Lockett v. United States

• Decision Date: 05 March 1968
• Docket Number: No. 21276.,21276.
• Citation: 390 F.2d 168
• Parties: Kenneth C. LOCKETT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

390 F.2d 168 (1968)

Kenneth C. LOCKETT, Appellant, v. UNITED STATES of America, Appellee.

No. 21276.

United States Court of Appeals Ninth Circuit.

January 3, 1968.

Rehearing Denied March 5, 1968.

Roger M. Schrimp (argued), Modesto, Cal., Kenneth C. Lockett, Steilacoom, Wash., for appellant.

Cecil F. Poole, U. S. Atty., James J. Simonelli, Special Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, POPE and MERRILL, Circuit Judges.

POPE, Circuit Judge.

In October, 1965, at a place called Drytown, Amador County, California, east of Sacramento, there was located a general store which housed a country post office. The portion devoted to the post office was in one corner of the store and at that place held stamps, post office forms, including money order forms, post office cash, and post office paraphernalia. The money order forms were kept in a cigar box in a safe.

In the early morning of October 10, 1965, a deputy sheriff of the county, accompanied by a Jackson City police officer, discovered that the door of the store had been opened and left ajar and on entering the building they discovered that the safe in the post office section had been opened and money and other articles taken from it. The cigar box and the postal money order forms were gone. Missing were 99 money orders bearing certain serial numbers and a seal or stamp used in issuing money orders.

Three days later, on October 13, 1965, the appellant and one Ehrig were arrested in Huntington Park, near Los Angeles, while attempting to cash one of the money orders which had disappeared from the Drytown Post Office. United States postal inspectors were notified of the arrest and Postal Inspector Petersen went to the Huntington Park police station to interrogate both men. Ehrig talked, but the appellant asserted that he had nothing to say. While Petersen was interrogating both men, Lockett said to Ehrig: "Don't you worry about it. If it gets to that point, I did it and they can stick me. If it gets to that point I did it so don't worry about it." At that time Inspector Petersen, who had with him some other postal inspectors, was inquiring particularly about the location of the material which had been taken from the post office in an endeavor to recover the stolen money orders. Ehrig had confessed to the burglary and had implicated Lockett. He told how after the burglary they had driven to the San Francisco Airport in Lockett's car and parked it at the Airport parking lot. He told where the car was located and described it and stated that it contained some of the material taken from the post office. After the car had been thus parked, the two men flew to Los Angeles. They had succeeded in cashing a forged money order, one of the forms which had been stolen, and were attempting to cash a second one when the store manager with whom they were negotiating became suspicious and called the police and their arrest followed.

In his testimony Inspector Petersen said that he telephoned Postal Inspector Morbello at San Francisco asking him to locate the automobile. Inspector Morbello sent some one to locate the automobile, who found it where Ehrig had said it would be found; he took the license number and then, through inquiries at Sacramento, discovered that the car was registered in the name of Lockett at a Sacramento address. This occurred on October 14, the day following the arrest. Ehrig had revealed that some of the remaining money orders and other items stolen at the post office were in this car.

The appellant had been living with his mother and stepfather at the Sacramento address mentioned and in the course of the investigation concerning the car the postal inspector at Sacramento telephoned to the appellant's mother. Shortly thereafter the appellant's stepfather called Inspector Morbello at San Francisco and advised him that he was a state probation officer of Sacramento County; that he did not want contraband in the car and offered to go to San Francisco to open the car. The stepfather had a duplicate set of car keys which had been left by the appellant at his home. The "legal owner" of the car was a bank which had loaned the money to purchase the vehicle and the stepfather was a co-signer upon the note to the bank. The stepfather did not testify and it is not entirely clear whether the stepfather's offer to open the car was prompted by his desire to avoid embarrassment because of his position as a probation officer or whether it was prompted by his desire to avoid loss to him as a co-signer which might have occurred if the car were forfeited because of its contraband contents. In describing what the stepfather said when he telephoned Inspector Morbello, the latter quoted him as saying: "He didn't want anything that might be contraband in the car." At any rate, Mr. Mervine, the stepfather, as promised, reached the Airport on the same day and used his duplicate set of keys to open the car. Before the car was opened, and while it was still locked, the inspector could observe a pile of clothes on the back seat which Inspector Petersen had told him would be found there, and on the front seat or in front of the front seat was a cigar box plainly visible from the outside.

