United States v. Galvez

• Decision Date: 14 August 1972
• Docket Number: No. 71-1551.,71-1551.
• Citation: 465 F.2d 681
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Delfino Donald GALVEZ and Veronica Ruth Galvez, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

465 F.2d 681 (1972)

UNITED STATES of America, Plaintiff-Appellant, v. Delfino Donald GALVEZ and Veronica Ruth Galvez, Defendants-Appellees.

No. 71-1551.

United States Court of Appeals, Tenth Circuit.

August 14, 1972.

Paul D. Cooper, Asst. U. S. Atty. (James L. Treece, U. S. Atty., and Richard J. Spelts, Asst. U. S. Atty., on the brief), for plaintiff-appellant.

Leo Zuckerman, Denver, Colo. (Brenman, Sobol & Baum, Denver, Colo., on the brief), for defendants-appellees.

Before LEWIS, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Pursuant to 18 U.S.C. § 3731, as amended, the Government appeals from a pretrial order of the trial court suppressing as evidence approximately 800 grams of hashish and the foreign mail package in which it arrived in this country. The general background material and particularly the evidence adduced at the hearing on the motion to suppress are all important to a resolution of this controversy and must be developed fully.

Delfino Donald Galvez and his wife, Veronica Ruth, were jointly indicted with knowingly receiving, concealing and facilitating the transportation and concealment of a quantity of hashish which had been smuggled into the United States, in violation of 21 U.S.C. § 176a. In due time, the two defendants pursuant to Fed.R.Crim.P. 41 filed a Motion to Suppress and for Return of Property. In that motion, they sought an order suppressing as evidence against them "any tangible or intangible objects * * illegally seized and taken by certain agents of the federal government, i. e., narcotics agents or postal inspectors in Boulder, Colorado, on or about Feb. 4, 1971." As grounds for such an order, it was alleged that the search and seizure was based on a warrant which was insufficient on its face; that the seizure of the property was not incident to a lawful arrest; and that no probable cause or reasonable grounds existed for arresting either of the two defendants or for searching their premises.

As an additional ground, it was alleged that government agents had themselves "delivered" the hashish in question to the defendants and then moments later had entered the premises of the defendants and had seized the very hashish which they had just delivered, all of which, according to the motion, should "shock the conscience of the court" to the end that the motion to suppress should be granted.

As indicated, a full-scale evidentiary hearing was held on this motion, with the Government and the defendants calling some eleven witnesses in all. We summarize their testimony as follows: (1) On January 18, 1971, a foreign mail package addressed to Donald D. Galvez, P. O. Box 451, Walsenburg, Colorado, entered the United States at the Port of New York, with the Customs Declaration stating that its contents were one polaroid camera and lens valued at $150; (2) a border search of the contents of the package was made in New York by the United States Customs and it was determined that the package contained four bricks of hashish and not a polaroid camera and lens; (3) the package was rewrapped and plans were then made for a "monitored" or "controlled" postal delivery to the addressee, Donald D. Galvez, one of the two defendants; (4) on January 29, 1971, the package arrived in Walsenburg, Colorado, and, though a "notice of arrival" was placed in Box 451, no one called for the package; (5) on February 3, 1971, the Walsenburg postmaster, having learned that Karen Galvez, Donald's sister, customarily picked up the mail in Box 451, telephoned Karen at her place of employment in Walsenburg and advised her that there was an airmail package for her brother, Donald; (6) on February 3, 1971, at about 3:30 P.M., Karen picked up the package in question and, after observing the stated contents to be a camera and a lens, placed the package, unopened, in her car; (7) Karen and her vehicle were under surveillance of Government agents for the next five hours, at which time she was arrested without a warrant and the package in question, still unopened on the floor of her car, was seized; (8) on the following day, February 4, 1971, Karen, either voluntarily or as the result of Government coercion, there being conflicting evidence on this point, accompanied the Government agents several hundred miles from Walsenburg, Colorado, to Boulder, Colorado, where she hand delivered the package to her brother; (9) the Government, having made prior arrangements to obtain a search warrant from a state district court judge in Boulder, obtained a search warrant minutes after Karen delivered the hashish to Donald and immediately thereafter a search was made of the premises of Donald D. Galvez and his wife; and (10) in this search the hashish here in question was seized, the package having been opened and one brick of the hashish placed on a desk in a bedroom and the remaining three bricks having been stacked in a closet. Subsequent chemical testing indicated that both Donald and his wife had handled the hashish.

In granting the motion to suppress, the trial court found that the arrest of Karen Galvez in Walsenburg was illegal and that accordingly the ensuing search, in which the Government's agents retrieved the package from her automobile, was unlawful. In this general regard, the trial court further found that though the search of Donald's and Veronica's home was itself a lawful one based on a valid warrant, Donald and his wife nonetheless "had standing to rely on the arrest of Karen Galvez," and it was the illegality of this arrest which formed the basis for the trial court's order suppressing the hashish.

Additionally, the trial court found that "the treatment of Karen Galvez, a 23 year old Spanish-American girl, after her illegal arrest was shocking" and that she had been "coerced" by the Government's agents into accompanying them to Boulder and then delivering the package to her brother, Donald. In this connection, the trial court, after stating that the tactics of the Government's agents were "shocking to the conscience of the court," stated that it was suppressing the evidence "either on constitutional grounds, or under its general supervisory power to insure justice for people accused of crime." It is from this order that the Government now appeals.

At the outset, we note that the motion to suppress is based on events occurring in Boulder, Colorado, at or about the time the defendants were arrested and their premises searched. As concerns the grounds thus urged in the motion to suppress, the trial court, as above indicated, found that the defendants themselves were lawfully arrested and that the ensuing search of their household was a lawful one pursuant to a valid warrant. This ruling is not challenged on appeal.

However, though the motion to suppress makes no complaint about Karen's arrest or the search of her car, the evidentiary hearing on the motion to suppress centered largely on the events occurring in Walsenburg surrounding the arrest of Karen and the search of her automobile, and it was those events which formed the basis for the trial court's order suppressing the use at trial of the four hashish bricks found in the defendants' premises in Boulder. As previously indicated, in suppressing the hashish found in defendants' household, the trial court found that Karen's arrest was illegal, being without the benefit of an arrest warrant or probable cause, and that because of the illegality of Karen's arrest the subsequent seizure of the package containing hashish in her car was also illegal. The trial court further concluded that the two defendants had standing to raise the issue of the legality of Karen's arrest and the seizure of the hashish from her automobile. In our view of the matter, however, the defendants have no standing to raise the issue of the legality of Karen's arrest or the seizure of the hashish from her automobile and we elect to dispose of this controversy on that basis.

Our conclusion that the two defendants in the instant case have no standing to contest the legality of the seizure of the package containing hashish from Karen's automobile in Walsenburg is supported by our understanding of such cases as Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); and Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), as well as by numerous cases from this circuit.

In Jones, the Supreme Court declared as follows:

"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. * * *

"Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy. * * *"

In Wong Sun, it was held that heroin unlawfully taken from another was nonetheless admissible in evidence against Wong Sun because the "seizure of this heroin invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at his trial." So, here, the seizure of the hashish from Karen invaded no right of privacy of person or premises which would entitle Donald or Veronica Galvez to object to its use at their trial.

And in Alderman, the Supreme Court "adhered" to such cases as Jones and Wong Sun, and to the general rule "that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted."

Cases from this circuit which hold that to be a "person aggrieved" within Fed.R.Crim.P. 41, the person moving to suppress...