U.S. v. Lyons, 87-1575

• Citation: 898 F.2d 210
• Decision Date: 01 August 1989
• Docket Number: No. 87-1575,87-1575
• Parties: UNITED STATES of America, Appellee, v. James J. LYONS, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 210

898 F.2d 210

58 USLW 2578

UNITED STATES of America, Appellee, v. James J. LYONS, Defendant, Appellant.

No. 87-1575.

United States Court of Appeals, First Circuit.

Heard Aug. 1, 1989.

Decided March 13, 1990.

Bernard Grossberg, for defendant, appellant.

Kenneth P. Madden, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and Margaret E. Curran, Asst. U.S. Atty., Providence, R.I., were on brief, for the U.S.

Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and WOODLOCK, ^* District Judge.

TORRUELLA, Circuit Judge.

James Lyons appeals his conviction on eight counts of an indictment arising from the seizure of large quantities of cash, cocaine, weapons and explosives. Most of these items were removed from two storage compartments. Lyons raises four issues as grounds for reversal: (I) that the insertion of a key into the padlock securing one of the storage compartments was an unreasonable search; (II) that his pretrial stipulation of facts was an unknowing and involuntary waiver of his right to cross examine witnesses; (III) that the court erred in failing to appoint counsel to represent him on his post-conviction motion for a new trial; and (IV) that his sentencing hearing was improper.

We consider his contentions seriatim.

I. The Padlock to Storage Unit # 633

--A--

Lyons was arrested on April 2, 1986, in Seekonk, Massachusetts, by FBI agents pursuant to an arrest warrant issued September 12, 1985, involving drug trafficking charges. At the time of his arrest, the agents seized the Oldsmobile he had been driving and the suitcase he was carrying. A search of his person incident to his arrest yielded a collection of six keys, among which were two standard padlock keys with no distinctive markings. The suitcase was searched later that day pursuant to a search warrant and among the items found was a rental agreement in the name of John North from the E-Z Mini Storage Company in Warwick, Rhode Island, ("E-Z/Warwick") for storage compartment # 792.

On April 2, prior to the search of the suitcase--and apparently by means other than knowledge of the compartment # 792 rental agreement ¹--certain FBI agents made their way to E-Z/Warwick. The proprietor at E-Z/Warwick positively identified Lyons from a photograph "as a person being present on the premises." A review of E-Z/Warwick rental records showed that locker # 633 was rented in the name of Larry Gallo, whom the agents understood through informant information to be an associate of Lyons. Based on this information, the agents inserted one of the keys they had seized from Lyons earlier that day into the padlock securing compartment # 633. The key turned the tumbler; the agents then relocked the padlock without opening the compartment, and left the premises to apply for a search warrant. The compartment itself was opened April 3 when a warrant was obtained. The search of the compartment # 633 yielded a cache of cocaine and weapons.

On April 4, the automobile Lyons had been driving when arrested was searched pursuant to a search warrant and E-Z/Warwick rental documents for storage unit # 633 in the name of Larry Gallo were seized.

--B--

Appellant challenges the insertion of the key into the lock to storage compartment # 633 as a warrantless and unreasonable search. The district court ruled that the insertion of a key into a lock solely for the purposes of identifying ownership, as in this case, did not constitute a search at all. We agree.

"A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) because public exposure vitiates any reasonable expectation of privacy. Certainly, whether trying the key in order to identify the lock's owner was a "search" is a tricky question. But even if it was a search, it was a unique form of one which, as in the case of a sniff by a dog, and is not unreasonable because there is no expectation of privacy involved. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

In United States v. DeBardeleben, 740 F.2d 440 (6th Cir.1984), cert. denied, 469 U.S. 1028, 105 S.Ct. 448, 83 L.Ed.2d 373 (1984), the defendant was arrested for passing counterfeit currency at a shopping mall. Incident to his arrest, a collection of car keys was seized from the defendant. After the mall closed, agents returned to the parking lot and saw three cars. The license plate for one vehicle was not on file. Using the keys seized from the defendant, the agents were able to unlock the passenger door lock and the trunk lock of the vehicle. The agents immediately locked the passenger door without opening it and closed the trunk without examination of its contents. A warrant to search the vehicle was later obtained. The Sixth Circuit, holding that the agents acted reasonably to identify the proper vehicle to search, id., n. 1, p. 443, said:

In the instant case, the insertion of the keys into the Chrysler was merely a minimal intrusion, justified by a 'founded suspicion' and by the legitimate crime investigation. The agent, acting on a reasonable belief that the car belonged to defendant, did not search the Chrysler but merely identified it as belonging to defendant. Defendant by the use of a stolen license plate prevented the agent from using that method of determining ownership.

