Case 2:10-cv-03452-HGB-ALC Document 53 Filed 02/18/11 Page 1 of 2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

HEEBE, ET AL. * CIVIL ACTION NO: 10-3452

v. * SECTION “C” (5)

UNITED STATES OF AMERICA *

* * *

UNITED STATES’ MOTION FOR LEAVE TO FILE

REPLY MEMORANDUM TO PETITIONERS’ OPPOSITION
TO GOVERNMENT’S MOTION FOR RECONSIDERATION

NOW INTO COURT comes the United States of America, appearing through the

undersigned Assistant United States Attorney, who respectfully requests leave of Court to file the

attached Reply Memorandum to Petitioners’ Opposition to Government’s Motion for

Reconsideration.

Respectfully submitted,

JIM LETTEN
UNITED STATES ATTORNEY

s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney
500 Poydras Street, Second Floor
New Orleans, Louisiana 70130
Telephone: (504) 680-3102
Email: Greg.Kennedy@usdoj.gov
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CERTIFICATE OF SERVICE

I hereby certify that on February 18, 2011, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system which will send a notice of
electronic filing to all counsel of record.

s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

HEEBE, ET AL. * CIVIL ACTION NO: 10-3452

v. * SECTION “C” (5)

UNITED STATES OF AMERICA *

* * *

ORDER

Considering the foregoing motion of the United States requesting leave of court to file an

exhibit under seal;

IT IS HEREBY ORDERED that the United States is granted leave of court to file a Reply

Memorandum to Petitioners’ Opposition to Government’s Motion for Reconsideration.

New Orleans, Louisiana, this ________ day of February, 2011.

HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
 Case 2:10-cv-03452-HGB-ALC Document 53-2 Filed 02/18/11 Page 1 of 8

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

HEEBE, ET AL. * CIVIL ACTION NO: 10-3452

v. * SECTION “C” (5)

UNITED STATES OF AMERICA *

* * *

UNITED STATES’ REPLY MEMORANDUM TO PETITIONERS’

OPPOSITION TO GOVERNMENT’S MOTION FOR RECONSIDERATION

NOW INTO COURT comes the United States of America, appearing through the

undersigned Assistant United States Attorney, who submits for the Court’s consideration the

following memorandum in reply to petitioners’ opposition to the government’s motion for

reconsideration:

RELEVANT PROCEDURAL BACKGROUND

This case’s history is set forth in the government’s original response to the petitioners’

motion to return seized property. See Rec. Doc. 14. As set forth there, petitioners sought Rule 41(g)

return of property, alleging agents exceeded the scope of a warrant in searching 2000 Belle Chasse

Highway, Gretna, Louisiana. Rec. Doc. 3. Petitioners sought oral argument. Rec. Doc. 5. The

Court ordered the matter be converted to an equitable civil action, named the government as
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defendant, ordered a government response and that the matter would be decided without oral

argument. Rec. Doc. 6.

The government responded to the petitioners’ motion. Rec. Doc. 14. This Court ordered the

government to immediately return all original seized property of tenants other than River Birch, Inc.,

copies of all documents that constitute “property shared” between River Birch, Inc. and other tenants,

and to complete a “clean team” review and return all privileged documents to the petitioners. Rec.

Doc. 23. The government complied with the Court’s order and additionally filed a motion for

reconsideration of the Court’s ruling. Rec Docs. 32, 33. The petitioners filed a memorandum in

opposition to the government’s motion for reconsideration. Rec. Doc. 42. The government now

responds to this opposition.

ARGUMENT

The petitioners contend that the search warrant signed by the Magistrate in this case “clearly

limited the Government’s search to the offices of River Birch.” Rec. Doc. 42, p. 2. However, the

search was not limited only to the offices of River Birch. The search warrant and its attachments

authorized the search of 2000 Belle Chasse Highway, which contains the office of River Birch

Landfill. Rec. Doc. 3-3, pp. 1-2. Attachment B to the search warrant clearly contemplated that

documents related to the business and business practices that are found at 2000 Belle Chasse

Highway are within the scope of the search warrant and therefore were permissibly seized. Rec.

