United States District Court, Northern District of Illinois, E. D
June 9, 1982
UNITED STATES OF AMERICA, PLAINTIFF,
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.
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.
On April 15 postal inspector Cooper applied to Magistrate
Olga Jurco for a search warrant covering White's office.
affidavit in support of the application contained information
indicating White had used the mails to submit false credit
information to American Candy Co. and Armour-Dial Co.
Magistrate Jurco issued a warrant authorizing the government
to search White's office and to seize "all books, records and
merchandise which are fruits, evidence and instrumentalities
of violation of [the mail fraud statute]."
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 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980);
Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561,
65 L.Ed.2d 633 (1980).
There is no dispute on the second of those questions —
White's expectation as to the property seized. Rather the
government contends White did not have a legitimate expectation
of privacy in the area searched — Room 608. That argument is
Rakas, 439 U.S. at 143-44 n. 12, 99 S.Ct. at 430-431 n. 12,
states the operative test. For White to have had a legitimate
privacy expectation in Room 608:
(1) He must have had an actual
subjective expectation of privacy in the
(2) That expectation must be one society can
recognize as reasonable or legitimate.
See Katz v. United States, 389 U.S. 347, 361,
88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)
(Harlan, J., concurring).
White's subjective mind-set is of course confirmed by his
own testimony*fn6 and, more importantly, is supported by that
of Provine and Cooper as well. White testified he believed
Provine would prevent others from having access to Room 608
and White's belongings there, and White would be permitted to
reenter and run his business out of Room 608 if he paid the
past due rent. Provine confirmed White's stated beliefs were
accurate. In fact, Cooper's statement of what Provine told him
(see n. 4) is corroborative of a material part of White's
testimony (that about reentry).*fn7
This Court finds, as a logical inference from the testimony,
that White did expect
subjectively that others would not be given access to Room 608
so as to violate White's privacy in the Rakas sense.*fn8
Unable to counter with any direct evidence, the government
claims White's behavior was inconsistent with a belief that
Room 608 was "private": White did not sign a lease, did not pay
the required security deposit and rent when due, and did not
pay the back rent or otherwise seek to regain possession of
Suite 608. From that conduct the government reasons White
"treated the oral lease as terminated as of the March lock
Though the government's facts are right, its conclusions are
flawed. All White's cited behavior demonstrates his
inability to pay the rent (White said that was due to accident
and illness). It does not show he ceased to expect the premises
(and his personalty inside them) would remain private. As
already stated, the Court resolves this fact issue in White's
That leads to a somewhat more difficult question: whether
the law is prepared to recognize White's expectation of
privacy in Room 608 as "reasonable" or "legitimate." Although
state law is not entirely dispositive on this matter,*fn9 it
cuts strongly in White's favor. Brooks v. LaSalle National
Bank, 11 Ill. App.3d 791, 797, 298 N.E.2d 262, 267 (1st Dist.
1973) indicated a lessor must resort to judicial proceedings
both to regain possession of the premises*fn10 and to distrain
a lessee's personalty upon default in rental payments. Under
Illinois law Provine's exercise of self-help thus violated
White's rights, and he remained entitled to possession of the
More than the technicality of White's legal entitlement,
however, shows his expectation was legitimate. After all, a
tenant's interest in his leasehold is the archetype of a
legitimate privacy interest. Surely we cannot sacrifice the
tenant's Fourth Amendment rights because of his landlord's
wrongful retaking of the tenant's property. United States v.
Botelho, 360 F. Supp. 620, 624-26 (D.Hawaii 1973); State v.
Taggart, 7 Or. App. 479, 483-84, 491 P.2d 1187, 1189 (1971).
Nor is that underlying policy altered by White's having
fallen into arrears on his rent soon after taking possession.
It is enough to "legitimate" White's expectation for Fourth
Amendment purposes that he did take possession of the premises
under a valid lease, did move important business materials
into Room 608 and was never lawfully ousted of his legal
entitlement to the premises. "Legitimacy" cannot fairly be
measured in degrees, in terms of such factors as how long the
tenant was in uninterrupted possession or whether the premises
were used for residential or for business purposes. No such
rule would be sufficiently protective of tenants' rights
against unreasonable searches and seizures.
