U.S. v. DeBardeleben

• Decision Date: 13 November 1984
• Docket Number: No. 83-5678,83-5678
• Citation: 740 F.2d 440
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Mitchell DeBARDELEBEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 440

740 F.2d 440

UNITED STATES of America, Plaintiff-Appellee, v. James Mitchell DeBARDELEBEN, Defendant-Appellant.

No. 83-5678.

United States Court of Appeals, Sixth Circuit.

Argued May 8, 1984.

Decided July 27, 1984.

Certiorari Denied Nov. 13, 1984.

See 105 S.Ct. 448.

James A.H. Bell (argued), Knoxville, Tenn., for defendant-appellant.

John W. Gill, Jr., U.S. Atty., Charles Fels, Asst. U.S. Atty. (argued), Knoxville, Tenn., for plaintiff-appellee.

Before KENNEDY and WELLFORD, Circuit Judges, and COHN, District Judge. ^*

WELLFORD, Circuit Judge.

Defendant, James DeBardelaben, appeals his conviction by the trial judge for counterfeiting and carrying a firearm during the commission of that offense in violation of 18 U.S.C. Sec. 472 and Sec. 924(c)(2), respectively. The trial court, after defendant had waived a jury trial, sentenced defendant to fifteen years on each of the six counts of counterfeiting, to run concurrently, and to a five year sentence on the firearm charge, to run consecutively with the fifteen year sentence.

The primary issue raised by defendant on this appeal is whether the trial court erred in denying defendant's motion to suppress evidence obtained under a warrant. The validity of this search warrant depends on the validity of the actions of a Secret Service agent in checking whether a set of car keys lawfully found in defendant's possession after his arrest would fit the door and trunk locks of a car found in a parking lot and suspected to belong to defendant.

The trial court found that the "mere testing of whether defendant's keys would unlock and lock an automobile" was not a search within the meaning of the Fourth Amendment because defendant had no reasonable expectation of privacy in the testing of the car keys in the locks. Under the circumstances of this case, which clearly indicate that law enforcement officials followed proper procedure in every respect, we affirm.

On May 25, 1983, Secret Service Agent Jones Allison warned local merchants at shopping malls in Knoxville and Maryville, Tennessee, that a white male dubbed the "Mall Passer" might attempt to pass counterfeit $20 bills as he had done at two shopping centers in Kingsport and Johnson City, also located in the east Tennessee area. Allison distributed a composite drawing of an individual the Secret Service believed on the basis of past reports to be the "Mall Passer." That same day employees of Walden Book Store at the Maryville Mall, Donna Meador and Denise Clegg, recognized defendant as likely being the individual depicted in the composite drawing. Clegg promptly went to the back of the store and telephoned Mall Security and Agent Allison. Clegg then returned to the cashier's counter where Meador took a $20 bill and 42 cents from defendant in payment for a book selected by him. Meador gave defendant his change and placed the $20 bill in a drawer by the cash register.

After defendant left the store, the women continued to watch him until Lt. Ronald Duffin from Mall Security took up surveillance at the point where defendant appeared about to leave the mall through the east exit. Apparently defendant became aware of Duffin's presence because he veered from that exit toward the central mall.

In the meantime, Allison had determined that the note Meador received from defendant was indeed counterfeit, whereupon he immediately radioed Duffin to take defendant into custody. Allison joined Duffin outside the mall as defendant was being placed under arrest. After advising defendant of his constitutional rights, Allison searched DeBardeleben and found a .22 caliber revolver in his right front pocket, thirteen counterfeit $20 bills, a collection of car keys and a North Carolina driver's license in the name of Roger Collin Blanchard with a North Carolina address. When asked by Allison whether he had a car in the area, defendant declined to answer, and the officers did not pursue it further.

