United States v. Stern

• Decision Date: 07 January 1964
• Citation: 225 F. Supp. 187
• Parties: UNITED STATES of America, Plaintiff, v. Mortimer STERN and Jerome Willbach, Defendants.
• Court: U.S. District Court — Southern District of New York

225 F. Supp. 187

UNITED STATES of America, Plaintiff, v. Mortimer STERN and Jerome Willbach, Defendants.

United States District Court S. D. New York.

January 7, 1964.

Tompkins & Lauren, New York City, for defendant Jerome Willbach, Bernard Tompkins, New York City, of counsel.

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, for United States, Andrew J. Maloney, Asst. U. S. Atty., of counsel.

FREDERICK van PELT BRYAN, District Judge:

Defendant Willbach moves, pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, for the suppression as evidence and return to him of certain papers taken from his office by special agents of the Federal Bureau of Investigation at the time of his arrest on June 18, 1963.

The petitioner is a certified public accountant. A warrant dated June 17, 1963, was issued for his arrest based on a complaint dated June 13, 1963, alleging that he and Mortimer Stern, an agent of the Internal Revenue Service, had conspired to defraud the United States by falsifying and concealing the material fact that the federal income tax of one G. Gordon Meeks was uncollectible. The arrest was made in Willbach's place of business, and in conjunction with the arrest three agents of the FBI made a search of his private office, his secretary's office and the file room of his accounting firm. The FBI agents discovered and seized a number of papers, of which only the following have not already been suppressed and returned by consent:

1. Petitioner's diary for 1962.

2. Petitioner's diary for 1963.

3. Handwritten sheet with heading "Meeks, 3/27, M. Stern."

4. Rolodex card with a handwritten notation "M. Stern, WA-4-3000, X 301."

5. Empty envelope with the return address of the petitioner's accounting firm, addressed to "Mr. Gordon Meeks, Petroleum Consultants, Inc., 17 Battery Place, New York, N. Y.," which contained one of the photostats of Form 53 at the time of seizure.

6. Blank Internal Revenue Service Form 870, "Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassessment."

7. Blank Internal Revenue Service Form 1247, "Examination Record."

8. Two handwritten sheets with heading "Meeks, Cost of Living Statement."

9. Photostat of completed Internal Revenue Service Form 53, "Revenue Officer's Report of Uncollectible Taxes," (taxpayer G. Gordon Meeks) executed by M. Stern and dated December 13, 1962.

10. Photostat of that portion of completed Internal Revenue Service Form 53, "Revenue Officer's Report of Uncollectible Taxes," (taxpayer G. Gordon Meeks) appearing above the space for execution and date.

The petitioner does not attack the validity of the arrest. The Government, on the other hand, does not claim that Willbach consented either to the search or to the seizure. Neither side has requested a hearing. The motion has been submitted to the court on affidavits only and must be decided on that basis.

The petitioner bases his motion on two contentions: (1) that the search was exploratory and for the purpose of obtaining evidence and therefore unreasonable, and (2) that the articles seized were not susceptible to seizure even during the course of a lawful search.

I. Legality of the Search

The petitioner's first claim is that since sufficient time was available to obtain a search warrant between the filing of the complaint and the arrest, and since the arrest and search took place before any indictment was returned, the search was therefore exploratory and for the purpose of discovering evidence to be used before the grand jury that could not have been sufficiently specified in a search warrant. In essence he argues that the arrest was incident to the search rather than the reverse.

