United States v. Garrett, 15223-24-25.

• Decision Date: 23 January 1967
• Docket Number: No. 15223-24-25.,15223-24-25.
• Citation: 371 F.2d 296
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert James GARRETT, Thomas Earl Simmons and William Earl Andrews, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

371 F.2d 296 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. Robert James GARRETT, Thomas Earl Simmons and William Earl Andrews, Defendants-Appellants.

No. 15223-24-25.

United States Court of Appeals Seventh Circuit.

December 7, 1966.

Rehearing Denied January 23, 1967.

Phillip H. Ginsberg, George E. Bullwinkel, Raymond J. Smith, Doris A. Coonrod, Chicago, Ill., for appellants.

Edward V. Hanrahan, U. S. Atty., George E. Faber, Asst. U. S. Atty., Chicago, Ill., for appellee. John Peter Lulinski, Asst. U. S. Atty., of counsel.

Before HASTINGS, Chief Judge, DUFFY, Senior Circuit Judge, and SCHNACKENBERG, Circuit Judge.

SCHNACKENBERG, Circuit Judge.

Defendants, Robert James Garrett, William Earl Andrews and Thomas Earl Simmons, severally appeal from judgments entered by the district court, on April 6, 1965, based upon a trial by jury, convicting them of robbery on February 27, 1964 of a savings and loan association whose accounts were insured by the Federal Savings and Loan Insurance Corporation, in violation of Title 18 U.S.C. § 2113, said defendants then being armed with dangerous weapons, to-wit, firearms, as charged in an indictment filed March 3, 1964.

It appeared from evidence introduced out of the jury's presence on defendant Garrett's motion to suppress that during the afternoon of February 27, 1964, six men forced their way into the home of Mrs. Mahon, the mother of defendant Andrews, and after ransacking the house without permission, they suddenly left without taking anything. Thereafter, at about 6:30 P.M. FBI agents Huntington and Quinlan came to that house without a warrant and went to the basement where they saw two suitcases in which money wrappers and other incriminating evidence were found. The men took one of the suitcases with them. While they were in the house they "looked and searched everything". On cross-examination Mrs. Mahon testified that the men took both suitcases, which were not owned by her, and in fact she did not know how they got there, because she did not give anybody permission to put them there.

Mrs. Mahon further testified that, when these agents said there was something in the basement that they wanted, she did not know that a suitcase was there, so they went down and she followed. She testified that she did not on that day give anybody permission to put the suitcases in her house, specifically a brownish suitcase (Government's Group Exhibit No. 4). Her answer was the same as to another suitcase marked Government Group Exhibit No. 3.

She also testified that Andrews was not in her home that day.

At the hearing on said motion, Garrett testified in substance that a suitcase (the one marked Government's Group Exhibit No. 4) belonging to him was removed from the home of Mrs. Mahon on February 27, 1964 and that he (Garrett) did not consent to said removal.

1. Garrett charges that the district court thereafter erred in admitting in the presence of the jury a reading by the court reporter of the testimony of Garrett in support of his motion for suppression of the evidence seized without a warrant.

In the course of his reasoning Garrett's counsel urges upon us that

"To protect his Fourth Amendment rights against unreasonable search and seizure, defendant Garrett was obliged to take the stand and assert ownership in one of the suitcases seized by the F.B.I. agents without a warrant. In order that the defendant Garrett have the proper standing to make the objection, it was essential that he so testify. Over objection, however, the trial court allowed the transcript of Garrett\'s testimony in support of his motion to be read to the jury, and thus the fatal link identifying him with the suitcase and its contents was established. To thus force the defendant Garrett to barter away his rights against self-incrimination in return for the opportunity to assert his Fourth Amendment rights is a violation not only of the right against self-incrimination, but of the right to due process itself."

His counsel contends that, in deciding to testify for the purpose of establishing Garrett's ownership of the suitcase, at the risk of having that testimony used against him upon the issue of guilt, he was required to and did resolve a dilemma. However, counsel has shown no dilemma, because he never has shown that there was no other way for him to prove Garrett's ownership of the suitcase. It is a matter of common knowledge that the fact of ownership of such an object as a suitcase might be proved in numerous ways, viz: testimony or documentary evidence of a purchase thereof by the alleged owner, open possession and the use thereof by him or other circumstances so commonplace as to be unnecessary to enumerate. Moreover, the choice of a solution for a dilemma (if we assume that one existed) was for Garrett's attorney, and he made a decision. He was confronted with an indictment charging Garrett with a criminal offense. Even if there were no other evidence of ownership available, Garrett voluntarily testified in support of his motion to suppress and he could not thereafter rely on the fifth amendment to bar consideration by the trier of facts of that testimony, if relevant (which it was), in the trial of the criminal charge against him.

Faced with an indictment charging him with a criminal offense, defendant Garrett was entitled to, and had, a trial by jury. But, although defense counsel had the usual problem of whether to call defendant as a witness to prove ownership on the motion to suppress, it does not follow from the fact that defendant did testify that what he then said was improperly submitted to the trial jury on the issue of his alleged guilt. It was certainly relevant. The testimony was voluntary and given under the guidance of his own counsel. To hold otherwise, we would in effect be attempting to create a "judicial amendment" to the constitution to protect persons from the risks of errors of judgment in trial tactics. That is neither our office nor our inclination. We hold that no error occurred in the district court in respect to this matter.

To the same effect is the result reached in Heller v. United States, 7 Cir., 57 F. 2d 627 (1932), at 629, cert. denied 286 U.S. 567, 52 S.Ct. 647, 76 L.Ed. 1298.

Our decision is not contrary to the holding in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (195...