City Wide Realty; she made payments; she exhibited to the affiant a "rent" book with a record of payments from March 1969 to February 1970; she exhibited a letter from City Wide Realty dated April 21, 1971 asking for late payments; and she said she saw records of financial indebtedness in City Wide Realty's office on April 28, 1972.
The information relates to a violation which had allegedly been committed at some unspecified time in the past (presumably prior to March 1, 1969 when the "rent" payments started). The "rent" book entries spoke to events only up to February 1970. The late payments letter was dated April 21, 1971, more than a year before the affidavit was sworn to. Such information might be too "stale", too remote in time (see cases cited at page 3) to support a finding of probable cause, but it is made current by the statement that the informant "saw records of financial indebtedness in the office of City Wide Realty . . . on 4/28/72." The magistrate might reasonably have understood those records of indebtedness to be record of the informant's indebtedness.
Such information as was contained in the affidavit, therefore, referred to a single isolated transaction. Had the name of the purchaser, or the address of the premises, or both, been identified to the magistrate, a properly limited warrant to search for records of that transaction could properly have issued. Without identification of the purchaser or the premises, however, there was no way for the magistrate to limit the scope of the search to evidence of the only crime as to which he had been furnished information. There was no information that these defendants were engaged in a number of such transactions, unless it be in the informant's statement that she said "records of financial indebtedness . . . on 4/28/72." It would indeed require a large measure of speculation for the magistrate to interpret that statement as referring to prohibited secondary financing for other purchasers of homes insured by FHA.
If the magistrate did so interpret that statement, the affidavit is totally lacking in underlying facts upon which the informant based her conclusion. There was, accordingly, no basis for a finding of probable cause by the magistrate that, at the time he issued the warrant, there were violations relating to secondary financing on homes other than the informant's. There was thus no basis for the wide ranging search of everything on the premises of City Wide Realty (assuming them to be the premises of City Wide Realty) in the hope of finding evidence of other instances of secondary financing. The government has cited no case to support such a broad search of evidence of criminal violations on evidence of an isolated transaction, and I have found none. See and compare United States v. Feldman, 366 F. Supp. 356, 363 (D.C. D. Hawaii 1973); and see Stanford v. Texas, 379 U.S. 476, 13 L. Ed. 2d 431, 85 S. Ct. 506 (1965) for a discussion of the background and history of the constitutional prohibition against the evil of the "general warrant."
The government contends that the warrant was properly limited in that the only files seized were those containing evidence of illegal transactions. The Fourth Amendment protects against unwarranted searches as well as seizures. It was the search which violated defendant's rights and which requires suppression of that which was seized.
The motion will be granted.
This 20th day of May, 1975, it is
ORDERED that defendants' Motion to Suppress is GRANTED and the government is Ordered to return to defendants all evidence seized as a result of the search pursuant to the search warrant issued May 2, 1972.
Alfred L. Luongo