United States v. Cowan

• Decision Date: 13 May 1968
• Docket Number: Docket 32003.,No. 368,368
• Parties: UNITED STATES of America, Appellee, v. Robert COWAN, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

396 F.2d 83 (1968)

UNITED STATES of America, Appellee, v. Robert COWAN, Appellant.

No. 368, Docket 32003.

United States Court of Appeals Second Circuit.

Argued March 22, 1968.

Decided May 13, 1968.

Robert L. Latchford, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York and John R. Wing, Asst. U. S. Atty., on the brief), for appellee.

Phylis Skloot Bamberger, New York City, (Anthony F. Marra, New York City, on the brief), for appellant.

Before LUMBARD, Chief Judge, ANDERSON, Circuit Judge, and BLUMENFELD,^* District Judge.

LUMBARD, Chief Judge:

This appeal by Robert Cowan from a judgment of conviction on two counts of knowing possession of baggage and clothing stolen from common carriers in foreign and interstate commerce, 18 U.S.C. § 659, raises the question of whether or not Cowan had standing to object to the search and seizure of luggage in the possession of a hotel pursuant to its lien for unpaid hotel bills. In the district court, Judge Weinfeld denied a pre-trial motion to suppress this evidence. 37 F.R.D. 215 (1965).

We noticed prior to argument that Cowan completed serving his two year sentence on December 14, 1967 because he received 189 days credit for good time pursuant to 18 U.S.C. § 4161 and was entitled to unconditional release 180 days prior to expiration of the maximum term for which he was sentenced, pursuant to 18 U.S.C. § 4164. In response to our request, both parties submitted supplemental briefs on the question of whether or not appellant's unconditional release mooted the appeal.

We agree with the Government's position that the possibility that appellant may receive a harsher sentence as a recidivist for any subsequent felony conviction in many states (e. g., N.J.S.A. § 2A: 85-8, 9, 12; Conn.Stat.Ann. § 54-118; D.C.Code § 22-104) is a sufficient potential collateral effect to prevent the appeal from being moot. See Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 91 L.Ed. 196 (1946).

Cowan has a criminal record consisting of numerous misdemeanor convictions and one felony conviction in New York for attempted grand larceny second degree. Because Cowan committed the federal crime prior to his incarceration for the state felony, he will not be liable to increased criminal penalties for subsequent New York felony convictions on account of his federal felony conviction. New York Penal Law, McKinney's Consol. Laws, c. 40, § 70.10(1) (c). Because of his previous New York felony conviction, Cowan's civil rights were not adversely affected by his federal conviction. Nevertheless, this case is not controlled by St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943), and United States v. Galante, 298 F.2d 72, 73, 100 A.L.R.2d 431 (2d Cir. 1962) because this felony conviction might result in a harsher sentence for Cowan for any subsequent felony conviction in some states.

Having determined that we must pass upon the merits of the points raised by appellant, we find that the search by FBI agents, with the consent of the hotel, of luggage removed from Cowan's hotel room by the hotel management pursuant to its lien for unpaid hotel bills was lawful, that the District Court did not err in finding that Cowan had abandoned the luggage and that, under the circumstances of this case, delay in holding a preliminary hearing before the United States Commissioner does not require reversal. Accordingly, we affirm the conviction.

On March 23, 1963, Robert Cowan appeared at the Sutton East Hotel in mid-Manhattan with seven pieces of luggage. He registered under the name of Robert Kelly and told the desk clerk that he intended to stay one night. Since he had luggage, he was not required to pay for the room in advance. Five days later, "Kelly" failed to pay his bill on time. The manager of the hotel learned that the room had not been occupied the previous night, and plugged the lock. On the next day, March 29, the room still unoccupied and unpaid for, the hotel manager entered the room, gathered Cowan's personal effects into the open suitcases and removed all of the luggage to the hotel office.

About March 26 a confidential informant had reported to the FBI that an individual using the name Robert Kelly and residing at the Sutton East Hotel had in his possession items allegedly stolen from luggage at Kennedy Airport. On March 29, two FBI agents went to the hotel to speak with the manager about the man known as Kelly. The hotel manager informed them that Kelly had not paid his bill or returned to his room and that his luggage had been removed to the hotel office. With the manager's consent, the FBI agents opened the unlocked suitcases and examined their contents. A subsequent check with the airlines showed that the luggage in the hotel was similar to that which passengers had reported lost to Air Canada on March 21 and to TWA on March 22, both at Kennedy Airport. Cowan was arrested on April 8, 1963 and several weeks later the luggage was removed from the hotel by the FBI.

