Summary
In Fink, the defendant raised a similar issue, arguing the language "client files including, but not limited to" was too broad in scope and did not limit the search to items for which probable cause had been established.
Summary of this case from State v. MartinOpinion
ID. No. 0005008005
Submitted: December 26, 2001
Decided: February 25, 2002
Upon Consideration of Defendant's Motion to Suppress. DENIED.
Donald R. Roberts, Esq., Wilmington, Delaware, Attorney for the State.
Joseph A. Hurley, Esq., Wilmington, Delaware. Attorney for Defendant.
OPINION
The defendant, Kenneth Fink, is charged with numerous counts of Unlawfully Dealing in Materials Depicting a Child Engaged in a Prohibited Act and Possession of Child Pornography. The charges arise out of the discovery of child pornography on a computer compact disk and three zip disks which were seized from the defendant's home. The seizure of child pornography occurred pursuant to the third of three search warrants. The defendant has filed this motion to suppress, contending that the first search warrant, issued March 20, 2000, was defective. He contends that the warrant failed to describe with particularity the items to be searched for and seized. He also contends that there was no probable cause for the issuance of the March 20 warrant. He further contends that because of these defects in the March 20 warrant, everything seized pursuant to the two subsequently issued warrants must be suppressed as "fruit of the poisonous tree." The State opposes the defendant's motion and contends that probable cause did exist for issuance of the first warrant and that the warrant satisfied the requirement that the items sought be described with particularity.
FACTS
On March 20, 2000, the Attorney General's Office sought and obtained a search warrant for a search of the defendant's personal residence, based upon information that the defendant, an attorney, had misappropriated client funds. The pertinent facts contained in the affidavit and application for the warrant are as follows.
In April 1998 the Office of Disciplinary Counsel received a complaint from a co-executor of the estate of Patricia Zimmerman that the defendant had unreasonably delayed probate of the estate. When the Office of Disciplinary Counsel contacted the defendant about the matter, he indicated that he expected to prepare a final accounting and close the estate within a month. He failed to do so, however, and in October 1999 the Office of Disciplinary Counsel had an audit of his attorney financial records done by the auditor for the Lawyers' Fund for Client Protection. The auditor found that one check had been written from Zimmerman estate funds, payable to the defendant in the amount of $40,000, and that three others had been written to a company called Kamair. The total of the four checks was $57,272.03. None of the checks represented allowable fees or commissions and none were authorized payments from the estate. The audit also revealed that three checks had been deposited in the estate account drawn on a Kamair account. These checks were signed by the defendant with the notation "personal funds." The defendant also deposited $15,200 of his personal funds in the trust account on February 25, 2000. The Kamair and Fink checks deposited in the Zimmerman estate account, however, were $13,306.56 less than the amount of the four checks withdrawing funds from the account. The auditor was unable to account for other known estate assets and income. He concluded that the four checks drawn on the Zimmerman estate account payable to Fink and Kamair were unauthorized transfers of estate funds for the benefit of the defendant.
On March 7, 2000 the Office of Disciplinary Counsel applied to the Supreme Court for interim suspension of the defendant's license to practice law. The application was granted. The Office of Disciplinary Counsel also applied to the Court of Chancery for appointment of a receiver for the defendant's law practice. That application was also granted and a member of the Delaware bar was appointed receiver with authority to take possession of all files and documents relating to the defendant's law practice.
While these actions were occurring, the defendant, through counsel, filed a motion in opposition to the application for interim suspension of his law license in which he stated that he was currently representing about 40 clients in various matters. The motion included a list of those active matters.
On March 17, 2000 the receiver reported to an investigator with the Office of the Attorney General that he had been contacted by a co-executor of the estate of Jeannette Connell. The co-executor reported to the receiver that the defendant was handling the Connell estate, that she had read a newspaper article about the defendant's interim suspension, that after reading the article she contacted the bank where funds belonging to the estate were deposited, and that she had been informed that all funds had been withdrawn from the account and that it had been closed. The co-executor also told the receiver that real estate belonging to the estate of Jeannette Connell had been sold to Shirley McAllister, that the defendant had performed the settlement, and that he was supposed to be holding $46,783.35 of the net proceeds from the sale to Ms. McAllister, pending settlement of the Connell estate. In following up on this information, the receiver learned that the account holding the $46,783.35 had been closed out by the defendant on December 2, 1999. The receiver reported to the investigator that the names McAllister and Connell did not appear on the list of approximately 40 active matters which the defendant had referred to in his motion and that the defendant had not provided the receiver with any files concerning either the McAllister settlement or the Connell estate. The receiver also reported that he had entered Fink's law office and looked at all closed files after receiving from the defendant what were represented by him to be all active files, and that he found no file concerning either the McAllister or Connell estate matter. The receiver also reported that he had been contacted by a member of the Delaware bar who represented the Connell estate, who reported that the defendant was supposed to be holding the proceeds from the McAllister transaction pending settlement of the estate, and that he had learned that the defendant had removed the proceeds in the amount of $49,756.20 on December 2, 1999.
