Application of Lafayette Academy, Inc.

• Decision Date: 29 October 1979
• Docket Number: No. 79-1123,79-1123
• Citation: 610 F.2d 1
• Parties: In the Matter of the Application of LAFAYETTE ACADEMY, INC., et al, Appellees, Appeal of UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

610 F.2d 1

In the Matter of the Application of LAFAYETTE ACADEMY, INC.,

et al, Appellees,

Appeal of UNITED STATES of America, Appellant.

No. 79-1123.

United States Court of Appeals, First Circuit.

Argued Sept. 10, 1979.

Decided Oct. 29, 1979.

Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., with whom Paul F. Murray, U.S. Atty., Providence, R.I., and Franklin C. Phifer, Jr., Atty., Dept. of Justice, Washington, D.C., were on brief, for appellant.

Peter J. Mansbach, New York City, with whom Kronish, Lieb, Shainswit, Weiner & Hellman, New York City, Herbert F. DeSimone, and DeSimone, Del Sesto & Del Sesto, Providence, R.I., were on brief, for appellees.

Before KUNZIG, ^* Judge U.S. Court of Claims, CAMPBELL, Circuit Judge, and DOOLING, ^** District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

The government appeals from the district court's allowance of appellees' motions, filed pursuant to Fed.R.Crim.P. 41(e), ¹ for return of property. We affirm the judgment of the district court.

Appellee Lafayette Academy, Inc. owns and operates a vocational home-study school which participated in the Federal Insured Student Loan Program (FISLP). Lafayette Academy and its two subsidiaries ² came under investigation for possible fraudulent practices in connection with their participation in FISLP. The investigating officer by affidavit set forth the observations, information, and conclusions of various officials of the Department of Health, Education and Welfare, the Office of Education, and former employees of Lafayette Academy as well as his own with respect to Lafayette's irregular practices in recordkeeping and violations of federal regulations respecting the student loan program. Based upon his affidavit, a warrant issued authorizing the seizure of

"books, papers, rosters of students, letters, correspondence, documents, memoranda, contracts, agreements, ledgers, worksheets, books of account, student files, file jackets and contents, computer tapes/discs, computer operation manuals, computer tape logs, computer tape layouts, computer tape printouts, Office of Education (HEW) documents and forms, cancellation reports and directives, reinstatement reports or forms, Government loan registers, refund ledgers, reports and notes, administrative reports, financial data cards, lesson and grading cards and registers, registration (corporations) documents, student collection reports, financial documents (corporations), journals of accounts and student survey data, which are and constitute evidence of the commission of violations of the laws of the United States, that is violations of 18 U.S.C., Sections 286, 287, 371, 1001 and 1014; . . ."

from appellees' place of business. The warrant was executed the next day by approximately thirty government agents who seized a substantial percentage of the records on the searched premises, employing four or five trucks to remove the seized material.

We hold with the district court that the warrant does not describe the "things to be seized" with the particularity required by the fourth amendment. ³ The warrant is framed to allow seizure of most every sort of book or paper at the described premises, limited only by the qualification that the seized item be evidence of violations of "the laws of the United States, that is violations of 18 U.S.C. Sections 286, 287, 371, 1001, and 1014." The cited statutes, however, penalize a very wide range of frauds and conspiracies. They are not limited to frauds pertaining to FISLP, and there is no indication from the warrant that the violations of federal law as to which evidence is being sought stem only or indeed at all from Lafayette's participation in FISLP. Thus, the warrant purports to authorize not just a search and seizure of FISLP-related records as the government contends but a general rummaging for evidence of any type of federal conspiracy or fraud. Here, at a minimum, the precise nature of the fraud and conspiracy offenses for evidence of which the search was authorized fraud and conspiracy in the FISLP 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. ⁴ Compare In Re Search Warrant, 187 U.S.App.D.C. 297, 572 F.2d 321 (D.C.Cir. 1977), Cert. denied, 435 U.S. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978) (conspiracy described in affidavit incorporated into the warrant).

