U.S. v. Johnston
| Decision Date | 07 June 1989 |
| Docket Number | No. 88-2375,88-2375 |
| Citation | 876 F.2d 589 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Thomas JOHNSTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard F. Walsh, Chicago, Ill., for defendant-appellant.
David J. Stetler, Chief, Crim. Receiving and Appellate Div., John E. Farrell, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.
Before BAUER, Chief Judge, POSNER and RIPPLE, Circuit Judges.
Thomas Johnston, a police officer at the Glenview Naval Air Station in Glenview, Illinois, was convicted under the Assimilative Crimes Act of theft of a boat committed in a special territorial jurisdiction of the United States. See 18 U.S.C. Sec. 13. 1 Mr Johnston was found guilty after a two-day bench trial. He was placed on thirty months' probation, was ordered to make restitution, to refrain from consuming alcohol, and to participate in an alcoholic treatment program. Mr. Johnston appeals his conviction. He asserts that the district court improperly denied his motion to suppress evidence, that there was insufficient evidence to support his conviction, and that restitution was ordered impermissibly. We affirm.
In September 1986, when he moved to an off-base apartment, Lieutenant Commander Alfred Ford left his power boat, a 1984 Baretta inboard/outboard fiberglass model approximately 17 feet in length, in the parking lot outside the bachelor officers' quarters at the Glenview Naval Air Station. On October 28, 1986, after being ticketed several times, the boat was towed to the base storage impound lot as abandoned property. Mr. Johnston, in his capacity as a base security officer, assisted in towing the boat to the impound lot.
While the boat was being stored in the impound lot, it generated interest among the security guards, including Mr. Johnston. Thomas Schier, one of Mr. Johnston's fellow security officers at the base, testified that the guards thought the boat was "nice" and would be worth purchasing if the owner "want[ed] to get rid of it." Tr. at 79. Another base security officer, George Woods, testified that Mr. Johnston had talked about the boat, saying that "we would like to go fishing in it." Tr. at 126-27. Dennis Waltrip, a Watch Commander with the base Security Department during the time the boat was stored in the impound lot, testified that Mr. Johnston (along with other security officers) had asked him in early 1987 how Security Department personnel could obtain property that had been towed into the impound lot as abandoned. Petty Officer Waltrip explained to Mr. Johnston that cars were taken to an outside agency for crushing, but boats and trailers were taken to the Great Lakes Naval Station for public auction. See Tr. at 141-42. For several months while the boat was in the impound lot, Mr. Johnston himself served as an Assistant Watch Commander. In this supervisory position, he had special responsibilities with regard to the impound lot. Those duties included maintaining the impound log book and helping to tow vehicles into the lot. 2
Mr. Johnston testified that he believed abandoned boats, as well as automobiles, were destroyed. On February 20, 1987, Mr. Johnston towed the boat out of the impound lot and took it to his home in Kenosha, Wisconsin. The Wisconsin Department of Natural Resources issued a boat registration to Mr. Johnston on February 23, 1987. On the registration form, he falsely stated that he had purchased the boat from a Mr. Jerry Pate. A security officer noticed the boat missing from the lot in late February, but failed to report it since he thought the owner had claimed the boat. In June 1987, Mr. Johnston took the boat to a fishing camp he had recently purchased in Vilas County, Wisconsin.