Later that evening after defendant had been taken into custody, Allison gave the car keys found in defendant's possession to Secret Service Agent James Burch, who reasoned that if defendant had a car it would probably be on the east side of the mall where defendant had originally headed after the book purchase. Burch went to the mall parking area near the east exit that night after the mall had closed and observed three parked cars. One of these cars was a 1971 Chrysler bearing a Tennessee license plate. After promptly checking with the Tennessee Highway Patrol, Burch found that there was no record of any such license plate on file at that time. One of the sets of keys taken from defendant belonged to a Chrysler automobile, one for the door and one for the trunk. (Another set was for a General Motors make car and such a car was parked in this same area.) Burch took one of the Chrysler keys and inserted it into the lock on the passenger side door of the Chrysler. The key operated the door lock, whereupon Burch relocked the door, without ever opening it. Burch then fit the other key into the trunk of the Chrysler. This caused the trunk lid to spring open and a trunk light to turn on. Burch then observed what appeared to be a blue bag; but he closed the trunk without examining its content or any other item in the trunk. Burch and other agents then applied to the United States Magistrate for a federal search warrant, which issued the next morning. Before the agents applied for the warrant, they determined that the Chrysler in question was registered to James Richard Jones in Alexandria, Virginia, and that the license plate on the car was from Williamson County, Tennessee, some two hundred miles away, where it had been reported lost or stolen by its owner in October, 1982.

During the search under the warrant of the passenger compartment of the Chrysler, Allison found over two hundred $20 counterfeit bills, driver's licenses from five states bearing defendant's photograph (each bearing a different name and address), Vermont driver's licenses with no photograph but bearing names used by defendant on Alabama and Texas licenses, twenty license plates from 14 different states (some had magnets rather than bolts on the back of the plate, as did the Tennessee plate on defendant's car), a fully loaded semi-automatic pistol, a leather bag containing a photograph of defendant identifying him as a member of the "State Police," and a blue light similar to the one sometimes used by police in unmarked cars. Merchandise bearing dated sales receipts were found in the trunk, which had been purchased at the malls in Johnson City and Kingsport.

The trial court relied on United States v. Williams, 434 F.2d 681 (5th Cir.1970) and United States v. Graham, 391 F.2d 439 (6th Cir.1968) in denying defendant's motion to suppress the evidence obtained from his automobile. In Graham, this court held that the opening of a car door for the purpose of locating a serial number by which the car, properly in police custody, could be accurately identified was not a search, and the court in Williams, relying on Graham, held similarly. These cases are distinguishable from the instant case because they involved automobiles that were in lawful police custody. Defendant contends that these cases only foreshadowed the Supreme Court decision in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), where it was held that a car in lawful police custody was subject to a complete inventory of its contents without the necessity of obtaining a warrant. But the court in Williams made it clear that the opening of the car door to check the serial number was not part of an inventory search but rather a means of identifying that vehicle:

[W]here there is a legitimate reason to do so, the mere checking of the serial number of an automobile in order more positively to identify it, is not a search within the prohibitions of the Fourth Amendment.

434 F.2d at 684 (quoting United States v. Johnson, 413 F.2d 1396 (5th Cir.1969), aff'd on rehearing en banc, 431 F.2d 441 (5th Cir.1970)).

In the instant case, the police had tried unsuccessfully to identify the Chrysler owner through a license plate check with the Tennessee Highway Patrol. There was therefore a legitimate reason to insert the keys into the Chrysler to see whether they fit in order to identify that automobile as belonging to defendant for purposes of obtaining a search warrant. ¹ We agree with the reasoning of the dissent in United States v. Portillo-Reyes, 529 F.2d 844 (9th Cir.1975), cert. denied, 429 U.S. 899, 97 S.Ct. 267, 50 L.Ed.2d 185 (1976), where case holdings such as those in Graham and Williams were applied to a factual situation that is similar in some respects to the instant one.

In Portillo-Reyes, a border patrol search along the United States/Mexican border of an individual named Romero produced three sets of keys, including a set for a Volkswagen. A border patrol agent through past experience knew that a "load" car was generally in the area when individuals had illegally crossed the border. Therefore, the agent took the keys to a housing project parking lot, the area Romero was walking towards when apprehended, with the intention of locating the load car. There were approximately 35 cars in this lot, one was a Volkswagen in which a man was lying on the front seat. The agent knocked on the window and asked the man about his citizenship. The man, named Reyes, replied that he was a citizen of El Salvador, showed the agent his alien registration, and said he was going to Los Angeles. The agent placed him under arrest and then inserted the key into the car lock, opened the door and conducted a search.

Although the majority in Portillo-Reyes found that the agent was justified in tapping on the Volkswagen window to ascertain Reyes' identity because he had reasonable ground to suspect that this automobile and Reyes were connected with the illegal entry of Romero, it was held that the agent...