U.S. v. Roberts

• Decision Date: 12 March 1980
• Docket Number: No. 79-1396,79-1396
• Citation: 644 F.2d 683
• Parties: UNITED STATES of America, Appellant, v. James Willis ROBERTS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 683

644 F.2d 683

UNITED STATES of America, Appellant, v. James Willis ROBERTS, Appellee.

No. 79-1396.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 16, 1980.

Decided March 12, 1980.

Gene C. Napier, Asst. U. S. Atty., Kansas City, Mo. (argued), and Ronald S. Reed, Jr., U. S. Atty., Kansas City, Mo., on brief, for appellant.

Philip F. Cardarella, Kansas City, Mo., for appellee.

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, STEPHENSON, HENLEY and McMILLIAN, Circuit Judges.

HENLEY, Circuit Judge.

This is an appeal by the government from an order of the United States District Court for the Western District of Missouri (District Judge William R. Collinson) suppressing as evidence two lots of marijuana which had come into the possession of the government and which it planned to use as evidence in the trial of the defendant, James Willis Roberts, who had been indicted on two counts of possession of the drug with intent to distribute it. The charges were brought under 21 U.S.C. § 841(a)(1). We have jurisdiction of the appeal by virtue of 18 U.S.C. § 3731.

The appeal was heard originally by a panel consisting of Circuit Judge Bright, the writer, and United States Senior District Judge John K. Regan of the Eastern District of Missouri sitting by designation. The majority of the panel voted to reverse the judgment of the district court on both counts of the indictment. Judge Bright dissented. Thereafter the defendant moved for rehearing and rehearing en banc. Rehearing en banc was granted. This is the opinion of the majority of the en banc court.

I.

After having been indicted, the defendant moved to suppress the evidence contending that the seizure of the material by law enforcement officers without a warrant was unreasonable and violated his rights under the fourth amendment to the Constitution of the United States.

In resisting the motion the government took the position that the initial search of certain private storage facilities where the contraband had been concealed and the initial "seizure" of the material were purely private, and that the fourth amendment was inapplicable.

The district judge rejected that contention, and in so doing he relied heavily on the opinion of this court in United States v. Kelly, 529 F.2d 1365 (8th Cir. 1976). In coming to his conclusion that the fourth amendment required suppression of the evidence, the district judge found that the search and seizure with which he was concerned did not fall within any of the recognized exceptions to the warrant requirement of the amendment, including the exception based on the familiar "plain view" doctrine that has been considered frequently by this court.

For reversal, the government argues that Kelly, supra, was not decided correctly and that, in any event, that case is not applicable to the facts of this case. And the government also contends that the ultimate seizure of the material was justified by reference to the plain view doctrine.

The district court held an evidentiary hearing on the defendant's motion and on May 9, 1979 it filed an unpublished memorandum opinion dealing with the motion. The controlling facts relative to the discovery and seizure of the contraband are not in dispute, and we can do no better than copy the succinct statement of those facts that appears in the opinion of the district court.

The following facts were developed during an evidentiary hearing that was held by this Court on April 17, 1979. In November, 1978, defendant was the lessee of certain storage units at Stor-All of Independence and at Stor-All of Gladstone. The storage units at these locations were generally kept locked by the lessees with the lessees' own padlocks. On the evening of November 29, 1978, employees at the Stor-All of Independence and at the Stor-All of Gladstone notified Tom Pepper, who is the general manager of all of the Stor-All businesses in the Kansas City area, that they had discovered several unlocked storage units at these two locations. After hearing of the unlocked units, Mr. Pepper and a private investigator who worked for Mr. Pepper went to the Gladstone Stor-All to investigate the unlocked units. In the course of their investigation, they discovered broken padlocks near several of the unlocked units. Mr. Pepper and the private investigator entered the unlocked units and found, in one of them, what appeared to be a large bag of marihuana. Mr. Pepper closed the door to that storage unit and, along with the private investigator, went to the Independence Stor-All.