The government argues, however, that the requisite specificity is supplied by the affidavit. "The traditional rule is that the generality of a warrant cannot be cured by the specificity of the affidavit which supports it . . . Specificity is required in the warrant itself in order to limit the discretion of the executing officers as well as to give notice to the party searched." United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976). Under some circumstances, however, an affidavit may cure deficiencies which would exist were the warrant to stand alone. In United States v. Klein, 565 F.2d 183 (1st Cir. 1977), this court stated,

"An affidavit may be referred to for purposes of providing particularity if the affidavit accompanies the warrant, And the warrant uses suitable words of reference which incorporate the affidavit." (Emphasis in original.)

Id. at 186 n.3. See also United States v. Johnson, 541 F.2d at 1315; United States v. Womack, 166 U.S.App.D.C. 35, 49, 509 F.2d 368, 382 (D.C.Cir. 1974), Cert. denied, 422 U.S. 1022, 95 S.Ct. 2644, 45 L.Ed.2d 681 (1975); Huffman v. United States, 152 U.S.App.D.C. 238, 245 n.7, 470 F.2d 386, 393 n.7 (D.C.Cir. 1971), Reversed on rehearing on another ground, 502 F.2d 419 (1974); Moore v. United States, 149 U.S.App.D.C. 150, 152, 461 F.2d 1236, 1238 (D.C.Cir. 1972). Here the district court found and the government has not disputed that the affidavit was not served with the warrant. Nor does the warrant language incorporate the affidavit. Hence, the above standard was not satisfied.

The government argues that where, as here, the executing officers have proceeded as if the inadvertently broad warrant language were limited by the affidavit, the omission of the formal requisites words of incorporation and stapling the affidavit to the warrant should not invalidate the search and seizure. ⁵ The government points out that the affiant, who was knowledgeable in the FISLP and its operation, directed and supervised the search and seizure and took steps to insure that only FISLP-related records were seized. Furthermore, HEW Office of Education program compliance officers and auditors, specialists in FISLP, assisted during the search to identify FISLP records. Thus, the executing officers never had any doubt that only FISLP-related records, not records of other types of fraud or conspiracy, were to be searched and seized and consequently there was no danger of the officers exceeding the scope of their authority as contemplated by the affidavit, the government maintains.

Even if the government were to prove that the executing officers all understood only FISLP-related documents were the subject of the search and seizure, and that they acted as if the warrant had explicitly so stated, we would be compelled to reject the government's attempt to cure the overbreadth of the warrant language by the specificity of the affidavit. This is because the requirement that the warrant itself particularly describe the material to be seized is not only to circumscribe the discretion of the executing officers but also to inform the person subject to the search and seizure what the officers are entitled to take. United States v. Marti, 421 F.2d 1263, 1268 (2d Cir. 1970), Cert. denied, 404 U.S. 947, 92 S.Ct. 287, 30 L.Ed.2d 264 (1971). Even assuming the government is able to prove the first purpose was otherwise served, the second was not. Moreover, self-restraint on the part of the instant executing officers does not erase the fact that under the broadly worded warrant appellees were subject to a greater exercise of power than that which may have actually transpired and for which probable cause had been established. ⁶ Id. at 1269. The particularity requirement is a check to just this sort of risk.

We have said that a principle deficiency here is the lack of particularity in the phrase which purports to qualify and delineate the generic categories of items: the description "books, papers . . . letters, correspondence, documents, . . . which are and constitute evidence of the commission of violations of the (federal conspiracy and fraud statutes)" provides insufficient guidance to the executing officer as to what items from among many he should seize. The qualifying phrase in effect does nothing to limit the broad warrant description. If, of course, the generic descriptions were sufficiently specific and particular standing alone, the defect in the qualifying phrase would be of no effect. For the most part, though, the categories listed here are too broad. Certainly the description "books, papers . . . letters, correspondence, documents, memoranda, contracts, agreements, ledgers, worksheets, books of account, . . . computer tape/discs, . . . computer tape logs, computer tape layouts, computer tape printouts, . . . reports and notes, administrative reports, financial data cards . . . financial documents (corporations), journals of accounts" does not, standing alone in the circumstances of this case, satisfy the fourth amendment. True, it could be argued that as the above description authorizes in effect the search and seizure of All books, papers, etc., the warrant does not suffer from a lack of particularity. The directions to the executing officer are straightforward he is to cart away all documents. But while, so interpreted, the description would be particular enough, it would also be too broad to satisfy the probable cause requirements of the fourth amendment. The affidavit does not establish probable cause to search and seize all...