U.S. v. Lee, s. 81-2084

• Decision Date: 27 January 1983
• Docket Number: 81-2086,81-2380 and 81-2381,Nos. 81-2084,s. 81-2084
• Citation: 700 F.2d 424
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward LEE and Donald Lee Wells, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 424

700 F.2d 424

UNITED STATES of America, Plaintiff-Appellee, v. Charles Edward LEE and Donald Lee Wells, Defendants-Appellants.

Nos. 81-2084, 81-2086, 81-2380 and 81-2381.

United States Court of Appeals, Tenth Circuit.

Jan. 27, 1983.

Rehearing Denied March 22, 1983.

Richard G. MacDougall, Salt Lake City, Utah, for defendant-appellant wells.

Edward K. Brass, Salt Lake City, Utah, filed a brief, for defendant-appellant Lee.

Stewart C. Walz, Asst. U.S. Atty., Salt Lake City, Utah (Brent D. Ward, U.S. Atty., Salt Lake City, Utah, with him on brief), for plaintiff-appellee.

Before McWILLIAMS, LOGAN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Charles Edward Lee and Donald Lee Wells were convicted by a jury of armed bank robbery under 18 U.S.C. Secs. 2, 2113(a), (d) (1976). On appeal they challenge the admission of certain evidence from an allegedly unconstitutional search, the use of a photo array, and the district court's failure to order a new trial on the basis of newly discovered evidence. We affirm.

Defendants were accused of robbing the South Ogden Branch of the Bank of Utah. The robbery took place the morning of December 5, 1980, when two men demanded money from tellers Laura Tracy Rackham and Judy Ann Burt. The robber at Rackham's cage pulled a gun from his overcoat pocket and rested it on the counter, aiming it at her. The robbers took $2,126, including $500 in "bait money" ($20-bills whose serial numbers had been recorded) and several hundred dollars in one-dollar bills.

Meanwhile, officers of the U.S. Marshal's office in Denver, Colorado, had been seeking Late in January an FBI agent showed the tellers photographs of Wells, Lee, and several other men. Rackham identified Wells as the man who had robbed her but did not identify Lee. Burt identified neither. At trial, Rackham identified both Wells and Lee. The other witnesses from the bank were unable to identify either man. However, Wells and Lee were identified by Timothy Napier, the driver of the getaway car who testified in considerable detail about the robbery. Like Wells and Lee, Napier had rented a room at the Wagon Wheel Motel and had been arrested when he returned late the night of the robbery. Some of the bank's bait money was in his possession at the time of his arrest. He testified as a Government witness as part of a plea bargain.

Wells and Lee as fugitives from a federal correctional institution. By December 3, 1980, the officers had succeeded in tracing them to a rented room in the Wagon Wheel Motel in Boulder. Because Wells and Lee were temporarily away from the motel, the officers had rented a nearby room to watch for their return. The fugitives returned to their room about 11:15 p.m. Friday, December 5 (the day of the bank robbery in Ogden). The officers waited until they believed Wells and Lee would be in bed, went to Wells' and Lee's door, announced their presence several times and, after receiving no response, broke down the door, arrested the men, and took them to the officers' room. One officer returned to defendants' room to get their clothes for them and looked around for anyone who might be hiding there. When he looked under the bed, he saw a bag and what appeared to be loose bills. The room was closed and watched until the next day, when FBI agents who were investigating Wells and Lee in connection with armed bank robberies were notified that the two men had been arrested. After Wells' and Lee's rental period expired at 11:00 that morning, the FBI agents searched their room with the motel owner's permission. Underneath the bed the agents discovered scattered bills and a transparent plastic bag containing more cash, a total of $765 including 436 one-dollar bills. They also found money inside a small zipped duffle bag and a gun in a sock inside a partially closed suitcase. ¹

I. SEARCH OF THE MOTEL ROOM

Defendants argue that the court below erred by permitting the money found under the bed to be admitted into evidence. Our disposition of this issue is governed by United States v. Croft, 429 F.2d 884 (10th Cir.1970), which is directly on point. When Croft was arrested for traffic violations, the arresting officer found several suspicious looking checks and a motel room key in his glove compartment. Later that day, after the rental period on Croft's room had elapsed, the local county attorney and county sheriff went to the motel. They searched Croft's room with the motel owner's permission, finding a cardboard box containing a check protector. The motel owner kept the check protector in his office until an FBI agent picked it up several days later. We held that Croft lacked standing to challenge the search and seizure because "[w]hen the rental period has elapsed, the guest has completely lost his right to use the room and any privacy associated with it." Id. at 887. We specifically rejected Croft's argument "that the expiration of the rental period should not control ... because his arrest prior to check-out time prevented him from returning to the motel and perhaps extending the rental period," because "it was defendant's own conduct that prevented his return to the motel." Id.

Lee asserts that "Croft has been abused in this case," Brief of Appellant Lee at 5, but makes no attempt to distinguish it and cites no authority to indicate some reason to disregard it. Indeed, since it was decided, Croft has been followed by several other courts. United States v. Jackson, 585 F.2d 653, 658 (4th Cir.1978); United States v. Akin, 562 F.2d 459, 464 (7th Cir.1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978); United States v. Haddad, 558 F.2d 968, 975 (9th Cir.1977); United States v. Parizo, 514 F.2d 52, 54 (2d Cir.1975); United States v. Lewis, 400 F.Supp. 1046, 1049 (S.D.N.Y.1975).

It is true, as defendants point out, that nearly twelve hours elapsed between their arrest and the search, and that the officers had opportunity to apply for a warrant. That does not serve to distinguish Croft Wells' reliance on United States v. Block, 590 F.2d 535 (4th Cir.1978), is ill-founded. In that case the Fourth Circuit upheld the search of Block's room because his mother, who owned the house and ordinarily had access to the room, consented. However, the court did require suppression of evidence the police found inside a locked footlocker in the room. The court held that Block's mother had no authority to consent to the search of the footlocker since it was clearly the son's private property, it was kept locked in his absence, and she had no key. "While authority to consent to search of a general area must obviously extend to most objects in plain view within the area, it cannot be thought automatically to extend to the interiors of every discrete enclosed space capable of search within the area." Id. at 541.

however, for there also a warrant could have been sought.

The district court here followed Block, suppressing the evidence found inside the duffle bag and suitcase. Wells now asks that we suppress the money found under the bed because "the area under the bed was just such a 'discrete enclosed space.' " Brief of Appellant Wells at 13. The answer to that argument can be found in a footnote to the passage quoted:

"Obviously not every 'enclosed space' within a room or other area--e.g., pockets in clothes, unsecured shoeboxes, and the like--can claim independent status as objects capable of search not within reach of the authorized area search. The rule has to be one of reason that assesses the critical circumstances indicating the presence or absence of a discrete expectation of privacy with respect to the particular object: whether it is secured, whether it is commonly used for preserving privacy, etc."

Block, 590 F.2d at 541 n. 8. The area under a bed in a motel room is patently unlike a locked footlocker in one's home. Daily motel housekeeping (making the bed, vacuuming, tidying up) might reveal items hidden under the bed, and privacy from such...