Friedman v. United States

• Decision Date: 09 August 1967
• Docket Number: No. 18617.,18617.
• Citation: 381 F.2d 155
• Parties: Joseph FRIEDMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

381 F.2d 155 (1967)

Joseph FRIEDMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 18617.

United States Court of Appeals Eighth Circuit.

August 9, 1967.

Bernard J. Mellman, St. Louis, Mo., made argument for appellant; Morris A. Shenker and William H. Mathis, St. Louis, Mo., filed brief.

Stephen H. Gilmore, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee; Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., was with him on the brief.

Before VOGEL, Chief Judge, VAN OOSTERHOUT and HEANEY, Circuit Judges.

VOGEL, Chief Judge.

Defendant-appellant, Joseph Friedman, was charged by grand jury indictment with having violated 18 U.S.C.A. § 659.¹ Subsequent to indictment and prior to trial appellant moved to suppress certain evidence. After a hearing, the motion was overruled. Thereafter appellant was tried and convicted before a jury and sentenced to four years' imprisonment. This appeal followed.

It is here claimed that error arises from (1) the overruling of appellant's motion to suppress evidence; (2) prejudicial comment made by the prosecutor in the closing argument; and (3) the giving of a prejudicial jury instruction on the meaning of "reasonable doubt." We affirm.

Appellant, Joseph Friedman, was at all times herein relevant an employee of his brother, Louis Friedman, who, so far as the record shows, owns and manages the El-Jay Wholesale Company in St. Louis, Missouri. Appellant has been closely associated with his brother in this business enterprise for many years. He does not occupy the normal employee relationship for he works hours that are convenient to him. Besides appellant and his brother one other person, Sam Wilks, works at the El-Jay Wholesale Company. The El-Jay Wholesale Company sells canned and packaged grocery items, generally in minor quantities to small merchants but it also does some retail business. The physical premises of the company are a single store building divided into two rooms, the front room being the main public store area and the back room a closed storage area. In the public area, merchandise is displayed in the packing cartons, some opened and some sealed, which are stacked from the floor or from tables. There is one front entrance to the store, near to which is a check-out counter presided over by Louis Friedman.

A truckload of soap products which had been stolen from the J. M. Donley Truck Line while in interstate commerce was delivered at the El-Jay Wholesale Company on May 21, 1966, where it was unloaded by the appellant, Joseph Friedman, one Billy Wayne Hopper — the person who had stolen the truck — two of his helpers, and Sam Wilks. Although there is a conflict in the evidence as to the involvement of appellant, the jury evidently believed Hopper, who testified that Joseph Friedman had instructed him as to the location of the truck, where to find the keys and where to deliver the stolen merchandise. Both appellant and his brother, Louis Friedman, were at the store when the stolen soap products were unloaded. Total payment of about $1,000 was given to Hopper for soap products valued at approximately $5,000. This was paid to him at different times and in varied amounts by both the appellant and his brother, Louis.

Subsequently, on May 26, 1966, Bernard J. Welsh, Special Agent, Federal Bureau of Investigation, went to the El-Jay Wholesale Company for the purpose of investigating the May 21st theft of soap products. He arrived at the store at about 11:00 o'clock a. m. and asked to see Louis Friedman. Agent Welsh did not have a warrant for arrest nor a search warrant. After Louis Friedman identified himself, Agent Welsh told him that he had information that certain soap stolen from the J. M. Donley Truck Line might be in his store. He told Louis Friedman that he had the right to remain silent, that anything he said could be used against him in a court of law, that he had the right to speak to an attorney or anyone else he chose, and that if any stolen soap was found it would be used as evidence in court. Louis Friedman told Welsh that he was welcome to look around the store, that "he had nothing to hide"; whereupon Agent Welsh discovered six cartons of soap in the front public part of the store which had serial numbers corresponding with those stolen on May 21st. Welsh then told Louis Friedman that he would like to look in the back room of the store. Louis informed him that he could look there, but that the door into the back room was locked, and that his brother Joseph, who had the key, was not at the store. Louis then telephoned appellant, Joseph Friedman, who, bringing the key, arrived at the store shortly after 11:30 a. m. Agent Welsh again fully identified himself, and told appellant that he had found stolen soap in the public area of the store and wanted to search the closed rear area of the store. He advised Joseph Friedman of his rights in the same manner as he had advised Louis Friedman, and added further that he had no search warrant and no right to search the rear area "without his brother's permission". After being so informed and advised, Joseph telephoned his cousin, an attorney, who instructed Joseph to open the back storage room door and relinquish any merchandise that did not belong to him. Joseph then voluntarily opened the door and Agent Welsh went into the back room, wherein he discovered cartons of soap with serial numbers corresponding to those stolen on May 21st. Agent Welsh then telephoned his headquarters, requesting that other agents come and help in the removal of the soap. Special Agent Johnson came out to the store pursuant to this request, arriving there at approximately 11:55 a. m.; whereupon he asked the Friedmans whether they had been advised of their constitutional rights. They replied that they had been so advised and that they had talked to "their attorney, a cousin".

