U.S. v. Kelly

• Decision Date: 27 January 1976
• Docket Number: No. 75--1686,75--1686
• Citation: 529 F.2d 1365
• Parties: UNITED STATES of America, Appellee, v. Thomas Charles KELLY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1365

529 F.2d 1365

UNITED STATES of America, Appellee, v. Thomas Charles KELLY, Appellant.

No. 75--1686.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 11, 1975.

Decided Jan. 27, 1976.

Robert A. Hampe, St. Louis, Mo., for appellant.

Barry A. Short, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ROSS, STEPHENSON and WEBSTER, Circuit Judges.

STEPHENSON, Circuit Judge.

This appeal requires review of appellant's conviction of interstate transportation of obscene matter. ¹ Following indictment and a non-jury trial resulting in a finding of guilt, the district court ² imposed a six-month sentence of imprisonment and levied a $3,500.00 fine. The principal issues arising in this appeal relate to appellant's standing to contest the legality of governmental seizure of allegedly obscene matter ³ and the propriety of the seizure itself. Our review of the record and the controlling legal precedent reveals that the district court erroneously admitted into evidence various books and magazines seized by the government in violation of the Fourth Amendment. We accordingly reverse.

I.

A threshold issue to be resolved is whether the appellant has standing to contest the alleged seizure of books and magazines which served as the evidential basis for his conviction. Appellant Thomas C. Kelly is the sole proprietor of Century News Company, an adult bookstore located in St. Louis, Missouri. For approximately seven years Century News transacted business with Sovereign News Company, a Cleveland, Ohio, corporation engaged in the business of distributing adult books and magazines. Century News was on an automatic distribution or standing order list at Sovereign News and received new publications on a weekly basis. During 1973 Sovereign News shipped large quantities of adult books and magazines to Century News C.O.D. by United Parcel Service (UPS), a common carrier authorized by tariff or certificate to transport goods from Ohio to Missouri.

On June 18, 1973, Gerald Spitznagel, loss prevention manager for UPS, became aware that a carton of goods shipped by Sovereign News to Century News was ripped open. In order to determine the extent of damage or loss, Mr. Spitznagel removed the contents of the carton, which he observed to be books and magazines bearing titles suggesting they depicted explicit sexual activity. Subsequently, he placed the magazines on his desk and proceeded to telephone William McDermott, a special agent for the FBI. Agent McDermott arrived, examined several of the magazines and took seven of them. He gave Mr. Spitznagel a receipt for those he retained. The carton was then rewrapped and ultimately picked up by Century News. Appellant later wrote a letter to Sovereign News requesting credit for the shortage created by the same magazines seized by the government and eventually received a credit memo for the shortages.

On six other dates throughout July and August of 1973, Mr. Spitznagel notified Agent McDermott of other damaged shipments of similar kind which were also shipped by Sovereign News and consigned to Century News. Specifically, on June 22, July 5, July 16, July 20 and August 28 Mr. Spitznagel noticed cartons, shipped by Sovereign News to Century News, which were ripped open in the UPS terminal. On each occasion, he took the cartons to his office, placed them on his desk and called Agent McDermott, who then seized samples of books or magazines from each shipment. Agent McDermott tendered receipts to UPS for the books and magazines retained. No warrant was ever obtained prior to the seizure of the materials. Without exception, the remainder of each carton was rewrapped and subsequently picked up by Century News. The United Parcel Service received payment for each shipment from Century News. On one other occasion, July 25, 1973, when a similar carton was discovered FBI agents proceeded to examine the books and magazines and mark them for identification. All of the materials in that particular shipment were replaced, and the carton was rewrapped. Agent McDermott eventually purchased from Century News some of the books which had been marked. Indictment followed, charging appellant in seven counts with the violation of 18 U.S.C. § 1462 (1970), using a common carrier for interstate transportation of obscene matter.

Prior to trial, appellant filed a motion to suppress the admission of the books and magazines into evidence. By agreement of counsel, the motion to suppress evidence and an additional motion to dismiss the indictments were taken with the trial on the merits and were submitted on the evidence adduced at the trial. At the trial the books and magazines were introduced by the government, over appellant's objection, into evidence and obviously served as a critical basis for appellant's conviction.

