U.S. v. Novello
| Decision Date | 19 September 1975 |
| Docket Number | No. 75-1375,75-1375 |
| Citation | 519 F.2d 1078 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank NOVELLO, Defendant-Appellant. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert W. Rust, U. S. Atty., Rebekah J. Poston, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, and GODBOLD and GEE, Circuit Judges.
The sole issue in this case is whether a warrantless intrusion into a warehouse by Drug Enforcement Agency (DEA) people violated the Fourth Amendment ban on unreasonable searches. Novello contends that, because it did, incriminating evidence which resulted in his conviction should be suppressed and a new trial ordered. We affirm.
The situation presented is that of a container within a container half a ton of marijuana inside a closed truck inside a locked warehouse. It is with the invasion of the warehouse that we are solely concerned. For the truck was entered by authority of a warrant, and the warrant is attacked solely on the basis that matter from the warehouse incursion formed the basis for its issuance. We therefore turn to how the agents came to enter the warehouse.
In early 1974, Novello approached one Kramer about renting space in a mini-warehouse located in Hallandale, a city situated in Florida's east-coast metropolitan belt and lying somewhat north of Miami toward Ft. Lauderdale. Novello told Kramer, the rental agent for the building, that he had a large truck outside loaded with furniture and required a secure place to store it indicating, in Kramer's view, more interest in safety for his goods than in privacy. An agreement was struck, and Novello rented a bay in the warehouse which was completed but which, because it had not yet been inspected, could not be occupied immediately. In view of this, arrangements were made for Novello to use another area temporarily. This comprised projected Bays J, K, L and M, which formed one large area because internal partitions had not yet been erected. Novello was told that only Kramer and persons working with him, those doing work in these bays or storing matter in them, would have access to the temporary storage area.
About ten days later Jones, one of those persons designated by Kramer as having access, entered the temporarily-rented area by means of his own key in the early morning hours, but after daybreak, probably around eight o'clock. At about 8:45 that morning, DEA received a call from this entrant, who identified himself and related what he had seen in the area occupied by Novello. This was a 11/2 ton rental truck illuminated by the headlights of two other automobiles locked with it in the bay though opening an access door would have admitted the light of day. Jones also related that he had seen a large bale or package in the trunk of one of the cars and smelled an odor like marijuana. The men in the bay had seemed, he thought, very nervous. The DEA sent four agents who interviewed Jones about his observations.
These agents concluded that, before taking action, they should verify Jones' observations. By this time it was near noon. They went directly to the warehouse about a mile away and approached one McCartney, who ran a woodworking shop in yet another bay and whom Jones had told them possessed keys to all bays for the purpose of admitting building inspectors when Kramer was absent. One agent told McCartney that Jones had sent him to look at some scaffolding. McCartney knew Jones had scaffolding stored in the unpartitioned area of the warehouse which Novello was using. He therefore admitted the agent, though refusing to give him the key. When the other officers came in, McCartney realized he had been duped but was powerless to amend matters in the face of such numbers. The agents identified themselves as DEA, took the license number of the truck, picked up some specks of marijuana residue lying in open view on the floor, and left to obtain a search warrant. They asked McCartney to tell no one of their visit and posted two agents to watch the area. About 3:00 p. m., a search warrant was issued on the basis of Jones' information, supplemented by what the agents themselves discovered on their foray into the warehouse. By means of it the agents searched the rental truck and seized 1,224 pounds of marijuana which subsequently furnished evidence at Novello's trial. Novello himself was arrested and charged when he later appeared on the scene.
We conclude that Novello had no reasonable expectation of privacy in the area set aside for his temporary use. He took his chance that other persons unconnected with him and having good right to enter the premises for their own purposes might do so at awkward times as did Jones. More, if more be needed, that they might, as did McCartney, and duped or no, grant permission for law enforcement officials to come upon and ransack an area as fully under control of those who admitted them as under his.
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