United States v. Wolfson, Crim. A. No. 1909.

• Decision Date: 13 May 1969
• Docket Number: Crim. A. No. 1909.
• Citation: 299 F. Supp. 1246
• Parties: UNITED STATES of America, Plaintiff, v. Nathan WOLFSON, William F. Emmons, Albert Frost, James B. Thompson and Edward Fishbein, Defendants.
• Court: U.S. District Court — District of Delaware

299 F. Supp. 1246

UNITED STATES of America, Plaintiff, v. Nathan WOLFSON, William F. Emmons, Albert Frost, James B. Thompson and Edward Fishbein, Defendants.

Crim. A. No. 1909.

United States District Court D. Delaware.

May 13, 1969.

Alexander Greenfeld, U. S. Atty., and L. Vincent Ramunno, Sp. Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Donald C. Taylor, Wilmington, Del., for defendant, Nathan Wolfson.

William D. Bailey, Jr., Wilmington, Del., for defendant, William F. Emmons.

Bruce M. Stargatt, Wilmington, Del., for defendant, Albert Frost.

William T. Lynam, III, Wilmington, Del., for defendant, James B. Thompson.

Thomas C. Troy, Boston, Mass., for defendant, Edward Fishbein.

OPINION

LATCHUM, District Judge.

Defendants are charged in a twenty-nine count indictment with conspiracy to violate the mail fraud statute and twenty-eight substantive violations of that statute. 18 U.S.C. §§ 371, 1341. On an earlier occasion this court ruled on various pre-trial motions of the defendants but decision was reserved on certain motions to suppress evidence until a hearing could be conducted to clarify the relevant factual issues involved. United States v. Wolfson, 294 F.Supp. 267 (D.Del.1968). The evidentiary hearing was held on January 28, 1969, supplemental briefs were filed with the court, and this opinion deals with the suppression motions.

Defendants, Wolfson, Emmons and Fishbein, have moved for the suppression and return of (1) certain documentary material obtained pursuant to a search warrant issued for Garage No. 21, located at the rear of 614 West 29th Street, Wilmington, Delaware, (2) certain other corporate records and documents obtained under a grand jury subpoena which came from a storage space at the Brandywine Summit Shopping Center, Glen Mills, Pennsylvania, and was later the subject of a search warrant, and (3) certain documents also obtained on a grand jury subpoena from the law offices of a Wilmington attorney.

At the January 28th hearing, defendant Frost orally joined in the request for the suppression of the documents subpoenaed from the shopping center, and defendants, Wolfson, Emmons and Fishbein, withdrew their suppression motions with respect to the evidence subpoenaed from the local law office.

Some of the testimony at the hearing concerned certain additional documents and material seized by the government at the shopping center as abandoned property after the execution of the subpoena. Emmons and Fishbein have discussed this matter in their supplemental briefs and requested suppression and return of that property. This opinion therefore deals with the garage search and seizure, the shopping center subpoena, and the seizure of the allegedly abandoned property.

With regard to the search and seizure at the garage, defendants complain that, in the language of Rule 41(e), F.R.Cr.P., "there was not probable cause for believing the existence of the grounds on which the warrant was issued" and "the warrant is insufficient on its face" since it did not adequately identify the property to be seized. As to the documents obtained from the shopping center under the grand jury subpoena, defendants argue for suppression and return on the ground "the property was illegally seized without a warrant." As before noted the seizure of the allegedly abandoned property was not the subject of the suppression motions but the supplemental briefs of Emmons and Fishbein discuss this matter and request its suppression and return so it shall be treated here as subject to a motion to suppress.

