U.S. v. Paulino

• Citation: 850 F.2d 93
• Decision Date: 23 June 1988
• Docket Number: D,No. 833,833
• Parties: UNITED STATES of America, Appellant, v. Francisco PAULINO, Defendant-Appellee. ocket 87-1533.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 93

850 F.2d 93

UNITED STATES of America, Appellant, v. Francisco PAULINO, Defendant-Appellee.

No. 833, Docket 87-1533.

United States Court of Appeals, Second Circuit.

Argued Feb. 10, 1988.

Decided June 23, 1988.

Paul G. Gardephe, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., John F. Savarese, Asst. U.S. Atty., New York City, of counsel), for appellant.

Robert E. Precht, New York City (The Legal Aid Society Federal Defender Services Unit, New York City, of counsel), for defendant-appellee.

Before LUMBARD and CARDAMONE, Circuit Judges, and LEISURE, District Judge. ^*

CARDAMONE, Circuit Judge:

The sole issue presented on this appeal is whether counterfeit currency discovered during a warrantless protective search of a vehicle should be suppressed. The scope of the automobile exception to the Fourth Amendment sheds light on the answer to that question. Unlike what Sir Edward Coke said about a man's house, a man's automobile is not his castle. Castles are not readily moveable or subject to inspection and regulation, and their occupants do not ordinarily pose a threat to the safety of police officers acting in the normal course of their duty. The lowered expectation of privacy in an automobile provides a backdrop for our conclusion that the passenger lacked a reasonable expectation of privacy in that portion of the automobile searched.

I

On a drizzly, foggy August night in 1987 two New York City Police officers in a prowl car were patrolling the Washington Heights section of Manhattan when they came upon a car double-parked on 173rd Street near Fort Washington Avenue, a neighborhood plagued by a high incidence of drug-trafficking and robberies. Pulling alongside the vehicle, Police Officer Erbetta, riding with Officer Kennedy, asked the driver--later identified as Jose Diaz, the owner--what he was doing there. Upon receiving the noncommittal response, "hanging out," Diaz was asked to produce his license, registration, and insurance card. Two passengers were seated in the car--one in front, and the defendant, Francisco Paulino, alone in the rear behind the driver. As Officer Erbetta was requesting proof of ownership, he observed Paulino in the back seat moving his torso and bending over as if placing an object on the floor. It was dark out and the officer was unable to see Paulino's hands or the object. As Officer Erbetta later discovered defendant had been holding a doubled-over packet of 21 counterfeit $50 federal reserve notes, plus a few other bills. Paulino placed the bills under an opaque rubber mat on the floor of the back seat and put his feet on the mat.

Seeing Paulino's furtive movement, the officer ordered all three occupants out of the car and, using his flashlight, searched it. He searched the front, looking under the floor mats, and then the back. When Officer Erbetta lifted the rubber mat on the rear floor, he saw the packet of bills, picked them up, observed that they had identical serial numbers, and concluded that they were counterfeit. At the time, Paulino denied that the packet belonged to him, as did his two companions. Paulino was then placed under arrest.

Later, he was charged in a one-count indictment with possessing counterfeit United States currency in violation of 18 U.S.C. Sec. 472 (1982). At a hearing on defendant's motion to suppress, held on December 8, 1987 in the United States District Court for the Southern District of New York (Stanton, J.), the district court concluded that the search which uncovered the counterfeit money and its seizure by the police was unreasonable. Paulino contended at the hearing both that he knew the money was counterfeit and that the money was his property. In an oral opinion delivered at the conclusion of the suppression hearing, the district judge found the above recited facts and granted defendant's motion to suppress the evidence upon the following conclusions of law: (1) Police Officer Erbetta had reasonable cause to examine the automobile's interior after seeing defendant's motion that might signal the presence of a weapon; (2) the money was not in plain view and the officer's lifting of the mat and searching required probable cause; (3) Paulino's placement of the bills under the mat created a place where he enjoyed a reasonable expectation of privacy that gave him standing to object to the search; and (4) there was no probable cause under the circumstances for the police to search under the mat. The United States appealed pursuant to 18 U.S.C. Sec. 3731 (Supp. IV 1986). We reverse.