Cowan contends that the search and seizure of the luggage were unlawful. We hold that appellant does not have standing to raise this issue. Prior to the Supreme Court's decision in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), a defendant generally was required to "claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched" in order to have standing to assert a Fourth Amendment claim. 362 U.S. at 261, 80 S.Ct. at 731. However, because the narcotics charge for which Jones was indicted would have been established if Jones admitted possession, the Court held "that possession both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is required when standing is challenged." 362 U.S. at 263, 80 S.Ct. at 732. Appellant contends that because possession of the baggage would be sufficient for conviction under 18 U.S.C. § 659, United States v. Minieri, 303 F.2d 550 (2d Cir.) cert. denied, 371 U.S. 847, 83 S.Ct. 79, 9 L.Ed.2d 81 (1962), he is automatically entitled to standing to object to its search and seizure. We do not read the Jones case quite so broadly. In Jones, the conviction flowed from possession at the time of the search, while in this case the hotel had possession at the time of the search and the conviction flows from appellant's possession at an earlier time. Possession on or about March 23, as charged in the indictment, does not give appellant standing to challenge a search on March 29 when the baggage was concededly in the possession of the hotel manager pursuant to the hotel's lien. N. Y. Lien Law, § 181 (McKinney's Consol. Laws, c. 33, 1966), Roth v. Hotel Riverside Plaza, Inc., 188 Misc. 180, 67 N.Y.S. 2d 518 (1st Dept. 1947). Unlike Jones, Cowan was not charged in the indictment with possession or the right to possession at the time of the search and the subsequent seizure. See United States v. Bozza, 365 F.2d 206, 222-223 (2d Cir. 1966).

In order to have standing to challenge the legality of a search, one must establish that he was the victim of an invasion of privacy. Wong Sun v. United States, 371 U.S. 471, 492, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963); Jones v. United States, 362 U.S. at 261, 80 S.Ct. 725 (1960). See Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Warden v. Hayden, 387 U.S. 294, 304-306, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); United States ex rel. DeForte v. Mancusi, 379 F.2d 897, 900, 903 (2d Cir. 1967), cert. granted, 390 U.S. 903, 88 S.Ct. 816, 19 L.Ed.2d 869 (Jan. 23, 1968). While redress for persons aggrieved by searches and seizures originally depended upon proof of a superior property interest, recent decisions rest upon the constitutional right to the protection of privacy rather than any interest in the property which was subject to the search or seizure. Warden v. Hayden, 387 U.S. at 303-306, 87 S.Ct. 1642. The Supreme Court's decisions in Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) and Chapman v. United States, 367 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), upon which appellant relies, recognized that protection of privacy requires suppression in some circumstances where property interests have not been violated. Here there was no invasion of Cowan's right to privacy. He had lost his right to use the room and with this the law gave the hotel the right to seize the property. Although Cowan concedes that the hotel was entitled to remove the luggage from the room, and prepare it for sale, he argues that he retained all other rights in the property and therefore the hotel manager's consent was not sufficient to authorize the search. This argument is unsound because, whatever Cowan's rights to reclaim the luggage might be under New York Law, it is clear that by leaving the luggage in the room and failing to pay his bill, Cowan forfeited the right to occupy the room undisturbed and, as to the luggage, the right to retain possession and any claim to privacy concerning it and its contents.

Under § 207 of N. Y. General Business Law (McKinney's Consol. Laws, c. 20, 1968), the hotel could sell the baggage at public auction, provided that at least 15 days prior to the time of the sale, notice of the sale "containing a brief description of the goods, baggage and articles to be sold" was published in a newspaper advertisement, and mailed to the guest if his address was known. Lane v. Hotel Investors, Inc., Sup., 29 N.Y.S. 2d 364 (1st Dept. 1941), indicates that the contents of luggage should be exhibited at the sale and that an inventory should be made prior to sale. In order to comply with the...