At least 384 cases of soap were found at the store. All except 6 cases were found in the rear storage room. Although Louis Friedman, who at the time of the search indicated that he was the sole owner of the store, orally consented to the search and removal of the soap, he, on recommendation of his attorney, did not sign any written consent to the search or removal. At no time was a warrant applied for or obtained for a search of the premises from which the soap was seized.

I. Motion to suppress evidence. Appellant first claims that the trial court erred in overruling his motion to suppress evidence. His position is that the search and seizure yielding the soap introduced into evidence was conducted without first advising appellant of his personal right to refuse a warrantless search. He argues that if it is not shown that appellant knew of his right to refuse a warrantless search, any "consent" given by appellant does not constitute a waiver of his Fourth Amendment rights. The general effect of consent to a warrantless search was recently considered by this court in Drummond v. United States, 8 Cir., 1965, 350 F.2d 983, at page 988, certiorari denied, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542, where we stated:

"* * * The protection afforded by the Fourth Amendment with respect to a search of one\'s house may, of course, be waived by a consent freely and intelligently given. Whether such consent exists is usually a question which is `simply one of fact for the trier\'s determination\'. Burge v. United States, 332 F.2d 171, 173 (8 Cir. 1964), cert. denied 379 U.S. 883, 85 S.Ct. 155, 13 L.Ed.2d 89. If the finding is in the affirmative and is supported by substantial evidence, it is not our privilege on appeal to revise it. Maxwell v. Stephens, 348 F.2d 325, 336 (8 Cir. 1965); Burge v. United States, supra, p. 173 of 332 F.2d; Burnside v. State of Nebraska, 346 F.2d 88, 90 (8 Cir. 1965)."

Although, as shown in the factual recital above, there is substantial evidence showing that appellant knowingly consented to a warrantless search, on appeal there is an attempt to invalidate this consent by the claim that the F.B.I. agent failed to make the appellant aware of his personal right to refuse a warrantless search of the premises occupied by El-Jay Wholesale Company. Appellant at no time disputes the fact that his brother, Louis Friedman, received a full and adequate warning concerning his constitutional rights, including the right to refuse a warrantless search and that thereafter he consented to the search of which appellant herein complains. Appellant also admits that before opening the back room he called his attorney for advice and was told to "cooperate" with the F.B.I. and that, "If they want to take it with them, let them take it." Nor does appellant dispute the fact that Louis Friedman was the owner of and at all times in general control of the premises which were searched and which yielded the incriminating evidence. In light of these undisputed facts, the fatal defect in appellant's argument is his erroneous assumption that his consent as well as that of his brother, Louis Friedman, was necessary to validate a warrantless search. It is well established that one exercising full or substantial control over premises may consent to a search and the evidence seized is admissible against third persons not party to the search proceedings. In United States v. Sferas, 7 Cir., 1954, 210 F.2d 69, certiorari denied, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086, the court stated at page 74 of 210 F.2d:

"* * * the rule seems to be well established that where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either. Driskill v. United States, 9 Cir., 281 F. 146; Stein v. United States, 9 Cir., 166 F.2d 851; * * *."

See, also, Drummond v. United States, supra, 350 F.2d at 989; Maxwell v. Stephens, 8 Cir., 1965, 348 F.2d 325, 336-337; Roberts v. United States, 8 Cir., 1964, 332 F.2d 892, 896. The instant case is stronger than any of the...