490 F.2d 666 (5th Cir. 1973), 72-2275, United States v. Frick

Docket Nº:72-2275.
Citation:490 F.2d 666
Party Name:UNITED STATES of America, Plaintiff-Appellee. v. Robert Lee FRICK and Quimet John Petersen, Defendants-Appellants.
Case Date:December 05, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 666

490 F.2d 666 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee.

v.

Robert Lee FRICK and Quimet John Petersen, Defendants-Appellants.

No. 72-2275.

United States Court of Appeals, Fifth Circuit.

December 5, 1973

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Malcolm G. Mundy, Jr., New Orleans, La., Raymond A. McGuire, New Orleans, La., for Petersen. Louis R. Koerner, Jr., James C. Murphy, Jr., New Orleans, La., for Frick (court appointed).

Gerald J. Gallinghouse, U.S. Atty., Robert L. Livingston, Mary William Cazalas, Asst. U.S. Attys., New Orleans, La., for the United States.

Before GOLDBERG, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Defendants Frick and Petersen were convicted on five counts under 18 U.S.C.A. §§ 2, 371, 1341 and 1343 of conspiring to defraud and defrauding certain persons through a sham loan brokerage business by using the mails and interstate telephonic communications. Only the question concerning the legality of a warrantless search of defendant Frick's briefcase requires discussion of the reasons for our holding that the search was valid incident to arrest. The other seventeen errors asserted by defendants are subject to affirmance without extended discussion.

The morning after his indictment, defendant Frick was arrested at his car in the parking lot adjacent to his apartment building. At the time of the arrest, F.B.I. Agent McDaniels spotted an attache case lying on the back seat of Frick's car, approximately two feet from the defendant. Recognizing the attache case as Frick's and knowing that Frick had used it on numerous occasions during his 'loan negotiations,' McDaniels seized the case on probable cause that it contained evidence pertinent to the arrest. An immediate check of its contents bore out McDaniels' suspicions: the case contained documents used in the fraudulent transactions. The defendants assert that the seizure and subsequent search of the attache case without a warrant

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violated Frick's Fourth Amendment rights.

I.

Only defendant Frick has standing to contest the search and seizure. Under the test recently established by the Supreme Court, defendant Petersen

(a) (was) not on the premises at the time of the contested search and seizure; (b) had no proprietary or possessory interest in the premises; and (c) (was) not charged with an offense which includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.

Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973). Petersen contends that he has met the 'proprietary interest' test by being in partnership with defendant Frick. Partnership, however, did not give him a proprietary interest in Frick's attache case, the thing searched.

II.

For a warrantless search to be valid under the Fourth Amendment, it must fall within one of the 'few specifically established and well-delineated exceptions.' Coolidge v. New Hampshire, 403 U.S. 443, 445, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). The case at bar meets the required exception as a search incident to a lawful arrest.

[I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape . . .. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule . . .. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control'-- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Although there is some dispute in the record as to the exact distance between Frick and the automobile, 1 and whether the door was open or closed, these discrepancies become inconsequential when the reasonableness of the search is tested by the Chimel standard. The automobile and the attache case were within the area of Frick's immediate control. The attache case was not isolated or hidden in some distant room of the house or securely locked in the trunk of the car. It was in plain view and readily accessible to Frick. The possibility of it housing, not only the evidence found, but also a dangerous weapon was not remote.

The exigencies of the situation plainly justified Agent McDaniels' actions. The officers were dealing with objects which are extremely mobile: the automobile and the attache case. There is the possibility that codefendant Petersen might have removed either of them prior to the officers obtaining a warrant. 2 Some other friend unknown to the officers might have done likewise. It would be reasonable to expect Frick would be released on bond within short order and again be free to exercise his control over the automobile and the attache case.

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To prevent these possibilities, Frick contends Agent McDeniels could have stationed an officer with the automobile while another proceeded to secure the warrant, or in the alternative, that the officers take the attache case but postpone their search until the impartial magistrate issued a warrant. The defense overlooks a vital Fourth Amendment interference: by stationing a guard over the car or removing the attache case while securing the warrant, a definite 'seizure' would take place. This is an intrusion on the defendant's rights, just as much as the search.

For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975. 1981, 26 L.Ed.2d 419 (1970).

On facts similar to the case at bar, the Ninth Circuit has recently ruled on the propriety of seizing an automobile or container located therein before obtaining a search warrant.

Here the police might have seized the car pending a magistrate's determination. This would have been the lesser intrusion upon Evans' rights, but it would have been the greater intrusion upon the rights of Miss Kane, the owner of the car. On the other hand, it is easy to say that the footlocker could be confiscated by the police and taken to the magistrate, but a seizing would then have already occurred-- a substantial interference. Standing guard still represents the same interference with property rights as well as an unnecessary use of law enforcement personnel. Under these circumstances, either course might be reasonable under the Fourth Amendment, but the immediate search was preferable. Given probable cause, we hold that the necessary exigent circumstances were present for a warrantless search.

United States v. Evans, 481 F.2d 990, 994 (9th Cir. 1973). Given the probable cause in the case at bar, we hold that the immediate search was reasonable under the circumstances.

The defense also contends that officer McDaniels admittedly knew of the attache case for a considerable period prior to the arrest, knew of its possible contents, and had adequate time to secure a search warrant after the indictment and prior to leaving on his arrest mission. This contention misreads the nature of the facts which gave probable cause to believe the case contained evidence.

An attache case is designed to be a convenient receptacle to temporarily carry while in transit a small quantity of papers or items of like nature. The probability that it contains business documents flows from the fact that the case is being used in conjunction with business travel. The probability that Frick's attache case contained documentary evidence at that time arose from a combination of factors: (1) Frick had utilized the case to carry loan documents on a previous out of state business trip; (2) he was arrested on a work day; (3) at his automobile; (4) at a time in the morning which is normally associated with going to work; and (5) he had the attache case with him. Agent McDaniels could not have known that all of these events would coincide prior to the time of the arrest. Yet it was because these factors did coincide that probable cause existed.

Finally, the defense argues under Chimel, supra, that the arrest was 'staged' to enable Agent McDaniels to search and seize the attache case. Frick was not arrested immediately after the indictment was returned but was arrested the following morning. The arrest took place in the parking lot rather than Frick's apartment. Arrest immediately after the return of the indictment is

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not required, however. It is sufficient that the arrest be within a reasonable time after the indictment. United States v. Palmer, 435 F.2d 653, 655 (1st Cir. 1970). Agent McDaniels testified that Frick was not arrested in his apartment because the officers had difficulty in locating it in the building. Immediately thereafter, Frick was discovered in the parking lot, and the arrest completed. McDaniels testified that he had not observed the attache case prior to the arrest. This evidence does not support the argument that the arrest was 'staged' to permit the search and seizure.

III.

The other challenge to the convictions of the defendants are without merit and we address them seriatim, combining some, without regard...

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