The opinion of the court was delivered by: ARTHUR D. SPATT
Semtex Industrial Corp., Semitronics Crop., Intex Co., Inc. and Semtex/N.Y., Inc. ("the petitioners") make three motions with regard to a search warrant issued by United States Magistrate Judge Michael L. Orenstein on July 14, 1994. Specifically, they seek the following relief: 1) unsealing of the search warrant applications, motions to seal and order to seal ("the warrant documents"); 2) a more specific inventory; and 3) return of the property taken by the search warrants. The petitioners also request an evidentiary hearing on the motions. The government opposes the motions.
The government sought and obtained the search warrant in question as part of a combined, multi-state Department of Defense fraud investigation conducted by the Defense Criminal Investigative Service ("DCIS") and the Federal Bureau of Investigation ("FBI"). The government sought authorization to search premises located at 64 and 74 Commercial Street, Freeport, New York. The search warrants, applications and order were all placed under seal. On July 19, 1994, at approximately 9:00 a.m., the search warrant was executed by DCIS and FBI agents.
There is a dispute between the parties with regard to many relevant facts. However, the petitioners and the government do not contest the following facts:
Henrietta Rivman is the president and sole shareholder of Semtex Industrial Corporation ("Semtex Industrial"), Semitronics Corporation ("Semitronics") and Intex Company, Inc. ("Intex"). These businesses are involved in the manufacture and distribution of parts to military defense contractors. The offices of Semtex Industrial, Semitronics and Intex are located at 64 and 74 Commercial Street, Freeport, New York.
Jerome Rivman, the son of Henrietta Rivman, is the president and sole shareholder of Semtex/N.Y., Inc. ("Semtex/ NY"), which distributes Semitronics components, as well as other manufacturers' parts, to defense contractors and other entities. Semtex/NY is located at 76 Commercial Street, Freeport, New York.
Two buildings house all of the four petitioning entities involved in this motion. Semtex Industrial, Semitronics and Intex occupy a building at 64 Commercial Street, which does not appear to house any other entities. Semtex Industrial, Semitronics and Intex also occupy part of larger building across a parking area from 64 Commercial Street, which is known as 74 Commercial Street. Adjacent to and located in the same building as 74 Commercial Street is 76 Commercial Street, the location of Semtex/NY. The search warrant covered only 64 and 74 Commercial Street.
At this point the parties' versions of the facts differ.
The facts according to the Petitioners
The petitioners contend that the agents executing the search on July 19, 1994, made no effort whatsoever to limit the items seized to the objects specified in the warrants, namely records covering the period between January 1, 1989 and May 1, 1994. Specifically, they allege that the agents indiscriminately collected records, including papers that related to current transactions from the tops of employees' desks. The petitioners also state that they repeatedly gave the agents notice that the documents being seized exceeded the scope of the warrants. The petitioners claim that the agents responded with threats to remove the petitioners from the premises and to take items like computers as well as records.
Apparently the petitioners and the government have had correspondence and phone conversations relating to the return of documents seized beyond the scope of the search warrant, and apparently some documents have been returned by the government. But the petitioners contend that many more documents that are critical to the ongoing operation of their business are being wrongfully held by the government.
The petitioners also allege that the agents enlarged the scope of the search warrant by searching and seizing documents from Semtex/NY, which is located at 76 Commercial Street and has its own separate entrance and sign. They identify a number of factors that they allege are indications that Semtex/NY is a separate entity having a separate address. They contend that the search warrant did not cover Semtex/NY or 76 Commercial Street, but that the agents seized records of Semtex/NY from the Semtex/NY address.
The facts according to the government
The government contends that DCIS and FBI agents made efforts to seize only those documents within the time period authorized by the search warrant. This effort, according to the government, consisted of a general review of the files to determine whether their type and content was covered by the warrant. The government admits that the agents did seize entire drawers or containers of records without reviewing every document individually, if a general review revealed that the drawers or containers included many documents covered by the warrant. The government states that when Mr. Rivman or his attorney objected to the taking of certain documents, those documents were reviewed to determine that they were dated within the time frame covered by the warrant.
The government admits that some of the seized documents did fall outside of the scope of the warrant and those were identified and returned to the petitioners' attorney. Further, the government notes that on October 28, 1994, the petitioners were given unlimited and continuing access to their documents for copying purposes.
As to whether the scope of the search exceeded what was authorized by the warrant in terms of location, the government alleges that there was no objection voiced by Mr. Rivman or his attorney to the search of 76 Commercial Street. The government further alleges that the agents were not told during the search that part of the 74 Commercial Street building was actually a separate business entity with a separate address, namely Semtex/NY at 76 Commercial Street.
The government contends that Semtex/NY is not an independent entity because of the following facts: 1) its records are commingled with the three businesses owned by Henrietta Rivman; 2) all four businesses in question have common employees; 3) on the day of the search and on prior occasions Jerome Rivman led agents from 64 Commercial Street to his office at 76 Commercial street; and 4) there is no indication from the inside of the building that a separate business existed or was located at another street address.
The government also notes that the similarity in the names of the Petitioners' corporations caused some confusion. The government points out that although they heard mention of Semtex/NY before the search warrant was prepared, they believed that the petitioners were distinguishing Semtex located ...