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September 5, 1972

Robert G. LAZAR et al.

Masterson, District Judge.

The opinion of the court was delivered by: MASTERSON

The above named defendants are charged in a thirty-four (34) count indictment with certain criminal acts in connection with representations made to the Federal Housing Administration (hereinafter "F.H.A.") and fraudulent use of the words " Federal Housing Administration" in advertising. *fn1" Presently before us are Motions to Suppress Evidence on which we have conducted hearings on June 20, 1972 and June 27, 1972.

 I. THE FACTS *fn2"

 On November 15, 1971, Magistrate Richard A. Powers signed a Search Warrant which described the following property which was believed to be concealed at Lazar Realty, First Floor, 4946 Germantown Avenue, Philadelphia, Pennsylvania:

"About 50 blank certificates on the letterhead of David Miller, Electrical Contractor, 8311 Strahle Place, Philadelphia, Pennsylvania, and signed in blank and typewriters used in the operations of Lazar Realty, which are to be used as a means of violating 18 United States Code ยง 1010."

 Special Agent Gordon N. Zacrep of the Federal Bureau of Investigation attested to the following as grounds for the issuance of a Search Warrant:

"Ronald Miller, the son of David Miller told the affiant that he gave the said blank certificates to Robert Lazar of Lazar Realty, on the premises of Lazar Realty, at 4946 Germantown Avenue, Philadelphia, Pa. on or about November 5, 1971, and that it has been the practice of Ronald Miller and David Miller over the past 2 years to give blank certifications to Lazar Realty, and it is the practice of Lazar Realty to submit through a mortgage such certifications to the Federal Housing Administration, under Federal Housing Administration programs, 235 and 221(d)(2), and affiant has reviewed certain FHA file binders in which Lazar Realty was involved and in said file binders there was included certifications on the letterhead of Ronald Miller and other certifications which had all been typed on the same typewriter."

 The search was conducted later that day. In addition to the 50 blank certificates and typewriters specified in the warrant, a large number of items not so specified were seized and listed in the agents' inventory. *fn3" Because the pivotal question to be decided is whether these unspecified items were lawfully seized pursuant to the search for which the warrant had been issued, the precise sequence of events during the search is crucial. On this point, we are faced with conflicting testimony.

 Agent Zacrep testified that when he and three other agents arrived at Lazar Realty, Mr. Robert Lazar called his attorney. After that Mr. Lazar voiced no objection and the search progressed. Mr. Lazar was told that the agents were looking for the blank certificates, and he replied, "Yes, we have such certificates." (N.T. 19). *fn4" However, Agent Zacrep couldn't recall whether Mr. Lazar offered to give him the blank certificates. (N.T. 20). This may have been because of the fact that the agents were in different rooms. (N.T. 27). He does recall, though, that while searching for the blank certificates, he came across evidence of other F.H.A. violations. (N.T. 25).

 Agent James H. McGauley confirmed Lazar's calling his attorney upon their arrival. He and another agent began to search a room at the rear of the premises. Prior to finding the specified certificates in the desk of Dorothy Sionsky, he found evidence of loans made to purchasers of properties obtained with an F.H.A. insured mortgage. (N.T. 37). He testified that it is "vaguely possible" that Dorothy Sionsky indicated that there were certificates in her desk. (N.T. 38). However, he was sure that the fifty blank certificates were obtained after about an hour, but that the search continued for at least two hours. (N.T. 40). He justified this extension of the search after the subject matter of the warrant had been obtained as follows:

"THE COURT: Well then, if you got the subjects of the warrant after an hour, what was the basis of your continuing the search for another two hours?
THE WITNESS: Yes, sir. Before the certifications were found I had found other indications of possible federal violations in my search of trying to find these blank certifications. Those indications of possible federal violations was the fact that loans, as indicated on the jackets of properties that were sold. There was indication on there that loans had been made to the respective purchasers of those homes. Those loans, the purchasers of those homes being secured by Federal Housing Administration insured mortgage. I know that to be a federal violation, and upon seeing them I of course, took them. And finding some, we proceeded to search for others in that same room."

 Defendant Dorothy Sionsky, secretary to Robert Lazar, testified that although she did not hand anything to the agents during the course of the search, she did hand a file containing the blank certificates specified in the warrant to Mr. Lazar. Mr. Lazar handed the file to the agents immediately thereafter, approximately twenty (20) minutes after the search commenced. (N.T. 76). *fn5" ...

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