In the Matter of the Application of Lafayette Academy, Inc., Appeal of United States of America

610 F.2d 1, 1979 U.S. App. LEXIS 10868
CourtCourt of Appeals for the First Circuit
DecidedOctober 29, 1979
Docket79-1123
StatusPublished
Cited by123 cases

This text of 610 F.2d 1 (In the Matter of the Application of Lafayette Academy, Inc., Appeal of United States of America) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of the Application of Lafayette Academy, Inc., Appeal of United States of America, 610 F.2d 1, 1979 U.S. App. LEXIS 10868 (1st Cir. 1979).

Opinions

LEVIN H. CAMPBELL, Circuit Judge.

The government appeals from the district court’s allowance of appellees’ motions, filed pursuant to Fed.R.Crim.P. 41(e),1 for [3]*3return of property. We affirm the judgment of the district court.

Appellee Lafayette Academy, Inc. owns and operates a vocational home-study school which participated in the Federal Insured Student Loan Program (FISLP). Lafayette Academy and its two subsidiaries2 came under investigation for possible fraudulent practices in connection with their participation in FISLP. The investigating officer by affidavit set forth the observations, information, and conclusions of various officials of the Department of Health, Education and Welfare, the Office of Education, and former employees of Lafayette Academy as well as his own with respect to Lafayette’s irregular practices in record-keeping and violations of federal regulations respecting the student loan program. Based upon his affidavit, a warrant issued authorizing the seizure of

“books, papers, rosters of students, letters, correspondence, documents, memo-randa, contracts, agreements, ledgers, worksheets, books of account, student files, file jackets and contents, computer tapes/discs, computer operation manuals, computer tape logs, computer tape layouts, computer tape printouts, Office of Education (HEW) documents and forms, cancellation reports and directives, reinstatement reports or forms, Government loan registers, refund ledgers, reports and notes, administrative reports, financial data cards, lesson and grading cards and registers, registration (corporations) documents, student collection reports, financial documents (corporations), journals of accounts and student survey data, which are and constitute evidence of the commission of violations of the laws of the United States, that is violations of 18 U.S.C., Sections 286, 287, 371, 1001 and 1014; . . .”

from appellees’ place of business. The warrant was executed the next day by approximately thirty government agents who seized a substantial percentage of the records on the searched premises, employing four or five trucks to remove the seized material.

We hold with the district court that the warrant does not describe the “things to be seized” with the particularity required by the fourth amendment.3 The warrant is framed to allow seizure of most every sort of book or paper at the described premises, limited only by the qualification that the seized item be evidence of violations of “the laws of the United States, that is violations of 18 U.S.C. Sections 286, 287, 371, 1001, and 1014.” The cited statutes, however, penalize a very wide range of frauds and conspiracies. They are not limited to frauds pertaining to FISLP, and there is no indication from the warrant that the violations of federal law as to which evidence is being sought stem only or indeed at all from Lafayette’s participation in FISLP. Thus, the warrant purports to authorize not just a search and seizure of FISLP-related records as the government contends but a general rummaging for evidence of any type of federal conspiracy or fraud. Here, at a minimum, the precise nature of the fraud and conspiracy offenses for evidence of which the search was authorized — fraud and conspiracy in the FISLP— needed to be stated in order to delimit the broad categories of documentary material and thus to meet the particularity require[4]*4ment of the fourth amendment.4 Compare In Re Search Warrant, 187 U.S.App.D.C. 297, 572 F.2d 321 (D.C.Cir. 1977), cert. denied, 435 U.S. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978) (conspiracy described in affidavit incorporated into the warrant).

The government argues, however, that the requisite specificity is supplied by the affidavit. “The traditional rule is that the generality of a warrant cannot be cured by the specificity of the affidavit which supports it . Specificity is required in the warrant itself in order to limit the discretion of the executing officers as well as to give notice to the party searched.” United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976). Under some circumstances, however, an affidavit may cure deficiencies which would exist were the warrant to. stand alone. In United States v. Klein, 565 F.2d 183 (1st Cir. 1977), this court stated,

“An affidavit may be referred to for purposes of providing particularity if the affidavit accompanies the warrant, and the warrant uses suitable words of reference which incorporate the affidavit.” (Emphasis in original.)
Id. at 186 n.3. See also United States v. Johnson, 541 F.2d at 1315; United States v. Womack, 166 U.S.App.D.C. 35, 49, 509 F.2d 368, 382 (D.C.Cir. 1974), cert. denied, 422 U.S. 1022, 95 S.Ct. 2644, 45 L.Ed.2d 681 (1975); Huffman v. United States, 152 U.S. App.D.C. 238, 245 n.7, 470 F.2d 386, 393 n.7 (D.C.Cir. 1971), reversed on rehearing on another ground, 502 F.2d 419 (1974); Moore v. United States, 149 U.S.App.D.C. 150, 152, 461 F.2d 1236, 1238 (D.C.Cir. 1972). Here the district court found and the government has not disputed that the affidavit was not served with the warrant. Nor does the warrant language incorporate the affidavit. Hence, the above standard was not satisfied.

The government argues that where, as here, the executing officers have proceeded as if the inadvertently broad [5]*5warrant language were limited by the affidavit, the omission of the formal requisites — words of incorporation and stapling the affidavit to the warrant — should not invalidate the search and seizure.5 The government points out that the affiant, who was knowledgeable in the FISLP and its operation, directed and supervised the search and seizure and took steps to insure that only FISLP-related records were seized. Furthermore, HEW Office of Education program compliance officers and auditors, specialists in FISLP, assisted during the search to identify FISLP records. Thus, the executing officers never had any doubt that only FISLP-related records, not records of other types of fraud or conspiracy, were to be searched and seized and consequently there was no danger of the officers exceeding the scope of their authority as contemplated by the affidavit, the government maintains.

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Bluebook (online)
610 F.2d 1, 1979 U.S. App. LEXIS 10868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-the-application-of-lafayette-academy-inc-appeal-of-ca1-1979.