U.S. v. Diggs

Decision Date27 August 1976
Docket NumberNo. 75-1547,75-1547
Citation544 F.2d 116
PartiesUNITED STATES of America, Appellant, v. Alfred B. DIGGS.
CourtU.S. Court of Appeals — Third Circuit

Before MARIS, VAN DUSEN and HUNTER, Circuit Judges.

Reargued May 13, 1976.

Before SEITZ, Chief Judge, and MARIS, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.

OPINION

MARIS, Circuit Judge, with whom ALDISERT, ROSENN and WEIS, Circuit Judges, concur.

This is an appeal from an order of the district court holding unlawful under the Fourth Amendment the action of two agents of the Federal Bureau of Investigation in taking possession of a locked metal box, opening the box and examining the contents, at the urging of the holder of the box, and suppressing the box and the $17,080 in United States currency which was found in it as evidence to be used in the defendant's trial for bank robbery. The district court's view was that the holder of the box, a gratuitous bailee, was not empowered to authorize the agents to open the box and that since they did so without obtaining a search warrant their action amounted to an unreasonable search and seizure in violation of the constitutional prohibition. The findings of the district court and the uncontradicted evidence as to matters not included in those findings but which we regard as significant disclose the following situation:

On Tuesday, January 14, 1975 three armed men robbed the National Central Bank in Harrisburg, Pennsylvania. Investigation by the FBI led to the arrest of the defendant, Diggs, on Monday, January 20th. He was thereafter indicted for his alleged participation in the robbery. After a mistrial, Diggs' renewed motion to suppress the box and its contents as evidence was granted by the court after a hearing. During the weekend after the robbery and before his arrest, Diggs and his common-law wife, Christine Mahone, visited Christine's uncle and aunt, the Rev. and Mrs. Andrew T. Bradley, at the home of the latter in New Bern, North Carolina. During this visit, Christine Mahone handed Mrs. Bradley a small metal box, 1 stating that it contained "stocks and bonds and silver paper and important papers that they had saved up for the children" 2 and she asked her to keep it for them "so they wouldn't be tempted to spend it." Mrs. Bradley then placed the box in her husband's bedroom closet. No key to the box or instructions concerning it were given to the Bradleys. They did not then know that it was locked and they attached no particular significance to it.

On January 20th, being concerned about the existing bad weather, Mr. Bradley telephoned his sister in Harrisburg and asked about his niece's safe return. During this conversation his sister told him of Diggs' arrest. Mr. Bradley then telephoned his niece and found her to be evasive inasmuch as she didn't disclose the fact that Diggs had been arrested until she was questioned and then described it as "some silly mess." Moreover, she told Mr. Bradley that she had been questioned by the FBI in Harrisburg and had told them of her visit to North Carolina and, in response to a specific question, had denied that she had left anything at the Bradleys' home. She stated further that the FBI would probably come to question him and that he should deny that they had left anything with the Bradleys.

The telephone conversation with the niece recalled to Mr. Bradley's mind the metal box which the niece had left with Mrs. Bradley, and from the conversation Mr. Bradley felt that "something was very much wrong" and he was pretty well convinced that Diggs and Christine Mahone "knew something or were involved in the bank robbery." The Bradleys became increasingly worried not only with regard to their niece's possible involvement in the robbery, but also with regard to their continuing to hold the box if it contained stolen property which should not be in their possession. 3 Their agitation increased during the two following days. Mr. Bradley felt that since his niece had lied to the FBI as to the box it was necessary to open it and find out just what was in it. This he felt he had the right to do 4 but he wanted it done in the presence of witnesses. He consulted friends as to his problem and it was suggested that he contact the FBI. Finally, on the evening of January 23rd, he talked to his lawyer about it. The latter then called the local resident agent of the FBI, Agent Fanning, who in turn telephoned Mr. Bradley to make an appointment for the next day. However, Mr. Bradley said he did not want to wait but wanted to see the agent immediately about a bank robbery at Harrisburg.

