U.S. v. Alewelt

• Decision Date: 08 April 1976
• Docket Number: No. 75-1565,75-1565
• Citation: 532 F.2d 1165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George H. ALEWELT, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1165

532 F.2d 1165

UNITED STATES of America, Plaintiff-Appellee, v. George H. ALEWELT, Jr., Defendant-Appellant.

No. 75-1565.

United States Court of Appeals, Seventh Circuit.

April 8, 1976.

Michael J. Costello, Springfield, Ill., for defendant-appellant.

Donald B. Makay, U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Before TONE and BAUER, Circuit Judges, and HOFFMAN, Senior District Judge. ^*

JULIUS J. HOFFMAN, Senior District Judge.

This is an appeal from a judgment of conviction for bank robbery and assault, in violation of 18 U.S.C. § 2113(d). At issue is the defendant's standing to challenge the legality of a search and seizure, the validity of a subpoena duces tecum issued by a federal grand jury, and the sufficiency of the evidence introduced at trial.

On November 26, 1974, agents of the FBI received information that a man fitting the description of the defendant, and wearing a brown leather Air Force-type jacket, white cloth cap and metal framed, reflective sunglasses, entered the First State Bank of Springfield, Illinois, pushed a teller to the floor, and fled with $1150.00 in cash. Following a preliminary investigation at the bank, the FBI proceeded to interview the defendant, and his mother, who was employed by the Illinois Department of Public Health, and whose office was located near the scene of the robbery, on the second floor of the same office building in which the FBI had its office.

Mrs. Alewelt was questioned about a pair of sunglasses in her possession which presumably belonged to her son, and were similar to those worn by the robber. When she refused to surrender the sunglasses to the FBI she was served with a subpoena duces tecum by a federal grand jury commanding their production. After Mrs. Alewelt's appearance before the grand jury, where she testified that on the day of the robbery her son had given her the sunglasses, in her office, the government took possession of the sunglasses.

Also on the day of the robbery, at about 5:30 p.m., FBI agents returned to the office of the Illinois Department of Public Health. The door was standing open, as was the door of the office across the hall, and the lights were on. The Department of Public Health office consisted of a large open area with numerous desks and partitioned offices around the outer perimeter. One of the agents testified that the janitor was present and said it would be "all right" to enter the office and search the trash in the area occupied by defendant's mother. Just inside the open door was a coat rack, which could be observed from the doorway, without actually "going past" the doorway, as one of the agents put it. The agents did not in fact observe it, however, until they had entered the office. They walked through the open door and after entering saw on the coat rack a brown leather Air Force-type jacket. In the jacket pocket, and apparently clearly visible, were a white cloth cap and several bundles of money in wrappers. Without removing the contents of the pocket, an agent took possession of the jacket and brought it to the FBI office.

George H. Alewelt, Jr. was subsequently indicted for the bank robbery. On February 19, 1975, he moved to suppress the brown leather jacket, all the items contained therein, and the sunglasses, urging the illegality of the search of his mother's office and the seizure of the jacket, as well as the invalidity of the subpoena duces tecum issued by the grand jury which ordered the production of the sunglasses.

The district court denied the motion, stating that although the entry by the FBI agents into the State offices constituted a trespass, the defendant lacked standing to challenge the search because his action with respect to the jacket indicated, if not an abandonment of it, at least a relinquishment of any reasonable expectation of privacy and security in regard to it. The court also stated, without explanation, that defendant's objection to the grand jury subpoena of the sunglasses was without merit.

I.

To establish "standing" to challenge the legality of a search and seizure on Fourth Amendment grounds, a defendant has traditionally been required to demonstrate ownership or possession of the seized property, or a substantial interest in the premises searched. See, e.g., Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). But recognizing that the application of such requirements would subject a defendant to the risk that his testimony in support of a motion to suppress evidence might thereafter be used against him at trial, the Court has allowed an accused to assert a Fourth Amendment claim if possession of the evidence seized was itself an essential element of the offense with which he was charged, or if the defendant was legitimately on the premises when the search occurred. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jones v. United States, supra.

But unlike either Jones or Simmons, the facts before us do not present the threat of self-incrimination or prosecutorial self-contradiction which prompted the Court to afford an accused "automatic" standing. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). Here, defendant was not on the premises when the offices of the Illinois Department of Public Health were searched, nor was he charged with a possessory offense.

The defendant's possessions were, however, the object of the search, and this would appear to give him standing under United States v. Jeffers,342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). Compare United States v. Lisk,522 F.2d 228 (7th Cir. 1975). Although the Court said in Alderman v. United States, 394 U.S. 165, 171-172, 89 S.Ct. 961, 965-966, 22 L.Ed.2d 176, 185-186 (1969), that only "those whose rights were violated by the search itself" may urge suppression of the fruits of the search, Jeffers has not been overruled. Whether it has been eroded by Alderman, is for the Supreme Court to say. Accordingly, we assume the defendant here has standing, since his possessions were the target of the search.

Standing to raise a Fourth Amendment claim does not, however, automatically assure success on the merits. Alderman v. United States, supra, 394 U.S. at 190, n. 2, 89 S.Ct. at 975, 22 L.Ed.2d at 196 (Harlan J., concurring in part and dissenting in part, cited Lisk, supra, 522 F.2d at 230). Application of the Fourth Amendment protection from unreasonable searches and seizures contemplates, in addition, a violation of an individual's reasonable...