Lieutenant Commander Ford discovered that his boat was missing from the impound lot in April 1987. 3 An investigation was then launched by the Naval Investigative Service. The investigator learned that Mr. Johnston had helped tow the boat into the impound lot, that he had registered a boat of the same make and size a few days after Lt. Commander Ford's boat was noticed missing, that the seller listed on the boat's registration application was fictitious, and that Mr. Johnston had purchased a fishing camp in northern Wisconsin. After obtaining this information, the naval investigator went to Wisconsin and asked Vilas County sheriff's detectives to visit Mr. Johnston's property to see if the boat was there. Two detectives drove to the property and, from the road, were able to see, on Mr. Johnston's property, a boat of the same size as the missing boat. The boat was in the front yard of Mr. Johnston's mobile home, near the driveway. The detectives then entered the property and lifted the boat's protective covering so that they could view the boat's registration numbers. The boat had on its hull the registration numbers issued to Mr. Johnston. The naval investigator then applied for a search warrant. The accompanying affidavit recited the boat's registration numbers. However, it also contained the information about Mr. Johnston's activities that had been previously discovered. On the basis of this affidavit, Circuit Judge James B. Mohr of the Circuit Court of Vilas County issued a search warrant authorizing the seizure of Lt. Commander Ford's boat. The naval investigator returned to the property with one of the detectives and seized the boat after comparing its motor number and drive shaft number with those listed in Lt. Commander Ford's records.
Mr. Johnston filed a motion to suppress any physical evidence seized during the execution of this search warrant. He argued that the detectives' entry of his property without a search warrant and without probable cause constituted an illegal search, and that the search warrant based upon this illegal search was defective. See R. 14. The district court denied Mr. Johnston's motion. The court held that, since the boat could be seen from the road, Mr. Johnston's expectation of privacy in the boat had been reduced "to virtually nil" and that the detectives were entitled to check the boat's registration number. See Tr. at 11-12.
Mr. Johnston maintains that the evidence seized pursuant to the execution of the search warrant issued to the naval investigator should have been suppressed since the warrant was based on observations made during the course of an illegal search. He asserts that he had a reasonable expectation of privacy in a covered boat sitting on its trailer in the front yard of his mobile home. Nothing that identified the boat was exposed to the public. Thus, Mr. Johnston maintains that, in order for the police to enter his property without a search warrant, remove the protective tarp from the boat on its trailer, and search for the boat's registration numbers, they must have probable cause and be acting pursuant to a clear exception to the fourth amendment's search warrant requirement. Mr. Johnston maintains that, because the detectives in this case did not obtain the boat's identification numbers in a manner consistent with any exception to the search warrant requirement, the warrant issued to the investigator was defective. He contends that, without the observations made during the allegedly illegal search, the affidavit submitted did not establish sufficient probable cause for the issuance of a search warrant authorizing the seizure of the boat on his property. Thus, he submits that his motion to suppress should have been granted.
Mr. Johnston's argument that the detectives' observation of the boat's registration numbers constituted an illegal search raises a somewhat complex question regarding the search of an object arguably within the curtilage of the home. It is not necessary, however, for us to resolve this question. We believe that there was enough information in the affidavit to support the issuance of the search warrant even without the observations made by the detectives when they lifted the boat's protective covering.
In reviewing the validity of a search warrant supported by an affidavit containing information that is in part unlawfully obtained (as we assume, arguendo, here), we must consider whether " 'the untainted information, considered by itself, establishes probable cause for the warrant to issue.' " United States v. Alexander, 761 F.2d 1294, 1300 (9th Cir.1985) (quoting James v. United States, 418 F.2d 1150, 1151 (D.C.Cir.1969)); see United States v. Korman, 614 F.2d 541, 547 (6th Cir.) (after "disregarding any alleged information illegally obtained set forth in the affidavit for search warrant," court concluded "that the independent and legitimately obtained evidence established probable cause"), cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 808 (1980); United States v. DiMuro, 540 F.2d 503, 515 (1st Cir.1976) () (quoting United States v. Giordano, 416 U.S. 505, 555, 94 S.Ct. 1820, 1845, 40 L.Ed.2d 341 (1974) (Powell, J., concurring in part and dissenting in part)), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977); see also Franks v. Delaware, 438 U.S. 154, 156, 172, 98 S.Ct. 2674, 2676, 2684, 57 L.Ed.2d 667 (1978) (); United States v. McHale, 495 F.2d 15, 17 (7th Cir.1974) (per curiam) ...
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