II

The question before us is whether the district court correctly concluded that Paulino had created a place where he enjoyed a reasonable expectation of privacy by placing the packet of counterfeit bills under the rubber mat on the back seat floor. Recognizing such a reasonable expectation of privacy, Judge Stanton found that the money was not in plain view and therefore the lifting of the rubber mat and the search under it required probable cause. Even though we agree substantially with the district court's analysis of the search itself, we are unable to adopt its conclusion granting suppression of the counterfeit money. We reverse because Paulino had no reasonable expectation of privacy in the area of Diaz's vehicle that was searched.

Normally, a determination by a district court as to whether an act, or belief, or in this case, an expectation, is "reasonable" is a conclusion of law subject to plenary review. See United States v. Shakur, 817 F.2d 189, 196 (2d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 128, 98 L.Ed.2d 85 (1987); United States v. Ceballos, 812 F.2d 42, 46-47 (2d Cir.1987). The district court made explicit findings of fact, not challenged by either party, which appear to be exclusively in favor of appellee. We undertake plenary review of this case in light of the undisputed facts.

A. Automobile Exception in Fourth Amendment Analysis

The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." The cornerstone of current Fourth Amendment analysis is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The Supreme Court there repeated " 'that the mandate of the [Fourth] Amendment requires adherence to judicial processes,' and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Id. at 356, 88 S.Ct. at 514 (brackets in original) (citations omitted) (quoting United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951)).

One of these exceptions is the so-called automobile exception. Over 60 years ago the Supreme Court recognized an exception to the Fourth Amendment's warrant requirement in the case of an automobile possibly carrying contraband, reasoning that a warrantless search of such a vehicle is not necessarily an "unreasonable" search because the vehicle is so quickly moveable. Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). Later, a second rationale developed to distinguish motor vehicles from homes based on the lesser expectation of privacy in an automobile, which is normally used for transportation and not for the purpose of storing individual belongings. Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (an automobile "seldom serves as one's residence or as the repository of personal effects.").

More recently, in California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), the Court relied upon both of these rationales in upholding a warrantless search of a motor home. The first justification for the Court's holding hinged on the vehicle's mobility "in a setting that objectively indicates that the vehicle is being used for transportation." Id. at 394, 105 S.Ct. at 2070-71. The second justification was the reduced expectation of privacy in a motor vehicle, based on the fact that much of the automobile is in "plain view" and that automobiles are subject to "pervasive regulation." Id. at 391-92, 105 S.Ct. at 2069; see also South Dakota v. Opperman, 428 U.S. 364, 367-68, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976) (describing both lesser privacy prongs); Cady v. Dombrowski, 413 U.S. 433, 441-42, 93 S.Ct. 2523, 2528-29, 37 L.Ed.2d 706 (1973) (discussing plain view rationale). These rationales differentiate a home from an automobile for Fourth Amendment purposes; given similar circumstances, a person's expectation of privacy in a car is far less than the expectation of privacy in his home or as the guest in the home of another.

The foregoing discussion of the automobile exception is limited but relevant. It is relevant because it provides the background essential to recognizing that a passenger in an automobile has a lesser expectation of privacy than a guest in another's home. It is limited because this case involves a protective search of an automobile without probable cause, rather than a warrantless search with probable cause. In the latter case, courts applying the automobile exception are concerned only with whether the search involves an automobile, one of its integral parts, or a sufficiently similar vehicle. If the space searched meets this criteria then, provided probable cause exists, the inquiry ends. See California v. Carney, 471 U.S. at 394-95, 105 S.Ct. at 2070-71. But, when the search is of a vehicle without probable cause, as here, the automobile exception provides no answer as to whether a defendant has a claim or whether the police actions are justified under the Fourth Amendment.

B. Paulino's Fourth Amendment Rights

We turn then to whether Paulino had a reasonable expectation of privacy in the particular automobile in which he was a passenger. The government urges that appel...