United States v. Cobb

• Decision Date: 16 September 1970
• Docket Number: No. 13725.,13725.
• Parties: UNITED STATES of America, Appellee, v. James Luther COBB, Sr., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

432 F.2d 716 (1970)

UNITED STATES of America, Appellee, v. James Luther COBB, Sr., Appellant.

No. 13725.

United States Court of Appeals, Fourth Circuit.

Argued May 8, 1970.

Decided September 16, 1970.

Norman B. Kellum, Jr., Beaman & Kellum, New Bern, N. C., for appellant.

Richard J. Bryan, Asst. U. S. Atty. (Warren H. Coolidge, U. S. Atty. on brief), Raleigh, N. C. for appellee.

Before BRYAN and CRAVEN, Circuit Judges, and RUSSELL, District Judge.

DONALD RUSSELL, District Judge:

Convicted of a violation of Section 5604, 26 U.S.C. (i. e., transportation and possession of untaxed distilled spirits), the defendant appeals, assigning error in the District Court in failing to sustain his motion to suppress evidence.

The facts, so far as pertinent to the motion to suppress, are undisputed. Two State Alcoholic Beverage Control Agents observed the defendant drive a car registered in the name of Robert T. McKnight into Jasamine Alley in Wilmington, North Carolina, and stop in front of a residence in such Alley. The defendant got out of the car, went back "to the trunk of the car" but, noting the officers, as they assumed, turned and entered a house in the Alley.¹ They immediately sought assistance for the purpose of maintaining surveillance of the defendant. With this added assistance, the Alley was "completely covered" by the officers. In the meantime, the officers requested by radiophone a warrant to search the car driven by the defendant. Told that the defendant had been seen about a block and a half away, they overtook the defendant and placed him in custody, advising him they were taking him "back to the car" and that they were "going to get a search warrant and wanted to search his car". The officers with the defendant returned to the car and, when the search warrant came, they "searched the car and found the liquor", which formed the basis of the charge against the defendant.

The search warrant itself was identified as being issued in a prosecution against Robert T. McKnight, the owner of the car. The affidavit, on the basis of which the search warrant was issued, however, referred exclusively to the defendant. He manifestly was the person against whom the search was directed and whose reputation alone formed the basis for a search of the vehicle. Thus, the affidavit referred to the circumstance that the car proposed to be searched had been seen in the defendant's yard and that, based on information received from "reliable sources that wish to remain confidential", it was understood "that Jake Cobb uses(d) this vehicle from time to time to transport nontaxpaid liquor into the Wilmington area". The affidavit identified the defendant as having "a long record for making and transporting nontaxpaid liquor". On that basis, the affidavit concludes with the statement that the affiant and his associated officers feel "that there is a strong possibility that this vehicle now contains nontaxpaid liquor."

The motion to suppress was not made until, during the examination of the arresting officers at the trial, evidence of the search was offered. At that point, the defendant moved to suppress.² In disposing of the motion, the District Court did not rule on the sufficiency of the affidavit supporting the search warrant; it held that, since the defendant had made no showing of either a proprietary or possessory interest in the vehicle searched, he was without standing to challenge the validity of the search. We disagree and reverse.

It should be observed at the outset that the Government does not seriously contend that the affidavit supporting the issuance of the search warrant met the test of Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. In fact, its brief in this Court makes no effort to sustain the search warrant and begins by "Assuming, arguendo" the insufficiency of the affidavit. Nor was the sufficiency of the affidavit or the search warrant issued thereon seriously pressed on oral argument. The reluctance of the Government to urge the sufficiency of the affidavit is understandable: The affidavit was plainly insufficient under the rule stated in Spinelli.

