United States v. Shearer

75 B.R. 812, 1987 U.S. Dist. LEXIS 5595
CourtDistrict Court, W.D. Pennsylvania
DecidedJune 24, 1987
DocketCrim. No. 87-40
StatusPublished
Cited by1 cases

This text of 75 B.R. 812 (United States v. Shearer) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shearer, 75 B.R. 812, 1987 U.S. Dist. LEXIS 5595 (W.D. Pa. 1987).

Opinion

OPINION AND ORDER

SIMMONS, District Judge.

Defendant, George C. Shearer has been charged with four counts of bankruptcy fraud relating to his business Air Parcel Delivery Service, Inc. (APDS). APDS filed for bankruptcy on November 13, 1983, at Bankruptcy No. 83-2429, in the Western District of Pennsylvania. Count One charges the making of a false oath on the petition; Count Two charges that the defendant transferred assets (money) of the corporation in the contemplation of the bankruptcy; and Counts Three and Four charge that the defendant transferred two vehicles of the corporation in contemplation of bankruptcy, allegedly all in violation of Title 18, United States Code, Section 152.

In the course of investigating this matter, special agent, Yvonne Schweyen, on October 30,1984, applied to a United States Magistrate of the Western District of Pennsylvania for a search warrant for the purpose of searching the offices of Total Transportation Corporation (TTC) at 429-431 Moon Clinton Road, Coraopolis, Pennsylvania 15108, to obtain evidence of the commission of federal crimes, namely, bankruptcy fraud. The evidence that was sought by the proposed search was the business records of the two corporations, APDS and TTC for the years 1978-1983.

Supporting the application for said search warrant was the affidavit of Ms. Schweyen, indicating that she had reason to believe that said business records were concealed at the above address and that said Defendant, George C. Shearer, fraudulently filed for bankruptcy and concealed assets from his creditors by transferring them from APDS to TTC in violation of Title 18, United States Code, Section 152. (See Government Hearing Exhibit 4, Schweyen Affidavit)

[813]*813The Magistrate, on October 30, 1984, after considering the Schweyen search warrant affidavit was satisfied that there was probable cause to believe that the property described in the search warrant application was being concealed on the premises and that the said property described was relevant to the investigation of the possible commission of federal crimes, and thereupon he issued the search warrant. (See Government Hearing Exhibit 3)

The search was conducted at the described premises on October 31, 1984, and the evidentiary items taken from Defendant, George Shearer’s Personnel Office and from other offices and storage areas are itemized on Government’s Hearing Exhibit 2. See also Government’s Hearing Exhibit 1 for a layout of the TTC office space in question.

In due time Defendant Shearer was indicted on the four criminal counts heretofore mentioned and within the proper time allowed by law, the Defendant’s attorney moved to suppress the above described evidence seized in the course of said search.

Defendant’s first briefed contention in support of his motion to suppress said evidence is that the information supplied to the government agent by the three informants who were ex-employees of Defendant’s companies was stale. That the three informing employees were last in the subject premises in January of 1984, and the search warrant affidavit was not executed until October 30,1984, ten months after the last employee was on the premises.

This argument of Defendant is not pur-suasive in this case. APDS had filed for bankruptcy on November 13, 1983. The three informing employees were in the building in question in January of 1984, after the date of the bankruptcy filing of APDS and had personal knowledge of the existence of the subject books and records as of that time (January 1984). The bankruptcy matter involving APDS was an ongoing and open matter in the United States Bankruptcy Court before January of 1984, and after the search of the subject premises on October 31, 1984.

The allegations of the affiant special agent were that the business of APDS had been fraudulently transferred to and was “consumed” by TTC, a viable business still operating. The criminal bankruptcy law requires a business which has filed bankruptcy to maintain its records until the conclusion of the bankruptcy case. 18 U.S.C. § 152 (“Whoever after filing [for bankruptcy], conceals, destroys, mutilates, falsifies or makes a false entry in any document ... [or] withholds from ... an officer of the court ... any recorded information, including books, documents, records, and papers relating to the property or financial affairs of a debtor,” shall have committed an offense.) It is clear that Defendant was bound by law to maintain his records until his bankruptcy proceeding was concluded. The affiant could reasonably expect and presume Defendant’s compliance with the bankruptcy law. This factor, alone, defeats defendant's legal challenge of the warrant based on a “staleness” argument.

In this case, the character of the crime (bankruptcy fraud), the character of the things to be seized (corporate records required to be maintained because of the pending bankruptcy and normally maintained in any event), and the nature of the place to be searched (a business office containing the relevant corporate records), all compel the conclusion that the factual information supporting a finding of probable cause was not stale.

See State v. Louchheim, 36 N.C.App. 271, 244 S.Ed.2d 195 (1978), cert. denied, 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47, where the search was upheld even where there was a fourteen month delay between the date the factual information was given to the agents and the date of the search. Similarly, compliance with state law in the Louchheim case required the records of state advertising contracts to be maintained for several years. Moreover, the court noted in the Louchheim case that “such [business] records are usually kept for years.” Id. 244 S.E.2d at 200.

Defendant’s next basis for his attack on the search warrant affidavit is that it sim[814]*814ply does not contain sufficient reasonably trustworthy facts and circumstances to support a finding of probable cause and that said affidavit contains a material misstatement of fact.

The controlling appellate case for guidance in these search warrant matters is Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), wherein the Supreme Court rejected the rigid two-pronged approach set forth in Aguillar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Instead the Supreme Court outlined a more reasonable, commonsense approach to the question of determining probable cause. Although the defendant, in his brief, vainly attempts to pick apart the affidavit item-by-item, this hypertechnical analysis is precisely what was rejected by the Supreme Court in Gates.

Gates overruled years of precedent and held that the task of the issuing Magistrate is to make a practical, commonsense decision whether, reading the affidavit as a whole, there is a fair probability that the evidence of a crime will be found in a particular place to be searched. The duty of the reviewing court is simply to ensure that the Magistrate had a substantial basis for the conclusion that probable cause existed for the issuance of the search warrant.

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75 B.R. 812, 1987 U.S. Dist. LEXIS 5595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shearer-pawd-1987.