The difference between $46,783.35 and $49,756.20 is not explained in the affidavit but is not relevant to the decision on the defendant's motion to suppress.
The receiver also reported to the investigator that he had contacted the bank and personally confirmed that the proceeds in question, in the amount of $49,756.20, had been transferred on December 2, 1999 into an account belonging to the defendant which appeared to be his law practice operating account, and that the funds had then in turn been transferred into a money market account which the defendant opened after the funds had been transferred to the operating account. On March 16, 2000 the money market account had a balance of $50,313.54, which the receiver proceeded to take control of in his capacity as receiver. The receiver also reported to the investigator that there was no record of these accounts in the defendant's law office, and that the defendant had not mentioned these matters in conversations between them.
By letter dated February 29, 2000 the defendant, through counsel, informed the Office of Disciplinary Counsel that he had "borrowed" $40,000 from the Zimmerman estate to buy an airplane for his own use in a private business. Records in the Office of the Secretary of State revealed that a corporation named Kamair Aviation, Inc. had been created by the defendant in March 1992, and had been voided for non-payment of franchise taxes in March 1994. A subpoena issued from the Office of the Attorney General also revealed that the defendant was the authorized signer on a Kamair account at a local bank.
The affidavit in support of the application was signed by the investigator from the Office of the Attorney General, who reported that he had 20 years of experience as a police officer and 11 as an investigator for the Attorney General. He concluded the affidavit by stating that it was his "experience from past investigations that personal financial records are maintained at the individuals residence" and that it "is not unusual for the sole proprietors of a business to take work or files home or maintain business records at their residence."
The warrant authorized a search of the defendant's personal residence and vehicle for the following:
Client files including but not limited to Estate of Jeanette Connell, Shirley McAllister, Patricia Zimmerman, banking or financial records of Kamair, Kamair Aviation, Inc., Artisans Bank account number 023701454, personal banking records or any financial or banking records involving the transfer, cashing or deposit of funds from any of the above or related transactions, personal banking records of Kenneth Fink whether held individually or jointly, lists or directories of names, telephones numbers and addresses, notes, memorandum, files, court documents or other related documents or documents indicating legal action taken by or for Kenneth Fink personally or as legal representative, files associated with Kamair, Kamair Aviation, Inc., or any other combination of Kamair, lease and or purchase agreements for any aircraft purchased by or thru Kenneth Fink or any company or corporation in his custody, either in written or electronic format which are evidence of a crime or crimes as outlined in the attached affidavit of probable cause.
The warrant was executed the following day. Two desk top computers, two computer hard drives, forty-two "ZIP" discs, two C.D. Roms and three floppy disks were found and seized from the defendant's home.
On March 22, a second warrant was issued which authorized a search of the computers' hard drives and the portable computer media that were seized on March 21, 2000 for the same items as described in the original warrant. When that warrant was executed, the investigator discovered a picture of child pornography. A third warrant was then obtained to search the same computer items for evidence of child pornography. Execution of that warrant led to the discovery of a substantial number of child pornography images, which form the basis for this prosecution.
DISCUSSION
A search warrant may be issued only upon a showing of probable cause supported by oath or affirmation. In addition, a warrant must describe the place to be searched and the person or thing to be seized with particularity. These requirements have been codified in 11 Del. C. § 2306 and § 2307. Section 2306 provides that the affidavit and application for the warrant shall:
U.S. Const. Amend. IV, Del. Const. art. 1, § 6.
Id.
designate the house, place, conveyance, or person to be searched . . . and shall describe the things or person sought as particularly as may be, . . . and shall state that the complainant suspects that such persons or things are concealed in the house, place, conveyance or person designated and shall recite the facts upon which such suspicion is founded.
Section 2307 provides that the warrant shall "designate the house, place, conveyance or person to be searched, and shall describe the things or persons sought as particularly as possible."
The Supreme Court of Delaware has consistently held that Sections 2306 and 2307 contemplate a four-corners test for probable cause, which requires that sufficient facts must appear on the face of the affidavit to enable a reviewing court to "verify the factual basis for the judicial officer's determination regarding the existence of probable cause." This standard requires that the affidavit in support of the search warrant "must set forth facts adequate for a neutral judicial officer to form a reasonable belief that an offense has been committed and that sizable property would be found in a particular place or on a particular person." It is also well established that "there must be a logical nexus between the items sought and the place to be searched."
Dorsey v. State, Del. Supr., 761 A.2d 807, 811 (2000).
Id.
Id.
