U.S. v. Gilman

• Decision Date: 16 August 1982
• Docket Number: 81-1059,Nos. 81-1058,s. 81-1058
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Robert GILMAN, Jr., and Richard Joseph Martin, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 616

684 F.2d 616

UNITED STATES of America, Plaintiff-Appellee, v. Frank Robert GILMAN, Jr., and Richard Joseph Martin,

Defendants-Appellants.

Nos. 81-1058, 81-1059.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 10, 1981.

Decided Aug. 16, 1982.

Claudia Wilken, Wilken & Leverett, Berkeley, Cal., for defendants-appellants.

Robert Feldman, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before KENNEDY and SKOPIL, Circuit Judges, and BURNS, ^* District Judge.

SKOPIL, Circuit Judge:

Frank Gilman and co-defendant Richard Martin were convicted of seven counts of mailing obscene material, 18 U.S.C. § 1461 and of one count of conspiracy, 18 U.S.C. § 371. They argue on appeal that (1) violations of fourth amendment rights led to their conviction; (2) jury instructions were erroneous; (3) overt acts in the indictment were prejudicial; and (4) their sentences are excessive.

FACTS

Appellants were partners in All American Studios, a mail order business distributing sexually explicit magazines and brochures. Postal inspectors, using pseudonyms, ordered Police searched the three locations, including residential apartments in the 924 Grove Street building. Material seized from Martin's apartment in the building was subsequently suppressed by the trial court. Police found materials in the Grove Street office and seized them pursuant to the warrant. They also seized magazines from the garage after observing them in plain view and obtaining a second warrant. They obtained additional magazines from (1) Attic Self-Storage after obtaining a second warrant, and (2) from Attic's owner who, six weeks later, gave materials unclaimed by Gilman to the FBI. The government introduced these abandoned materials rather than magazines seized in the second search of Attic.

and received "All American" brochures and magazines on dates between January 1977 and June 1978. On July 14, 1978 San Francisco police obtained warrants to search three locations: (1) 924 Grove Street, a building housing All American's offices (the warrant failed to mention that the building was also a residential dwelling); (2) a nearby garage; and (3) Attic Self-Storage, where Gilman rented storage space under a false name. The warrant for 924 Grove Street authorized seizure of certain magazines, a film and business records.

DISCUSSION

I. APPELLANTS' FOURTH AMENDMENT RIGHTS

A. Evidence Seized at the 924 Grove Street Offices was Properly Admitted.

The appellants argue that the warrant described an entire building, yet it showed probable cause only for a search of the offices, not the dwelling areas which were a discrete portion of the building. It follows, they contend, both that the warrant was void, and that the entire search effected under it was unlawful.

The trial court admitted the evidence seized from the offices, and we affirm that ruling. ¹ Even if a warrant authorizes the search of an entire premises containing multiple units while reciting probable cause as to a portion of the premises only, it does not follow either that the warrant is void or that the entire search is unlawful. United States v. Whitney, 633 F.2d 902 (9th Cir. 1980), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 208 (1981), stands for this proposition. The general rule voiding the warrant for an undisclosed multiunit structure, see United States v. Hinton, 219 F.2d 324 (7th Cir. 1955), does not apply if the defendant was in control of the whole premises or they were occupied in common, if the entire premises were suspect, or if the multiunit character of the premises was not known to the officers. Whitney, 633 F.2d at 907 n.3. The record does not support appellants' contention that the officers intentionally omitted facts revealing the multiunit character of the premises. The testimony and affidavits of the officers demonstrate no misconduct on their part. Their surveillance of the premises, a single building, did not alert them to the multiunit character of the building. The officers were not aware that the building contained separate living quarters or that it housed unrelated persons. Further, there was some indication that all the entrants to the building were involved in the activities of All-American, that Gilman was in control of the entire premises, and that the entire building was suspect. The officers did not deliberately conduct a general search of the entire premises, cf. United States v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978). The entire warrant was not void.

Probable cause was stated for the offices, and the overbreadth of the warrant does not require suppression of evidence seized pursuant to that aspect of the search. Cf. VonderAHE v. Howland, 508 F.2d 364, 369, 372 (9th Cir. 1975).

B. The Second Warrant, Authorizing Seizure of Magazines From the Grove Street Garage, was Properly Issued.

When police entered the Grove Street garage pursuant to the first warrant, they observed three different magazines in plain view. They secured the garage, took one copy of each of the magazines to a magistrate, obtained a second warrant, returned to the garage, and seized the magazines.

