Leeper v. United States

• Decision Date: 17 August 1971
• Docket Number: No. 536-70.,536-70.
• Citation: 446 F.2d 281
• Parties: Charles F. LEEPER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

446 F.2d 281 (1971)

Charles F. LEEPER, Appellant, v. UNITED STATES of America, Appellee.

No. 536-70.

United States Court of Appeals, Tenth Circuit.

June 30, 1971.

Rehearing Denied August 17, 1971.

Mac Oyler and John Romig Smith, Oklahoma City, Okl., for appellant.

William R. Burkett, U. S. Atty., and John E. Green, Asst. U. S. Atty., Oklahoma City, Okl., for appellee.

Before LEWIS, Chief Judge, and ALDISERT^* and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Charles F. Leeper appeals from the sentences imposed following his conviction by a jury of charges brought under 18 U.S.C. § 472 alleging possession and concealment of counterfeit notes of the United States with intent to defraud, and 18 U.S.C. § 371 alleging conspiracy with Shirley Burghart and Grady Roskam to violate 18 U.S.C. § 472.

Appellant charges error to the trial court in (a) overruling his motion to suppress, (b) overruling his motion for judgment of acquittal relating to the conspiracy charge, and (c) overruling objections made to certain cross-examination.

In reviewing evidence following jury verdict of guilty, we view it in the light most favorable to the prosecution. United States v. Mecham, 422 F.2d 838 (10th Cir. 1970); Lewis v. United States, 420 F.2d 1089 (10th Cir. 1970).

Leeper and Shirley Burghart arrived at the home rented by one Ruth Kidd in Carnegie, Oklahoma during the early morning of May 3, 1970. Kidd, recently divorced, lived there with her two small children. She had been receiving Aid to Dependent Children since January, 1970, as her sole source of income. One Fred K. Schupbach, her boyfriend, who was then serving at nearby Fort Sill, was in the home with Kidd when Leeper and Burghart arrived. Kidd had known Shirley Burghart previously. Leeper and Burghart displayed to Kidd and Schupbach a suitcase containing approximately $70,000.00 in counterfeit $100 bills. Kidd was solicited by Burghart and Leeper to help pass the money. Schupbach obtained one of the counterfeit $100 notes. The next day he delivered the counterfeit note to Mickey Miller of the United States Secret Service. He informed Miller of that which occurred in the Kidd residence. Leeper, Burghart and one Grady Roskam took Kidd with them on a trip May 4, 1970 to Lawton and Cache, Oklahoma. Leeper placed several of the $100 counterfeit bills in a white envelope and left the group to sell the bills to a man in Lawton. At Cache, Kidd and Burghart entered a grocery store where Burghart passed a counterfeit $100 bill in the purchase of about $9 worth of groceries. She gave Leeper the change. Later, Leeper and Burghart informed Kidd that they had sold some of the counterfeit bills in Lawton. At about midnight the group arrived back at the Kidd residence in Carnegie. Schupbach was there upon their arrival. He informed Kidd that he had contacted the Secret Service. When Kidd and Schupbach left the residence to take the baby-sitter home, they telephoned Agent Miller. Kidd informed Miller that the three suspects were then at her home. She related to Miller that which had transpired that day at Lawton and Cache. She informed him that about $10,000.00 in counterfeit $100 bills were in her home at that time. She voluntarily granted consent to search her home for the counterfeit bills, without knowledge of the fact that Agent Miller had obtained a search warrant.

Miller and other officers arrived at the Kidd residence at about 3:30 o'clock a. m. on May 5, 1970. Miller served the search warrant on Ruth Kidd and the officers proceeded to search the residence for counterfeit bills. The warrant authorized night time search. Some $9,700.00 of the counterfeit $100 bills had been placed in a box in the bathroom by Burghart and Kidd. Kidd directed the agents to the box in their search.

