U.S. v. Miroff

• Decision Date: 05 December 1979
• Docket Number: No. 78-2174,78-2174
• Citation: 606 F.2d 777
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leo MIROFF and Jane Frances Powers, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 777

606 F.2d 777

UNITED STATES of America, Plaintiff-Appellee, v. Leo MIROFF and Jane Frances Powers, Defendants-Appellants.

No. 78-2174.

United States Court of Appeals, Seventh Circuit.

Argued May 24, 1979.

Decided Oct. 1, 1979.

Rehearing and Rehearing En Banc Denied Dec. 5, 1979.

Jerome Rotenberg, Chicago, Ill., for defendants-appellants.

John T. Bannon, Jr., T. George Gilinsky, Washington, D. C., for plaintiff-appellee.

Before PECK, Senior Circuit Judge, ^* CUMMINGS and PELL, Circuit judges.

PELL, Circuit Judge.

In this appeal by Miroff from his conviction of conspiracy to transport stolen property in interstate commerce in violation of 18 U.S.C. § 371 and by Miroff and Powers of their conviction of transporting stolen property in interstate commerce in violation of 18 U.S.C. §§ 2314 and 2(b), the appellants raise five issues. We shall discuss the issues raised and the evidence pertinent thereto in the order presented in the appellants' brief.

I

WHETHER THE DISTRICT COURT ERRED IN DENYING THE DEFENDANTS' MOTION TO SUPPRESS EVIDENCE.

On January 11, 1973, furs, jewelry, and cash worth approximately $25,000 were stolen from a home in Indianapolis and shortly thereafter were divided in Illinois among various individuals including Miroff and Powers. Substantial evidence in the record supported the participation of both defendants in the entire operation including the transportation across the state line. On January 19, 1973, Miroff and Powers offered to sell Agent Tucci certain stolen radios which were not a part of the loot of the Indianapolis robbery. On January 26, 1973, federal agents and local police officers went to the residence of one Robert Harder and his wife with arrest warrants for Harder, Miroff, and Powers. At the time, Miroff and Powers were guests in the Harder home temporarily occupying the downstairs bedroom. The Harders kept personal and family belongings in closets and drawers in the downstairs bedroom including clothing, pictures, and papers. The bedroom door had no lock on it and appellants had no key to the house. A week or so prior to the service of the arrest warrants the police had come to the Harder house and the defendants had left the house with the police. The defendants returned to the house whereupon, because of Mrs. Harder being nervous about having two children in the house, her husband told the defendants that they did not want anything in the house that did not belong there and specifically they did not want anything that was stolen. The defendants decided to stay on in the house instead of getting a motel room with the understanding there was nothing in the room that should not have been there. On the evening of the 26th, when Mrs. Harder came upstairs she looked out the window and saw a police car. She came downstairs and reported this to her husband who was with Miroff. She expressed the hope that there was nothing in the house, and that she did not want any more problems. Miroff replied that there was nothing in the house that should not be there.

On the arrival of the officers at the house on the evening of the 26th, Harder admitted the officers and gave permission for the officers to search the bedroom which had been occupied by the defendants. At one point in the testimony at the suppression hearing, one of the officers stated that Harder had told the officers that "that whatever was in the bedroom belonged to Mr. Miroff." This was not in fact the case, as indicated hereinbefore, although it does appear that all of the possessions of the defendants were in fact in the one bedroom. The officers searched the room and found and seized shopping bags containing radios and electric shavers, a garment bag containing jewelry, approximately $1000 in $20 bills, two guns, and plastic garbage bags containing furs. They also found two Indiana license plates on the floor of the closet. Finally, on the nightstand adjacent to the bed the officers found an address book and some papers listing each item of jewelry found in the garment bag with dollar amounts next to each item. The district court refused to suppress the various items seized during the search.