In United States v. Sherwin, 572 F.2d 196, 201 (9th Cir. 1977), agents entered premises pursuant to a valid search warrant and seized magazines identified by the warrant and others in plain view. The court held that the plain view exception was "not applicable ... when the magazines seized are ... protected by the First Amendment." Id. at 199. The court suggested that

"A preferable and less intrusive method would be for officers to seal the area to prevent destruction of any publications while they obtained another warrant. This procedure has been used and approved in the context of an obscenity investigation."

Id. at 200. See also G. I. Distributors v. Murphy, 490 F.2d 1167, 1169 (2d Cir. 1973).

Taking single copies of three magazines to the magistrate did not impede All American's commercial activities. ² Compare Lo-Ji Sales, Inc., 442 U.S. 319, 327-28, 99 S.Ct. 2319, 2324-2325, 60 L.Ed.2d 920 (1979). Issuance of a second warrant was not only proper, but, as suggested by Sherwin, a preferred procedure. Appellants allege that officers may not even take samples of the magazines, because Sherwin disapproved of the fact that the officer, not the magistrate, made the initial determination of probable obscenity, stating that "(t)he fact that the agents took only samples ... does not solve the underlying problem that a magistrate failed to 'focus searchingly on the question of obscenity' prior to seizure." 572 F.2d at 200. In Sherwin, though, the court was concerned with the fact that a magistrate did not authorize the seizure of the unlisted magazines because a second warrant was not sought. Here the officers took samples to the magistrate for the express purpose of securing a second warrant. The preferred procedure is for the magistrate to make his decision of probable cause on the basis of direct evidence. See United States v. Tupler, 564 F.2d 1294, 1298 (9th Cir. 1977) ("A searching focus on obscenity requires the issuing judge or magistrate to base his evaluation of probable cause on direct evidence of the contents of at least a fair sample of the material itself"); United States v. Sherwin, 539 F.2d 1, 8 (9th Cir. 1976) (en banc), cert. denied, 437 U.S. 909, 98 S.Ct. 3101, 57 L.Ed.2d 1140 (1978).

Denial of the motion to suppress was proper.

C. Evidence Abandoned at Attic Self-Storage was Properly Admitted.

It is well settled that "(i)f a person has voluntarily abandoned property, he has no standing to complain of its search or seizure." United States v. Jackson, 544 F.2d 407, 409 (9th Cir. 1976) (citing Abel v. United States, 362 U.S. 217, 240-41, 80 S.Ct. 683, 697-698, 4 L.Ed.2d 668 (1960)). Abandonment is determined by measuring the intent of a party in objective terms. It may "be inferred from words, acts and other objective facts ... (that) the person ... relinquished ... a reasonable expectation of privacy in his property." United States v. Jackson, 544 F.2d at 409; United States v. Sledge, 650 F.2d 1075, 1077 (9th Cir. 1981).

Facts of this case indicate that Gilman had relinquished a reasonable expectation of privacy in his property. In response to notice from the management of Attic Self-Storage that his goods would be considered abandoned if he did not convey an intent to keep them or pay additional rent for storage, Gilman did nothing. Twenty-seven days after the date for reclaiming Gilman's property had passed, the company turned unclaimed magazines over to authorities. Facts of this case "support ... the conclusion that both the landlord and the officers acted reasonably in relying on the appearance of abandonment." United States v. Sledge, 650 F.2d at 1082. See United States v. Kendall, 655 F.2d 199, 202 (9th Cir. 1981).

The appellants properly assert that "a loss of standing to challenge a search cannot be brought about by unlawful police conduct." United States v. Maryland, 479 F.2d 566, 568 (5th Cir. 1973); United States v. Humphrey, 549 F.2d 650, 652 (9th Cir. 1977). Abandonment of property in response to police investigation does not per se render abandonment involuntary. See United States v. Veatch, 647 F.2d 995, 998 n.5 (9th Cir. 1981) (citing United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973) (en banc)). There must be a nexus between the allegedly unlawful police conduct and abandonment of property if the challenged evidence is to be suppressed. United States v. Maryland, 479 F.2d at 568; United States v. Haddad, 558 F.2d 968, 975 n.6 (9th Cir. 1977). Turning to the present case, we find no infirmities in police conduct such as to render the abandonment involuntary. Compare United States v. Beck, 602 F.2d 726, 729-30 (5th Cir. 1979).

We find that probable cause supported issuance of the original search warrant...