396 F.2d 83 (2nd Cir. 1968), 368, United States v. Cowan

Docket Nº:368, 32003.
Citation:396 F.2d 83
Party Name:UNITED STATES of America, Appellee, v. Robert COWAN, Appellant.
Case Date:May 13, 1968
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 83

396 F.2d 83 (2nd Cir. 1968)

UNITED STATES of America, Appellee,

v.

Robert COWAN, Appellant.

No. 368, 32003.

United States Court of Appeals, Second Circuit.

May 13, 1968

Argued March 22, 1968.

Page 84

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, 1 District Judge.

Page 85

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 agand 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...

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