U.S. v. Bilanzich

• Decision Date: 22 August 1985
• Docket Number: No. 85-1083,85-1083
• Citation: 771 F.2d 292
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mary Ann BILANZICH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 292

771 F.2d 292

UNITED STATES of America, Plaintiff-Appellee, v. Mary Ann BILANZICH, Defendant-Appellant.

No. 85-1083.

United States Court of Appeals Seventh Circuit.

Argued June 6, 1985.

Decided Aug. 22, 1985.

Robert A. Korenkiewicz, Chicago, Ill., for defendant-appellant.

William R. Coulson, (argued), Suzanne B. Conlon, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and WRIGHT, Senior Circuit Judge. ^*

CUMMINGS, Chief Judge.

Defendant Mary Ann Bilanzich appeals from her conviction after a bench trial of one count of conspiracy to steal, forge and cash United States Treasury checks and Illinois Department of Public Aid checks in violation of 18 U.S.C. Sec. 371, six counts of forging and cashing United States Treasury checks in violation of 18 U.S.C. Sec. 495, and two counts of possession of United States Treasury checks stolen from the mail in violation of 18 U.S.C. Sec. 1708. ¹ Five other counts (7, 10, 11, 12 and 16) were dismissed without prejudice on the Government's motion because the parties were unable to stipulate the supporting evidence. The district court sentenced her to one year's imprisonment to be followed by a five-year term of probation. The defendant challenges the reasonableness of a search of her business office and the district court's denial of bail while she brings this appeal. We reject her arguments and affirm the lower court.

I

For the eighteen years prior to October 1984, the defendant was the manager of the Northmere Hotel in the Uptown area of Chicago, Illinois. The Northmere is "a privately owned residential hotel for elderly and disabled persons receiving payments from the United States Social Security Administration and the Illinois Department of Public Aid" (Stip. p 1.d). Various social service agencies, such as the Illinois Department of Human Resources, refer individuals to the Northmere, where the staff provides them with food and shelter and with assistance in seeking medical treatment and financial support. The hotel is co-owned by Lino Iscra, who acquired his ownership interest in early 1982, and Joseph Ades.

In return for managing the Northmere, the defendant received a small salary and three rooms, Rooms 121, 122, and 123, to use as her personal residence. In addition to these rooms, the defendant maintained an office, Room 128, in which she kept the hotel's books and performed other managerial duties of the hotel. Prior to the spring of 1982, she had maintained this office in a different room off of the lobby in the front of the building. That office became Mr. Iscra's after he acquired his ownership interest, and Mrs. Iscra and Ms. Bilanzich moved her possessions to Room 128 and to a small office behind the switchboard that spring (Def.Br. 5).

Prior to October 1, 1982, a Secret Service case agent met with the Northmere's two owners, Messrs. Iscra and Ades. The case agent needed identification information--believed to be in the hotel's tenant files and medical records--pertaining to persons in whose names federal and state benefits checks were issued and mailed to the Northmere. The owners informed the agent that they were not certain themselves whether these named individuals or payees lived at the hotel, or even if they existed. They furnished the agent with a diagram of the first floor of the hotel, marking Rooms 121, 122, 123 and 124 as being Ms. Bilanzich's (Govt.App. 3). ² Mr. Iscra's wife, Lucy Iscra, informed the Secret Service case agent that hotel records, including tenant and medical files, were kept in Room 128. Mr. Iscra signed a consent form authorizing a search of

the public areas, the management office, and those areas under hotel management control not currently leased or rented to private individuals at the Northmere Hotel 4943 N. Kenmore, Chicago, Illinois. This authority is granted by me as the co-owner and co-operator of said hotel. My consent to search extends to all books, documents, ledgers and miscellaneous business documents which are the property of said hotel and which are maintained at the hotel. (Govt.App. 2.)