Appellant contends that the trial court erred when it denied his motion to suppress the books and magazines since they were allegedly the result of illegal search and seizure. The government, however, asserts that Kelly has no standing to contest the search and seizure. Specifically, the government emphasizes that Kelly was not on the UPS premises at the time of the seizures, he was not charged with an offense that includes possession of the seized evidence as an element of the charged crime, and he alleged no proprietary or possessory interest in the premises. See Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); United States v. Groner, 494 F.2d 499, 501 (5th Cir. 1974).

The requirement of standing in the context of the Fourth Amendment turns on whether the defendant was a victim of the search or seizure or the 'one against whom the search (or seizure) was directed.' Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960). Generally, a defendant has a sufficient interest to constitute standing if he has an adequate possessory or proprietary interest in the place or object searched. United States v. Hunt, 505 F.2d 931, 938 (5th Cir. 1974); United States v. Banks, 465 F.2d 1235, 1240 (5th Cir.), cert. denied, 409 U.S. 1062, 93 S.Ct. 568, 34 L.Ed.2d 514 (1972). But, a reasonable expectation of privacy in the enjoyment of a place or object may attach even when there is little or no proprietary interest. See Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Jones v. United States, supra, 362 U.S. at 267, 80 S.Ct. 725. For example, in Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court held that an individual has a significant privacy interest in insulating his own telephone conversations from electronic monitoring, even when he makes his calls from a public telephone booth. Clearly, '(t)he premise that property interests control the right of the Government to search and seize has been discredited.' Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782 (1967). At the same time, a person's protectable interest in his private property may often invoke a valid claim of privacy.

In any event, the major theme of the Fourth Amendment is the right to privacy. A person may have a reasonable expectation of privacy in the absence of a traditional property right. Correspondingly, a bare assertion of a property interest, without a supporting expectation of privacy, will not give rise to a cognizable Fourth Amendment claim. See generally Alderman v. United States, 394 U.S. 165, 171--180, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

Logically, a person's protectable expectation of privacy must extend both to places and objects. A contrary conclusion would emasculate the plain language of the Fourth Amendment, which protects 'papers' and 'effects.' See United States v. Hunt, 505 F.2d 931, 939 (5th Cir. 1974). But see United States v. Groner, 494 F.2d 499, 501 (5th Cir. 1974). The Supreme Court's most recent statement of the law of standing, despite some restrictve language, does not remove Fourth Amendment protection from objects seized. See Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973). This conclusion is an inescapable implication from the Court's observation in Brown that the defendants 'failed to allege any legitimate interest of any kind in the premises searched or the merchandise seized.' Id. (emphasis added.)

In the instant case, it is clear that Thomas Kelly was the sole victim of the government's investigation and the one against whom the search or seizure was directed. See Jones v. United States, supra, 362 U.S. at 261, 80 S.Ct. 725. The packages from which the books and magazines were taken were addressed to Century News. Appellant Kelly is the sole owner of Century News. Mr. Barry Short, Assistant United States Attorney, testified that he regarded Kelly and Century News to be 'one and the same.' The appellant's handwriting was positively identified with that appearing on Century News' letters requesting book shortage credit from Sovereign News. No other individuals, including employees of Sovereign News, the shipper and distributor of the materials, were prosecuted.

Furthermore, Kelly maintained more than a marginal proprietary interest in the packages of books and magazines. See United States v. Hunt, supra, 505 F.2d at 938; Collins v. Wolff, 337 F.Supp. 114, 117 (D.Neb.), aff'd per curiam, 467 F.2d 359 (8th Cir. 1972). The packages were consigned to Century News, in other words Thomas Kelly; many of the books and magazines were ultimately delivered to Kelly; and Kelly wrote Sovereign News and obtained credit for shortages.

These same facts support the conclusion that appellant was entitled to a reasonable expectation of privacy in the packages of books and magazines. See Jones v. United States, supra, 362 U.S. at 260--67, 80 S.Ct. 725; United States v. Burke, 506 F.2d 1165, 1170--71 (9th Cir. 1974), cert. denied, 421 U.S. 915, 95 S.Ct. 1576, 43 L.Ed.2d 781 (1975). The government contends...