In its original answering brief the government raised, only incidentally, the issue of standing,¹ i. e. that the defendants are not "persons aggrieved by an unlawful search and seizure" within the meaning of Rule 41(e).² This court has concluded upon a careful examination of the record before it that defendants Emmons and Fishbein have no standing to attack the search and seizure at the garage.³ It is clear from the latest ruling of the Supreme Court on this subject that in order to have standing to assert a violation of the Fourth Amendment's search and seizure requirements and seek suppression of evidence as the fruit of an illegal search and seizure (i. e. to be a "person aggrieved") one must either (1) have a proprietary or possessory interest in the place searched or the thing seized, or (2) be legitimately present on the premises at the time the search occurs,⁴ or (3) have a reasonable expectation that the area in question will be free from governmental intrusion. Mancusi v. De Forte, 392 U.S. 364, 367-368, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). The search in this case involved a garage which was leased to the defendant Thompson who signed the lease agreement in an individual and not a representative capacity. The property which was seized, as listed in the inventory attached to the Marshal's return, appears to be a number of business documents and ledgers relating principally to insurance operations which are not further identified. The record before the court does not indicate that the moving defendants Emmons and Fishbein have or had any proprietary or possessory interest in the garage or the items seized therein, that they were legitimately present or even had the right to be present⁵ in the garage at the time the search occurred, or that the garage was an area in which they were entitled to a reasonable expectation of freedom from governmental intrusion. Emmons and Fishbein have not established themselves personally as the victims of a violation of their Fourth Amendment rights, which is a prerequisite to standing to challenge the legality of a search. See United States v. Cowan, 396 F.2d 83, 86 (C.A. 2, 1968). The only moving defendant who appears possibly to have standing is Wolfson since he assumed reponsibility for Thompson's rent payments after the first rent payment had been made and he proceeded to make some further payments. However, since "the mere payment of rent by one not a party to a lease does not without more, indicate or create an assignment of the lease," 51C C.J.S. Landlord and Tenant § 37(3), at 113 (1968), this factor alone clearly does not show a proprietary or possessory interest in Wolfson in the leasehold. There is no evidence in the record, even with this assumption of the rent obligation by Wolfson, to indicate that he acquired an interest in the premises such that he could reasonably expect the garage to be free from governmental intrusion and certainly nothing shows that he was present or had the right to be present on the premises at the time of the search. Since it appears that none of the moving defendants have demonstrated to the court's satisfaction their standing to attack the search of the garage, the motion to suppress the fruits of that search must be denied.

With respect to the motions to suppress the two boxes of documents subpoenaed from the shopping center and later subjected to a search warrant procedure, the court admits to some confusion as to the moving defendants' grounds for suppression. Before discussing the grounds for suppression, however, the standing of the movants to complain in this regard must be considered since the grand jury's subpoena duces tecum was directed only to Thompson who has not moved for suppression or joined in the motions to suppress.

Postal Inspector Turner's affidavit in support of the subsequent application for a warrant to search the two boxes and the evidentiary hearing on the suppression motions disclosed the following relevant facts regarding the location of those boxes at the shopping center. Sometime prior to November, 1967 Thompson rented space in the shopping center which was actually only the right to store materials in a closet and to have the use of a desk and an informal telephone answering service. At the time the lease was negotiated Wolfson and Emmons were introduced by Thompson to a representative of the shopping center's management, Mrs. Eileen Burns, who apparently worked regularly at the center and who testified at the hearing. There is no clear indication, however, that anyone other than Thompson entered into the lease. Furthermore, only Thompson utilized the desk space and arranged for the telephone answering service. The general impression received from Mrs. Burns' testimony is that the space and service arranged for by Thompson constituted an office of Interstate Reporting Service. While the defendants were all allegedly involved with this company, only Thompson appears on the record to have acquired any proprietary or possessory interest in the shopping center space. The subpoena was personally complied with by Thompson, but none of the other defendants appear to have been present at the time. As to the materials which were stored in the shopping center, it appears only by the hearsay testimony and affidavit of the Postal Inspector, that the materials belonged to Wolfson and not to Thompson. This is not sufficient to establish Wolfson's standing on the ground of a proprietary or possessory interest in the materials or otherwise. There is, in fact, no clear evidence of standing for Wolfson or the other moving defendants to seek suppression.

Even assuming that Wolfson has standing to object to the subpoena duces tecum and the use of the evidence produced thereunder,⁶ the court believes that this defendant has waived his right to object to the subpoena on Fourth Amendment grounds by his failure or the failure of the custodian of his documents, defendant Thompson, to move to quash or modify the subpoena under Rule 17(c), F.R.Cr.P. "The court on motion made promptly may quash or modify the subpoena if compliance...