United States v. Cooper

• Decision Date: 04 February 1976
• Docket Number: No. 75-120-Cr-J-T,75-156-Cr-J-T.,75-120-Cr-J-T
• Parties: UNITED STATES of America, Plaintiff, v. Vernon F. COOPER, Jr., Defendant. UNITED STATES of America, Plaintiff, v. Vernon F. COOPER, Jr., and Vernon F. Cooper, Sr., Defendants.
• Court: U.S. District Court — Middle District of Florida

409 F. Supp. 364

UNITED STATES of America, Plaintiff, v. Vernon F. COOPER, Jr., Defendant.

UNITED STATES of America, Plaintiff, v. Vernon F. COOPER, Jr., and Vernon F. Cooper, Sr., Defendants.

Nos. 75-120-Cr-J-T, 75-156-Cr-J-T.

United States District Court, M. D. Florida, Jacksonville Division.

February 4, 1976.

COPYRIGHT MATERIAL OMITTED

Ernst D. Mueller, Asst. U. S. Atty., Jacksonville, Fla., for the Government.

Frederick B. Tygart, Jacksonville, Fla., for defendants.

ORDER

CHARLES R. SCOTT, District Judge.

Defendants were indicted under 18 U.S.C. Secs. 922(b)(3), 922(b)(5), 922(m), and 924(a).¹ The Government's motion to consolidate these two cases for trial was unopposed by defendants and granted by the Honorable Harvey E. Schlesinger, United States Magistrate. Before trial, and pursuant to Fed.R.Crim.P. 41(e), defendants moved to suppress the bound acquisition-disposition volume (commonly and hereafter known as "the logbook") that was kept by defendants during their business, and all evidentiary information gathered therefrom.

THE FACTS

Defendant Vernon F. Cooper, Jr., owns and operates Clay Hardware in Orange Park, Duval County, Jacksonville, Florida. Vernon F. Cooper, Sr., works there as an employee. Cooper, Jr., is a licensed firearms dealer, in accordance with 18 U.S.C. Sec. 923(b)(3). On December 4, 1973, Special Agent Stoney Winston Daw, of the United States Treasury Department's Division of Alcohol, Tobacco, and Firearms, inspected the firearms records of defendant Cooper, Jr. At that time he discovered that the records contained evidence of a violation of the criminal statutes involved here. Daw informed Cooper, Jr., of his "Miranda rights." Between December 4, 1973, and November 21, 1974, agent Daw visited the store and inspected the logbooks several times.

On November 21, 1974, Special Agent Daw again visited the store during business hours and inspected the records. He discovered that an entry that indicated a violation of the criminal statutes in December 1973 had been altered. He then advised Cooper, Jr., that he was going to take the logbook with him. Cooper, Jr., protested, asking how he could continue his firearms sales without his logbook. Daw replied that Cooper, Jr., should not worry about it because the logbook would be returned within a few days. Daw gave Cooper, Jr., a receipt for the logbook. Daw believed that he had the authority to take the logbook and he was concerned about the destruction, alteration, or concealment of material evidence. The logbook was not returned for over a year. However, Cooper, Jr., opened a new logbook and continued selling guns.

THE LAW

The issue here is whether the seizure of the logbook was in violation of defendants' Fourth Amendment rights, necessitating that the logbook, and all evidentiary information contained therein, be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). It is axiomatic constitutional law that searches and seizures are to be conducted pursuant to search warrants of current and particularized specificity. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). There are, however, several constitutionally recognized exceptions to the requirement of search warrants.² Statutorily authorized warrantless searches are one of the exceptions. Congress clearly has the power to authorize by statute warrantless searches of federally licensed or regulated businesses, if the searches are specifically and reasonably restricted to comply with Fourth Amendment standards. United States v. Biswell, 406 U.S. 311, 315-17, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 76, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Montrom, 345 F.Supp. 1337, 1339-40 (E.D.Pa.1972). In such situations, the statutory authority is the equivalent of a valid search warrant. United States v. Petrucci, 486 F.2d 329, 332 (9th Cir. 1973); United States v. Business Bldrs., Inc., 354 F.Supp. 141, 143 (N.D.Okl.1973); United States v. Litvin, 353 F.Supp. 1333, 1335-37 (D.D.C. 1973); United States v. Del Campo Baking Mfg. Co., 345 F.Supp. 1371, 1376 (D.Del.1972). Hence, neither the question of valid consent, nor the issue of a valid warrant, arise. United States v. Biswell, supra, 406 U.S. at 315, 92 S.Ct. 1593; United States v. Petrucci, supra, at 332; United States v. Business Bldrs., Inc., supra, at 142; United States v. Litvin, supra, at 1337; United States v. Del Campo Baking Mfg. Co., supra, at 1376. The statute, 18 U.S.C. § 923(g),³ authorizes the Secretary of the Treasury to inspect and examine during business hours the records required of licensed dealers. Additionally, the statute authorizes the Secretary to transmit evidentiary information acquired from the search to law enforcement officers. Defendants do not contest this. Defendants' Reply Memorandum at 2.

