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UNITED STATES v. WHITE

June 9, 1982

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ROBERT WHITE, DEFENDANT.



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.

FACTS*fn1

There is a sharp dispute as to the bona fides of White & Co.:

  (1) White says he is a legitimate manufacturer's
      representative and wholesale distributor for
      small manufacturers.
  (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 White's reentry.

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 ...


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