U.S. v. Berrett

Citation513 F.2d 154
Decision Date28 March 1975
Docket NumberNo. 74-1436,74-1436
PartiesUNITED STATES of America, Appellee, v. Louis BERRETT, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Owen Gallagher, Roslindale, Mass., for defendant-appellant.

Lawrence P. Cohen, Asst. U. S. Atty., Deputy Chief, Crim. Div., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

PER CURIAM.

Defendant appeals from his conviction for receiving goods stolen from interstate shipment in violation of 18 U.S.C. § 659 (1970), alleging that the court erred in refusing to suppress the goods as unlawfully seized.

In October 1973 the FBI was investigating the theft of 25 cartons of Texas Instrument hand calculators from the Roadway Express Terminal in North Reading, Mass. A special agent acting under cover contacted one DeVasteo, a Roadway driver, who admitted stealing the calculators and offered to sell them to the agent. The two drove to the defendant's garage and were told that he had left for the day. The closet in which the calculators were kept was locked and the two made arrangements to return the following day to inspect the goods. The next morning the agent, DeVasteo and defendant entered the garage and the latter brought out three cartons of calculators. The agent opened one of the cartons and removed the contents.

Five or six other agents involved in the investigation had been detailed to proceed to the garage that day and look for a Roadway truck in the vicinity. When the truck was spotted the agents entered the open garage to locate and interrogate the driver, and observed the undercover agent, DeVasteo and the defendant standing around several cartons bearing Texas Instrument markings. One agent identified himself and interviewed DeVasteo, who admitted having stolen the calculators and concealing them in defendant's garage. Another agent then obtained a search warrant and seized the calculators.

Defendant did not learn of the FBI's undercover activities until after the hearing on the motion to suppress, which was denied. When the activities were revealed the court decided to reconsider its ruling. Counsel filed a stipulation of facts and supplemental briefs, and the court without a hearing again denied the motion.

On appeal defendant argues, apparently for the first time, that the calculators were actually seized when the FBI agents "moved in" and "secured the premises" without a warrant, and that the subsequent procurement of a warrant could not serve to legitimate this warrantless seizure. However, he has not made out any showing that the agents exercised dominion over the garage or the calculators before the warrant was executed. United States v. Berkowitz, 429 F.2d 921 (1st Cir. 1970). * Although several agents moved to the back of the garage to secure it, Agent Ervin testified that this was merely to protect his safety while he interviewed DeVasteo. There was no evidence that the agents purported to seize the calculators or placed a guard on them, id.; they did not close or lock the garage doors, cf. State v. LaDuca, 89 N.J.Super. 159, 214 A.2d 423 (1965), or display guns or handcuffs at any time. We conclude that the court did not commit plain error in treating the seizure as occurring only upon execution of the warrant. Fed.R.Crim.P. 52(b).

Even if the seizure was pursuant to warrant, defendant contends, it was tainted because the personal knowledge of the calculators' presence alleged...

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13 cases
  • McMillian v. State, 260
    • United States
    • Court of Special Appeals of Maryland
    • 1 Septiembre 1990
    ...general public invitation to enter commercial premises for purposes not related to the trade conducted thereupon." United States v. Berrett, 513 F.2d 154, 156 (1st Cir.1975). Although a club operated for a select clientele may not be public, "[t]he fact that the premises are maintained as a......
  • United States v. Perez
    • United States
    • U.S. District Court — Northern District of Ohio
    • 21 Abril 1977
    ...(Similar to Lewis, supra, where seizure of contraband in plain view of the undercover agent was validated); United States v. Berrett, 513 F.2d 154, 155-156 (1st Cir., 1975) (knowledge of stolen calculators observed by officers on the defendant's business premises pursuant to "public invitat......
  • Ayeni v. Mottola
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 12 Septiembre 1994
    ...798, 104 S.Ct. at 3382 (1984); see also United States v. Crespo de Llano, 838 F.2d 1006, 1016 (9th Cir.1987); cf. United States v. Berrett, 513 F.2d 154, 155 (1st Cir.1975) (officers remaining in open garage until search warrant obtained were not conducting warrantless search since they did......
  • U.S. v. Edwards
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 25 Julio 1979
    ...for the purpose of applying the Fourth Amendment, at the time of the initial entry. He relies on our holdings in United States v. Berrett, 513 F.2d 154 (1st Cir. 1975) and United States v. Berkowitz, 429 F.2d 921 (1st Cir. 1970). In these cases we recognize that the exercise of dominion, es......
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