Doc. 3-3, p. 3-4. “The scope of a lawful search is defined by the object of the search and the places

in which there is probable cause to believe that it may be found.” Maryland v. Garrison, 480 U.S.

79 (1987).

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The petitioners in this case continue to rely upon, Garrison as the basis for this Court to rule

that the agents went beyond the scope of the search warrant. Rec. Doc. 42. However, a careful

analysis and comparison of the facts and law of Garrison to the facts of this case reveal that the

agents had an objective and reasonable belief that they were searching within the scope of the

warrant. Objective facts available to the searching agents at time they sought the warrant and the

execution of the search, including the physical layout of the third floor of 2000 Belle Chasse

Highway, were not such that would have led agents to execute the search of 2000 Belle Chasse

Highway in a different manner.

In Garrison, the police obtained a search warrant for “the premises known as 2036 Park

Avenue third floor.” Id. at 80. The officers believed that there was only one apartment on the third

floor that belonged to McWebb, a suspected drug dealer. Id. The officers encountered McWebb

in the front of the building. Id. at 81. McWebb led them through a locked door to the third floor,

into a vestibule area, where they saw the respondent, Garrison, standing in the hallway. Id. “The

police could see into the interior of both McWebb’s apartment to the left and respondent’s to the

right, for the doors to both were open.” Id. Only after the police recovered drugs, money, and drug

paraphernalia did they realize that the third floor contained two separate apartments. Id. The search

was discontinued after this discovery was made. Id.

In the present case, the agents obtained a search warrant for the premises of “2000 Belle

Chasse Highway, Gretna, Louisiana, 70056 (further described in Attachment A). Rec. Doc. 3-3,

p. 1. Attachment A further described the property as “The offices of River Birch Landfill are located

at 2000 Belle Chasse Highway, Gretna Louisiana, 70056. It is a three-story beige brick building with

a sign in front of it that states River Birch Inc. and Willow Homes.” Rec. Doc. 3-3, p. 2.

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The agents objectively and reasonably believed that they adequately described 2000 Belle

Chasse Highway, the area to be searched, in the warrant. They based that upon the information

known to the agents when applying for the warrant. In Garrison, “When the police applied for the

warrant and when they conducted the search pursuant to the warrant, they reasonably believed that

there was only one apartment described on the premises.” Id at 80. Here, the searching agents

reasonably believed at the time they applied for the warrant and when executing the warrant, that the

offices were those of River Birch, Inc were contained within 2000 Belle Chasse Highway. Even

though FBI agents had been to 2000 Belle Chasse Highway, there was no indication from the floor

plan of the premises that other separate and distinct entities may be operating from separate and

distinct office space within River Birch offices. Agents conducted an interview with one of River

Birch’s principals, Jim Ward, prior to the search warrant. However, nothing in that interview nor

in the interior of the office space would have alerted the agents to other possible entities operating

in River Birch’s office space. The interview was conducted in Ward’s office within the third floor.

The agents did not conduct a search and did not have access to any filing cabinets or other storage

areas that could have been used to store documents of other businesses.

The government was aware that Peter Butler maintained an office at 2000 Belle Chasse

Highway. However, the agents believed, and still maintain, that the office was not a separate and

distinct law office but rather an office of River Birch from which Peter Butler acted as in-house

counsel for River Birch and from which he ran a law practice. Neither a first-floor directory nor

letterhead establishes a separate and distinct premises. Agents instead relied on what they knew

from previous visits and from what they learned in the investigation. Additionally, Peter Butler was

at the scene when the agents arrived for the previous interview with Ward and met them before the

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interview. He was present as agents walked through the office and when the interview took place.

Nothing told to the agents by Ward or Butler would have informed the agents that Butler was acting

as anything other than in-house counsel for River Birch. He conducted business within the offices

of River Birch, but not in a separately labeled private law office. Butler’s space did not have a

separate entrance. There was no indication from the office itself or anywhere else on the premises

that would have reasonably informed the agents that the office in which Butler worked was anything

other than another office for River Birch, Inc.

