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UNITED STATES v. ZANCHE

April 16, 1982

UNITED STATES of America, Plaintiff,
v.
Gabriel ZANCHE and Lewis Stanton, Defendants



The opinion of the court was delivered by: CURTIN

The government has charged defendants in this action with conspiracy to defraud and steal property from the United States Postal Service. Defendants Gabriel Zanche and Lewis Stanton, owner and employee of Gabriel Service and Supply Corporation (Gabriel's), respectively, move to suppress all the evidence seized pursuant to a search warrant issued by the late Honorable Harold P. Burke. They claim the warrant was defective because it failed to describe the items to be seized with the particularity demanded by the Fourth Amendment to the United States Constitution.

FACTS

Beginning in 1980, United States Postal Inspector Thomas M. Lensing conducted an investigation of the activities of the postmaster and postal service employees of the East Rochester Postal Service Office. His investigation also encompassed employees of Gabriel's, a mail order company located at 233 West Commercial Street in East Rochester, New York. Based on the information he acquired, Lensing had reason to believe there was a possible scheme between employees of Gabriel's and the East Rochester Postal Service Office to defraud the Postal Service of money due it for postage.

 In an affidavit in support of a search warrant, Lensing spelled out in great detail how he came to learn of the alleged scheme between Gabriel's and the East Rochester Postal Service. During his investigation, Inspector Lensing questioned Virginia MacConnell, a 14-year employee with Gabriel's. Mrs. MacConnell told him that other Gabriel's employees were falsifying postal documents relating to the volume of their mail, thereby paying substantially less for postage than they should have for the 175,000 pieces of mail Gabriel's distributed every four to six weeks. She also informed Lensing that she had been told that employees at the post office were cooperating with Gabriel's by allowing actual mailings without prior payments.

 Based upon Mrs. MacConnell's information, the postal investigators set up surveillance of both the East Rochester Post Office and Gabriel's to monitor Gabriel's next large-scale mailing, scheduled for May 13, 1980. On that date, Postal Inspector James Cox observed 42 sacks of mail being unloaded from a Gabriel's truck onto the postal dock at the East Rochester Post Office. Forty-five minutes later, the sacks were reloaded onto a postal truck without first being weighed or apparently counted. This scenario was repeated with Gabriel's mail on May 15, May 16, and May 19. Inspector Lensing noted that this method of mail handling was contrary to postal regulations, which require that each mailing's weight be verified to assess the proper postage.

 To corroborate their suspicions further, the postal inspectors implemented a system to weigh, photograph, and record all of Gabriel's third-class bulk mailings to determine the correct postage between May 19 and June 12, 1980. Postal inspectors discovered that the postage which should have been paid for Gabriel's mailings during this period was $ 5,360.99 more than the amount Gabriel's was actually charged.

 In his affidavit, Inspector Lensing also described the two buildings where, according to Mrs. MacConnell, Gabriel's business records were stored. He reported that the building located at 233 West Commercial Street was a gray, two-story wood structure. The other building was described as a one-story cement block building located at 242 West Commercial Street.

 Finally, Inspector Lensing stated that Mrs. MacConnell described several types of business records maintained by Gabriel's. He listed nine categories of these business records which, he asserted, were needed as evidence of the scheme to defraud the Postal Service of postage in the manner described in his affidavit.

 Relying on Inspector Lensing's statements, Judge Burke issued a warrant authorizing a search of the buildings at 233 and 242 West Commercial Streets. The warrant specified the following items to be seized:

 
... any and all business records relating to present and past disbursements and payments made by Gabriel's Services and Supply Corp. including: (1) cancelled checks and bank statements; (2) records of accounts payable; (3) cash disbursements journals; (4) computer printouts reflecting payments and accounts payable; (5) day books and day journals; (6) documents indicating the amounts paid for printing and mailing of mail order catalogs; (7) past mail order catalogs distributed by Gabriel's Service and Supply Corp. and (8) all records indicating disbursements made by Gabriel's Service and Supply Corp.; (9) all records relating to mailing including postal service receipts, 3rd class mailing permits and trust fund accounts with the postal service ....

 According to defendants, 20 or more postal inspectors executed the search warrant on June 24, 1980. Defendants allege that the agents seized, inter alia, numerous documents and records which were not delineated in the warrant or affidavit, including computer lists of customers and potential customers, business letters, mailing labels, monthly financial statements and balance sheets, four boxes of corporate bank statements, blank corporate checks, disbursement journals, check stubs, and interoffice memoranda. Defendants also allege that agents searched and seized records from 237 West Commercial Street, which was not authorized in the warrant.

 DISCUSSION

 It is elementary that general warrants which permit the wholesale rummaging through a person's belongings are prohibited by the Fourth Amendment. Lo-Ji Sales v. New York, 442 U.S. 319, 325, 99 S. Ct. 2319, 2323, 60 L. Ed. 2d 920 (1979); Andresen v. Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737, 2748, 49 L. Ed. 2d 627 (1976). A warrant must be sufficiently particular that nothing is left to the discretion of the agents executing the warrant. Andresen v. Maryland, supra. Applying these broad principles, defendants assert that the warrant is tantamount to the type of general warrant the Constitution condemns.

 Viewed in a vacuum, the catalog of records to be seized might suggest the fishing expedition implied by the defendants. However, the warrant must be read in a "commonsense" fashion, United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 (1965), and should not be examined apart from the affidavit underlying the warrant. See In Re Search Warrant Dated July 4, 1977, Etc., 187 U.S. App. D.C. 297, ...


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