In re Search Warrant, Misc. Case No. 03-0008-MPT (D. Del. 9/9/2003)

• Decision Date: 09 September 2003
• Docket Number: Misc. Case No. 03-0008-MPT.
• Parties: In re Search Warrant.
• Court: U.S. District Court — District of Delaware

Page 1

In re Search Warrant.

Misc. Case No. 03-0008-MPT.

United States District Court, D. Delaware.

September 9, 2003.

Peter J. Walsh, Jr., Esquire, and John M. Seaman, Esquire, Potter, Anderson & Corroon, L.L.P., Wilmington, Delaware, for petitioner, Sherry L. Freebery

Colm F. Connolly, Esquire, Leonard P. Stark, Esquire, Assistant United States, for Respondent, United States of America

MEMORANDUM

MARY PAT THYNGE, Magistrate Judge.

I. Introduction

This motion, initiated by Sherry L. Freebery, seeks the return of documents seized from her home pursuant to a search warrant obtained by the government on November 5, 2002 and served upon Freebery on November 6, 2002. Freebery also requests that the court grant her a Franks evidentiary hearing.

II. Background

The facts giving rise to this action occurred shortly before the September 2002 County Council primary election. Freebery is the New Castle County Administrator. In an effort to gain voter support for two candidates in the 2002 County Councilman primary election, Freebery had extra phone lines installed in her home and created a phone bank that could be used to contact potential voters. Notably, the extra telephones were not listed in Freebery's name, but under the name of another county classified employee. For at least two weeks before the primary, Freebery assigned certain unclassified county employees to perform various political campaign activities, such as, making telephone calls from her home, in support of the two favored County Councilman candidates.¹ All such campaign activities by these employees were performed during normal work hours. The employees were not on leave, but were assigned to political campaign duties as part of their normal work routine.² The primary election was held on September 7, 2002.

On September 24, 2002, the FBI, on behalf of the United States Attorney's Office, served New Castle County with subpoenas seeking records relating to employee leave and assignments for the weeks leading up to the September primary. Immediately thereafter, Freebery asked Acting County Attorney Eric Episcipo to draft a memorandum, ostensively to confirm his earlier informal advice, that unclassified county employees could legally perform campaign-related work during county time. Episcopo's September 25th memorandum concluded that unclassified county employees were not barred from volunteering for candidates during county work hours by various county, state, or federal laws.³ Absent two footnotes and few conclusory lines, no adequate review of applicable state law was provided in the memorandum. Moreover, no relevant analysis was performed to support the conclusion that no state or county statute or code would prohibit unclassified employees from participating in political activities while on county time and not on unpaid leave.

On November 5, 2002, a sealed search warrant for Freebery's residence was issued. See In the Matter of the Search of 13 Crimson Drive, Case No. 02-110M. In support of its application for the warrant, the government submitted the affidavit of Special Agent Kevin Shannon. The warrant was sought in conjunction with an ongoing federal grand jury investigation into various allegations of fraud and abuse in county government.

To avoid interfering with the November 5 general election, the government waited until the next day, November 6, to execute the warrant at Freebery's home. Eleven federal agents participated in the execution of the search warrant. In addition to the agents, the U.S. Attorney, who is overseeing the grand jury investigation, entered Freebery's residence and surveyed the scene for about one hour.

Government agents seized 29 boxes of materials from Freebery's home. Included in those materials were documents related to the 2002 primary campaign, as well as, documents relating to the 2000 and 1996 campaigns. Also included in the seized material were two bills mailed to Freebery by the telephone company, Verizon. Those phone bills contained charges related to the installation of the extra phone lines in Freebery's home, as well as, charges for phone calls made from the home by the unclassified county employees at Freebery's behest. One of the phone bills was sent by United States mail to Freebery's house on or about September 3, 2002, five days before the primary election. Also contained in the seized materials were New Castle County records, such as, telephone messages, unrelated to the campaign.

