474 F.2d 174 (5th Cir. 1973), 71-2097, United States v. Colbert

Docket Nº:71-2097.
Citation:474 F.2d 174
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Andrew COLBERT and Michael Beryl Reese, Defendants-Appellants.
Case Date:February 14, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 174

474 F.2d 174 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Andrew COLBERT and Michael Beryl Reese, Defendants-Appellants.

No. 71-2097.

United States Court of Appeals, Fifth Circuit.

February 14, 1973

Page 175

Jack Drake, Drake & Knowles, University, Ala., for defendants-appellants.

Wayman G. Sherrer, U. S. Atty., L. Scott Atkins, John S. Salter, Asst. U. S. Attys., Birmingham, Ala., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, TUTTLE, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

THORNBERRY Circuit Judge:

Appellants Colbert and Reese were convicted in the district court of possession of unregistered sawed-off shotguns in violation of 26 U.S.C.A. § 5861(d). A panel of this court overturned the convictions on appeal holding the police searches which produced the weapons invalid under the Fourth Amendment. 1 Having agreed to rehear this case en banc, we vacate the judgment of the panel and affirm the convictions.

The panel opinion set out the facts fully, and we repeat here only a somewhat abbreviated version. In the late afternoon of October 24, 1970, appellants Colbert and Reese were walking down a street in Birmingham, Alabama, carrying briefcases. Noticing that Colbert fit the description of a wanted suspected felon, officers Trimm and Pitts of the Birmingham police department approached appellants to question them. At the officers' approach appellants set their briefcases on the sidewalk. They identified themselves as book salesmen but, when the officers asked to see their wares, i. e. the contents of the briefcases, appellants replied they did not have to show the officers anything and denied that they owned the briefcases or had any knowledge about them. The officers frisked Colbert and Reese. Appellants then began to walk away from the officers, leaving the briefcases on the sidewalk. The officers stopped them again and demanded of each to see some identification document. Reese produced a Georgia driver's license, and Colbert said he had no identification card with him. The officers then asked each appellant to produce his draft card; when each denied possessing one, the officers arrested them for failure to carry a Selective Service registration certificate, a violation of 50 U.S.C.A.App. § 462, and placed them in the patrol car. While in the patrol car Reese again denied knowing anything about the briefcases. One of the officers then returned to the briefcases, opened them, and found the sawed-off shotguns inside. Appellants were eventually indicted for possession of the unregistered shotguns with illegal barrel lengths, and, after the trial judge denied their motion to suppress the weapons, they were convicted upon a jury verdict of guilty.

Of the four issues raised on this appeal, three concern the searches which produced the sawed-off shotguns: First, were the searches incident to a valid arrest under Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685? Secondly, are the searches sustainable under the so-called "automobile exception" to the warrant requirement of the Fourth

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Amendment applied in Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543? 2 Thirdly, did appellants, by abandoning their briefcases, lose standing to object to the searches? The fourth issue is whether police officers were required by Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 to warn appellants of their rights before asking to see their draft cards.

The panel majority found the searches could not be sustained under the first and second theories argued by the government but did not comment on the abandonment theory; since it reversed on the search issue, the panel had no need to discuss the asserted Miranda problem. We predicate our affirmance on the abandonment theory only and intimate no view as to the two arguments treated in the panel opinion. Under our view of this case we are not required to reach the Miranda issue to dispose of this appeal.

I. Standing to Object to Search and Seizure

Only those persons whose privacy is invaded by a search have standing to object to it under the exclusionary rule codified in Rule 41(e), Fed.R.Crim.P. 3:

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* * *

In order to qualify as a "person aggrieved by an unlawful search and seizure" one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.

Jones v. United States, 1960, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697. Further, it is settled law that one has no standing to complain of a search or seizure of property he has voluntarily abandoned. See, e. g., Abel v. United States, 1960, 362 U.S. 217, 240-241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668, 687; Hester v. United States, 1924, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; Parman v. United States, 1968, 130 U.S.App.D.C. 188, 399 F.2d 559, cert. denied 393 U.S. 858, 89 S.Ct. 109, 21 L.Ed.2d 126; Coleman v. Maxwell, 6th Cir. 1968, 387 F.2d 134, cert. denied 393 U.S. 1007, 89 S.Ct. 492, 21 L.Ed.2d 472, reh. denied 394 U.S. 912, 89 S.Ct. 1014, 22 L.Ed.2d 226; Feguer v. United States, 8th Cir. 1962, 302 F.2d 214, 248-249, cert. denied 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110.

Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. United States v. Cowan, 2d Cir. 1968, 396 F.2d 83, 87. All relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Manning, 5th Cir. 1971, 440 F.2d 1105, 1111. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. See Abel v. United States, supra; United States v. Edwards, 5th Cir. 1971, 441 F.2d 749; Lurie v. Oberhauser, 9th Cir. 1970, 431 F.2d 330. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. United States v. Edwards, supra, 441 F.2d at 753; cf. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.

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The facts of this case show conclusively that Colbert and Reese abandoned their briefcases before the searches took place. In response to police questions they both disclaimed any interest in the briefcases and began to walk away from them. The police officers in no way compelled these actions. Under these circumstances appellants could entertain no reasonable expectation of privacy in them. Compare Lurie v. Oberhauser, supra, where a disclaimer of any ownership or possessory interest in a suitcase in the course of a police investigation was held sufficient without more to support a finding of abandonment. The legal effect of the abandonment is, as noted above, to deprive appellants of standing to challenge the subsequent searches.

Appellants argue that Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, precludes a holding that appellants lacked standing to challenge the searches in the prosecution for possession of sawed-off shotguns. We disagree. Jones, a narcotics possession case, held generally that a defendant charged with a possession offense has standing as a matter of law to challenge a search which produced the allegedly possessed substance or thing, even if he does not assert a possessory interest in it. The rationale was that

to hold to the contrary, that is, to hold that petitioner's failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the Government to have the advantage of contradictory positions as a basis for conviction. Petitioner's conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of rule 41(e).

362 U.S. at 263-264, 80 S.Ct. at 732, 4 L.Ed.2d at 703-704. The rule established in Jones is based on the positions the prosecution takes at trial when the duration of the possession charged includes the time of the search. In the above quoted passage the Court focused on the defendant's possession of the narcotics "at the time of the search." When the time of the possession charged and the time of the search coincide or overlap, it is indeed inconsistent for the government to argue the defendant lacked sufficient possession to confer standing to challenge the search but had sufficient possession at the same time for conviction. When, however, the government shows that the property was abandoned before the search, there is no such inconsistency. On the contrary, the government may argue without self-contradiction that a defendant had possession at one time for purposes of conviction, but at a later time lacked sufficient possession to confer standing to object to search and seizure. Accordingly, we do not think...

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