On October 1, 1982, two investigative agents, one from the Secret Service and one from the Illinois Department of Law Enforcement, entered the Northmere, identified themselves, and asked to speak with Ms. Bilanzich. She consented but asked them to wait while she finished working the switchboard. When she was free, she joined them in Mr. Iscra's office where she had asked them to wait for her. She voluntarily answered their questions during the interview which lasted for about forty-five minutes. When asked to identify which hotel rooms were hers, she identified Rooms 121, 122, and 123 as hers. At the conclusion of the interview, the agents informed her that twenty-five to thirty case workers and agents would be arriving at the hotel to identify and interview all tenants who were payees on government benefits checks, and they asked her not to interfere. Thereafter personnel from the Secret Service, U.S. Postal Service, Social Security, Illinois Department of Law Enforcement, and Illinois Department of Public Aid interviewed, photographed and fingerprinted those hotel residents who were recipients of federal and state benefits programs. This procedure was necessary to ascertain whether named payees were receiving their checks, and, if not, to determine who in fact was receiving and cashing them.

The door to Room 128 was kept locked; the defendant had the key. Mr. Iscra testified at a suppression hearing held October 22-23, 1984, that he did not have a key because he did not need one. If he wanted hotel records from Room 128, he requested Ms. Bilanzich to bring them to him. He was unaware of any records other than hotel business records and records regarding the welfare of the tenants being kept in Room 128. Two law enforcement agents searched Room 128 in the mid-afternoon of October 1, 1982, following the tenant interviews. Mr. Iscra unlocked the door for them, apparently with a key defendant had left at the switchboard. The agents seized various documents lying loose on top of the desk and records found in unlocked desk drawers and an unlocked file cabinet.

Before trial, Ms. Bilanzich moved to suppress documents and tangible objects seized during the search of Room 128. The district court denied her motion after a two-day hearing, ruling that Mr. Iscra, as the co-owner of the hotel, had authority to consent to the search of offices used for the operation and management of the hotel, rendering his consent valid. The lower court also ruled that Ms. Bilanzich had no reasonable expectation of privacy regarding Room 128 or its contents that would vitiate Mr. Iscra's consent.

Evidence introduced at a stipulated bench trial on nine counts in the indictment included seventy-four cancelled United States Treasury and Illinois Department of Public Aid checks bearing forged payee endorsements and Ms. Bilanzich's second endorsement, as well as an original check-cashing card filled out by Ms. Bilanzich at a local currency exchange. The defense was that the stipulation failed to establish her knowledge that certain checks she cashed were stolen from the mail or that she had an intent to defraud when she cashed them. The judge rejected this argument and convicted her of the nine counts that were the subject of the stipulation. None of the evidence seized from Room 128 was used at trial. ³ At sentencing on January 11, 1985, the district judge stayed execution of the defendant's sentence for almost two months at her request. He also stated that he would grant bail pending appeal. She filed a timely notice of appeal, after which the government moved the trial court to revoke bond on appeal unless the defendant could meet the new criteria for bond established by the Bail Reform Act of 1984. Following a hearing on the issue on February 19, 1985, the district judge denied Bilanzich bail. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

II

The Fourth Amendment protects individuals against "unreasonable searches and seizures." U.S. const. amend. IV. The Supreme Court has emphasized that "the essential purpose of the Fourth Amendment [is] to shield the citizen from unwarranted intrusions into his privacy." Jones v. United States, 357 U.S. 493, 497, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514 (citations omitted). The core inquiry is whether a person has a reasonable expectation of privacy in the area searched. When police officers rely on consent in a situation where a warrant would otherwise be required, the consent must be voluntary. If the consent was given by a third party rather than by the defendant, the third party must be one "who possessed common authority [with the defendant] over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (footnote omitted). Mr. Iscra, as co-owner of the hotel, had the requisite control over and relationship to a business office, Room 128, in which he directed one of his employees to conduct hotel business to enable him to give valid consent.

Ms. Bilanzich's contention that she had exclusive control over Room 128 lacks all evidentiary support. ⁴ Her being allowed to conduct hotel business without supervision by Mr. Iscra does not convert Room 128 from a business office over which the owner of the business has control into the employee's private domain. That he did not have his own key to the room is irrelevant, considering that he could request access from Ms. Bilanzich at any time. We agree with the government that the defendant "confuses office routine and practice with the concept of possessory rights giving rise to an expectation of privacy" (Govt.Br. at 17).

Room 128 served a variety of purposes at the Northmere. It was referred to as the doctor's office because the physicians and psychiatrists who came to the hotel to...