It will be noted that, in summarizing his supporting facts, the affiant, G. E. McLean, did not assert that such facts constituted "probable cause" but merely "a strong possibility" that the defendant had in his possession and was engaged in transporting untaxed spirits.³ In short, by his own statement, the affiant affirmed merely a suspicion or conjecture. That he properly evaluated his own facts seems obvious. The only two facts alleged in his affidavit were that the defendant "has a long record for making and transporting nontaxpaid liquor" and, based on "information received from reliable sources that wish to remain confidential", the defendant "uses this vehicle from time to time to transport nontaxpaid liquor". There is nothing given to support the claim of a "long record" of law violations on the part of the defendant. No arrests or convictions are cited. For all the affidavit shows, this conclusion rests wholly on rumor and hearsay, verified by no specific instances.⁴ Again, the statement that the defendant "uses" the vehicle proposed to be searched "from time to time" to transport illegal liquor rests on information supplied by "reliable sources" whose reliability was not vouchsafed in the affidavit by a single circumstance.⁵ Nor does the affidavit indicate how the "reliable sources" obtained their information, if any, upon which they rested their statement of fact.⁶ Equally silent is the affidavit as to why on this occasion the officers felt that the defendant had in his possession untaxed liquor. Actually this affidavit would, if sustained, justify the search of any automobile being driven at any time by the defendant. Mere "possibility", "conjecture" or "suspicion" is insufficient to support the issuance of a search warrant; and that is the utmost that can be claimed for the affidavit in this case.⁷

The government, however, contends strenuously — and this is really the burden of its argument on appeal — that, whatever the insufficiency of the affidavit, the defendant, not having made claim to either a proprietary or a possessory interest in the vehicle, has no standing to attack the validity of the search.

In Jones v. United States (1960) 362 U.S. 257, 80 S.Ct. 725, 4 L. Ed.2d 697, the Court, in construing Rule 41(e) which gives to any "person aggrieved by an unlawful search and seizure" the right to move to suppress evidence thereby secured, held that, "In order to qualify as a `person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else." (Italice added) 362 U.S. at p. 261, 80 S.Ct. at p. 731. The distinction is thus made between the situation where the person moving to suppress was the person against whom the search was directed and that which arises when the challenged evidence was procured "as a consequence of a search or seizure directed against someone else." In the first case, the person against whom the search was directed has standing to attack the validity of the search;⁸ in the second, he has not.⁹

Beyond doubt, the defendant in this case fell within the first class. He was the person "against whom the search was directed". The search was manifestly not "directed at someone else". The only basis claimed for the search was the alleged reputation of the defendant. He was the one whose possession of the car excited the suspicion of the arresting officers and prompted them to follow it. He was the one under surveillance as the officers awaited the search warrant. He was the one taken into custody and brought back to the car preparatory to the search. He was the one who was immediately arrested, advised of his rights, and taken to jail, when the search was made. The officers assumed throughout that the car was in the possession of the defendant and requested him to return with them to the car, referring to the car as "his car". They repeated this same phrase as they undertook the search. From beginning to end, the defendant was the object of the search and his possession of the vehicle to be searched was accepted and declared by the searching officers.

Moreover, Jones established the rule that one charged with a crime of which possession is an essential element has standing to challenge the validity of a search, without regard to whether he asserts an invasion of his privacy because of either a proprietary or possessory interest in the premises or vehicle searched.¹⁰ This rule was reaffirmed in Simmons v. United States (1968) 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L. Ed.2d 1247. There the Court put it "that when, as in Jones, possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence." And such rule has been consistently applied.

In Velasquez v. Rhay (9th Cir. 1969) 408 F.2d 9, 10, the Court bluntly put it:

"The district court held that petitioner lacked standing to challenge the constitutionality of a search and seizure since he denied that the premises searched were his. Petitioner was convicted of possession of the property seized in the search, and his standing is therefore established by Jones v. United States, 362 U.S. 257, 263-264, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)."

In Williams v. United States (5th Cir. 1969) 412 F.2d 729, the defendant had moved to suppress evidence resulting from a search of an automobile of which, at the time of the search, he denied ownership or even knowledge....