U.S. v. Smith

• Decision Date: 31 December 1975
• Docket Number: No. 74--1823,74--1823
• Citation: 527 F.2d 692
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Harold SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 692

527 F.2d 692

UNITED STATES of America, Plaintiff-Appellee, v. Charles Harold SMITH, Defendant-Appellant.

No. 74--1823.

United States Court of Appeals Tenth Circuit.

Argued Sept. 2, 1975.

Decided Dec. 31, 1975.

Rodney G. Snow, Asst. U.S. Atty. (Ramon M. Child, U.S. Atty., on the brief), for plaintiff-appellee.

Craig S. Cook, Salt Lake City, Utah, for defendant-appellant.

Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Charles Harold Smith was charged by information with the possession of 592 blank money orders of the United States Post Office Department with an intent to convert said money orders to his own use or gain, or the use or gain of another, knowing said money orders to have been stolen, in violation of 18 U.S.C. § 500. Pursuant to Fed.R.Crim.P. 41 Smith filed prior to trial a motion to suppress the use at trial of the money orders which formed the basis for the prosecution. The motion to suppress was not heard prior to trial as provided for by Rule 12(e) and at the trial the money orders in question were received into evidence over objection. Smith was convicted, and on appeal his conviction was reversed. See United States v. Smith, 495 F.2d 668 (10th Cir. 1974).

Upon reversal, the case was remanded with directions that an evidentiary hearing on the motion to suppress be held prior to retrial, with 'due regard' to be given the holdings in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), regarding Smith's 'standing' to challenge the search of the automobile which led to the seizure of the money orders. For general background facts out of which this prosecution arises, see our earlier opinion. 495 F.2d 668, 669. Additional background facts will only be developed as is deemed necessary to an understanding of this opinion.

Upon remand the trial court held an evidentiary hearing on the motion to suppress prior to retrial. At that hearing the two police officers who conducted the search of the automobile testified, as did not defendant Smith. Testimony was also taken from one Joseph Thomas Palmasano, in whose automobile the money orders were seized. The trial court denied the motion to suppress and in connection therewith found and concluded as follows: (1) Smith had no substantial proprietary or possessory interest in the money orders; (2) Smith had no proprietary or possessory interest in the automobile from which the money orders were taken; (3) Smith had abandoned the money orders by 'dumping the money orders into an automobile belonging to one who was almost a total stranger'; (4) that Smith accordingly lacked standing to challenge the search of the Palmasano vehicle, since he, Smith, was not an aggrieved person within the meaning of Rule 41(e); and (5), alternatively, that the police officers had probable cause under exigent circumstances which justified the limited search which in turn revealed the presence of the money orders in the Palmasano car.

At the second trial of this matter the money orders were again received into evidence and Smith was again convicted. He now appeals for a second time and his primary argument is that the seizure of the money orders was unlawful and that he has standing to challenge the search and seizure.

In passing on the correctness of the trial court's denial of Smith's motion to suppress, we are not limited to a consideration of just the evidence introduced at the hearing on the motion to suppress. In addition thereto, we may also consider the evidence adduced at trial, even though such may not have been presented at the pretrial suppression hearing. Carroll v. United States,267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Canieso, 470 F.2d 1224 (2d Cir. 1972); Rocha v. United States, 387 F.2d 1019 (9th Cir. 1968), cert. denied, 390 U.S. 1004, 88 S.Ct. 1247, 20 L.Ed.2d 104 (1968); and Rent v. United States, 209 F.2d 893 (5th Cir. 1954). At this point the immediate facts as gleaned from the entire record and leading up to the questioned search should be developed.

Smith, the defendant, was being evicted from his living quarters in the early morning hours by his landlady. Smith and his belongings were literally on the sidewalk. Smith put a number of his belongings in his own automobile, but he needed assistance. In his effort to get help Smith called a nearby bar, where he was apparently well known, and the bartender sent Palmasano to help. Palmasano, who was unacquainted with Smith, arrived shortly for the purpose of assisting Smith. Smith apparently had a stereo which would not fit in either his car or the Palmasano vehicle. So, Palmasano left the scene in search of additional help.

About this time a local Salt Lake City police officer, who had been previously called to the scene by the landlady, had furher conversation with Smith. The police officer in question had at that time just been advised by the landlady that Smith 'might' have some stolen money orders in his possession. In this regard there was some question as to whether the landlady had simply referred to money orders, or 'stolen' money orders. In any event the police officer thereupon inquired of Smith as to whether he, Smith, had anything in his car that didn't belong to him. Smith replied that he did not. The officer then asked if he could look in the vehicle, and Smith refused to permit such. Smith's vehicle at that time carried an expired brake and light certificate, and there was some statement by the officer to the effect that the vehicle could be impounded and Smith issued a citation. The vehicle was not impounded, however, and the officer ostensibly left.

Actually, the officer only removed himself some 80 yards to a church parking lot where he continued to watch Smith's movements through binoculars. Smith's testimony was that he was uncertain as to whether the police officer had completely left the scene. In any event, the officer testified that he observed Smith take an object from his car and stuff it inside his shirt. According to the officer, Smith then proceeded across the street in the direction of a Seven-Eleven store, where, according to Smith's own testimony, he intended to throw the object, which ultimately turned out to be the money orders, into a trash can.

It was about this point in time that Palmasano and a friend returned to the scene. Palmasano parked his car some 30 to 40 feet directly in front of Smith's vehicle. The friend parked his vehicle somewhere to the rear of Smith's vehicle. Upon seeing Palmasano return, Smith changed his mind and as Palmasano left his vehicle and...