U.S. v. Davies

Decision Date29 August 1985
Docket NumberNo. 84-1239,84-1239
Citation768 F.2d 893
Parties18 Fed. R. Evid. Serv. 353 UNITED STATES of America, Plaintiff-Appellee, v. Patricia DAVIES and Martin Kaprelian, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Frederick F. Cohn, Chicago, Ill., for plaintiff-appellee.

James M. Conway, Asst. U.S. Atty., Chicago, Ill., for defendants-appellants.

Before BAUER, ESCHBACH, Circuit Judges, and FAIRCHILD, Senior Judge.

BAUER, Circuit Judge.

Martin Kaprelian, Patricia Davies, and William Burke were indicted for conspiring to transport stolen merchandise in interstate commerce, and concealing and storing stolen merchandise moved in interstate commerce, in violation of 18 U.S.C. Secs. 2314 & 2315. Two days before trial Davies entered a conditional plea of guilty but reserved an appeal on a pre-trial motion to suppress. A jury convicted Kaprelian on all three counts of the indictment and acquitted Burke. On January 18, 1985, this court dismissed Davies's appeal on the government's motion and without objection from Davies, as the brief on appeal has raised no issue regarding the suppression motion which Davies reserved for appeal. After a consideration of each issue raised by Kaprelian on appeal, we affirm his conviction.

I

On August 25, 1982, at approximately 6:00 p.m., Richard Romero, a manufacturer's representative for the Star of Africa Jewelry Company, drove his red Cadillac to a Standard Oil gasoline station in LaCrescent, Minnesota. He had approximately $70,000 in jewelry in two sample cases locked in the trunk of his car. Romero got out of the car, filled his tank at a self-service pump, and went to pay for the gasoline, leaving the keys in the ignition of the car.

While Romero was paying for the gasoline, a man came across the street from a Burger Chef restaurant and drove the Cadillac away. Jo-Ann Koeller was at the Burger Chef at this time and testified that she saw a medium brown car parked near her car. A man standing next to the brown car walked rapidly across the street and took off in Romero's Cadillac. About a half-hour later, Sue Kline was in Pettibone Park in LaCrosse, Wisconsin, 1 when a red Cadillac pulled into the park and a man got out and opened the trunk. Several minutes later, a brown Buick pulled up next to the Cadillac and the drivers of both cars placed two suitcases from the Cadillac into the trunk of the Buick. As both cars drove away, Kline wrote down the license number of the Buick. As she left the park later, she saw the Cadillac parked about five blocks away and gave the license number of the Buick to the police. About the same time that evening, Deborah Vogl also was in Pettibone Park and observed the two cars stop and the driver of the Cadillac get into the Buick. The Buick then left, leaving the unattended Cadillac behind.

At 6:40 p.m., Officer Dave Hanson of the LaCrosse Police Department stopped the Buick a half-mile from the park. Davies was the driver and sole occupant of the Buick, which had the same license number which Kline gave to the police later that evening. After several minutes of conversation with Hanson, Davies returned to the car and drove off. Six hours later, Davies was spotted in the same Buick on the northwest side of Chicago.

Based upon investigative information from other jewel thefts linking Davies and Kaprelian, the Federal Bureau of Investigation on August 26 placed Kaprelian's last known address in Chicago under surveillance and searched the neighborhood for the brown Buick, which they did not find. While F.B.I. agents were watching the house, a teenaged girl left the house and rode off on a bicycle. The agents followed her in their car for several blocks and eventually pulled her to the side of the street by honking the car's horn. The agents identified themselves to her and asked if they could question her. She reluctantly stated that Kaprelian was her father and that Davies was his girlfriend, with whom he was living. She also reluctantly gave them a phone number at Davies's address which her father had given her. Based on this information, the F.B.I. began a surveillance of Davies's apartment.

The F.B.I. then placed Davies's apartment in Harwood Heights, Illinois, under surveillance, and observed Davies and Kaprelian the following afternoon enter one of the apartments, which was leased in the name of Helen Benson, one of Davies's known aliases. Fifteen minutes later Davies left carrying a tote bag and another small bag. She took an elevator to the garage of the apartment building and drove a yellow Oldsmobile out of the garage and parked it in front of the building. As Davies walked to the front door of the building, one of the agents watching the building arrested Davies.

