The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Robert L. White ("White") has been indicted for mail and
wire fraud in the operation of his sole proprietorship, Robert
L. White & Co. ("White & Co."). White challenges the seizure
by federal postal inspectors of White & Co. records from his
offices at 28 East Jackson Boulevard, Chicago. Though the
seizure followed a search pursuant to a warrant, White claims
both search and seizure violated his Fourth Amendment rights.
For the reasons stated in this memorandum opinion and order,
White's motion to suppress is granted.
There is a sharp dispute as to the bona fides of White &
(1) White says he is a legitimate manufacturer's
representative and wholesale distributor for
(2) According to the government, White's
operation is a "`scam' business, an illegal
operation which falsely induces merchants to
ship goods which the `scam' operator never
intends to pay for."
This opinion need not however resolve which of those competing
versions is accurate.
In mid-December 1980 White entered into an oral lease*fn2
of Room 608 at 28 East Jackson to conduct the White & Co.
business. White took possession of the premises just before
January 1, 1981.*fn3
By March 16 White was substantially delinquent in his rent,
having paid only $250 and owing another $1495. On that date
building manager Provine changed the locks on Room 608 to bar
Provine testified she tried unsuccessfully to reach White
before locking him out. Though she had never specifically
discussed reentry or legal rights with White, she would have
restored the premises to White on payment of the back rent.
Provine had done so with other tenants.*fn4 Provine also
testified it was a building policy in "lockouts" like White's
to keep the tenant's personalty and not let anyone else
rummage through it.
Finally Provine (like postal inspector Cooper) testified
White had a display of some items for sale in the outer
"public" portion of the office. However, the materials
actually seized were not in plain view from that "public" part
of the office.
Cooper and a fellow inspector promptly executed the warrant
by serving it on Provine, who let them into Room 608.*fn5
They then seized virtually all White & Co. records. In
addition, they seized a number of items that were not
literally "books, records and merchandise" of White & Co.,
such as a telephone, a sip with the company name on it, blank
checkbooks, two rubber stamps, pens, pencils, a cassette tape,
two rounds of .357 ammunition, a newspaper obituary and a
rough draft application for a passport.
White's Privacy Expectations
White objects that the search and seizure were made pursuant
to an impermissibly broad and vague warrant in Fourth
Amendment terms. But before that issue can be reached, White
must surmount a preliminary hurdle. To invoke Fourth Amendment
protection he must prove a legitimate expectation of privacy
both in the area searched and in the property seized.
United States v. Rakas, 439 U.S. 128, 148-49, 99 S.Ct. 421,
432-33, 58 L.Ed.2d 387 (1978); United States v. Salvucci,
448 U.S. 83, 93, 100 ...