Court appointed receiver could consent to FBI search of records he possessed taken from defendant’s business

The defendant’s business was put into receivership. After collecting the books, the FBI sought access and the receiver consented. The receiver had the legal power to consent. United States v. Madison, 226 Fed. Appx. 535 (6th Cir. 2007) (unpublished):

The appointing court here ordered the receiver to “[t]ake exclusive custody, control and possession of all … effects, books and records of account and other papers and property or interests owned or held by the [Cherokee Corporations] … with full power to … receive and take possession of such receivership properties.” R.R. at 9. Thus, the receiver exercised Cherokee’s own authority, and had the authority to consent to the FBI agent’s search of 2771 Colony Park Drive. See Javitch v. First Union Sec., Inc., 315 F.3d 619, 626 (6th Cir. 2003).

The Bankruptcy Court for the D.N.J. held that the trustee was entitled to an order entering the debtor’s property in the face of a Fourth Amendment challenge. In re Bursztyn, 2007 Bankr. LEXIS 1207 (D. N.J. Bankr. April 10, 2007).

[Without stating any facts for the reader,] The officer had reasonable suspicion to stop the defendant near the border, and the defendant’s consent was voluntary. The defendant was not advised of a right to refuse, but all other factors favored voluntariness. United States v. Dubas, 228 Fed. Appx. 695 (9th Cir. 2007)* (unpublished).

The defendant got a Franks hearing but failed on the merits. The question was alleged information about the wrong apartment which was innocent or negligent at worst. United States v. Oung, 490 F. Supp. 2d 21 (D. Mass. 2007):

Hershey has fallen far short of his burden under Franks as to all three elements. The evidence does not support the inference that Agent Brackett intentionally lied or acted recklessly in procuring the affidavit. Any mistakes or inconsistencies in the affidavit were credibly explained by Agent Brackett by reference to the hurried circumstances of the evening, the inclusion of written portions of an affidavit drafted prior to that night, his exhaustion, and simple typographical error. See Tzannos, 460 F.3d at 136 (“‘Allegations of negligence or innocent mistake are insufficient.'” (quoting Franks, 438 U.S. at 171)).

This conclusion as to Brackett’s motives is reinforced by the existence of ample probable cause even with the errors cited by defendants removed from the affidavit. Based on surveillance and intercepted calls, the agents had reason to believe that either Unit 36 or 37 was the “Clubby Two” referenced over the wire. The initial mistaken entry into Unit 36, the identification of Unit 37 as Hershey’s home by the neighbors outside Unit 40, and the discovery of the dark green Nissan in the garage at Unit 37 — the offending omissions cited by defendants — all shore up, rather than weaken, the agents’ cause to believe that Unit 37 was the stash. Thus even if these omissions were deliberate (and I find that they were not) the warrant would survive. See, e.g., United States v. Legault, 323 F. Supp. 2d 217, 226 (D. Mass. 2004) (“A reviewing court should add any facts intentionally or recklessly omitted from the affidavit and determine whether the new information, if included, would have defeated the finding of probable cause.” citing United States v. Cole, 807 F.2d 262, 267-268 (1st Cir. 1986))). Any errors or misleading statements occasioned by these omissions, such as the statement that probable cause was based on facts contained in the affidavit, do not undermine the agents’ reasonable belief that Unit 37 was the likely location of the stash. See, e.g., Valente v. Wallace, 332 F.3d 30, 32 (1st Cir. 2003) (explaining that “centrally, the mercurial phrase ‘probable cause’ means a reasonable likelihood” (citing Illinois v. Gates, 462 U.S. 213, 235 (1983))).

State search and seizure claim that was ligitated to conclusion could not be reasserted in federal habeas. Swecker v. Brady, 2007 U.S. Dist. LEXIS 28947 (E.D. Wash. April 19, 2007)*; Allison v. Eberlin, 2007 U.S. Dist. LEXIS 28912 (N.D. Ohio April 17, 2007).*