U.S. v. Haydel

• Decision Date: 08 July 1981
• Docket Number: No. 80-3254,80-3254
• Citation: 649 F.2d 1152
• Parties: 81-2 USTC P 16,367 UNITED STATES of America, Plaintiff-Appellee, v. John M. HAYDEL, Jr., a/k/a "Ice Cream" and "Mugsy", Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1152

649 F.2d 1152

81-2 USTC P 16,367

UNITED STATES of America, Plaintiff-Appellee, v. John M. HAYDEL, Jr., a/k/a "Ice Cream" and "Mugsy",

Defendant-Appellant.

No. 80-3254.

United States Court of Appeals,

Fifth Circuit.

Unit A

July 8, 1981.

Virgil M. Wheeler, Jr., New Orleans, La., Herbert Shafer, Atlanta, Ga., for defendant-appellant.

C. Michael Hill, Asst. U. S. Atty., Baton Rouge, La., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before SKELTON ^*, Senior Judge, and RUBIN and REAVLEY, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The validity of John Haydel's conviction for materially underreporting his gross wagering income for purposes of the wagering excise tax, in violation of 26 U.S.C. § 7206(1), turns on the constitutionality of the government's seizure of his gambling records, for it was primarily by their introduction that he was convicted. The seizure is challenged as having been made beyond the premises described on the warrant and as violating Haydel's rights against self-incrimination. Because we find that the search and seizure met constitutional requirements, we affirm the conviction.

Haydel, a bookmaker registered with the Internal Revenue Service, see 26 U.S.C. § 4412, was the subject of an investigation by the Federal Bureau of Investigation and the Internal Revenue Service. During the course of the investigation, the government obtained a search warrant authorizing the search of the premises known as 4765 McClelland Drive, Baton Rouge, Louisiana. The object of the search was the seizure of Haydel's gambling records, including accounting, tabulation and "run-down" sheets, ledgers, betting slips and line sheets.

On the day the warrant was executed, the government agents first entered an ice cream store, which bears the municipal address 4769 McClelland Drive, through its side entrance located on Byron Street. ¹ The side entrance bore no separate address. They asked for the Haydel residence, and were led through the kitchen and storage areas of the store to an interior entrance to the residence. They thus reached the residence through the entrance that was accessible from McClelland Drive rather than through the Byron Street door that led directly into the residence. During their subsequent search of the residence, the agents discovered the gambling records sought to be suppressed in a cardboard box located under the bed of the defendant's parents.

Haydel was indicted on two counts of illegal gambling, 18 U.S.C. §§ 371 and 1955, and nine counts of filing tax returns that falsely reported material matters, 26 U.S.C. 7206(1). Before trial, he challenged, under both the fourth and fifth amendments, the admissibility of the gambling records discovered in his parents' bedroom. Finding that the search warrant identified the premises to be searched sufficiently to withstand fourth amendment challenge, the district court denied in part the motion to suppress. The district judge, however, agreed that, under the fifth amendment, the records were inadmissible to prove violation of the gambling laws, see also 26 U.S.C. § 4424(c), and issued an order suppressing their use in connection with such a trial. 486 F.Supp. 109 (M.D.La. 1980). Those two counts were subsequently dismissed.

Pursuant to a pretrial agreement, five of the remaining counts were dismissed and Haydel stipulated that he had understated his gross wagers by reporting, on Internal Revenue Service Form 730, less than ten percent of the gross wagers he had accepted in his bookmaking activity. Sitting without a jury, the district court found that such an understatement was "material" and that Haydel was guilty of all four counts of violating the applicable tax statute, 26 U.S.C. § 7206(1). Haydel was sentenced to one year on the first count and five years of probation on the remaining three counts.

I.

Haydel first claims that the gambling records were seized in violation of the fourth amendment because the warrant insufficiently described the premises to be searched. Pausing at the threshold, as the agents are charged with wrongfully failing to do, we must first determine whether Haydel had a legitimate expectation of privacy for records secreted in his parents' home and under their bed. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The government has sought unsuccessfully to persuade us that Haydel could not reasonably expect that only he and those who had his consent would gain access to what was there concealed. We reject this narrow confinement to confidentiality.

