505 F.2d 931 (5th Cir. 1974), 74-1142, United States v. Hunt

Docket Nº:74-1142.
Citation:505 F.2d 931
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Nelson Bunker HUNT and W. Herbert Hunt, Defendants-Appellees.
Case Date:December 23, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 931

505 F.2d 931 (5th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellant,

v.

Nelson Bunker HUNT and W. Herbert Hunt, Defendants-Appellees.

No. 74-1142.

United States Court of Appeals, Fifth Circuit

December 23, 1974

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[Copyrighted Material Omitted]

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Frank McCown, U.S. Atty., Fort Worth, Tex., Richard Stephens, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellant.

Philip J. Hirschkop, Alan J. Cilman, Alexandria, Va., Ralph B. Shank, Dallas, Tex., Travis D. Shelton, Lubbock, Tex., for defendants-appellees.

Before RIVES, GEWIN and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

This case presents a troublesome question of standing to contest the legality of a police search and seizure of certain instruments of electronic surveillance allegedly employed by brothers Nelson Bunker Hunt and W. Herbert Hunt against a group of their own relatives and some employees of their father, H. L. Hunt. After indictment on charges of wilfully, knowingly and unlawfully intercepting and endeavoring to intercept wire communications of certain persons in violation of 18 U.S.C. 2511(1)(a) and (2), 1 defendants filed a motion to suppress the disputed evidence pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. After a hearing, the district court concluded that defendants had standing to contest the search and seizure and that a part of the search was in fact illegal, and accordingly granted the motion to suppress. Since we find no warrant in the Fourth Amendment for surrogate privacy, we believe that the district court erred in finding a sufficient nexus between the search and defendants' Fourth Amendment rights to confer standing to contest the police action. We must reverse.

Sometime in late October or early November, 1969, the defendant Hunt brothers allegedly contacted one Everett, the president of a Houston, Texas, private investigation agency, regarding the possibility of employing his agency to perform electronic surveillance of certain residences in Dallas, Texas. The Hunts purportedly represented to Everett that they had been the victims of extensive embezzlement and desired to obtain information concerning suspected employees. Everett contacted McCann, an electronics expert, and asked him to travel to Dallas to make an estimate of the job requirements and costs. When McCann returned to Houston and reported his findings, Everett contacted the Hunts and the deal was consummated.

The electronic surveillance operation required the use of tape recorders and tapes, which McCann purchased at retail stores, and certain other paraphernalia, including telephone transmitters, most of which McCann manufactured himself. McCann engaged a man named Watson to install some of the electronic equipment on strategically-located telephone poles and in various rental automobiles which were parked on a rotated basis outside the target houses. McCann and Kelly, an employee of Everett's detective

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agency, worked in Dallas throughout late December, 1969, and early January, 1970, rotating the automobiles which McCann and Kelly would rent, use and then return to the various rental agencies. The pair also changed the tapes when necessary, 'condensed' the original tapes-- edited out extraneous telephone conversations-- and gave the master tapes to defendants. 2 McCann returned to Houston on or about January 9, and at some point thereafter, Everett presented defendants with a bill for all expenses incurred by McCann, Kelly and Watson, including the cost of the equipment, auto rental fees and food and lodging expenses, and for the cost of the services of the three gentlemen. When defendants paid their bill, Everett sent them an itemized receipt. Everett later paid McCann, Kelly and Watson for their services and reimbursed them for their expenses.

The spectacle of strange automobiles appearing and remaining unattended for some hours before being removed and replaced by other strange unattended autos did not pass unnoticed in the quiet Dallas suburb of Richardson, Texas, where one of the 'suspected' Hunt employees lived. An alarmed neighbor alerted the Richardson police to the unusual activity on January 9 and the police began to surveill the surveillers. On January 16, 1970, after the police investigation of the matter had turned up some very suspicious circumstances relating to the recent activities of McCann and Kelly, but before the police were able to decide whether the pair were involved in the narcotics trade, a burglary ring, or the investigation of an unpleasant divorce, a Richardson police officer observed Kelly enter a suspected auto and drive away. The officer followed and indicated to Kelly that he should pull over; Kelly promptly did so.