The Secretary's special agent, therefore, properly removed the logbook for two reasons. First, lawful statutory authority to search, like valid consent, "carries with it the right to examine and photocopy" the records inspected. United States v. Ponder, 444 F.2d 816, 818 (5th Cir. 1971). In United States v. Business Bldrs., Inc., supra, the trial court denied the defendants' motion to suppress evidence of contaminated food that violated federal statutes, because the statutes granted Food and Drug inspectors the right to search the defendants' premises. Since the statute authorized Special Agent Daw to inspect the logbook, he also rightfully removed it in order to copy or otherwise preserve the evidentiary information contained in it. United States v. Ponder, supra, at 818. See United States v. Miller, 491 F.2d 638, 650-51 (5th Cir. 1974). Second, the lawful statutory authority to search also confers the right to seize evidence of criminal activity which is discovered in plain view during the course of the search. Coolidge v. New Hampshire, 403 U.S. 443, 464-68, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). In United States v. Petrucci, supra, the Ninth Circuit Court of Appeals affirmed the conviction of a defendant under the same criminal statutes that are involved here. The court approved the trial court's denial of the defendant's motion to suppress unrecorded firearms that were seized during a search under the statutory authority.

Having intruded legitimately, upon discovery of several unrecorded firearms, the agents were free to seize the weapons without a warrant as evidence or instrumentalities of illegal activity now in their "plain view" as a result of a lawful search. Id., at 332.

When he discovered evidence of illegal sales or recordkeeping while lawfully inspecting the logbook, Special Agent Daw rightfully seized it. Any objection of defendant Cooper, Jr., was based solely on the reasons of business necessity and inconvenience. Defendants' Reply Memorandum at 2-3; United States v. Ponder, supra, at 820. Neither that objection, nor the unduly long retention of the records by the Secretary, can invalidate the original legality of the removal. United States v. Miller, supra, at 651; United States v. Ponder, supra, at 820; United States v. Light, 394 F.2d 908, 914 (2d Cir. 1968). Hence, the information acquired from the logbook may be used as evidence against defendants. United States v. Petrucci, supra, at 332.

Moreover, defendants Cooper, Sr., and Cooper, Jr., lack the requisite standing to challenge the admissibility of the logbook and its evidentiary contents. Defendants are not entitled to "automatic standing" because possession of the logbook is not an element of an offense charged. Brown v. United States, 411 U.S. 223, 227-28, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Jones v. United States, 362 U.S. 257, 263-64, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Hunt, 505 F.2d 931, 938-39 (5th Cir. 1974). Rather, defendants' possession of the logbook is actually required by the statute and its implementing regulations.⁴ Apart from those situations that confer "automatic standing," the litmus test for standing to suppress evidence seized in violation of the Fourth Amendment is whether the aggrieved person could reasonably expect privacy for the premises searched and the items seized. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Hunt, supra, at 941. Proprietary or possessory interests in places searched or objects seized are not per se sufficient to confer standing to challenge a search and seizure: they are indicators of the reasonableness of the expectation of privacy that is asserted. United States v. Hunt, supra, at 923 and n. 8, 940. Where a privacy expectation is not reasonable, there can be no standing to assert Fourth Amendment claims, proprietary or possessory interest notwithstanding. Id., at 937. On the other hand, a person having a reasonable expectation of privacy in circumstances where he has no proprietary or possessory interests involved can still have standing to assert his Fourth Amendment rights. Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). "The Fourth Amendment protects people, not places." Katz v. United States, supra, 389 U.S., at 351, 88 S.Ct., at 511.

Neither defendant has a reasonable expectation of privacy for the logbook or its contents. Defendant, Cooper, Sr., being an employee of Defendant...