U.S. v. Brown

• Decision Date: 27 January 1981
• Docket Number: No. 80-5024,80-5024
• Citation: 635 F.2d 1207
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Norbert A. BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1207

635 F.2d 1207

UNITED STATES of America, Plaintiff-Appellee, v. Norbert A. BROWN, Defendant-Appellant.

No. 80-5024.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 7, 1980.

Decided Dec. 17, 1980.

Rehearing Denied Jan. 27, 1981.

H. Fred Hoefle, Cincinnati, Ohio, for defendant-appellant.

James C. Cissell, U. S. Atty., Terry Lehmann, Christopher K. Barnes, Asst. U. S. Attys., Cincinnati, Ohio, for plaintiff-appellee.

Before ENGEL and BROWN, Circuit Judges, and PECK, Senior Circuit Judge.

BAILEY BROWN, Circuit Judge.

Appellant, Norbert A. Brown, was convicted after a jury trial in the United States District Court for the Southern District of Ohio for receiving stolen goods in violation of 18 U.S.C. § 2315. On this appeal he challenges, inter alia, the validity of the search of his automobile and the legality of the government's conduct during the investigation that led to his arrest and conviction. We affirm his conviction in all respects.

I

The facts of this case involve the government's investigation, designated by the code name HAMFAT, of an interstate burglary ring. The ring operated, with a base in the Cincinnati area, in Wisconsin, Virginia, Tennessee, Kentucky, and Illinois. In late 1977, Robert Miller, a paid FBI informant, infiltrated the interstate burglary ring. His job was to identify the individuals involved in the burglary ring, and to identify the "fences" who purchased the property stolen by the ring. In addition, Miller was to help Richard Dorton, an undercover FBI agent posing as an out-of-state buyer of stolen property, to gain the confidence of the ring.

Miller remained on the job, reporting to the FBI daily, for almost seventeen months. During that time, Miller accompanied two of the members of the ring, Bobby Campbell and James E. Frazier, on approximately forty burglaries. Miller was also involved in the sale of the stolen property to fences. His involvement in the ring ended in April, 1979.

On April 19, 1978, Miller accompanied Frazier and Campbell to Kentucky where they burglarized homes in Danville and Lancaster. They returned to Ohio early the next morning. After their return, Miller informed the FBI that some of the stolen property was to be sold to Manuel Snelling, a fence who, it was known by the FBI, often made such purchases. Snelling was to meet the trio at a designated location later that morning. Consequently, the FBI placed Snelling under surveillance. Because appellant, Brown, had been observed meeting with Snelling after other burglaries, he too was placed under observation.

On the morning of April 20, 1979, Snelling met with the burglars at the designated place, ultimately buying various stolen items, including some sterling silver and jewelry.

After the meeting, the FBI observed Snelling placing a large paper bag, some pillow cases, and a small box in the trunk of his automobile. Snelling left in his car and then made a telephone call and some stops. Later that day, Snelling was observed driving south on Route 4, past Brown's coin shop. Snelling then turned around and drove north, once again past the coin shop. Turning around yet again, Snelling drove past the coin shop and out to the Tri-County Shopping Center.

Shortly after Snelling's third pass by his coin shop, Brown left the coin shop, got into his car, and drove toward the shopping center. As he neared the shopping center, Brown abruptly changed lanes, turned left against the light, and entered the parking lot. The suddenness of this maneuver cut off the FBI surveillance for a short time. The FBI agents soon saw Brown's automobile parked adjacent to Snelling's. Snelling exited his car and got into Brown's. The two men drove around the parking lot for a time, eventually returning to Snelling's car. Parked side-by-side, the two men opened the trunks to their respective automobiles. Snelling then transferred a large paper bag from the trunk of his car to the trunk of Brown's car.

After the transfer, Brown drove from the parking lot back in the direction of his coin shop, on the heavily travelled Route 4. While Brown was stopped at a traffic light, an FBI agent entered Brown's car on the driver's side, showed Brown his badge, and pulled the car off the highway.

The FBI advised Brown of his rights, although they did not arrest him. They conducted a search of his trunk, locating the large paper bag recently placed there by Snelling. Comparing the items in the bag with an inventory list provided by Miller, the agents realized that some items were missing. When they asked Brown where those items were, he told them that they were in his coat pocket. The FBI retrieved these items also. Brown was released at that time. Some months later, Brown was indicted for receiving stolen goods. From his conviction for that offense he appeals.

II

Brown contends that the trial court erred when it admitted in evidence the items seized from the trunk of his automobile, arguing that the search for and seizure of those items was effected in contravention of the Fourth Amendment. In support of this contention Brown relies primarily on Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Because we find that the search of Brown's automobile was lawful and that Brown had no legitimate expectation of privacy in the paper bag therein, we uphold the trial court's denial of Brown's motion to suppress.

A

Initially we note that the search of the trunk of Brown's automobile was lawful if the officers had probable cause for the search. In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the Supreme Court noted:

One of the circumstances in which the Constitution does not require a search warrant is when the police stop an automobile on the street or highway because they have probable cause to believe it contains contraband or evidence of a crime.

Id. at 760, 99 S.Ct. at 2591. The major reason for this exception to the warrant requirement is the inherent mobility of the automobile. As the Supreme Court stated in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970):

(T)he circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carroll (v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)) and the case before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant, or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.

Id. at 50-51, 90 S.Ct. at 1980-81. The Court then noted that the question of which of these alternatives posed the lesser intrusion, and which the greater, "is itself a debatable question." Id. at 51, 90 S.Ct. at 1981. The Court then held:

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.

Id. at 52, 90 S.Ct. at 1981.

We now turn to a consideration of whether the existence of probable cause and exigent circumstances justify the warrantless search of the trunk of the automobile in the instant case.

We think that the exigent circumstances usually associated with the search of an automobile were present here. Brown's automobile was stopped during rush hour traffic on a very busy thoroughfare. There was a very real danger that any stolen goods being transported in the automobile would be secreted or melted down. As in Chambers, supra, if an effective search was to be made, it had to be made before the automobile eluded the police officers.

We are also of the opinion that the officers in the instant case had probable cause to search Brown's auto. The FBI knew that Manuel Snelling was a "first-level fence of stolen property." App. at 78. The FBI had, in the past, observed Brown and Snelling transacting business in parking lots in a rather clandestine manner. The FBI received information from Miller that Snelling would be picking up stolen property at a designated location. Snelling was shortly thereafter observed carrying a large paper bag, a small box, and some pillow cases from the location given by Miller and then putting these articles in the trunk of his car.

Later that day, Snelling made several "passes" by Brown's coin shop, whereupon Brown exited and drove to a meeting with Snelling at what was apparently a predetermined location, the Tri-County Shopping Center. After Snelling and Brown took a short drive around the parking lot in Brown's car, Brown parked next to Snelling's car. The FBI then observed Snelling transferring a large paper bag from his trunk to Brown's trunk. In light of the foregoing facts, we agree with the trial court's observation that "there is all kind of evidence of probable cause." App. at 143.

B

With respect to Brown's contention that the FBI's search of the paper bag taken from his automobile violated the Fourth Amendment, we must determine whether Brown had a legitimate expectation of privacy in the bag, for the Fourth Amendment "protects people from unreasonable government intrusions into their legitimate expectations of privacy." United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977). See also Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). If the government did not invade a place in which Brown held a legitimate expectation of privacy, there was no "search" for purposes of the Fourth Amendment, and its provisions are inapplicable. Rawlings v. Kentucky, --- U.S. ----, ----, 100...