In the ensuing search of the Oldsmobile, the agents found the bags that Davies was seen carrying. Inside the bags, the agents found most of the jewelry still in the original packages and display cases. Also found were a computer printout and business labels that Romero had reported stolen along with the jewelry. Kaprelian's fingerprints were identified on one of the jewelry packages, the computer printout, and a folder which contained the printout.

During Davies's arrest, two other agents were watching Davies's apartment and saw Kaprelian leave it. The agents stopped Kaprelian, identified themselves, conducted a pat-down search, and questioned him about his presence in Davies's apartment. When shown a picture of Davies, Kaprelian denied knowing who she was, even though he in fact had known her for nearly six years. Kaprelian asked to leave and was released twenty-five minutes later.

On August 27, F.B.I. agents found the brown Buick in the basement of Davies's apartment building in a stall rented to Davies under the name of Helen Benson. Inside the car was a LaCrosse, Wisconsin, newspaper dated August 25 and a road atlas opened to Wisconsin. The license plates on the car were different from those it had on August 25, the new plates having been issued on an application filed with the Illinois Secretary of State on August 26 or 27. Pursuant to a search warrant, the agents then searched Davies's apartment and found more of the stolen jewelry, some items containing Kaprelian's name, and a receipt for the new license plates.

II. PARENT-CHILD PRIVILEGE

Kaprelian's first claim of error is that the stop by the investigating agents of Kaprelian's daughter was a violation of the fourth amendment and that the telephone number which they received from her and the other evidence obtained through use of the phone number should be suppressed as a violation of a purported parent-child privilege. Kaprelian argues that because he had given the telephone number to his daughter, who apparently was living with his estranged wife, in confidence and for emergency use, the agent's coercion of that number from his daughter is inadmissible evidence and that all evidence obtained through that number, principally Davies's address, also should be suppressed as tainted evidence.

We find several errors in this argument. First, to the extent that the agents' conduct can be construed as a violation of the daughter's constitutional rights against unlawful seizures under the fourth amendment, which issue we need not decide, they are rights assertable by her alone and not by the defendant. A defendant "may not obtain exclusion of evidence on ground that someone else's rights were violated." United States v. Williams, 737 F.2d 594, 616 (7th Cir.1984). See also United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980). Kaprelian therefore cannot exclude the telephone number or the ensuing evidence on the basis of a violation of his daughter's fourth amendment rights, even if we were to find that such a violation had occurred.

Kaprelian next argues that the evidence should be excluded on the ground that it was obtained in violation of a purported parent-child privilege. Kaprelian claims that the parent-child privilege resembles the marital privilege, the attorney-client privilege, and the confessor-penitent privilege. Although he does not expressly rely on it, we assume that Rule 501 of the Federal Rules of Evidence is the basis for any parent-child privilege.

Rule 501 provides that in a criminal action the availability of any privilege is "governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience." FED.R.EVID. 501. Based upon reason and experience, the courts consistently have recognized, as Kaprelian points out, the marital privilege, the attorney-client privilege, the confessor-penitent privilege, and the doctor-patient privilege, although the precise boundaries of the privileges constantly are being debated and redefined. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (rejecting "control group" test for attorney-client privilege in corporate context as too narrow); United States v. Byrd, 750 F.2d 585 (7th Cir.1984) (holding that spousal testimonial privilege not assertable where the allegedly privileged communications occurred during a long-term separation). Thus the existence of a parent-child privilege must be determined upon a reading of the principles of common law.

Privileged communications are recognized by the courts "to protect those interpersonal relationships which are highly valued by society and peculiarly vulnerable to deterioration should their necessary component of privacy be continually disregarded by courts of law." United States v. Byrd, 750 F.2d at 589. Kaprelian argues on the facts of this case, that the F.B.I. agents, by questioning his daughter regarding his whereabouts, violated his familial privacy. This questioning, Kaprelian argues, resulted in "a statist intrusion into the most cherished of human...

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