As mentioned above, the defendant's first argument is that the March 20 warrant failed to describe with particularity the items to be searched for and seized. Specifically, the defendant points to the language in the warrant authorizing the search for and seizure of client files "including but not limited to" the named clients and "personal banking records" of the defendant. He contends that this language is vague and over broad and permitted the police to "rummage" through his property, including through computer files that were unrelated to the actual investigation, such as files containing pictures as opposed to text data. This broad language, the defendant argues, authorized a search for and seizure of items beyond what was justified by the probable cause upon which the warrant was based. The over breadth of the warrant, he contends, renders it an unlawful general search warrant.
The breadth of the search itself has been previously addressed in an order denying the defendant's earlier motion to suppress, which attacked the second and third warrants. State v. Fink, Del. Super., Cr. A. Nos. 00-05-1260-1285; 1752-1755, Vaughn, R.J. (March 30, 2001).
In support of his contentions, the defendant cites a number of cases in which courts have suppressed evidence seized under warrants found to be an ambiguous or over broad. An over broad warrant has been defined as one which "is broader than can be justified by the probable cause on which the warrant is based" or one which "authorizes in clear or specific terms the seizure of an entire set of items, or documents, many of which will prove unrelated to the crime under investigation."
United States v. Abrams, 615 F.2d 541 (1st Cir. 1980) (warrant did not specify which medical records could be seized and was not limited as to time); United States v. Roche, 614 F.2d 6 (1st Cir. 1980) (warrant did not specify that only automobile insurance records could be seized); Application of Lafayette Academy, 610 F.2d 1 (1st Cir. 1979) (warrant did not specify that only documents relating to federal loan program could be seized); Montilla Records of Puerto Rico, Inc. v. Morales, 575 F.2d 324 (1st Cir. 1978) (warrant did not specify that only records with Motown label could be seized); Vonder AHE v. Howland, 508 F.2d 364 (9th Cir. 1974) (warrant did not specify that only financial records of taxpayer dentist could be seized but permitted seizure of all records, including personal letters); United States v. DeFalco, 509 F. Supp. 127 (S.D.Fla. 1981) (warrant did not specify which records or films could be seized but authorized seizure of anything reflecting conspiracy between 45 defendants); Commonwealth v. Santer, Pa. Super., 454 A.2d 24 (1982) (warrant which authorized seizure of all medical records in a physician's office could have been limited to records of eight persons named in affidavit or to patients who had had prescriptions filled at certain pharmacy or limited in time); State v. Wise, Del. Super., 284 A.2d 292 (1971) (warrant authorized search of all occupants of a premises, including those for whom no probable cause for search existed)
Commonwealth v. Santer, Pa. Super., 454 A.2d 24 (1982) at 26 and fn 2.
In this case, it does not seem to the Court that the warrant can be described as vague or ambiguous. Most of the warrant is quite specific. The terms complained of by the defendant, "all client files" or "personal banking records," although generic, are not vague or ambiguous. The issue is whether the warrant was over broad.
As to that issue, the facts set forth in the affidavit established that there was probable cause to believe that the defendant had engaged in significant commingling of clients' and personal funds, and that client funds were in his personal accounts as recently as the week before the warrant was issued, when the receiver took control of the McAllister funds. In addition, the court-appointed receiver and, in turn, the investigator for the Attorney General, were aware of names of clients or client matters for which no file could be found in the defendant's law office. They had names of clients with open matters which had not been disclosed by the defendant to the receiver or the Office of Disciplinary Counsel, despite the defendant's submission of a list purporting to contain all active matters. They were aware, therefore, that the defendant had not revealed the names of all clients, or their files and records. I am persuaded that these circumstances, along with all of the other circumstances set forth in the affidavit in support of the warrant, established probable cause existed to believe that evidence of financial crimes would be found in the defendant's personal banking records and any client file which could not be found in his law office, as well as in the other items described in the warrant. I am also satisfied that the warrant describes the items to be searched for with sufficient particularity and that the warrant was not over broad. The facts and circumstances set forth in the affidavit reasonably subjected all client files in the defendant's possession and all his personal banking records to legitimate scrutiny. I do not believe that the constitutional and statutory provisions involved required that the warrant be drawn with greater particularity than was done in this case. I have reviewed the cases cited by the defendant and find them all to be distinguishable.
The defendant's second contention is that there was no nexus between the items sought and his personal residence. Specifically, he contends that the affidavit does not establish any factual basis to believe that the defendant had moved client files from his office to his home. As mentioned above, however, there was probable cause to believe that the defendant had not turned over all his files. The only logical other place where missing files would be found was the defendant's residence. The facts suggested no other place where they might be. In addition, it is self-evident that the defendant's personal banking records would be found in his personal residence. Nothing in the facts suggested that he was keeping them at another location. The cases relied upon by the defendant are primarily drug cases which are distinguishable from this case. Based upon the facts of this particular case, I conclude that the affidavit established the necessary logical nexus between the items sought and the defendant's residence.
Therefore, the defendant's motion to suppress is denied.
IT IS SO ORDERED.