United States v. Brown, Crim. A. No. 6928.

• Decision Date: 10 July 1969
• Docket Number: Crim. A. No. 6928.
• Citation: 300 F. Supp. 1285
• Parties: UNITED STATES of America v. Ivan Wallace BROWN.
• Court: U.S. District Court — District of New Hampshire

300 F. Supp. 1285

UNITED STATES of America v. Ivan Wallace BROWN.

Crim. A. No. 6928.

United States District Court D. New Hampshire.

July 10, 1969.

Louis M. Janelle, U. S. Atty., William H. Barry, Jr., Asst. U. S. Atty., Concord, N. H., for plaintiff.

William H. Kelley, Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, N. H., Daniel F. Featherston, Jr., Boston, Mass., for defendant.

ORDER AND DECISION ON MOTION TO SUPPRESS

BOWNES, District Judge.

This motion to suppress was heard subsequent to an indictment charging defendant, Ivan Wallace Brown, with violation of Title 18, United States Code, Section 2113(a) and (d). The motion raises the question of whether personal effects of the defendant, two suitcases and an attache case, searched and seized by the F.B.I. without a search warrant can be used in evidence at the trial.

I rule that they cannot because the search and seizure was unlawful.

Although no search warrant had issued, the government contends that the search and seizure of the defendant's personal effects was lawful because it was made by and with the consent of the person in lawful possession of the premises where the suitcases and attache case were found. This raises the issue of the defendant's standing to contest the search and seizure in addition to the issue of the lawfulness of that search and seizure.

THE FACTS

The search and seizure took place on Friday, February 14, 1969. The premise searched was the apartment of a Mrs. Riffenburg at 20 Mt. Bowdoin Terrace in Dorchester, Massachusetts. Mrs. Riffenburg leased the apartment and occupied it along with her four children and Mr. Riffenburg. At the time, Mr. and Mrs. Riffenburg were not married and the apartment was leased to her in the name of LaVache. The articles seized were two suitcases and an attache case belonging to the defendant.

For purposes of this case, the defendant is best described as a friend of the Riffenburgs, particularly Mr. Riffenburg. He was not a boarder at the apartment of Mrs. Riffenburg and had no interest in her apartment except as a visitor. The defendant had slept at the apartment on three nights prior to the search and seizure: January 28th, February 10th, and February 11th, 1969. On each occasion, he slept in one of the children's beds.

On February 5, 1969, an arrest warrant was validly issued for the defendant on the grounds that he was a fugitive felon in the possession of a revolver.

On February 13, 1969, the Second National Bank of Nashua, New Hampshire, was robbed and the defendant became the F.B.I.'s only suspect after they had interviewed the defendant's sister-in-law in Nashua. This interview led the F.B. I. to the apartment of Mrs. Riffenburg as a place where the defendant might be located.

On Thursday evening, February 13th, the day prior to the search and seizure, the defendant came to the apartment and left his suitcases and the attache case. The suitcases were placed in Mrs. Riffenburg's bedroom; the attache case was put in the rear of a hall closet by the defendant. The defendant, the Riffenburgs, and the defendant's girl friend then went "out on the town" and the defendant subsequently spent the night with his girl friend.

On February 14, 1969, at approximately 12:30 P.M., two F.B.I. agents from the Fugitive Squad arrived at the apartment for the purpose of arresting the defendant pursuant to the fugitive felon arrest warrant. At about the same time that the first two agents were arriving at the apartment in Dorchester, a bank robbery arrest warrant for the defendant was being issued by the United States Commissioner for New Hampshire.

The agents approached the apartment with drawn revolvers and told Mrs. Riffenburg that they were looking for the defendant. She gave them permission to enter the apartment and to search it. Mr. Riffenburg, who was also there at the time, told one of the agents that, in addition to the suitcases in the bedroom, there was an attache case in the closet belonging to the defendant and, further, he informed one agent that the case contained a gun and some money, as he had seen the defendant open the case on the prior evening.

In addition to the two agents from the F.B.I. Fugitive Squad, four other agents of the F.B.I. also arrived at the apartment or adjacent to it shortly after 12:30 P.M.

At about 3:00 P.M., Mrs. Riffenburg received a telephone call from the defendant; one of the agents monitored that call on another phone in the apartment. The defendant told Mrs. Riffenburg, among other things, that he was coming to the apartment about 5:30 that afternoon.

Shortly after the F.B.I. found the attache case, it was forced open and a gun and approximately fourteen thousand dollars in cash was found in it. It is not clear to the Court whether the attache case was opened before or after the phone call from the defendant, but it is clear that prior to the time that it was opened at least one of the F.B.I. agents had been informed that there was a gun and money in it and it was opened an appreciable time before the defendant was arrested.

The defendant was arrested about 6:00 P.M. on his way to the apartment.

RULINGS OF LAW

A. Defendant's Standing to Contest the Seizure.

The personal effects of Ivan Wallace Brown in the form of two suitcases and an attache case were searched and seized without a search warrant in the apartment of a friend where they had been left with permission. Although the defendant had no interest in the premises or lawful right to prevent entry, this does not strip him of his right to be secure in his effects against unreasonable searches and seizures. The defendant is the person aggrieved by the search and seizure, the one against whom the search was directed and he is entitled to have the merits of his motion to suppress determined. Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L.Ed.2d 856 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Jeffers, 342 U.S....