Acceding to the insistent request of the obviously distraught Mr. Bradley, Agents Fanning and Shields came to the Bradley home about 12:30 A.M. on January 24th. Mr. Bradley related to them the facts and circumstances in which he was involved, and which we have already outlined. Agent Fanning then corroborated by telephone the fact of the January 14th robbery, the fact of Diggs' arrest, the fact that the stolen money had not yet been recovered, and the fact that Christine Mahone had not mentioned leaving any metal box in North Carolina. The agents then asked Mr. Bradley to get the box. He brought it from his bedroom closet and placed it on a coffee table in front of Agent Shields who picked it up and shook it. It was then discovered that it was locked. At this point Mr. Bradley informed the agents that neither Diggs nor Christine Mahone had left a key with him but he continued to insist that the box be opened in the agents' presence.

There was a United States magistrate domiciled in New Bern from whom a search warrant could have been obtained in approximately two hours. The agents had no reason to think that Mr. Bradley would open the box, conceal it or otherwise interfere with it if they decided to leave his house to obtain a search warrant. The district court found that Mr. Bradley would have been satisfied with the delay and he did at one point so testify. But later he appears to have clarified what he meant when he testified, "It wouldn't have satisfied me. But I would have had to go along with it." 5 Indeed, Mrs. Bradley testified that her husband had insisted that the agents come to their home that night "because he couldn't take it" any longer. 6

While Agent Fanning was on the telephone attempting to locate a locksmith, Agent Shields tried various keys which he had with him and discovered that his desk key fit the box's lock. He turned the key, removed it, and slid the box with the lid still shut across the table to Mr. Bradley, saying "I'll give you the pleasure of opening up the box." Mr. Bradley then raised the lid, revealing the contents of the box, $17,080 in cash, including 28 $20 "bait" bills from the robbed bank. The agents removed, counted and separated the bills, wrapping them in paper supplied by the Bradleys and initialling the wrappers. They then replaced the money in the box and took custody of the box and its contents. Mr. Bradley testified that he took full responsibility for the opening of the box which was his decision alone, 7 that if these agents had left without opening it he would have called the FBI somewhere else, for he wanted the box opened that night. 8 It seems clear from the evidence that the Bradleys had reached an emotional state in which they had to have the box opened in the presence of witnesses and its contents made public in order to clarify the situation. Their urgent desire to learn the truth was highlighted by Mr. Bradley's statement that if the contents should prove to be innocent, he would call his niece and apologize.

The defendant contends and the district court held that these facts disclose an unreasonable search and seizure by the FBI agents of property as to which he had a justified expectation of privacy and that since the search was accomplished without a search warrant it violated the Fourth Amendment and rendered the seized property inadmissible as evidence against him. We do not agree for the reasons which we shall state.

We may lay to one side the many search and seizure cases involving a custodian of a defendant's property whom the latter has not placed in the position of being unwittingly involved in his alleged crime. When such a custodian, for example a hotel employee, yields to the demands of government agents that they be given access to the defendant's property or effects, the resulting search and seizure is uniformly held to be unreasonable in the absence of a warrant. In such a case the custodian's lack of any interest in or special relationship to the defendant's property deprives of validity the consent to the search which he has given without authority from the owner.

The present case presents a very different picture. Here the Rev. Andrew T. Bradley, an innocent man, received for safekeeping from his niece, Christine Mahone and her husband, the defendant, a metal box which she told Mrs. Bradley contained savings for their children. Thereafter Mr. Bradley learned that the defendant had been arrested for bank robbery after his return from the visit which he and Christine Mahone made to the Bradley home and that Christine Mahone had lied to the FBI about leaving the box with him. He became suspicious that the box in his possession might contain stolen property. Becoming more and more distraught, he reached a point where he could not take it any longer, contacted FBI agents and insisted that they come to his home immediately, even thought it was late at night, so that the box might be opened in their presence and the truth as to the contents thus publicly revealed. At his insistence the box, which was found to be locked, was unlocked with a key furnished by one of...

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