Barnes v. United States, 23340.

Decision Date21 February 1967
Docket NumberNo. 23340.,23340.
Citation373 F.2d 517
PartiesHarry S. BARNES, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Nathaniel L. Barone, Jr., Miami, Fla., for appellant.

James W. Matthews, Alfred E. Sapp, Asst. U. S. Atty., William A. Meadows, Jr., U. S. Atty., Miami, Fla., for appellee.

Before MARIS,* BROWN and THORNBERRY, Circuit Judges.

PER CURIAM.

Appellant Barnes was convicted of having caused to be transported in interstate commerce a forged and falsely made bank check in violation of 18 U.S.C. § 2314.1 By this appeal, appellant asserts that his conviction was the result of evidence gained through an illegal search in violation of the fourth amendment to the federal Constitution. The search of which appellant complains, however, was made by a private citizen — the owner of a motel in which appellant stayed overnight and in which he left behind a travel case containing the evidence complained of. The search was made on the motel owner's own initiative. Because of it, he became suspicious, called the local police, informed them of the bag's contents,2 and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a private citizen. Rather, the amendment only proscribes governmental action. Burdeau v. McDowell, 1921, 256 U.S. 465, 41 S.Ct. 574, 65 L. Ed. 1048; McLindon v. United States, 1964, 117 U.S.App.D.C. 283, 329 F.2d 238. Clearly the search complained of here did not involve governmental action and was therefore not illegal within the meaning of the fourth amendment.3

Appellant also complains of the admission of parts of his written confession and of testimony concerning an alleged telephone conversation between himself and the motel owner, and of the failure of the district court to grant his motion for acquittal. Having concluded that these contentions are likewise without merit, we affirm.

* Of the Third Circuit, sitting by designation.

1 Section 2314 reads in pertinent part:

Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered, or counterfeited * * * Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

2 The travel bag contained, among other items, five checks made out to Harry S. Barnes, each in the amount of $65 and with identical serial numbers, a rubber stamp for fixing Barnes' name to checks, and numerous blank checks.

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    ...United States v. Lamar, 5 Cir., 1977, 545 F.2d 488, 489-90; United States v. Jones, 5 Cir., 1972, 457 F.2d 697, 699; Barnes v. United States, 5 Cir., 1967, 373 F.2d 517, 518. However, if under the circumstances of the case the private party "acted as an 'instrument' or 'agent' of the govern......
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    ...States v. Goldberg, 330 F.2d 30, 35 (3d Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964); Barnes v. United States, 373 F.2d 517, 518 (5th Cir. 1967). See note 40, infra.40 See United States v. Parish, 152 U.S.App.D.C. 72, 81 & n. 61-62, 468 F.2d 1129, 1138 & n. 61-62 ......
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