U.S. v. Thornley

• Decision Date: 11 May 1983
• Docket Number: No. 82-1715,82-1715
• Citation: 707 F.2d 622
• Parties: UNITED STATES of America, Appellee, v. Ronald THORNLEY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 622

707 F.2d 622

UNITED STATES of America, Appellee, v. Ronald THORNLEY, Defendant, Appellant.

No. 82-1715.

United States Court of Appeals First Circuit.

Argued March 9, 1983.

Decided May 11, 1983.

Richard M. Egbert, Boston, Mass., with whom Joni Seplocha, Cranston, R.I., was on brief, for defendant, appellant.

Robert D. Krause, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and MALETZ, ^* Senior Judge.

PER CURIAM.

Appellant Ronald Thornley was convicted of selling a stolen motor vehicle in violation of the Dyer Act, 18 U.S.C. Sec. 2313 (1976). From that conviction Thornley raises three issues on appeal: (1) whether documentary evidence introduced at trial was illegally seized; (2) whether the district court erred in denying his motion for judgment of acquittal; and (3) whether the district court erred in failing to grant Thornley's motion for a new trial.

For the reasons that follow, we affirm the judgment of the district court.

I

Thornley's first contention is that the district court erred in denying his motion to suppress evidence. He argues that certain documents were illegally seized and, accordingly, improperly introduced at his trial. These documents consisted of bank and other business records of Uncommon Auto Parts--a business in which Thornley was the dominant principal. They were the object of a grand jury subpoena duces tecum, but were never produced.

The record of the suppression hearing discloses that Thornley had removed these documents to the basement of a three-story residence located at 13 Columbine Avenue, Pawtucket, Rhode Island, which was owned by a longtime friend, Blair Dalton. Dalton rented the residence to eight persons, but Thornley was not a tenant. The basement consisted of one large area and two smaller partitioned storage areas which were used in common by the tenants to store their belongings.

The testimony at the suppression hearing was that after the third floor tenant vacated her apartment and removed her possessions from her storage area, Mrs. Geraldine LeBlanc, the first floor tenant, began storing some belongings there. The door to this storage area was never locked. In addition, ready access into it could be had through a two-foot by six-foot opening where several slats had fallen off. This opening, through which Mrs. LeBlanc and her children invariably entered, had been there for several years. It was this storage area where Thornley placed the Uncommon Auto business records.

After one of her children discovered bottles of pills in the boxes brought in by Thornley, Mrs. LeBlanc contacted the Pawtucket police department. Upon the officers' arrival Mrs. LeBlanc directed them to the storage area. While looking through the boxes to see if there were more pills, the officers saw the Uncommon Auto records. One of the officers immediately recognized the name on the records, having assisted the FBI in the auto theft investigation which culminated in Thornley's conviction. The records were thereupon seized by the officers. It is this seizure of which Thornley complains.

Whether the Fourth Amendment's prohibition against unreasonable searches and seizures has been violated depends on whether the person asserting a Fourth Amendment violation had a reasonable expectation of privacy in the place searched or the thing seized. United States v. Hershenow, 680 F.2d 847, 855 (1st Cir.1982). Given the facts here the basic question is whether Thornley had a reasonable expectation of privacy in the partitioned storage area. In Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the Supreme Court set forth a two-step test for determining whether a reasonable expectation of privacy exists: whether the individual has exhibited a subjective expectation; and whether such subjective expectation, viewed objectively, is justifiable under the circumstances. Id. at 740, 99 S.Ct. at 2580. The burden is on the defendant to satisfy these two tests. United States v. Goshorn, 628 F.2d 697, 700 (1st Cir.1980).

Thornley meets the subjective expectation test. His purpose in taking the records to 13 Columbine Avenue was to hide them and their incriminating contents after the grand jury subpoena issued. However, a legitimate expectation of privacy means more than a subjective expectation of keeping incriminating evidence hidden. United States v. Hershenow, 680 F.2d at 855; United States v. Goshorn, 628 F.2d at 701. See Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12, 99 S.Ct. 421, 430-31 n. 12, 58 L.Ed.2d 387 (1978).

We thus consider whether Thornley's subjective expectation, viewed objectively, is justifiable under the circumstances. The following factors weigh against an objective expectation of privacy. The door to the storage area was not kept locked. Ready access could be had to that area through a hole in the partition which had been there for several years. The storage area was being used by Mrs. LeBlanc before Thornley began using it. She was never told, either before or after Thornley began using that area, that such use was prohibited. Access to the basement was not restricted to any of the tenants. In fact, it was regularly used by the LeBlanc children as a play area. There was no credible evidence that Thornley had a lease for the storage area. Moreover, it is uncontroverted that he was not a tenant at the residence.

The sole countervailing factor is found in the testimony of Blair Dalton, who testified that he had leased the storage area to Thornley for his exclusive use. The district court completely discounted Dalton's testimony, rejecting it as "not worthy of belief." Credibility resolutions of a fact finder are to be disturbed only in exceptional cases. NLRB v. Massachusetts Machine & Stamping, Inc., 578 F.2d 15, 20 (1st Cir.1978). Except as to evidence which is inherently incredible, we cannot substitute our judgment for that of the trial court in its exercise of credibility choices. Marcum v. United States, 452 F.2d 36, 39 (5th Cir.1971). On the basis of the record before us, we reject Thornley's invitation to do so here.

Based on these facts we find that there was no objective, justifiable expectation of privacy in the storage area. "One cannot insulate himself against the discovery of incriminating material by removing it from his own premises, ... and hiding it in a place ... in which one has no legal interest or even access rights." Hershenow, 680 F.2d at 856. It follows that there was no error in denying Thornley's motion to suppress.

II

Thornley next argues that the district court erred in denying his motion for judgment of acquittal. Review of a district court's denial of such a motion is, of course, very limited. We must affirm that decision "unless the evidence, viewed in the light most favorable to the government, could not have persuaded any rational trier of fact that [defendant] was guilty beyond a reasonable doubt." United States v. Cincotta, 689 F.2d 238, 241 (1st Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 347, 74 L.Ed.2d 387 (1982).

The thrust of Thornley's argument is that the Government's proof was circumstantial and insufficient to support his conviction. However, the Government's case may be entirely supported by circumstantial evidence. United States v. Sullivan, 498 F.2d 146, 150-51 (1st Cir.), cert. denied, 419 U.S. 993, 95 S.Ct. 303, 42 L.Ed.2d 265 (1974). If the Government proves its case by circumstantial evidence, "it need not exclude every reasonable hypothesis of...