United States v. Graham, 17508

• Decision Date: 03 May 1968
• Docket Number: No. 17508,17509.,17508
• Citation: 391 F.2d 439
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert GRAHAM, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Grady Lee TUCKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

391 F.2d 439 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Robert GRAHAM, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Grady Lee TUCKER, Defendant-Appellant.

Nos. 17508, 17509.

United States Court of Appeals Sixth Circuit.

February 26, 1968.

Rehearing Denied May 3, 1968.

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Franklin Murchison (Court Appointed) Jackson, Tenn., for appellant Graham.

Donald L. Stepner (Court Appointed) Covington, Ky., for appellant Tucker.

William A. McTighe, Jr., Memphis, Tenn. (Thomas L. Robinson, U.S. Atty., Memphis, Tenn., Fred M. Vinson, Jr., Asst. Atty. Gen., Dept. of Justice, Criminal Division, Washington, D.C., on the brief), for appellee.

Before EDWARDS and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.

JOHN W. PECK, Circuit Judge.

In this criminal action, codefendants Graham, Tucker and Edge were indicted for violations of the Dyer Act, 18 U.S.C. §§ 2312 and 2; the latter section relating to aiding and abetting. The case was tried before a jury which found all three men guilty on two of the three counts charged. Defendants Graham and Tucker perfected appeals to this court;¹ since both appellants raise substantially the same issues, the discussion herein will be applicable to both cases.

Briefly stated, the undisputed facts established by the government are as follows: On the night of July 22, 1966, Edge, a used car dealer in Booneville, Mississippi, along with two companions, traveled by car to a truck stop near Champaign, Illinois. At this time Edge met Graham and Tucker, each of whom had in his possession a 1965 Chevrolet automobile. Following the transfer of these cars from Graham and Tucker to Edge, appellants were taken to the Champaign railroad station, and Edge and friends departed for Booneville, Mississippi.

At approximately 8:30 p.m. on July 23, the Jackson, Tennessee, Police Department received a report that a man was being beaten by another with a stick at a specified location. Responding officers were flagged down by one Armstrong, one of the men who had accompanied Edge to Illinois and who at that time was operating one of the three cars being driven back to Mississippi. Armstrong, bleeding from the nose and ears, related to police that he had been beaten by Edge. An attempt by police to apprehend Edge, who in turn was apparently seeking to locate Armstrong and the car he was driving, resulted in the convergence by everyone involved (i. e., police, defendant Edge and acquaintances) upon the premises of a gasoline station.

Edge was arrested at the gas station for assault and battery; the alleged weapon (an ax or pick handle) was found in his car. The entire group involved in the three-car caravan was taken to police headquarters, the vehicles being left locked at the service station. After booking the parties, police officers returned to the gasoline station for the purpose of removing the cars to the police station.

At the time of his arrest, Edge, who professed ownership of all three cars in question, had no titles for any of the automobiles, but displayed to the police incomplete bills of sale for the two Chevrolets. Upon returning to the cars which had been left locked at the service station, the police discovered that the keys obtained from the cars at the time of the arrest (which keys did not in appearance correspond to those of relatively late model cars) would not open the car doors. Shortly after the three automobiles arrived at the police station Sergeant Dailey of the Jackson police department opened the car doors and recorded the serial numbers affixed to the doorposts. No search warrant had been procured.

Appellants' first contention is that the examination of the cars which disclosed the serial numbers constituted an illegal search, and that Sergeant Dailey's testimony as to the serial numbers was improperly received.² Appellants contend that Edge's arrest was illegal under the law of Tennessee, and that the search of the automobiles was not incidental thereto. As to the legality of the arrest, since the record shows that the arresting officers had probable cause to believe that Edge had committed a felonious assault upon Armstrong, the District Court correctly upheld the validity of the arrest. With respect to the legality of the search, the government argues that the search and arrest were contemporaneous in time and place, and that the search was not unreasonable.

A preliminary issue is whether, under the facts of this case, the opening of the car doors to ascertain the serial numbers affixed to the doorposts constituted a search within the meaning of the Fourth Amendment.

