U.S. v. Foskey, 79-2117

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation636 F.2d 517,204 U.S.App.D.C. 245
Docket NumberNo. 79-2117,79-2117
Parties, 6 Fed. R. Evid. Serv. 934 UNITED STATES of America v. Roosevelt V. FOSKEY, Appellant.
Decision Date05 August 1980

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 79-149).

Ed Wilhite, Washington, D. C., for appellant.

Thomas C. Hill, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Roger N. Adelman, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before ROBB and MIKVA, Circuit Judges, and GESELL *, United States District Judge for the District of Columbia.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

By indictment filed March 27, 1979, appellant Roosevelt V. Foskey and two co-defendants, Curry Brunson and John Hicks, were charged with possession of, and possession with intent to distribute, phenmetrazine and dilaudid. Appellant, along with the other defendants, made a pretrial motion to suppress the narcotics on Fourth Amendment grounds. Following a hearing, the motion was denied. Thereafter Foskey moved to suppress certain statements he made after his arrest, which motion was similarly denied after a hearing. Prior to trial the district court also ruled that the Government could introduce at trial a 1976 arrest of Foskey and Brunson for possession of phenmetrazine and dilaudid.

The district court granted Hicks' motion to sever his case from those of his two co-defendants, and Foskey and Brunson were tried together before a jury. At the conclusion of two days of trial, the jury deliberated for approximately two hours, returning the next day for another hour before reaching a verdict. Foskey and Brunson were found guilty of possession of phenmetrazine and dilaudid, but both were acquitted on the two more serious counts of possession with intent to distribute.

Shortly thereafter Foskey and Brunson moved for new trials based on the discovery of new evidence, specifically, the Government's possession of a prescription for dilaudid in Foskey's name. The district court granted the motion as to Brunson but denied it as to Foskey. Foskey had also moved for a mistrial because of a statement by one of the jurors that she did not want to return for a second day of deliberations and that being forced to do so might "hinder" her vote. This motion was similarly denied by the court.

The court imposed two consecutive one-year sentences on Foskey, and this appeal followed. Foskey renews on appeal each of the objections raised below. We consider them in turn. Because we find that the court erred in permitting the introduction of the evidence of a prior arrest, we reverse Foskey's conviction and remand for a new trial.


Approximately one week before appellant's arrest, the police received a tip from a reliable informant that Foskey, possibly accompanied by Brunson and Hicks, would be coming to Washington from New York to conduct a drug transaction involving large quantities of phenmetrazine and dilaudid. The informant said that the transaction would take place between midnight and 3:00 A.M. on February 25, 1979, at a particular hotel in Washington. The informant also noted that appellant and his companions would likely be using a car belonging to Foskey's common-law wife.

The police prepared affidavits for search warrants for an automobile and for a room at the hotel, on the assumption that the transaction would occur inside. Because the license plate number of the car and the hotel room number were not known at that time, the police arranged to call the issuing magistrate with this information as soon as it was available, thus completing the affidavits orally so that the warrants could be issued.

The police set up a surveillance of the hotel and at 2:05 A.M. spotted the suspect car, occupied by three men. Appellant got out of that car and entered another one in the lot, occupied by a woman. Hicks and Brunson also exited the suspect car; one went into the restroom of an adjoining gas station, the other entered a nearby telephone booth. It thus appeared that the drug transaction would be conducted in the parking lot, not inside the hotel. Because the change in circumstances required immediate action, the police moved in without securing a warrant. They detained and searched the three men and, not finding the drugs on their persons, proceeded to search the suspect car. Under the gas flap of the automobile, which was unlocked, the police found a brown paper bag fastened around the neck of the gas pipe. Inside that bag were several plastic bags containing 150 phenmetrazine pills and 40 dilaudid tablets. Foskey, Brunson, and Hicks were then arrested.

At the time of the arrest, all three men were given the standard warnings prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Miranda warnings were repeated at the station. Foskey did not sign the "waiver of rights" card, across which was then written the word "refused." At one point, a detective asked all three men simultaneously who owned the car. Each denied knowledge of whose car it was. Sometime later, without any further question being put to him, Foskey said, "Look, it's my old lady's car. She didn't know what was in it. She didn't know what it was being used for." Trial transcript (Tr.) at 122. This statement, along with the evidence of the drugs found in the paper bag, was introduced by the prosecution at Foskey's trial.


There is little question, nor does appellant dispute, that the police had probable cause to make the arrest and conduct a search based on the informant's tip. See Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959). Nor is there any question that the police could legally search the car without a warrant. See Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). 1 Foskey contends, however, that opening the paper bag without a warrant was a violation of the Fourth Amendment.

One may perhaps argue that a paper bag is at times, like a suitcase, "a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy." Arkansas v. Sanders, 442 U.S. 753, 762, 99 S.Ct. 2586, 2592, 61 L.Ed.2d 235 (1979). That argument becomes less plausible, however, when the paper bag in question is wrapped around the gas pipe of an automobile. Certainly that location, a peculiar one for carrying items of a personal nature, undercuts any reasonable inference that this particular paper bag was being used as a substitute for luggage. 2

In addition, the absence of precautions to preserve privacy is relevant to the question of reasonable expectation of privacy. See Rakas v. Illinois, 439 U.S. 128, 152, 99 S.Ct 421, 435, 58 L.Ed.2d 387 (1978) (Powell, J., concurring). Here, no precautions were evident. Instead, the placement of the bag around the gas pipe was so peculiar that anyone-for example, a gas station attendant-who had reason to lift up the flap might well have been motivated by curiosity or concern to look into the bag. The location of this property thus does not "manifest( ) an expectation that the contents would remain free from public examination." United States v. Dien, 609 F.2d 1038, 1045 (2d Cir. 1979).

Appellant argues that a person might reasonably expect that no one would normally look under the gas flap. Furthermore, in these days of self-service gas stations, even a gas station attendant might not be expected to do so. We are not entirely convinced that this location is so inviolate that no one could be expected to look there. In any case, the relevant inquiry is not whether a gas station attendant, for example, would open the flap, but rather, once justifiably having done so and thus being in the same position as the police in this case, whether it would be unreasonable to imagine him taking the further step of looking inside the paper bag.

Finally, a lower expectation of privacy may be justified when the defendant is not in possession of the item searched. See Rakas, 439 U.S. at 154-55, 99 S.Ct. at 436-37 (Powell, J., concurring). In this case, the bag was located in a place to which anyone could have had access, making its possessory relationship to the driver and passengers of the vehicle much less clear. Indeed, this may be the very reason that the bag was placed there. In the absence of any clear possessory relationship between the occupants of the car and the bag, the argument that a reasonable expectation of privacy existed therein is even further weakened. Id.

Based on all the factors discussed above, it seems clear that appellant could not prevail on his argument that he had a reasonable expectation of privacy in this particular paper bag. We thus hold that the district court was correct in ruling that the evidence of the drugs was properly admitted at trial.


Foskey contends on appeal that the Government failed to establish that he waived his Miranda rights before he was questioned about the car, and thus that the statement regarding his "old lady's" ownership thereof was improperly admitted at trial. Appellant does not dispute that he was given his Miranda warnings on two separate occasions after his arrest and prior to any questioning of him. However, he argues that the notation "refused" on the waiver of rights card is sufficient to raise a question regarding whether he knowingly and intelligently waived his rights when he was later questioned.

The Government responds that, as the trial court found, the statement was a spontaneous utterance and therefore admissible as falling outside the scope of Miranda. In any case, the Government...

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