U.S. v. Bosby

• Decision Date: 10 May 1982
• Docket Number: No. 81-7245,81-7245
• Citation: 675 F.2d 1174
• Parties: 10 Fed. R. Evid. Serv. 691 UNITED STATES of America, Plaintiff-Appellee, v. Calvin Lamar BOSBY, Alan Maurice Ticey, and Charles F. Hill, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1174

675 F.2d 1174

10 Fed. R. Evid. Serv. 691

UNITED STATES of America, Plaintiff-Appellee, v. Calvin Lamar BOSBY, Alan Maurice Ticey, and Charles F. Hill, Jr., Defendants-Appellants.

No. 81-7245.

United States Court of Appeals,

Eleventh Circuit.

May 10, 1982.

Stewart, Falkenberry & Whatley, Joe R. Whatley, Jr., Birmingham, Ala., for Bosby.

John S. Tucker, Birmingham, Ala., for Ticey.

A. Allen Ramsey, Birmingham, Ala., for Hill.

Holly Wiseman, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before TUTTLE, KRAVITCH and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Defendants Hill, Bosby and Ticey were indicted for mail fraud, 18 U.S.C.A. § 1341, ¹ and conspiracy to commit mail fraud, 18 U.S.C.A. § 371. ² After a nine-day trial, the defendants were convicted on all counts and sentenced to varying periods of incarceration. ³ Defendants appeal, alleging numerous errors below. We affirm.

I.

Defendants Ticey, Hill and Bosby, along with Heard, Rudolph and Haggins, engaged in a concerted effort to defraud certain banks and stores in Birmingham, Alabama. In November 1980, Heard, Hill and Ticey, traveled from Tennessee to Birmingham. Once in Birmingham, Heard opened a checking account at the Birmingham Trust National Bank (BTNB) with a minimum deposit. He ordered personalized checks and had them sent to his father's Birmingham address. Heard represented to bank officials that the address was his and that he had resided there for five years. In reality, Heard had lived in Chicago during the previous five years. Later the same day, Heard opened another checking account, this time at the First National Bank ^B, and again ordered personalized checks. In both instances, the personalized checks were printed and mailed.

The next day, Heard deposited a $9,500 check drawn on a Chicago bank into his account at FNB. Heard had apparently received the check from defendant Ticey. Although the check was ultimately returned uncollected, the FNB mistakenly credited Heard's account with the amount. Heard then withdrew $9,000 and gave $6,000 to Ticey. Ticey used a portion of the money to rent a room at a local motel where he later met defendant Bosby.

While in Birmingham, Heard contacted an acquaintance, Randy Rudolph, and suggested that Rudolph might want to make some money by opening checking accounts at local banks. Heard and defendants Ticey and Bosby drove Rudolph to two local banks, Metro Bank and Exchange National Bank, and waited while he opened checking accounts. Rudolph ordered personalized checks at both banks and had them sent to his home address in Birmingham. Later that evening, he deposited into his account at Metro Bank a $9,912 check drawn on Ticey's Chicago bank account. The same evening, Heard deposited into his account at BTNB an $8,800 check, drawn on a Bensonville, Illinois, bank, that he had received from Ticey. The following day, defendant Bosby opened an account at Central Bank. Employing a similar modus operandi, Bosby deposited the minimum amount and ordered personalized checks. He had the checks sent to the address of an aunt residing in Birmingham. Shortly after the account was opened, a $10,500 check drawn on defendant Hill's Chicago account was deposited into Bosby's account at Central Bank.

Heard, Rudolph and the three defendants now had accounts at five different Birmingham banks and had deposited out-of-state checks in four of the accounts. All of the checks were ultimately returned uncollected. On November 21, two weeks after Heard opened the first account, defendants Bosby and Hill attempted to cash a $10,000 check drawn on Bosby's account at Central Bank. The teller refused to honor the check due to insufficient funds in the account. The same day, Heard, accompanied by Ticey and Hill, tried to withdraw $8,500 from the BTNB account. The check was not cashed, again due to insufficient funds. Undaunted, Heard went to a different BTNB branch and attempted to cash a $7,000 check. The attempt was unsuccessful. Finally, Jeffrey Haggins, an accomplice in the scheme, presented a $900 check drawn on Heard's BTNB account but was informed that it could not be cashed due to insufficient funds in the account.

