safe in the custody of Jacobs, but accessible only to Guterma.
The ruling quashing the subpoena turns on the fact that Guterma
retained a significant element of possession since he alone could
open the safe.
In Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d
856 (1964), the government came into possession of the records by
means of a search of Stoner's hotel room with the consent of the
hotel clerk. These facts are not analogous to the situation here.
The principle to be applied, therefore, permits acceptance by
the government of records submitted by Blaz without regard for
how Blaz got them as long as the government was not involved in
their acquisition. We need not consider the question whether this
rule would apply if the agent of the United States knew they were
stolen, since there is no convincing evidence that the federal
authorities here knew or should have known of this fact.
Despite this, however, the question raised in this case remains
a close one. The records are apparently those of the defendants,
and the government's possession of them clearly presages their
use against the defendant. The defendant claims Blaz stole them,
and produces evidence which, while not preponderant, is at least
susceptible to that inference. It is not appropriate in this
circumstance to be satisfied with a mechanical application of the
general rule without consideration of one final aspect of the
Beginning at least in November, 1969, Blaz was in communication
with federal officials and in a posture of ostensible cooperation
with the government. The possibility of his own indictment was
obviously present in his mind. After their first meeting, Agent
McClanahan kept in touch with Blaz from time to time, and a month
or more before Blaz found the box in question, he and McClanahan
discussed the fact that Blaz had files on the First Available
Fund. Although the record is not precise as to the time, it
reveals that Blaz discussed his desire not to be indicted with an
Assistant United States Attorney, and offered contemporaneously
some papers from his office concerning First Available Fund, at
which time he was told that he was not the target of the
investigation. He was informed that these papers proved to be
useless as an aid to the government.
Subsequently, on March 19, 1970, Blaz voluntarily produced more
documents, this time the Blaz box, with a revelation that he had
obtained these from the office shared with Rosenberg, and that
Rosenberg was asking for their return.
There is no suggestion in these revelations of impropriety on
the part of government agents. There is a clear pattern, however,
of attempts to procure the cooperation of Blaz, known to be a
co-tenant of an office with defendants Stein and Rosenberg (then
under investigation), and known, further, to have been involved
with them in at least one of their mail enterprises under
scrutiny, and Blaz was obviously under the impression, which the
government encouraged, that his cooperation would result in his
being left out of the mail fraud indictment the government was
working toward. It is possible to conclude from the record that
Blaz was in this frame of mind when he procured the Blaz box from
the office he shared with Stein and Rosenberg. There is no clear
and convincing evidence that he was an agent of the government at
this time, but there is ample reason to believe that Blaz thought
the government would reward him for turning over these records;
just as there is no clear and convincing evidence that he stole
the records, but there is ample reason to believe that he might
have done so.
Under these circumstances, it cannot be said that the
government was totally divorced from the situation under which
Blaz came into possession of these records. Against this
background, we cannot mechanically apply any rule of law without
recognizing that Rosenberg in this fact situation stands to have
fourth amendment right somewhat diminished by the use of these
records in evidence against him.
For these reasons, the motion of the defendant Rosenberg to
suppress the evidence, for convenience referred to herein as the
Blaz box, and its contents, is granted.
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