Where police obtain an article for safekeeping from a suspect taken into custody pursuant to a lawful arrest, we find no authority which requires them to get a search warrant before examining the article for the purpose of finding a serial number by which the article might be accurately identified. Even where, as here, an examination of an article solely for purposes of identification is commenced after the police have probable cause to believe that the item has been stolen, no right of privacy secured to the person arrested by the Fourth Amendment to the Federal Constitution is breached. While it is true that the Constitutional proscription against unreasonable searches and seizures extends to automobiles, since they, like houses, legitimately serve as repositories for personal effects and belongings of the owners and occupants, this is immaterial to the question presented in the case at bar. No articles of evidence separate from and independent of the cars themselves were obtained as a result of the police examination, as was true in such cases as Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L.Ed.2d 777 (1964), and Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). In Cotton v. United States, 371 F.2d 385 (9th Cir. 1967), where subsequent to defendant's arrest on vagrancy charges, his car was impounded and the serial number recorded by state and federal authorities acting without a warrant, it is stated (393-394):

"Agent Howerton\'s examination of the car did not violate Cotton\'s constitutional rights. None of the contents of the car was used as evidence against Cotton at his trial; indeed, none was removed. None of the contents was used to obtain evidence against him. Only the serial number was thus used. If the agent had found any article or paper in the car, and such evidence had been used against Cotton at his trial or to discover other evidence, we would have a different case. * * * Here, only the serial number was used. We incline to agree with Judge Pickett of the Tenth Circuit in his dissent in Simpson v. United States, supra, 346 F.2d 291 at 296-97, that it is not a search at all, under such circumstances as we have here, merely to check that number in order more positively to identify the car. This, we think, is quite different from looking for evidence that may have been placed in the car by its possessor. When Cotton acquired the car, the serial number and motor number came with it. And we would limit the right to check to those cases in which there is a legitimate reason to do so.

"We have no doubt that here, even if the mere opening of the door to look at the number was a search, it was a reasonable one. The agent had reliable information from the Las Vegas police that the car was stolen the authorities here had probable cause to believe the cars had been stolen, and it was entirely reasonable for him to check the car before sending out his inquiry. It is true that he could have obtained a warrant. And if he had found and used evidence that Cotton might have placed in the car, we would hold that he should have done so. But we are of the opinion that, when a policeman or a federal agent having jurisdiction has reasonable cause to believe that a car has been stolen, or has any other legitimate reason to identify a car, he may open a door to check the serial number, or open the hood to check the motor number, and that he need not obtain a warrant before doing so in a case where the car is already otherwise lawfully available to him."

It is here concluded and held that an examination of an automobile properly in police custody is not a search thereof, and that evidence of the serial number of such car is not excludable from evidence because it was obtained in the course of such an examination.

It is the government's further contention that even had this evidence been excludable on the objection of Edge, appellants have no standing to make such an objection.

The core of the Fourth Amendment prohibition against unreasonable searches and seizures is the right of privacy. E.g., Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Mapp v. Ohio, 367 U.S. 643 (1961). It has been noted that this is a personal right. See Williams v. United States, 323 F.2d 90 (10th Cir.), cert. denied, 376 U.S. 906, 84 S.Ct. 659, 11 L.Ed.2d 605 (1963). The purpose of the rule excluding evidence obtained as a result of an illegal search is "to deter — to compel respect for the constitutional guarantee in the only effectively available way — by removing the incentive to disregard it." Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed. 2d 1669 (1960). See also Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Mapp v. Ohio, supra. It is clear that no rights of appellants were violated when the police searched the cars in Edge's possession.

A defendant in a criminal action who claims no possessory or proprietary interest in either the premises searched or the evidence seized lacks standing to challenge the legality of the search or seizure. See United States v. Thomas, 342 F.2d 132 (6th Cir.), cert. denied, 382 U.S. 855, 86 S.Ct. 105, 15 L.Ed.2d 92 (1965); C...