No one circumstance is talismanic to the Rakas inquiry. "While property ownership is clearly a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated, property rights are neither the beginning nor the end of (the) inquiry." United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619, 628 (1980) (citation omitted). Other factors to be weighed include whether the defendant has a possessory interest in the thing seized or the place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises. See Id.; Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). As the very listing of these factors demonstrates, the expectation must be based on considerations outside of the fourth amendment. Rakas v. Illinois, 439 U.S. at 142-145 n.12, 99 S.Ct. at 430-31, n.12, 58 L.Ed.2d at 400-402 n.12.

Haydel's parents had given him permission to use their home and had given him a key. His access, therefore, was for all practical purposes unencumbered. Although he did not reside regularly at his parents' home, he kept clothing there and had occasionally remained overnight. ² Moreover, he conducted a significant portion of his gambling activities at the home and owned the records that were seized. Although the district court did not explicitly so hold, it is reasonable to assume that Haydel had the authority to exclude persons other than his parents and their guests from the home. Finally, it is clear from his actions that Haydel exhibited a subjective expectation that the contents of the box stowed under his parents' bed were to remain private. ³ Compare Rawlings v. Kentucky, 448 U.S. at 105, 100 S.Ct. at 2561, 65 L.Ed.2d at 642, in which the defendant admitted that he had no subjective expectation that the subject of the search "would remain free from governmental intrusion".

Similar factual situations were considered in United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951) and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Although the method of analysis utilized in these cases does not survive Rakas, Rawlings and Salvucci, the Supreme Court has endorsed the conclusion that the petitioners in both of these cases had a reasonable expectation of privacy. In Jeffers, the authorities searched an apartment owned by the defendant's two aunts and seized a cache of drugs owned by the defendant. The Court in Rakas remarked approvingly, that "(s)tanding in Jeffers was based on Jeffers' possessory interest in both the premises searched and the property seized." Rakas v. Illinois, 439 U.S. at 136, 99 S.Ct. at 426, 58 L.Ed.2d at 396. The defendant in Jones, similarly, had permission to use the place searched, the apartment of a friend, had a key to the apartment, and kept possessions there. Except with respect to the owner, Jones had control over the apartment and could exclude others. The Supreme Court, in Rakas, specifically observed that it did "not question the conclusion in Jones that the defendant in that case suffered a violation of his personal Fourth Amendment rights if the search in question were unlawful." Id. at 141, 99 S.Ct. at 429, 58 L.Ed.2d at 400. Accordingly, based on the totality of the circumstances in this case, we hold that Haydel had a legitimate expectation of privacy in the area searched. ⁴ We must therefore, determine whether the search was illegal, and contravened the fourth amendment, because the search warrant did not sufficiently identify the Haydel residence.

The fourth amendment permits warrants to be issued only "upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized." U.S.Const. Amendment IV (emphasis supplied). Haydel argues that the discrepancy between the municipal address of his parents' home, 5466 Byron Street, and the address listed on the face of the warrant, 4765 McClelland Drive, taints the search of their home. We must, therefore, gauge the description contained in the warrant to determine whether it was "such that the officer with a search warrant (could) with reasonable effort (have ascertained and identified) the place intended." Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed.2d 757 (1925).

The building in which the search took place is located at the intersection of McClelland Drive and Byron Street. It can be entered from either street. The portion facing McClelland Drive bears municipal addresses 4765, 4767 and 4769 McClelland Drive. There are three commercial establishments in this part of the structure: a beauty salon, a barber shop and an ice cream store. The residence of John Haydel, Sr. shares a common wall with that structure, but has an entrance that faces Byron Street, and bears the address 5466 Byron Street. ⁵ The residence and the stores are parts of an integrated structure. The home can be entered by passage through either the ice cream store or barber shop and opening an unmarked interior doorway located in a storage...