Moreover, in this case the general principles mirror
specific facts. There were clear understandings on the part of
both landlord (via Provine) and tenant as to (1) White's right
to retake possession (despite the wrongful dispossession) on
payment of the rent and (2) maintenance of the integrity of
White's property in the interim. White had a legitimate right
to rely on those understandings — and that post-lockout right
wholly differentiates this case from United States v. Buchanan,
633 F.2d 423, 426 (5th Cir. 1980):
On April 15, Buchanan had failed to pay the
monthly rent for the searched premises. The lease
expired by its own terms five days after the
non-payment of rent. On May 5, 1979, the landlord
changed the locks on the doors of the premises.
Since Buchanan had no further property interest
in the premises once the lease had expired, and
since he was not present at the premises when
they were searched, he had no legitimate
expectation of privacy in the premises and thus
no standing to challenge the search.
By total contrast, White did retain his expectation of
privacy in Room 608, and that expectation was
legitimate.*fn11 It thus remains to consider whether the
Fourth Amendment, on which he has the right to call, is
responsive to his invocation.
Validity of the Search Warrant
White objects to the search warrant on two closely-linked
(1) It did not describe the objects to be seized
with enough specificity to survive Fourth
(2) No probable cause existed to support issuance
of a warrant of such breadth.
Because both those interrelated contentions are persuasive,
(and either would be sufficient), White's motion to suppress
must be granted and his personal property returned.
Two recent decisions of the Court of Appeals for the First
Circuit strongly support White's position. In United States v.
Roche, 614 F.2d 6 (1st Cir. 1980) the government had probable
cause to believe defendant was engaged in a fraudulent scheme
to charge excessive premiums for motor vehicle insurance. As
here, the warrant authorized seizure of all items at
defendant's office that could be "evidence, fruits and
instrumentalities" of mail fraud violations. Suppression of the
seized evidence was upheld on both grounds urged here by White,
614 F.2d at 7:
". . . Here, at a minimum, the precise nature
of the fraud and conspiracy offenses for
evidence of which the search was
authorized . . . needed to be stated in order
to delimit the broad categories of documentary
material and thus to meet the particularity
requirement of the fourth amendment." [quoting
In Application of Lafayette Academy, 610 F.2d 1,
3 (1st Cir. 1979)].
Here, the government could have limited the
objects of search and seizure to documents and
records pertaining to automobile insurance, but
declined to do so. This impermissibly broadened
the scope of the search beyond the foundation of
Both the "particularity" and "excessive scope" rationales of
Roche and Lafayette Academy apply to condemn the warrant in
this case. It authorized a search for and a seizure of "all
books, records and merchandise which are fruits, evidence and
instrumentalities of violation of [the mail fraud statute]."
As to the "particularity" requirement identified in
Roche and Lafayette Academy, the standard was put succinctly in
Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72
L.Ed. 231 (1927):
As to what is taken, nothing is left to the
discretion of the officer executing the warrant.
But here nothing in the warrant itself hedged the exercise of
the inspectors' discretion. Nor was the supporting affidavit
either attached to the warrant, incorporated into the warrant
by reference or presented to Provine so as to save the
"unparticular" warrant. Roche, 614 F.2d at 8; Lafayette
Academy, 610 F.2d at 4; Klein v. United States, 565 F.2d 183
186 n. 3 (1st Cir. 1977). In sum, nothing in the warrant
satisfies the concerns at the heart of the Fourth Amendment's
requirement of "particularly describing the . . . things to be
seized": that the government's search and seizure must not
turn into "a general rummaging for evidence of any type of
federal conspiracy or fraud" (Roche, 614 F.2d at 7), and that
such generalized rummaging through a suspect's business papers
must not be done at the essentially unfettered discretion of a
This is not necessarily to condemn every warrant authorizing
seizure of "fruits, evidence and instrumentalities" of
criminal violations. Where the statutes or the target
activities identified in the warrant are themselves properly
specific, a warrant drawn in such terms may be sufficiently
particular and not a "general warrant." See, Andresen v.
Maryland, 427 U.S. 463, 480-82, 96 S.Ct. 2737, 2748-2749, 49
L.Ed.2d 627 (1976) (crime of false pretenses with respect to
one Lot 13T, of a real estate subdivision); United States v.