Most telling in this case is that, despite having several attorneys representing River Birch,

and its principals on the scene, it is the government’s understanding that not one attorney informed

any of the agents that there were other separate entities operating or separate office space being

utilized by any other businesses within 2000 Belle Chasse Highway. At no point in any of the

petitioners’ filings, is there any allegation that any principal, employee, or attorney ever informed

any searching agent that they had gone beyond the scope of the warrant and were now searching

other businesses located within 2000 Belle Chasse Highway. Attorneys, who had been given

unfettered access to the searched area by the agents, had ample opportunities to inform the agents

that ceratin areas being searched were those of other businesses. Moreover, River Birch attorney

William Gibbens, despite speaking to both AUSAs Gregory M. Kennedy and Jim Mann by phone

throughout the day, failed to alert the AUSAs that the agents were going beyond the boundaries of

the search warrant. In fact, the only concern raised by Mr. Gibbens was that the agents were looking

at privileged documents. Similarly, in Garrison, neither the respondent Garrison nor McWebb, the

target of the search warrant, ever informed officers that there were two apartments or that they lived

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in separate apartments even though they were both present while the search was conducted in the

apartments. Id at pp. 81, 88.

Without this information, and without seeing any significant independent information of the

actual existence of the other separate and distinct offices, the agents justifiably maintained a

reasonable belief that they were searching within the scope of the warrant.

The petitioners further contend that because the sign located in front of the building

contained both references to River Birch and Willow Homes, the agents had knowledge that the area

to be searched contained multiple businesses. The agents were aware that the sign in front of the

building referenced both River Birch and Willow Homes, as referenced in the warrant. Rec. Doc.

3-3, p. 2. However, secondary mention of Willow Homes under the main sign of River Birch was

not sufficient to inform the agents that Willow Homes was working in a separate and distinct

physical space within 2000 Belle Chasse Highway, independently of River Birch. Additionally, after

entering the third floor, the agents had no further reason to believe that Willow Homes, or any other

business, was working separately and independently of River Birch. The petitioners make reference

to “plenty of obvious labeling” that should have informed the agents of such an existence. Rec. Doc.

42, p. 14. However, there is no reference by the petitioners to any actual labeling on the exterior of

the offices or cubicles within the third floor that would have given the agents a reasonable

knowledge of a delineation of any other business or business offices. Indeed, once entering the third

floor, there is no further labeling other than documents within file cabinets that identified Willow

Homes as a separate entity.

Given the authority to search 2000 Belle Chasse Highway and the lack of separate, distinct

and clearly demarcated office spaces wholly unrelated to River Birch, as was the case in Garrison,

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the agents searched the entirety of 2000 Belle Chasse Highway in good faith and seized items they

reasonably believed were within the scope of the search warrant.

Additionally, had the agents been mistaken in their belief that the third floor contained only

the offices of River Birch, such a mistake does not invalidate the search. This Court must look to

whether the failure of the agents to realize the overbreadth of the warrant was objectively reasonable

and understandable. Garrison at 88. Looking at the objective facts known to the agents at the time,

such a possible mistake did not invalidate the search. Sufficient probability, not certainty, defines

the reasonableness of the agents in their belief they were searching within the scope of the warrant.

Id. at 87. The agents had sufficient and reasonable belief that they were searching in accord with the

warrant when searching the entirety of 2000 Belle Chasse Highway.

CONCLUSION

For the foregoing reasons and for reasons previously put forth by the government, the

government requests this Court to reconsider its original Order and find that agents did not exhibit

any callous disregard for rights of the petitioners and acted reasonably and within the scope of the

warrant.

Respectfully submitted,

JIM LETTEN
UNITED STATES ATTORNEY

s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney
Hale Boggs Federal Building
500 Poydras Street, Second Floor
New Orleans, Louisiana 70130
Telephone: (504) 680-3102
Email: Greg.Kennedy@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that on February 18, 2011, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system which will send a notice of
electronic filing to all counsel of record.

s/Gregory M. Kennedy
GREGORY M. KENNEDY
Assistant United States Attorney