We have little trouble with the present issue insofar as the consent to search the room was concerned. Permission to search was obtained from a third party who possessed at the very least common authority over the bedroom sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The defendants argue, however, that this consent, even though phrased as "full permission to search his residence" gave Harder no authority to consent to a search of the personal belongings of the defendants. Under the particular facts of this case, however, because the defendants had assured the Harders there was nothing stolen in the room and nothing there that did not belong there, the defendants must be regarded as having assumed the risk that one with whom they shared the common area might properly permit that common area to be searched, particularly when the sharer was the dominant or controlling party in the general premises. See United States v. Cook, 530 F.2d 145 (7th Cir. 1976), Cert. denied, 426 U.S. 909, 96 S.Ct. 2234, 48 L.Ed.2d 835. The present case is stronger for the assumption of the risk than was Cook in view of the understanding that the defendants had with the Harders that there was nothing improper in the room. In effect, their staying on at the Harder house was on the express condition that they had nothing of a stolen nature in the room that they were occupying as guests. As the Supreme Court indicated in Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), the courts should not engage in metaphysical subtleties with regard to such a consent. We think that language is applicable here where it could be fairly said that the defendants had knowingly and deliberately assumed the risk that Harder would allow someone else to look at all of the property in the room.

In their reply brief, the defendants rely strongly on United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) and United States v. Isom, 588 F.2d 858, 861 (2d Cir. 1978). We note, however, that in both cases the court emphasized the importance of the justifiable expectation of privacy. In the present case, the defendants by their assurances to Harder there were no stolen goods in the bedroom and that there was nothing there which should not have been there, placed Harder in a position of granting consent to a search of the entire room and its contents without any basis for his thinking that the defendants were asserting an expectation of privacy.

The defendants also argue that the seizure of these items was unreasonable as being made without probable cause because the arrest warrants were to be served in connection with the possession of stolen radios and at the time the officers were given permission to search the house they were not aware that the furs, jewelry, and cash they subsequently found were stolen. Because we regard probable cause as being determined by everyday factual and practical considerations on which reasonable and prudent men act, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), once the officers found the radios and electric shavers in the shopping bags, jewelry, almost $1000 in $20 bills and two guns in a garment bag, furs with someone else's name sewed inside them in plastic garbage bags, and the handwritten list of jewelry, the officers had adequate probable cause to seize the items found in the bedrooms even though they did not know at the time that the items were stolen. We do not find any support for the appellants' position on the facts of this particular case in United States v. Wilson, 536 F.2d 883 (9th Cir. 1976), Cert. denied, 429 U.S. 982, 97 S.Ct. 497, 50 L.Ed.2d 592, or Corngold v. United States, 367 F.2d 1 (9th Cir. 1966).

We are satisfied that the evidence seized bore a reasonable relation to the purpose of the search which was conducted in connection with an ongoing investigation of criminal dealing in stolen articles.

In sum, the situation in this case is not, in our opinion, the type to require us to invoke the exclusionary rule.

II

WHETHER THE COURT ERRED IN PERMITTING EVIDENCE RELATING TO CRIMINAL ACTIVITY NOT CHARGED IN THE INDICTMENT.

Testimony was received in the trial, over objection, regarding the prior conversations with Agent Tucci about stolen radios and with regard to the officers going to the Harder residence to make arrests in connection with those radios. This evidence was received for the limited purpose of the jury determining what bearing, if any, it had on the knowledge and the intent of the defendants insofar as the items taken from the Indianapolis house were concerned.

The defendants concede that it is proper to establish criminal intent or knowledge by evidence of other criminal activity, but relying upon United States v. Miller, 508 F.2d 444 (7th Cir. 1974), they assert that this criminal activity was inadmissible to establish criminal intent or knowledge unless and until the defendants had affirmatively contested their intent and knowledge that the articles which were the subject of the indictment were stolen.

In the present case it seems clear to us as a preliminary matter that the evidence in question was similar to the offense charged and was close enough in time to be relevant. United States v. Fierson, 419 F.2d 1020, 1022-23 (7th Cir. 1969). While it is true that the instant indictment charged violations concerning transporting stolen property in interstate commerce and that the radio matter presumably more directly concerned the violation of the theft statutes of Illinois, both situations involved the handling and disposition of stolen property, one element only of the federal case being the matter of the transportation across state lines.

The appellants argue, however, that something...