Holzhey v. United States, 14948.

• Decision Date: 30 June 1955
• Docket Number: No. 14948.,14948.
• Citation: 223 F.2d 823
• Parties: Georgia Inez HOLZHEY, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Fifth Circuit

223 F.2d 823 (1955)

Georgia Inez HOLZHEY, v. UNITED STATES of America.

No. 14948.

United States Court of Appeals Fifth Circuit.

June 30, 1955.

P. Donald DeHoff, Marie C. Broetzman, Jacksonville, Fla., for appellant.

Thomas A. Larkin, Asst. U. S. Atty., Jacksonville, Fla., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellee.

Before TUTTLE, Circuit Judge, and DAWKINS and SIMPSON, District Judges.

DAWKINS, District Judge.

An indictment charged appellant with receiving and concealing, with intent to convert to her own use, certain property of the United States, "knowing same to have been embezzled and stolen", in violation of 18 U.S.C. § 641. The property in question¹ bore markings and numbers similar to those used on such property by the Department of the Navy at the Jacksonville Naval Air Station and was seized during the search of the residence of Mr. and Mrs. Williams, appellant's son-in-law and daughter. Shortly after the seizure of the property, a signed statement amounting to a confession was taken from appellant at the air station (where she worked), and it was introduced into the evidence at the trial. Appellant's estranged husband, federal agents and civilian employees of the air station testified for the Government, and the jury returned a verdict of guilty. Appellant was sentenced to six months in prison.

By a preliminary motion to suppress and an objection to the introduction of the evidence secured thereby, appellant contended below that the search was violative of the Fourth Amendment. She also objected to the introduction of her statement for the reason that it was obtained by psychological coercion while she was being illegally detained. Finally, she moved for acquittal on the ground that the evidence was insufficient either to establish that the property belonged to the United States and was stolen or embezzled, to prove the value of the property, or to show the required intent. Here she assigns as errors the trial court's adverse rulings on these issues.

The record convinces us that appellant was not being "detained", illegally or otherwise, when her statement was taken and that it was given by her voluntarily in an attempt to explain her possession of the property. The agent merely went to her place of employment, told her the property had been found and asked if she wanted to make a statement. The statement itself discloses that she was informed of her rights as to self-incrimination; and there is no evidence indicating physical or psychological coercion. The statement was properly admitted. However, the objection to the admissibility of the seized property raises a serious question requiring full discussion.

Appellant's motion to suppress the evidence contended primarily that she lived in the premises searched and paid rent to her daughter, and that entry thereto and search thereof without a search warrant and without her consent was not lawful. No action was taken on this motion, the trial court reserving the matter to be passed upon at the trial. When the Government attempted to introduce the evidence, appellant objected for the same reasons and the trial judge allowed a full hearing related to the legality of the search and seizure. The evidence taken during this hearing may be summarized as follows:

Acting upon information received from an investigator at the air station, agents of the Federal Bureau of Investigation called upon Mr. and Mrs. Williams at their place of employment and sought permission to search their residence, which was given by the signing of a written waiver previously prepared by the agents. Accompanied by Mr. and Mrs. Williams, they drove to the residence which they discovered was a garage apartment, with the Williams living quarters upstairs and a garage space of approximately equal area downstairs. At the request of the agents, Mrs. Williams opened the garage doors, and Mr. Williams removed the automobile parked therein. There was an area to the right of the car in which cartons, cabinets and other items were stored, from which the agents obtained the property in question. One of the agents testified that Mrs. Williams had previously told him appellant lived at her residence part of the time, but he thought she was referring to the living quarters upstairs. All of the agents stated they were never told by Mr. or Mrs. Williams that appellant resided in the garage area, that they saw no bed, that they saw nothing to indicate the area was being used as living quarters. There were, however, conflicts in their testimony concerning the physical description and contents of the area.

Appellant testified that she had separated from her husband and lived in the garage area of the Williams residence from that time until her daughter removed to Michigan several months after the search. She said she stayed there every night, sleeping upon an iron bed, or cot, which was in the area on the day of the search, but had her meals out because of the unusual hours her job required her to keep. She described in...