Coppage, 635 F.2d 683, 686-87 (8th Cir. 1980) (possession,
manufacture and distribution of methamphetamine, a Schedule II
controlled substance); United States v. Dennis, 625 F.2d 782,
792 (8th Cir. 1980) ("extortionate credit transaction
Here however the warrant authorized the inspectors to seize
all such broadly defined (or more accurately undefined) items
("fruits, instrumentalities and evidence") related to
violations of the mail fraud statute, 18 U.S.C. § 1341. That
statute embraces an enormous range of criminal activity. United
States v. George, 477 F.2d 508 (7th Cir. 1973) epitomizes its
broad sweep, construed to encompass every scheme to defraud
furthered by use of the mails. Thus the warrant in this case
made every scrap of paper — and every other item of property
— belonging to White & Co. fair game for the searchers.
Faithful to that authorization, they exercised their unhedged
discretion by sweeping everything into their net — by a kind
of "rummaging" too broad to be countenanced under the Fourth
Moreover, the warrant breached the other Fourth Amendment
limitation — "probable cause" — by far exceeding the showing
of such cause presented to Magistrate Jurco. This opinion need
not elaborate on this aspect of the decisions in Roche and
Lafayette Academy; accord, United States v. Gardner,
537 F.2d 861, 862 (6th Cir. 1976).
White's situation is not distinguishable from that of the
defendants in Roche or Lafayette Academy. Cooper's affidavit
dealt only with White's limited transactions with two
companies, American Candy Co. and Armour-Dial Co. That showing
cannot be universalized, as the government would have it, to
the conclusion that White & Co. was entirely a "scam business"
— thereby establishing probable cause to authorize seizing
every document in the office, rather than just those relating
to a particular phase of White's business, or to the particular
transactions identified in Cooper's affidavit, or to
transactions reasonably related to those identified matters.
One swallow does not a summer make — nor even two.*fn12
White's transactions with American Candy and Armour-Dial did
not establish probable cause for the all-encompassing warrant
issued and executed here.
"Good Faith" as a Possible Exception
Alternatively the government urges that even if the
documents and other property were improperly seized from
White's office, they should not be suppressed. For that
purpose the government seeks to invoke a "good faith"
exception to the exclusionary rule, as expressed by the Court
of Appeals for the Fifth Circuit in United States v. Williams,
622 F.2d 830, 840-48 (5th Cir. 1980), cert. denied,
449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981).
Our Court of Appeals has not announced its own views on such
a good faith exception. If it were to be adopted and applied,
however, this case is an extraordinarily poor candidate for
As this Court has previously noted — in United States v.
Santucci, 509 F. Supp. 177, 182-83 (N.D.Ill. 1981) — if such a
good faith exception to the exclusionary rule were to be
recognized, it should be applied where it is really needed: to
deal with the problems posed by the "pressures of law
enforcement and the vagaries of human nature," as the Supreme
Court said in Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct.
2357, 2364, 41 L.Ed.2d 182 (1974). It may make good sense for
the law to respond to "the problems [the exclusionary rule]
poses to the policemen who must act on the firing line
(unfortunately too often literally so) and under the need to
make immediate law enforcement decisions without the luxury of
deliberation." Santucci, 509 F. Supp. at 182.
But the decisions in this case were those of the postal
inspectors and the Magistrate. None was subject to the
"pressures of law enforcement and the vagaries of human
nature" that afflict the policeman in the field. Santucci, id.
at 183, spoke of a balancing of interests in the context of a
United States Attorney's decision. Everything said there
applies with equal force to the decision of the postal
inspectors (on the facts of this case) to seek, and with even
greater force to the decision of the Magistrate to issue, the
warrant. Our Court of Appeals, while reversing Santucci on
other grounds, 674 F.2d 624 at 631 (1982), appeared to
recognize the validity of that aspect of this Court's opinion.
In this case the warrant was doubly flawed in Fourth
Amendment terms: It did not "particularly describ[e]
the . . . things to be seized," and it lacked "probable cause"
to support the breadth of the authorized search. Accordingly,
White's motion for suppression of evidence and for the return
of property under Fed.R.Crim.P. 41(e) is granted.