At the Independence Stor-All, Mr. Pepper again discovered broken padlocks near several unlocked storage units. Mr. Pepper looked into these unlocked units and discovered, in one of them, several boxes of what appeared to be marihuana. Mr. Pepper called the Kansas City police department and told them what he had discovered. At approximately 9:00 p. m. on November 29, 1978, several law enforcement officers, including D.E.A. Task Force Officer Jack Albrecht, arrived at the Independence Stor-All. Mr. Pepper took the officers to the storage unit where he had observed the boxes and he explained to the officers what he had seen. The officers then entered the storage unit and seized what was later identified to be approximately 900 pounds of marihuana.

The following morning, the officers met Mr. Pepper at the Gladstone Stor-All. Mr. Pepper took the officers to the storage unit where he had observed the large bag on the prior evening. The officers entered the storage unit and seized the bag, which was later found to contain approximately 56 pounds of marihuana.

The officers who seized the marihuana did not, on either the evening of November 29, 1978 or the morning of November 30, 1978, have warrants for the search of the storage bins or for the seizure of the marihuana.

After investigation, the officers identified defendant Roberts as the lessee of the storage bins in which the marihuana was found. Defendant Roberts was subsequently indicted for two counts of possession with intent to distribute marihuana, in violation of 21 U.S.C. § 841(a)(1) (1976).

The trial court also found that the search and seizure were not incident to a lawful arrest, and that no exigent circumstances existed that would have justified warrantless proceedings by law enforcement officers. The government does not quarrel with those findings.

In considering whether the search and seizure could be justified under the plain view exception to the amendment's warrant requirement, the trial court referred to Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). Referring to Chapman the district court said:

... In Chapman v. United States, 365 U.S. 610, (81 S.Ct. 776, 5 L.Ed.2d 828) (1961), the Court rejected the argument that law enforcement officers may gain entry to a building at a landlord's invitation and then seize anything within plain view. The Court held, 'to uphold such an entry, search and seizure "without a warrant would reduce the (Fourth) Amendment to a nullity and leave (tenants') homes secure only in the discretion of (landlords)." ' Chapman v. United States, supra at 616-17, 81 S.Ct. at 779-80.

In refusing to apply the plain view doctrine to this case the district court was clearly correct. In order for that doctrine to be applicable three conditions must be met: (1) the officer who observes the material must be where he has a legal right to be; (2) the discovery must be inadvertent; and (3) the contraband or otherwise incriminatory nature of the material must be apparent immediately. United States v. Pugh, 566 F.2d 626, 627 (8th Cir. 1977), cert. denied, 435 U.S. 1010, 98 S.Ct. 1885, 56 L.Ed.2d 393 (1978); United States v. Wilson, 524 F.2d 595, 598 (8th Cir. 1975), cert. denied, 424 U.S. 945, 96 S.Ct. 1415, 47 L.Ed.2d 351 (1976). See also the discussion of the doctrine that appears in Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 2037-42, 29 L.Ed.2d 564 (1973), wherein the Court emphasized the importance in plain view context of the "inadvertency" requirement.

In this case there is no question that when the officers observed the marijuana, they were where they had a legal right to be, and we will assume that the contraband nature of the material was immediately apparent to experienced officers if not to laymen. It cannot be contended, however, that the officers observed this marijuana inadvertently; they had been called to the scene to look at it, and when they came on the Stor-All premises at Independence and at Gladstone, they knew exactly what they were looking for and what they might reasonably expect to find.

II.

Turning now to the question of whether the warrantless actions of the officers in this case were reasonable apart from any of the exceptions to the general requirement of a warrant, which exceptions have been mentioned, both sides recognize that where a search and seizure are conducted by private parties without government participation, the fourth amendment is not applicable even though the seized material is later turned over to the officers and used as evidence in a criminal prosecution. United States v. Kelly, supra, 529 F.2d at 1371 and cases cited.

Where a search and an ultimate seizure are initiated and largely carried out by private persons, but where law enforcement officers get involved in the overall process and ultimately take over the material seized, this court has held that a court in determining whether there has been a violation of the fourth amendment must consider: (1) official involvement in the initial search, and (2) official involvement in the effective seizure of the item or items in question. United States v. Haes, 551 F.2d 767, 770 (8th Cir. 1977); cf. United States v. Entringer, 532 F.2d 634 (8th Cir.), cert. denied 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976).

In this case it is clear that the marijuana in question was initially discovered by the Stor-All peopl...