Unable to cash the checks at the banks, Heard, Haggins and the defendants proceeded to a local jewelry store. Heard and Hill entered the store while Bosby, Ticey and Haggins waited outside in Bosby's cadillac. Heard purchased over $2,800 worth of jewelry and paid for the merchandise with a personalized check drawn on the BTNB account which he had received through the mail. A store clerk that had been sent to the bank to get the check certified discovered that the account contained insufficient funds to cover the check. Heard and Hill left the store with the jewelry just before the employee called from the bank that the check was no good. The police were notified and were provided a description of the persons in the store and the automobile. A few moments later, police located the cadillac and arrested the occupants, Bosby, Ticey and Haggins. Heard and Hill were subsequently arrested.

Following the arrest, law enforcement officials impounded the cadillac and had it towed to a garage. The next day, Detective Street of the Birmingham Police Department conducted an inventory search of the vehicle and uncovered a number of incriminating documents. Three days after the arrest, FBI agents obtained a search warrant for the cadillac and a black briefcase found in the automobile's trunk. The search uncovered various documents from Birmingham and Chicago banks. The documents were later admitted as evidence at trial.

II.

Defendants allege that the search of the automobile and the briefcase found in the trunk of the car violated the Fourth Amendment. Law enforcement officials searched the automobile on two occasions: once to inventory the contents and once pursuant to a warrant. Defendants claim that the inventory search was a pretext for an investigatory search and therefore illegal. Defendants support their contention by noting that the inventory search was conducted by the arresting officer, Detective Street, rather than by a lower echelon police official. Moreover, the search occurred on Detective Street's day off.

Law enforcement officials need not obtain a warrant to conduct a routine inventory search. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Evidence found while conducting an inventory search is admissible. United States v. Fossler, 597 F.2d 478, 482 (5th Cir. 1978). Inventory searches must, however, "be limited to effectuation of the recognized purposes for which they are conducted and they may not be used as a pretext for intrusive investigatory searches that would otherwise be impermissible." United States v. Prescott, 599 F.2d 103, 105 (5th Cir. 1979).

We are unpersuaded that Detective Street conducted the inventory search as a subterfuge for an investigatory search. The record reveals that the Birmingham police had a written policy concerning inventory searches and routinely performed them after impounding a vehicle. Furthermore, testimony indicated that there was nothing particularly unusual about a detective such as Street performing the search. Nor did Detective Street exceed the scope normally permitted for an inventory search. See United States v. Edwards, 577 F.2d 883 (5th Cir.) (en banc), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978). Finally, we agree that Detective Street may well have expected to uncover admissible evidence while conducting the search. Certainly, as the officer-in-charge of the investigation, he was the individual most likely to recognize the importance of particular documents found in the automobile. Nevertheless, the mere expectation of uncovering evidence will not vitiate an otherwise valid inventory search. United States v. Prescott, supra, 599 F.2d at 106.

A more difficult question concerns the search of the briefcase. Shortly after the arrest, Detective Street arrived at the scene and removed the briefcase from the trunk of defendants' automobile. He testified that the briefcase was unlocked and the latches opened. ⁴ He acknowledged opening the briefcase and "glancing" at the contents. ⁵ He also admitted taking the briefcase into his custody and keeping it overnight. ⁶ The briefcase was returned to the defendants' vehicle the following morning prior to the time Detective Street conducted the inventory search.

Independent of the activities by Detective Street, FBI Agent Grenier interviewed Bosby, Haggins and Ticey and, based primarily upon their statements, obtained a warrant to search the briefcase. ⁷ Agent Grenier testified that he was unaware that the briefcase had been opened prior to the execution of his search. Furthermore, although conversing with Detective Street on a number of occasions before conducting the search, the agent stated that he was never provided information concerning the contents of the briefcase. ⁸

Defendants claim that Detective Street conducted an illegal search when he opened the briefcase and viewed the contents. They also assert that the illegal search somehow invalidated the subsequent search conducted by Agent Grenier, thereby rendering the evidence found inside inadmissible.

Fourth Amendment search and seizure law is fraught with uncertainties and difficult distinctions. Thus, we are sympathetic with the problems frequently encountered by law enforcement officials in attempting to discern the precise bounds of the law. In the instant appeal, however, we deal with an unusually clear area of the law. Absent exigent circumstances, closed containers such as a briefcase or pieces of personal luggage even if unlocked cannot be searched absent a warrant. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (luggage); United States v. Kreimes, 649...