In the car the officers found that the cigar box was empty, but under the front seat there were 57 forms for money orders and a stamp provided for use in issuing the money orders. The stamp carried on its face the words: "Sutter Creek Calif Drytown Cub Sta USPO." (The Drytown office was a substation of Sutter Creek.) Also found in the car were some tools which Ehrig said had been taken along for use in opening the safe.

During the testimony of Inspector Morbello he testified that he searched the vehicle after it had been opened by the stepfather and he was asked to describe what he found in the car and what he recovered. The defense objected on the ground that there was no foundation for such a search; that he did not have the permission of the owner of the car, Lockett, to make such a search and objected to any evidence or testimony concerning the contents of the vehicle on the grounds that it was an unlawful search; and that the stepfather, notwithstanding he had been a co-signer on the note to the bank, had no authority to open the car or permit entry therein, or the search. The objection was overruled and Inspector Morbello proceeded to answer the inquiry as to what he found in the locked vehicle and to describe the 57 money order forms, identifiable by number, as having been assigned to the Drytown station and lost through the burglary. The court then admitted a photograph of the contents which were thus recovered by the inspector and the photograph was received in evidence. (Incidentally, when the photograph was offered counsel for the defense stated: "No objection, Your Honor.") The specification of error made by the appellant was as follows: "The trial court erred in overruling the objection of Appellant to testimony of Postal Inspector Morbello concerning his warrantless search of Appellant's automobile and to the introduction of evidence seized during Inspector Morbello's search."

Without considering what was the effect of defendant's statement that there was no objection to the introduction of the photograph of the materials found in the vehicle, we think it plain that the trial court was clearly right in ruling that Inspector Morbello could properly testify as to the materials and items found in the locked car belonging to Lockett.

As authority for that conclusion we need only refer to §§ 781 to 784 of Title 49 U.S.C. and Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730. Section 781 defines contraband articles as follows:

"(a) It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any * * vehicle, * * *; (2) to conceal or possess any contraband article in or upon any * * * vehicle * * * or upon the person of anyone in or upon any * * vehicle * * *; or (3) to use any * * * vehicle * * * to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.

(b) As used in this section, the term `contraband article' means —

(1) * * *

(2) * * *

(3) Any falsely made, forged, altered, or counterfeit coin or obligation or other security of the United States or of any foreign government; or any material or apparatus, or paraphernalia fitted or intended to be used, or which shall have been used, in the making of any such falsely made, forged, altered, or counterfeit coin or obligation or other security." (Emphasis ours.)

It is plain that the postal money orders thus found in the Lockett vehicle, together with the stamp described above, were fitted to be used in making forged or counterfeit obligations of the United States. (This is precisely what Lockett and Ehrig did when they cashed the first of the money orders which they had filled out.)¹ They were contraband within the meaning of Title 49 § 781 (b) (3), supra. And because of what Ehrig had told them, the officers knew before it was opened that the car contained contraband.

It is plain from the record that when Morbello and the other officers searched the car they had physical possession of it. Without that possession search would have been impossible. Thus, it cannot be questioned but that at that moment the vehicle had been "seized" within the meaning of Title 49 § 782. That it was rightfully seized is crystal clear for Morbello and the others knew absolutely that it had been used to transport contraband from Drytown as Lockett and Ehrig fled from Drytown to San Francisco with their booty enroute to the Los Angeles area. This knowledge was positive for, as noted above, Ehrig had made a full confession to Inspector Petersen and this information had been passed on to Morbello by Petersen. The testimony was as follows: "Q. Did he...