U.S.A. v. Basinski

• Decision Date: 05 September 2000
• Docket Number: No. 99-3933,99-3933
• Citation: 226 F.3d 829
• Parties: (7th Cir. 2000) United States of America, Plaintiff-Appellant, v. Joseph N. Basinski, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 829

226 F.3d 829 (7th Cir. 2000)

United States of America, Plaintiff-Appellant, v. Joseph N. Basinski, Defendant-Appellee.

No. 99-3933

In the United States Court of Appeals For the Seventh Circuit

Argued April 20, 2000

Decided September 5, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 196--David H. Coar, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Manion, Rovner, and Williams, Circuit Judges.

Manion, Circuit Judge.

While investigating Joseph Basinski for jewelry theft, the government learned that his friend William Friedman was storing Basinski's locked briefcase in a barn in Wisconsin, and that the briefcase probably contained incriminating documents. Basinski had previously instructed Friedman to burn the briefcase, but never gave him the combination for the lock nor explicit permission to open it. Friedman never destroyed the briefcase; instead he and two FBI agents retrieved it from the barn. Although the government concedes that it easily could have obtained a search warrant to open the case, the agents decided not to and went ahead and pried open the case with a screwdriver. Basinski was later charged with obstruction of justice and retaliating against a witness because he reportedly attacked Friedman after he learned that Friedman had given the briefcase to the government. Basinski moved to suppress the contents of the briefcase based on the government's failure to obtain a warrant and the lack of any exception to the warrant requirement. The district court agreed with Basinski that no exception to the warrant requirement existed and suppressed the evidence. On appeal, the government argues that the search was proper due to either Friedman's consent or Basinski's abandonment of the briefcase. Because neither theory applies here, we affirm the district court's decision to suppress the contents of the briefcase.

I.

In August 1997, Joseph Basinski learned that the FBI was investigating him for jewel thefts and interstate transportation of stolen goods. Shortly thereafter, in an effort to keep incriminating documents from the government, Basinski entrusted a locked briefcase to William Friedman, who hid it in a barn at his summer home in Grand Marsh, Wisconsin. Basinski had every reason to trust Friedman, as they had grown up in the same Chicago neighborhood and had been friends for over thirty years. Their relationship may also have extended to criminal activity. From time to time Basinski reportedly gave Friedman diamonds and pieces of jewelry for Friedman to sell, and Basinski was always generous with cash when it came to Friedman. But Basinski's trust only went so far. He never told Friedman what was in the plastic briefcase, never gave him the combination to the lock, and never gave him permission to open it. Around March 1998, after Basinski learned that the FBI had tapped his telephone, he instructed Friedman to burn the briefcase so that the FBI could never obtain its contents. When Friedman suggested that he could instead sink it in a lake, Basinski rejected that idea, stating that the FBI could still retrieve it. Friedman ultimately promised Basinski that he would burn the case.

As it turns out, Basinski's trust in Friedman was somewhat misplaced. Friedman decided not to burn the briefcase and instead left it hidden in the barn. When Basinski called him on several occasions to make certain that the case and its contents were destroyed, Friedman assured him that he had carried out Basinski's orders. To reassure himself that Friedman had carried out his commands, Basinski asked that Friedman tell him what was left of the briefcase and show him the remains. Friedman responded that only the handle and locking mechanism survived the fire, and that these were in a pile of burnt trash. When Friedman asked why he had to have the briefcase burned, Basinski told him he feared the FBI would otherwise obtain a passport and documents which contained Basinski's fingerprints. Basinski's fears were justified. After several interviews with the FBI and a grand jury subpoena, Friedman told the government about the briefcase and his belief that it contained evidence of Basinski's alleged crimes. On February 23, 1999, Friedman led FBI Agent Edward McNamara and Agent Craig Henderson to his locked barn where they retrieved the briefcase. Although the government almost certainly could have obtained a warrant to search the contents of the briefcase, it elected not to do so, and instead the agents pried open the briefcase with screwdrivers and a hammer.¹ The briefcase contained names of wholesale jewelers and information that would be useful to a jewel thief, such as combinations for locks belonging to the jewelers.