The mere fact that the Government had sufficient time to procure a search warrant is not determinative of the reasonableness of the search. It is but one factor to be considered in evaluating it. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Carlo v. United States, 286 F.2d 841 (2 Cir.), cert. den., 366 U.S. 944, 81 S.Ct. 1672, 6 L.Ed.2d 855 (1961). If this factor, when added to all the other circumstances of the case, indicated that the purpose of the arrest was to justify an exploratory search for evidence rather than to apprehend the petitioner, the search would be unreasonable. United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 76 L.Ed. 877 (1932); see Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931). In this case, however, the Government did not take possession of the entire contents of Willbach's office, as it did in Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957) (per curiam). Indeed, the number of articles seized was considerably fewer than those taken in both the Go-Bart and Lefkowitz cases. There is no allegation that the Government agents lured Willbach to his office so that he could be arrested in the presence of his business records, as they did in United States v. Alberti, 120 F.Supp. 171 (S.D.N.Y. 1954). The petitioner was not compelled to open his desk and safe by threat of force as in Go-Bart. Indeed, the Government claims that the manila folder containing Items 3, 6 and 8 and one of the photostats of Form 53 were handed over at Willbach's direction by his secretary and this is not specifically denied by Willbach. In short, the facts alleged by the petitioner do not in themselves establish that the search was the reason for the arrest, cf. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), or that the purpose of the search was to discover evidence. The mere fact that some of the articles the Government found were merely evidentiary does not mean that the Government hoped to find were articles that were not the proper basis of a search. Under all the circumstances I find the search in this case to have been more like those in Harris, Rabinowitz and Abel than like those in Go-Bart, Lefkowitz and Kremen, and that it was reasonable.

II. Legality of the Seizure

Even though the search itself was reasonable, the Government was not free to seize any item that it might happen to find during its course. The defendant contends that Items 1 through 10 are private papers of an evidentiary character and therefore not seizable. The Government, on the other hand, contends that all these items were used or intended to be used as the means of committing the offense charged and therefore properly seizable. To resolve this question a distinction must be made

"between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime." Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399 (1947).

The articles that the Government has seized from the defendant in this case are papers rather than narcotics or weapons. But "there is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized." Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 265, 65 L.Ed. 647 (1921). For example, when the crime charged is the possession of the papers seized, the papers are obviously the means of committing the crime. See United States v. Rabinowitz, supra, 339 U.S. at 64 & n. 6, 70 S.Ct. at 434, 94 L.Ed. 653; Harris v. United States, supra; United States v. Davis, 151 F.2d 140 (2 Cir.1945) (L. Hand, J.), aff'd, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). The crimes that may be committed by means of papers are not limited to those of possession, however. For example, false identification papers are as much the means of committing the crime of false impersonation as is a screwdriver the means of committing the crime of burglary. United States v. Lord, 184 F.Supp. 923 (S.D.N.Y.1960) (Kaufman, J.). Similarly, numbers tickets may be the means of committing the crime of engaging in the gambling business without having registered and paid the federal tax. Merritt v. United States, 249 F.2d 19 (6 Cir.1957) (per curiam). And when the offense charged is the failure to keep proper records, then business records may be seized in bulk. See United States v. Kraus, 270 F. 578 (S.D.N.Y.1921) (L. Hand, J.).

On the other hand, "private papers desired by the Government merely for use as evidence may not be seized, no matter how lawful the search which discovers them." Abel v. United States, supra, 362 U.S. at 234-235, 80 S.Ct. at 695, 4 L.Ed.2d 668. "The distinction must be drawn between papers which are a part of the outfit or equipment actually used to commit an offense * * * and those papers which are simply evidences of intent, design or even of the agreement of the defendants." Takahashi v. United States, 143 F.2d 118, 124 (9 Cir.1944).

The law as to the susceptibility to seizure of business records in cases in which neither possession nor the failure to keep proper records is the offense charged has had a chequered history in the federal courts. In Gouled v. United States, supra, a prosecution for defrauding the United States, the Supreme Court held that the Government could not seize executed¹ and unexecuted contracts between one of the defendants and strangers to the indictment and a bill for legal services rendered to one of the defendants. The Court of Appeals followed the Gouled case in United States v. Kirschenblatt, 16 F.2d 202 (2 Cir. 1926) (L. Hand, J.), a prosecution for violation of the prohibition laws. In the course of a search incident to a...