U.S. v. Jackson

• Decision Date: 05 October 1978
• Docket Number: Nos. 77-2530,77-2531,s. 77-2530
• Citation: 585 F.2d 653
• Parties: UNITED STATES of America, Appellee, v. David Carson JACKSON, Appellant. UNITED STATES of America, Appellee, v. Margaret Frances McKENZIE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 653

585 F.2d 653

UNITED STATES of America, Appellee, v. David Carson JACKSON, Appellant.

UNITED STATES of America, Appellee, v. Margaret Frances McKENZIE, Appellant.

Nos. 77-2530, 77-2531.

United States Court of Appeals Fourth Circuit.

Argued May 5, 1978.

Decided Oct. 5, 1978.

H. Duncan Garnett, Jr., Newport News, Va. (Jones, Blechman, Woltz & Kelly, Newport News, Va., on brief), for appellants.

Robert F. McDermott, Jr., Asst. U. S. Atty., Alexandria, Va. (William B. Cummings, U. S. Atty. and Leonie M. Brinkema, Asst. U. S. Atty., Alexandria, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, RUSSELL, Circuit Judge, and FIELD, Senior Circuit Judge.

DONALD RUSSELL, Circuit Judge:

The defendants are appealing their convictions under an indictment charging the conduct, operation and management of an illegal gambling business in violation of § 1955, 18 U.S.C.

We affirm.

The prosecution of the defendants grew out of an extended investigation by local, state and federal officers begun in August and continuing through the balance of 1976, of an alleged gambling operation centered at the Madison Avenue Confectionery, located at 4713 Madison Avenue in Newport News, Virginia, and at the Twenty-First Street News Stand in the same city. The newsstand had been operated in 1970 and 1971 by the defendant Jackson and, since 1972, by the defendant McKenzie. There is no statement of the ownership of the Confectionery in the record but the defendant Jackson appears connected in some way with its operation. Both businesses were placed under surveillance in early September. Jackson was observed regularly between 9 and 11 o'clock in the morning going back and forth between the two establishments. The officers observed what appeared to be a "look-out" system set up at each location. The person identified as the "look-out" by the officers maintaining surveillance at the Confectionery would knock on the window whenever an officer appeared. At the newsstand, a person assumed by the officers to be a "look-out" would go inside whenever an officer approached.

An undercover agent testified to three occasions in late August and early September when he placed bets at the Confectionery. On September 24, 1976, a search warrant for the Confectionery was executed, presumably based on these statements by the undercover agent. The validity of the search warrant and its execution was not questioned. When the officers entered the Confectionery to execute the search warrant the defendant Jackson, who was present, immediately shouted towards the back of the Confectionery. "(h)ere they come, here they come." As a result of the search, several pieces of paper were found with number plays on them in the rear of the Confectionery. On the same day, a search warrant was executed for the newsstand. The defendant McKenzie was present and number slips were seized from a person on the premises. Subsequently on December 17, the officers raided the newsstand again and recovered two combination locks. These locks had a number face up and, according to the testimony at trial, these numbers corresponded to the "hit numbers" of that day.

Though they raise two other issues to which we refer later, the principal controversy in the case, however, involves the validity of the execution of a search warrant on a residence located at 636 Twenty-First Street, immediately adjacent to the newsstand, and the warrantless search of a room in a vacant house at 640 Twenty-First Street. ¹ Both searches occurred on December 17, 1976. The officers had procured a search warrant for 636 Twenty-First Street. The validity of that search warrant was not questioned. When the officers went to 636 Twenty-First Street to execute the warrant, they knocked; receiving no response, they "announced then that (they) were police officers and * * * had a search warrant for the apartment and (they) then forced open the door." The defendant McKenzie and one Boyd were in the apartment. Between the two of them, the officers found numbers slips, which Boyd apparently attempted to hide, but which the officers seized. McKenzie was on the telephone. The Government, of course, contended that, based on these facts, the two were engaged in activity related to the gambling operation.