A few days after the search, Friedman demonstrated his divided loyalties by having his daughter contact Basinski in Las Vegas to inform him that the FBI had the briefcase. Apparently concerned, Basinski then arranged to meet with Friedman in Chicago. During the meeting Friedman confirmed that the FBI had the briefcase, at which Basinski expressed his displeasure. Subsequently, on March 23, 1999, Basinski and his friend Leonard Turow allegedly paid a visit to Friedman's home in the middle of the night. After Friedman opened the door Basinski allegedly attacked him. Basinski fled only when Friedman's wife called the police. Based on the attack, a federal grand jury indicted Basinski for retaliating against a witness and obstruction of justice. 18 U.S.C. sec.sec. 1513(b), 1503(a). Basinski moved to suppress any evidence concerning the contents of the briefcase based on his Fourth Amendment rights. The government argued that suppression would be improper because although it did not have a warrant for the search, it had Friedman's consent and, alternatively, Basinski had abandoned the briefcase. In a ruling from the bench, the district court rejected these arguments and suppressed the evidence. The government appeals. We have jurisdiction under 18 U.S.C. sec. 3731.

II.

The Fourth Amendment protects citizens against unreasonable searches and seizures. U.S. Const. amend. IV. A search is generally considered unreasonable unless the government obtains a warrant issued upon probable cause. Joy v. Penn- Harris-Madison Sch. Corp., 212 F.3d 1052, 1058 (7th Cir. 2000); United States v. Strache, 202 F.3d 980, 984 (7th Cir. 2000). There are, however, a number of exceptions to this general rule. See, e.g., United States v. Gevedon, 214 F.3d 807, 810 (7th Cir. 2000) (third-party consent); United States v. Marshall, 157 F.3d 477, 481(7th Cir. 1998) (exigent circumstances). Where the government obtains evidence in a search conducted pursuant to one of these exceptions, it bears the burden of establishing that the exception applies. United States v. Denberg, 212 F.3d 987, 991 (7th Cir. 2000); Strache, 202 F.3d at 984. It must do so by a preponderance of the evidence. Nix v. Williams, 467 U.S. 431, 444 n.5 (1984); United States v. Dickerson, 975 F.2d 1245, 1248 (7th Cir. 1992). Factual findings made in connection with a decision to suppress evidence are reviewed for clear error, while mixed questions of law and fact and pure questions of law are reviewed de novo. Strache, 202 F.3d at 984; United States v. Faison, 195 F.3d 890, 893 (7th Cir. 1999). When the government fails to demonstrate an exception to the warrant requirement, the evidence obtained through the search must be suppressed. United States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir. 1999); United States v. Legg, 18 F.3d 240, 242 (4th Cir. 1994).

A. Third-Party Consent

Because a person may voluntarily waive his Fourth Amendment rights, no warrant is required where the defendant consents to a search. United States v. Matlock, 415 U.S. 164, 171 (1974). Based on the concept of assumption of risk, this exception to the warrant requirement extends to consent legitimately obtained from a third party. Id.; United States v. Duran, 957 F.2d 499, 504 (7th Cir. 1992). Thus, where a defendant allows a third party to exercise actual or apparent authority over the defendant's property, he is considered to have assumed the risk that the third party might permit access to others, including government agents. Matlock, 415 U.S. at 171 n.7; United States v. Jensen, 169 F.3d 1044, 1049 (7th Cir. 1999). Third-party consent to a search can legitimately be given whether the premises to be searched are as expansive as a house or as minute as a briefcase. The key to consent is actual or apparent authority over the area to be searched. See United States v. Aghedo, 159 F.3d 308, 310 (7th Cir. 1998).

Here, Friedman clearly had no actual authority over the contents of the briefcase, so that leaves only the possibility that Friedman had apparent authority to consent to the search. Under the apparent authority type of third-party consent, the government must show that a reasonable person, with the same knowledge of the situation as that possessed by the government agent to whom consent was given, would reasonably believe that the third party had authority over the area to be searched. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990); United States v. Chaidez, 919 F.2d 1193, 1201 (7th Cir. 1990); see Jenkins, 169 F.3d at 1049. For purposes of searches of closed containers, mere possession of the container by a third party does not necessarily give rise to a reasonable belief that the third party has authority to consent to a search of its contents. United States v. Karo, 468 U.S. 705, 726 (1984) (O'Connor, J., concurring); United States v. Rodriguez, 888 F.2d 519, 523 (7th Cir. 1989). Rather, apparent authority turns on the government's knowledge of the third party's use of, control over, and access to the container to be searched, because these characteristics are particularly probative of whether the individual has authority over the property. Matlock, 415 U.S. at 171 n.7; ...