The government made copies of all seized materials available, and those copies have been provided to Freebery. Certain copies were not received by Freebery until four months after the initial seizure and after this motion was filed.

Freebery contends that during the search of her home, government agents, including the U.S. Attorney, had the opportunity to view memoranda and materials located in her bedroom that were unrelated to the search warrant and covered by attorney-client privilege, including a memorandum related to a civil law suit. The government counters that Freebery was given the opportunity to examine any documents in her bedroom in order to ascertain that the agents did not review or seize anything privileged. The government contends that Freebery looked through the bedroom and indicated to the agents that they could proceed with the search of her room. Furthermore, both Special Agent Shannon and U.S. Attorney Colm F. Connolly have submitted sworn affidavits stating that they did not examine any documents that were marked to suggest that the document was an attorney-client communication or any memorandum related to a civil law suit.

The government argues that the material seized is evidence that Freebery was involved in an honest services mail fraud offense.⁴ The seized material also purportedly includes evidence of a scheme to defraud New Castle County and its citizens of their right to the honest services of county officials in violation of state law and the New Castle County Code. The New Castle County Council amended the County Code in November 2002, to expressly prohibit unclassified employees from performing any campaign activities during regular working hours.⁵

Freebery bases her motion for return of property on Rule 41(g) of the Federal Rules of Criminal Procedure.⁶ Rule 41(g) states in part:

A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. . . . The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

Freebery argues that she has been aggrieved by an unlawful search and seizure and by the deprivation of her property. Freebery claims that the government improperly obtained the search warrant for her home and that the actual search and seizure was unconstitutional. Furthermore, Freebery contends that she has been aggrieved by the deprivation of the property as it has caused her undue public embarrassment as a prominent figure in county politics.

Freebery asks that the court use its equitable powers to return her seized property. Freebery also requests a Franks evidentiary hearing.

This is a pre-indictment motion.

III. Discussion

A. Motion For Return of Property

The government argues that under Rule 41(g) and applicable Third Circuit case law, the court should refrain from reaching the merits of Freebery's motion.

According to the government, the relief Freebery requests, the pre-indictment return of property, is equitable in nature, and thus, the traditional principles of equity apply to the court's resolution of this matter.

The government's reasoning that the court should deny Freebery's motion without considering the merits of her arguments is two-fold. First, under the doctrine of clean hands, the government argues that Freebery is not entitled to request equitable relief from the court. Second, the government argues that under an analysis of the totality of the circumstances, equitable considerations dictate denial of the motion.

Unclean Hands

The government argues that the equitable principle of "unclean hands" bars Freebery from pursuing a Rule 41 Motion, and thus, precludes her from any right to a hearing to determine whether she is entitled to the return of the seized evidence. In Highmark, the Third Circuit repeated its rationale of when the doctrine of unclean hands is relevant: "The equitable doctrine of unclean hands applies when a party seeking relief has committed an unconscionable act immediately related to the equity the party seeks in respect to the litigation." Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 174 (3d. Cir. 2001).⁷

The government argues that Freebery procured and filed a false declaration in support of her motion for return of property. To support this allegation, the government relies on the sworn affidavit of Patricia Lutz Dilenno, dated February 20, 2003 ("Second Affidavit"). This Second Affidavit repeatedly contradicts Dilenno's prior sworn declaration ("First Declaration"), dated January 14, 2003, and attached to Freebery's motion.

Dilenno is the Chief Human Resources Officer for New Castle County. In this position, Dilenno is charged with interpreting and implementing the policies and procedures relating to county employees. Dilenno's First Declaration reviews the government's application and affidavit for search warrant, Case Number 02-110M. Though never contacted by Special Agent Shannon during his investigation, Dilenno's First Declaration examines and points out what she believes to be misinterpretations of the New Castle County Code made by Shannon in his affidavit in support of the warrant. The First Declaration dissects numerous paragraphs in Shannon's affidavit and gives a series of explanations, all based on Dilenno's...