The warrantless search on the same day of a room in a vacant house at 640 Twenty-First Street resulted from the report of an officer who had seen Jackson, for whom other officers had a search warrant of his person, on Twenty-First Street. When he saw the officer, Jackson had run into a house located at 642 Twenty-First Street. This house was occupied by Mrs. Sally Pollard. The officer reported to the local Vice-Squad the suspicious movements of Jackson and his entrance into 642 Twenty-First Street. Other officers with a search warrant for Jackson's person, then went to 642 Twenty-First Street, told Mrs. Pollard that they had been advised that Jackson had been observed entering her house and said that they had a search warrant for Jackson's person. Mrs. Pollard told them that Jackson was not in the house but added that they (the officers) could "come in and look" if they liked. As the officers were going into the house with Mrs. Pollard, they inquired whether Jackson had been there. Mrs. Pollard answered that Jackson had been there with a bag but she had told him "not to bring those numbers (presumably in the bag) into the house, she wanted nothing to do with them." Jackson, she said, then left her house and "placed the bag in the vacant house next door." Jackson returned, after putting the bag in the vacant house, and gave Mrs. Pollard a paper bag with two sets of keys in it. He told her to give the keys to Frances (meaning, as Mrs. Pollard understood it, the defendant McKenzie).

Mrs. Pollard told the officers during her conversation with them how they might look into the house where Jackson had put the bag containing the numbers by standing on a chair outside an open window at the house. The officers followed her direction. Two of them took turns standing on the chair and looking into the room. Plainly visible in the room was a bag similar to the one Mrs. Pollard had told Jackson not to bring into her house because she didn't want any "numbers" on her premises. Even though the bag was in plain view the officers did not attempt immediately to enter the house. They called the Commonwealth's attorney to inquire whether they should secure a search warrant before entering the room. They were advised that they did not need a search warrant and were told they could search the room. The officers followed this advice. Other than accumulated trash, the only article to be seen or found in the room was the bag. When opened with one of the keys from the bag given the officers by Mrs. Pollard, numbers slips to the extent of $2,600.00 were taken from the bag and were seized by the officers.

The defendants contest the search at 636 Twenty-First Street on the ground that the search, though supported by a search warrant, was illegally executed. They would find the warrantless search of the room in the vacant house at 640 Twenty-First Street invalid because it was effected as a result of an illegal trespass. We find neither ground tenable.

In seeking to justify their argument for the suppression of the evidence secured through the warrantless search of 640 Twenty-First Street, the defendants begin by asserting their standing to contest such search. The grounds for standing, as stated by the two defendants, are somewhat different and we shall accordingly consider individually the two defendants' claims to standing. The defendant Jackson contends he acquired standing because of a "substantial proprietary or possessory interest (on his part) in the thing seized (i. e., the bag)" and because "mere possession of the bag recovered without warrant was itself an essential element of the crime charged both defendants." ²

The claim by Jackson of standing on the ground that "mere possession" of the seized bag was itself an "essential element of the crime charged both defendants" may be quickly dismissed. Such possession was not an "essential element" of the crime of operating a gambling establishment. The other ground for standing asserted by Jackson (I. e., a "proprietary or possessory" interest in the thing seized) was effectively disposed of by Judge (now Justice) Stevens in United States v. Lisk (7th Cir. 1975), 522 F.2d 228, Cert. denied, 423 U.S. 1078, 96 S.Ct. 865, 47 L.Ed.2d 89 (1976). In that case, the officers seized an illegal firearm as a result of a search of an automobile owned by one Hunt. The search of the automobile was conceded to have been illegal. It was stipulated, however, that, while he had no possessory or proprietary interest in the car searched, the defendant had "a proprietary interest" in the seized firearm. He urged that, because of such "proprietary interest" in the thing seized, he was "entitled to Fourth Amendment protection against its seizure." In disposing of this contention, Judge Stevens began by noting the "difference between a search and a seizure"; I. e., "(a) search involves an invasion of privacy; a seizure is a taking of property." ³ He then proceeded to declare, quoting Alderman v. United States (394 U.S. 165, 171-2, 89 S.Ct. 961, 965, 22 L.Ed.2d 176) " 'that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.' " Applying that principle, the Court found that, while Hunt as the owner of the car searched was the "victim of the search" and had standing to contest the search in violation of his Fourth Amendment rights, the defendant who had neither a proprietary nor possessory interest in the car was not a "victim of the search" and had no standing to object to a search of the car. Accordingly, the "violation...