Summary
holding that a bankruptcy trustee failed to satisfy the criteria for either an attorney for the government or a federal law enforcement officer under Federal Rule of Criminal Procedure 41; consequently the trustee failed to show "that he has the authority to apply for issuance of a search warrant"
Summary of this case from In re BursztynOpinion
No. 94-7081M.
June 8, 1994.
Diane W. French, Lima, OH, for Bruce C. French, Trustee.
ORDER
Pending in this cause is an application by a Trustee in Bankruptcy for issuance of a search warrant. For the reasons that follow, that application shall be denied.
Rule 41 of the Federal Rules of Criminal Procedure regulates the application for and issuance of search warrants. That rule provides, in pertinent part, that "Upon the request of a federal law enforcement officer or an attorney for the government, a search warrant authorized by this rule may be issued. . . ." Fed.R.Crim.P. 41(a).
The applicant, a Trustee in Bankruptcy, is, according to my understanding, neither a federal "law enforcement officer" nor an "attorney for the government." He has not shown that he meets the criteria for either office, and he has not otherwise shown that he has the authority to apply for issuance of a search warrant. See Fuentes v. Shevin, 407 U.S. 67, 94 n. 30, 92 S.Ct. 1983, 2001 n. 30, 32 L.Ed.2d 556 (1972) ("the Fourth Amendment guarantees that the State will not issue search warrants merely upon the conclusory application of a private party").
In support of his request, the applicant asserts that assets lawfully belonging to a bankruptcy estate are being secreted unlawfully by the debtors. To the extent that such allegation shows or undertakes to show that a violation of federal criminal law has occurred or is occurring, the responsibility for investigating and prosecuting such illegal activity reposes with the United States Attorney's Office and federal law enforcement agencies, such as the Federal Bureau of Investigation.
Neither a private person nor an attorney acting on behalf of a party to litigation or otherwise involved in litigation has authority or responsibility for investigating and prosecuting alleged violations of the federal criminal law. Such persons, including the applicant in this cause, must call matters of which they may have knowledge to the attention of those officials, rather than seeking recourse directly to a District Judge or Magistrate Judge for issuance of a search warrant.
The application shall be denied without prejudice to the applicant to renew such application with a supporting memorandum indicating the legal basis, if any, on which the applicant contends he has authority to obtain the warrant being sought. Absent such showing, it is,
ORDERED THAT the application for the search warrant being sought herein be, and the same hereby is denied, without prejudice.
So ordered.