United States v. Durkin
| Decision Date | 30 December 1971 |
| Docket Number | No. 71 Cr. 1229.,71 Cr. 1229. |
| Citation | 335 F. Supp. 922 |
| Parties | UNITED STATES of America, v. Robert L. DURKIN et al. |
| Court | U.S. District Court — Southern District of New York |
Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., New York City, for plaintiff; John J. Kenney, Asst. U. S. Atty., of counsel.
Howard L. Jacobs, New York City, for defendant Durkin.
Joseph Stone, New York City, for defendant Iannocone.
Gilbert Epstein, Legal Aid Society, New York City, for defendant Lapierre.
Jay Gold, New York City, for defendant Patterson.
Four defendants, under indictment for possession and conspiracy to possess seventy-two counterfeit Federal Reserve notes, move pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure to suppress such notes as evidence on the trial on the ground that they were illegally seized in violation of the Fourth Amendment stricture against unreasonable search and seizure.
A hearing was held, at which time the following facts were adduced. Max Young was an employee of the entity which services the coin rental lockers at the Port Authority bus terminal in New York City, whose duties required him to assist patrons who experienced difficulty in opening lockers or had lost keys to their lockers, and to perform this function he had a master key. On October 19, 1971, at about 2 p. m., Young's aid was enlisted by a patron who was attempting unsuccessfully to open a locker with his key. Young, also unsuccessful in his effort to open the locker with the key that the patron had, then used his master key to open it and saw a stack of bills laying unwrapped in the locker. After he had opened the locker, Young noticed that the serial number on the patron's key did not match with the locker lock; the patron evidently had been trying to open a locker other than the one he had rented; the patron then went to the correct locker. Young, having closed the locker thus inadvertently opened, and evidently suspicious about the currency, consisting of seventy-two bills (face value $720) not wrapped or covered in any way, promptly reported his find to the Port Authority police who were stationed at the terminal. Soon Lt. Gonzales of the Port Authority police appeared at the locker, in which Young told him he "had seen a stack of bills," whereupon Gonzales asked Young to open the locker, which he did with his master key. Gonzales noted that the bills seemed "off color" and removed the currency to his office where closer examination revealed many of the bills contained the same serial number, and he determined they were counterfeit. He notified the Secret Service and then replaced the money in the locker, had Young lock it, and placed the locker under plainclothes surveillance. In a short time, at about 3 o'clock, Secret Service Agent Zano appeared at the locker, which was reopened, and Zano leafed through the money and put it back in the locker. At this time, the Secret Service established a surveillance about the locker, replacing the one that Gonzales had assigned.
At about 9 p. m., some six and one half hours after Gonzales first saw the money (and six hours after the Secret Service had set up its surveillance), according to the testimony of Secret Service Agent Reilly, defendants Iannocone and Patterson went to the locker; Iannocone unlocked it with a key and opened it a few inches. Patterson, who appeared to be acting as a "lookout," evidently noticed they were under observation by Reilly and his fellow agent Ott, and said something to Iannocone, who thereupon closed the locker and the two defendants started to walk away. Iannocone, while admitting he had the key to the locker, denied he had opened it, as Reilly testified.1 In any event, the agents intercepted the two defendants, identified themselves, retrieved a key from Iannocone which fit the locker in question and arrested both. Later that evening, as a result of Iannocone's subsequent cooperation, the defendants Durkin and Lapierre were arrested, and statements were made by various defendants tending to inculpate themselves, as well as others.
The coin lockers are rented on a twenty-four hour basis; it is undisputed that the rental time on the locker had not expired during the occurrence of the events recited above; further, it is not disputed that no effort was made by the government agents to obtain a search warrant, nor is there any indication that there was any regulation barring the use of lockers for storage of currency, or that any notice was posted or given to renters except to the effect that items left in the lockers after the expiration of the twenty-four hour rental period were subject to removal.
