United States v. White

• Decision Date: 09 June 1982
• Docket Number: No. 81 CR 673.,81 CR 673.
• Citation: 541 F. Supp. 1181
• Parties: UNITED STATES of America, Plaintiff, v. Robert WHITE, Defendant.
• Court: U.S. District Court — Northern District of Illinois

541 F. Supp. 1181

UNITED STATES of America, Plaintiff, v. Robert WHITE, Defendant.

No. 81 CR 673.

United States District Court, N. D. Illinois, E. D.

June 9, 1982.

Victoria Meyers, Ira H. Raphaelson, Asst. U. S. Attys., Chicago, Ill., for the U. S.

Carol R. Thigpen, Bradford P. Lyerla, Jenner & Block, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

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.

FACTS¹

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 lease² of Room 608 at 28 East Jackson to conduct the White & Co. business. White took possession of the premises just before January 1, 1981.³

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.⁴ 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. Cooper's 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 608.⁵ 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 sign 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, 432-433, 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 unpersuasive.

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 premises searched.

(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 testimony⁶ 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).⁷

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.⁸ 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 out."

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 favor.

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,⁹ 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 premises¹⁰ 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 premises.

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.¹¹ 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 grounds:

(1) It did not describe the objects to be seized with enough specificity to survive Fourth Amendment scrutiny.

(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.

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