Id. at 445.

In the instant case, the insertion of the key into the padlock was merely a means of identifying a storage unit to which Lyons had access. Just as the vehicle in DeBardeleben was not registered to that defendant, the storage unit in this case was not leased in Lyons' name. Just as the contents of the vehicle in DeBardeleben were not searched or seized prior to the issuance of the search warrant, neither were the contents of the storage unit searched or seized prior to the issuance of the search warrant.

During the suppression hearing, Lyons testified as follows concerning the storage unit:

Q. Was the area--did that area contain items which were yours?

A. Yes, it did.

Q. Did you expect that that area would be your private area?

A. Yes, I did....

Q. And you wanted to secure what was inside of the bin; is that right?

A. Yes.

Clearly, the padlock was placed on the door to protect the contents of the storage unit. When viewed objectively, it is those contents that are the object of the lessee's privacy expectations, not the padlock. By placing personal effects inside the storage unit, Lyons manifested an expectation that the contents would be free from public view. See United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538 (1976). We conclude that this course of investigation did not constitute a search. United States v. Place, 462 U.S. at 707, 103 S.Ct. at 2644, or at least, not an unreasonable search protected by the Fourth Amendment.

Since we find that the insertion of the key into the padlock was not a search, Lyons argument that the affidavit in support of the search warrant did not establish probable cause because it relied on the allegedly tainted information gathered from the padlock, fails. ²

II. Stipulation of Facts

Prior to trial, on November 25, 1986, Lyons, his counsel, and the Government signed a stipulation of facts and expressly waived his right to trial by jury. Several days later on December 1, 1986, after a lengthy colloquy between Lyons and the trial judge regarding Lyons' understanding of the stipulation and his various waivers, the trial judge found Lyons "thoroughly competent" and his waiver voluntary. After accepting the waiver, the trial judge inquired whether either party wished to be heard further. Neither the government nor Lyons' counsel requested that opportunity and the trial judge found Lyons guilty on all counts. Lyons made no objection at that time. However, on December 19, 1986, he filed a motion for a new trial in which he contended that because his custodial treatment rendered his "brain [ ...] like a marshmallow," his stipulation was not knowing and voluntary.

A review of the colloquy demonstrates that the trial judge made full inquiry concerning the voluntariness of Lyons' choice to submit the case on stipulated facts. This colloquy included (1) a forewarning to the defendant that the court could decide the case on the stipulated facts alone and could find him guilty on that basis and (2) inquiry of defendant's counsel in defendant's presence whether he wished to be heard further. ³

Lyons argues now, however, that the colloquy failed to touch upon the effect of the stipulation on his right to cross examine witnesses and was, therefore, inadequate. He contends that a full blown inquiry under Fed.R.Crim.P. 11(c)(3) was required as a matter of law to determine whether his waiver was voluntary and knowing because his trial by stipulation was equivalent to a plea of guilty. A Rule 11 inquiry is mandated when a defendant by plea does not contest a guilty finding; a court's noncompliance with that mandate can constitute reversible error. McCarthy v. United States, 394 U.S. 459, 471-72, 89 S.Ct. 1166, 1173-74, 22 L.Ed.2d 418 (1969); Mack v. United States, 635 F.2d 20, 24 (1st Cir.1980). ⁴ However, Rule 11 does not by its terms apply to circumstances other than formal pleas of guilty or nolo contendere.

Trial stipulations can run the gamut from modest accommodations designed to avoid unnecessary consumption of time in resolving minor matters over which there is no true contest to agreements which are the functional equivalent of a guilty plea. ⁵ Justice Harlan marked this spectrum as encompassing, on the one hand, an "agreement between ... counsel and the trial court ... involv[ing] no more than a matter...