An initial question is whether the Fourth Amendment protection against unreasonable searches and seizures extends in favor of the renter of a public locker. The issue is whether such a locker may be deemed "an area where, like a home . . . a person has a constitutionally protected reasonable expectation of privacy . . .."2 The thrust of the Katz opinion was directed toward the expectation of privacy "even in an area accessible to the public."3 There can be no doubt that the renter of a locker at public terminals or similar public places justifiably expects that it is for his private use, to place therein what he will, free from prying eyes, and that it and its contents are inviolate except as they may be constitutionally searched. The fact that in the event the paid rental period expires without renewal, thereby subjecting the contents to removal, does not detract from the renter's right to protection against unreasonable searches and seizures during the rental period. Those courts which have considered the issue are in accord that the Fourth Amendment protection against unreasonable searches and seizures extends to protect the renter of a public locker to the same extent that he is protected in the privacy of his home.4
We next consider the defendants' standing to challenge the search and seizure of the counterfeit bills. The issue must be considered in the context of two separate charges in which each defendant is named—the substantive crime of illegal possession of counterfeit Federal Reserve notes, and conspiracy so to possess. There is no evidence in the case as to who rented the locker or who placed the currency therein. As already noted, Iannocone was arrested near the locker, with the defendant Patterson acting as his "lookout." However, Iannocone denied he had opened the locker and Patterson simply said he had accompanied Iannocone to the terminal. The other two defendants were nowhere in the vicinity of the locker and no direct act or conduct by either of them with respect to the locker has been presented. Accordingly, the government, in the absence of a claim by any defendant of a possessory interest, urges that none has standing to assert a constitutional claim under the Fourth Amendment, suggesting that perhaps the locker was rented by a person other than one of these defendants. However, the government has accused each in the substantive count, and accordingly an essential, if not the prime, element of the offense is the illegal possession of the counterfeit bills by a defendant, or his aiding and abetting another in such illegal possession. And, of course, possession need not be actual, but may be constructive, through a "working relationship" with another who has actual possession.5 In these circumstances, the government is precluded from denying that each defendant so charged with illegal possession does not have the requisite interest to challenge the admission in evidence of items allegedly obtained as a result of an alleged unlawful search and seizure.6
However, a different situation exists as to the conspiracy count, which charges that it was part of the conspiracy that defendants would unlawfully "keep in their possession and conceal and cause others to keep in their possession and conceal" counterfeit Federal Reserve notes. No movant has asserted any possessory interest in the notes. Iannocone testified that he acquired the key to the locker at about 6 p. m. on the day of the events here described from "Bob," an acquaintance, who asked him as a favor to obtain the contents of the locker. Patterson, as already noted, testified his sole role was to accompany Iannocone to the bus terminal. Durkin and Lapierre, the other two defendants, did not testify at the suppression hearing. Each defendant was free to testify and to assert a possessory interest in the contraband without the risk that his statements could be used against him at the trial.7 In the absence of any claim of a possessory interest in the locker or its contents, the defendants, as alleged co-conspirators, have no standing to challenge the search. The fact that the rights of a conspirator "to the Grand Jury unknown" may have been violated gives these defendants no standing to assert vicariously the unknown conspirator's rights.8
Since the defendants have standing under the substantive count, we next consider whether the search and seizure was valid. The sequence of events indicates that when Young inadvertently opened the locker for a patron and it turned out to be the wrong one, Young was acting in a private capacity —in fact carrying out his duties of aiding persons who were renters. His action, what he discovered, what use he made of his discovery, is beyond constitutional challenge. Whether inadvertent or by design, his opening of the locker does not come within the ban of the Fourth Amendment as long as he was not acting upon the instigation of or in collusion with governmental authorities.9 The purpose of the exclusionary rule is to deter unconstitutional conduct by law enforcement officers.10
Young, when he came upon the currency, had had no contact with any official. He had not been acting as an agent or at the direction of any official in the enforcement of law, but solely as an employee of the entity that...
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