunction motion, that the American Legion was not acting under col- or of law when it refused plaintiffs’ request.

This court finds that plaintiffs have failed to prove a likelihood of success on the merits. Additionally there appears to be no serious questions going to the merits. Even if serious questions going to the merits were to exist, it cannot be said that the balance of hardships tips decidedly in plaintiffs’ favor; for in the absence of a showing of state action, the First Amendment rights of the American Legion defendants must also be considered.

Plaintiffs’ motion for a preliminary injunction is denied. The American Legion defendants’ motion to dismiss the complaint is denied. The next pretrial conference in this matter will be held on Friday, November 15, 1985 at 12 noon.

      . The Certificate of Incorporation of the Gay Veterans Association, Inc., sets forth the purposes of the organization as follows:
      To promote friendship among its members; to inculcate in them a high sense of loyalty to each other; to stimulate their intellectual advancement, and to hold meetings and social gatherings for the better realization of such purposes.
      To do any other act or other thing incidental to or connected with the foregoing purposes or in advancement thereof, but not for the pecuniary profit or financial gain of its members, director^, or officers except as permitted under Article 5 of the Not-For-Profit Corporation Law.
      American Legion Defendants’ Exhibit "A".

      . The Constitution of the Gay Veterans Association, in Article IV, section 1, provides that ”[m]embership is open to any individual upon proof of Military Service attachment or separation." (Plaintiffs' Exhibit “1".) In addition, a pamphlet sent to prospective members of the organization states the same. (Plaintiffs' Exhibit "5".) Robert Walden testified during the evidentary hearing that all members of the association are veterans. According to Mr. Walden, to, date only gay male or lesbian veterans have applied to join the group.

      . 42 U.S.C. section 1985(3) provides in relevant part:
      If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
      Section 1986 provides in pertinent portion:
      Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action____