Leeper was an invitee while in the Kidd residence. Kidd voluntarily granted consent to the search during her conversation with Agent Miller. Kidd had assisted Burghart in placing some $9,700.00 of the counterfeit $100 bills in a particular box which they in turn placed in the bathroom. Following the officers' entrance for search, Kidd directed them to the box. The bathroom was a communal area of the residence. Leeper was lawfully on the premises as an invitee, and as such he did qualify as a "person aggrieved" under Rule 41 (e) of the Federal Rules of Criminal Procedure to challenge the legality of the search and seizure. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Villano v. United States, 310 F.2d 680 (10th Cir. 1962). In these and many other cases where the rule in Jones, supra, was applied, it was determined that no effective consent to a search had been granted. It has been held that one having occasional use of the premises, including a child, has no Fourth Amendment standing to object to a search with consent granted by the parent or owner or landlord. Rees v. Peyton, 341 F.2d 859 (4th Cir. 1965). To the same effect, it has been held that consent granted by a wife is binding upon her husband. Roberts v. United States, 332 F.2d 892 (8th Cir. 1964), cert. denied 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965). There are diverse rulings on the issue of the effectiveness of a search based upon consent granted by one other than the accused. We hold that in this case the consent granted by Ruth Kidd, lessee of the searched premises, was effective as to Leeper. One who has possession and control of the articles seized or the premises on which they were found may consent to a search which produces evidence incriminating someone else. United States v. Sferas, 210 F.2d 69 (7th Cir. 1954), cert. denied Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086 (1954); United States v. Eldridge, 302 F.2d 463 (4th Cir. 1962). Kidd knew, or should have known, after speaking with Schupbach and before placing the call to Agent Miller granting consent to search, that she could be in legal jeopardy. Kidd had testified that when she phoned Agent Miller she told him that Burghart, Leeper and Roskam were then at her home and that approximately $10,000.00 in $100 counterfeit bills were in the home. She volunteered permission for search of the residence. On cross-examination she acknowledged that she placed the call to Miller and volunteered the search in order to avoid the risk of prosecution. Agent Miller testified that when he and other law enforcement officers entered the Kidd home they did so pursuant to the search warrant and the consent to search granted by Kidd. The record does not indicate that Agent Miller informed Kidd that he had no right to search the residence without a warrant. We do not deem such warnings necessary under the circumstances of this case. Some courts have held that no such warnings are required in any event. United States v. Goosbey, 419 F.2d 818 (6th Cir. 1970); United States ex rel. Combs v. LaVallee, 417 F.2d 523 (2d Cir. 1969), cert. denied 397 U.S. 1002, 90 S.Ct. 1150, 25 L.Ed.2d 413 (1970); Gorman v. United States, 380 F.2d 158 (1st Cir. 1967). Here, Kidd's consential search was granted voluntarily, freely and without duress or coercion. Wren v. United States, 352 F.2d 617 (10th Cir. 1965). Leeper argues, however, that Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), prohibits reliance by the prosecution upon the consent granted by Kidd for the search, in light of the fact that Agent Miller claimed authority to search under the warrant. However, in the Bumper case consent was granted after service of the search warrant. The court found that, under those circumstances, consent was coerced. In the case at bar, Kidd granted consent to search voluntarily and without prior knowledge of the fact that Miller had obtained a search warrant.

Leeper attacks the validity of the search warrant. In addition to the validity of the search predicated upon the consent granted by Kidd, we hold that the search was valid under the authority of the warrant.

Agent Miller contacted Fred Schupbach on May 4, 1970. At that time Schupbach handed Miller the counterfeit $100 bill which he had taken from Burghart's suitcase in the Kidd residence. Miller, an expert, examined this note and found it to be counterfeit. Thereafter, Miller took a sworn statement from Schupbach relating to remarks made in the Kidd residence on May 3, 1970 by Leeper and Burghart, concerning the counterfeit notes, including the wishes expressed by them that Kidd help them pass some of the notes the following day. Schupbach's affidavit further related that Leeper displayed a suitcase containing approximately $70,000.00 of counterfeit $100 bills. Leeper laid out a plan for Burghart and Kidd to go to Oklahoma City the following day, rent a car and pass some of the counterfeit notes in Lawton and south into Texas. Miller presented the $100 counterfeit note and Schupbach's sworn statement to Commissioner Cocke on the afternoon of May 4, 1970. Miller had conducted an independent investigation of Schupbach's reliability with his Fort Sill superiors after receiving the bill and determining that it was counterfeit. Miller also traveled with Schupbach to Carnegie where he observed the Kidd residence. Miller spent approximately one and one-half hours with Commissioner Cocke before the search warrant was issued. When Commissioner Cocke was asked upon what grounds he issued the search warrant, he responded that he did so upon the sworn statements of Miller and Schupbach together with conversations had with Miller. Commissioner Cocke testified that he quizzed Agent Miller thoroughly both about the Schupbach statement and "the whole matter". These conversations were not recorded or reduced to writing. Miller's affidavit filed with the Commissioner for search warrant reads:

"Before J. Roy Cocke, 606 `D\' Avenue, Lawton, Oklahoma:

The undersigned being duly sworn deposes and says:

That he is positive that on the premises known as, a one (1) story white block house,

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