After a brief conversation, the officer walked over to Kelly's vehicle, noticed a pile of newspapers on the floor, lifted the papers and discovered a tape recorder. He then arrested Kelly and the two men drove to a police station, where police officers proceeded to play one of the tapes without bothering to obtain a search warrant beforehand. The playing of the tape prompted an investigation which led to the indictment and conviction of McCann and Kelly on federal wiretap charges and to the indictment of defendants here.

The facts of the original search of Kelly's car were recounted at length by this Court in United States v. McCann, 5 Cir. 1972, 465 F.2d 147, cert. denied, 412 U.S. 927, 93 S.Ct. 2747, 37 L.Ed.2d 154, and need not be repeated here; suffice it to say that we found that the officer who searched the automobile had both Kelly's consent to search and probable cause to do so. The defendants here claim that our decision in McCann suffered from a lack of certain evidence which they have now supplied-- evidence which tends to indicate that Kelly did not consent to the search of the auto and that the officer had no probable cause to search the vehicle in any case. The district court below found otherwise, 366 F.Supp. 172, and concluded that the stop and search of Kelly's auto were proper. The court also found, however, that the playing of the tape constituted a second search without a warrant, and that this search violated defendants' Fourth Amendment rights. Applying the fruit of the poisonous tree doctrine, Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Silverthorne v. United States, 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, the district court ordered that 'all evidence gathered as a result of the playing of the tape' be suppressed. 366 F.Supp. at 183. Since defendants have no standing to contest either search, we pretermit further discussion of the legitimacy of those searches.

I

The requirement that a litigant have 'standing' to contest a particular

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lawsuit is based upon the metaphysical notion that, in our adversary legal system, a court must be very certain that the parties before it have 'a personal stake in the outcome of the controversy,' Baker v. Carr. 1962, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678, so that each side will represent its particular interests to the best of its abilities and thus afford the court a fully-informed choice between two clearly-stated alternatives. See Flast v. Cohen, 1968, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947. In practice, of course, things do not always work out that way; many individuals and groups who are genuinely interested in a given controversy may be unable to satisfy the traditional requirements for standing. For this reason, among others, the law of standing has been liberalized over the past decade in many areas to comport with the reality of litigant interest. See, e.g., Data Processing Service v. Camp, 1970, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184; Barlow v. Collins, 1970, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192; Flast v. Cohen, supra; Griswold v. Connecticut, 1965, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. At the same time, the policies supporting a standing requirement have retained sufficient vitality to ensure that litigants must show more than a de minimis interest before they will be admitted into the Courtroom. See, e.g., Sierra Club v. Morton, 1972, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636.

In some respects, the necessity of standing to object to unconstitutional searches and seizures is more anomalous than most standing requirements. The major rationale for the exclusionary rule, whereby evidence obtained in an unconstitutional manner may not be used in a criminal prosecution, is that only such a drastic means will effectively deter law enforcement officials from violating the Fourth Amendment rights of citizens. See Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. 3 Given this premise, one might suppose that any citizen should be able to apprise the courts of unconstitutional searches and seizures; otherwise, policemen might in some cases break the law with impunity. However that may be, there is no precedent for not demanding standing to question a search. The courts have settled upon a requirement of some 'standing' to contest Fourth Amendment violations, reasoning that the added deterrent effect of a 'no standing' or minimal standing rule in search and seizure cases would be of slight social value in comparison with the large social cost imposed by criminals who would take advantage of such a rule. Although as an abstract proposition of law, the standing requirement might not have logical primordialty, it does possess interpretative validity and solidity; it is not the case 'that anything which deters illegal searches is thereby commanded by the Fourth Amendment.' Alderman v. United States, 1969, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176, 187.

II

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