United States v. McDonnell
| Decision Date | 20 July 1970 |
| Docket Number | Cr. No. 01482. |
| Citation | 315 F. Supp. 152 |
| Parties | UNITED STATES of America, Plaintiff, v. Robert Owen McDONNELL, also known as Joe Mack, Defendant. |
| Court | U.S. District Court — District of Nebraska |
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J. William Gallup, Asst. U. S. Atty., for plaintiff.
Earl J. Witthoff, Lincoln, Neb., for defendant.
The defendant is charged in two counts with entry and attempt at entry of the Bank of Brady, Brady, Nebraska, the deposits of which were insured by the Federal Deposit Insurance Corporation. He has filed a motion to suppress as evidence certain physical objects, most of which were discovered in an automobile as a result of a search warrant, and has filed a motion for the return to him of such objects. The facts developed at the hearing on the motions are as follows:
Sometime during the early morning hours of May 22, 1969, James Ward, the Sheriff of Cherry County, Nebraska, received by telephone from the Valentine, Nebraska, Police Department word that three subjects were being held by the Deputy Sheriff at Merriman, Nebraska, after being arrested inside the Rhoades IGA Store in Merriman. The sheriff proceeded to Merriman, a small rural village, and saw at the local jail three persons, one of whom was the defendant, who then was using the name of Joe Mack. The sheriff then conducted an investigation in Merriman and found within the hour after the defendant's arrest an unlocked white 1968 Plymouth automobile bearing an Idaho license plate parked inside "the old Merriman Lumber Co." The lumber yard was a building which had been left standing and evidently was not being used for business purposes, other than for storage, and was located across the highway and less than a block from where the defendant was arrested. He then went again to the village jail in Merriman and, after being informed by a deputy sheriff that "a quick search, or a search of" the defendant had been made, the sheriff looked through the bars of the jail and "observed some markings around the walls and the ceiling and window area." He then searched the defendant and found a set of keys in the defendant's pocket, which the sheriff tried in the door locks of the Plymouth automobile and found that they worked to lock and unlock the doors of the car. He did not search the vehicle at that time, but disabled it, tied the steering wheel with a tow rope for towing purposes, locked it, had a wrecker from Valentine tow the car to Valentine and place it behind the court house in the parking lot in Valentine, where it was unlocked, the rope removed and then the car again locked. This towing occurred at probably 4:00 or 5:00 a.m. on May 22. The defendant and the two other persons who had been in the village jail in Merriman were taken to the county jail in Valentine. At about 7:30 a.m. on the same day the sheriff was notified by a telephone call from Keith Quick, owner and operator of the Valentine Machine Shop, that between 6:00 p.m. on May 21 and 7:30 a.m. on May 22 persons unknown had pried a large door at his shop and had removed property from it. The sheriff then went to the Valentine Machine Shop, conducted an investigation, and was informed by Keith Quick that two oxygen bottles and possibly three, together with hose and heating tips, were missing. The sheriff at the Valentine Machine Shop observed tire marks showing that a vehicle had backed up to the door that had been pried. Near the tire tracks and at the opening of the door he also noticed footprints. He took pictures and measurements of the tracks and footprints and "observed that these compared with tire prints and shoe prints of the three subjects arrested and held in the County Jail." He again viewed the car and saw that it appeared to be "quite heavily loaded in the trunk area." Thereafter on the same day he secured a search warrant, based upon his affidavit,1 from Harold D. Jordan, County Judge of Cherry County, Nebraska, upon a finding by the county judge of probable cause to believe that there was property which was stolen within Cherry County in the automobile and that there was probable cause to believe that there was property which had been used as a means of committing a criminal offense within the state of Nebraska and authorizing a search for the purpose of discovering and seizing "burglary tools, three oxygen tanks with two 75' hoses and a Smith gauge and a Marquette gauge, sweepings and debris from the Valentine Machine and Welding Works located in Valentine, Nebraska."
The photographs of the shoes being worn by the defendant on May 21 at Merriman at the time of the arrest, of the footprints near the Valentine Machine Shop on May 22, of treads of a tire on the Plymouth automobile, and of tire tracks near the Valentine Machine Shop on May 22 were placed in evidence at the hearing.
Search of the automobile following issuance of the search warrant revealed three oxygen bottles, two Smith regulators and gauges with hoses of lengths not shown by the evidence, a vacuum cleaner bag containing sweepings and debris, and numerous other items.
Although the affidavit of the defendant asserts that between 10:00 a.m. and noon on May 22 "items from the aforementioned vehicle," which are otherwise unidentified, were spread about the floor of the sheriff's office, thereby indicating that a search of the automobile had taken place before issuance of the search warrant, the court finds that no search involving any of the items covered by the motions has been shown to have occurred before issuance of the warrant. This is compelled by the total failure of the evidence to specify any item claimed to have been in the sheriff's office.
The Fourth Amendment of the Constitution of the United States provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Five issues appear with respect to both motions: (1) whether the search of the person of the defendant by the sheriff at the Merriman jail was unreasonable, (2) whether the defendant has standing to object to the seizure and search of the automobile, (3) whether the warrantless seizure of the automobile by the sheriff preceding the issuance of the warrant was unreasonable, (4) whether the warrant for search of the automobile was issued upon probable cause, and (5) whether items not described in the warrant must be suppressed and delivered to the defendant.
Nothing appears to have been improper in the making of a search by the sheriff at the Merriman jail. No contention is made that the arrest had not been lawful. Although some kind of search had been at the time of the arrest, which was at most within a few hours before the search by the sheriff, the Constitution prohibits only unreasonable searches. The sheriff himself had not previously made a search and he immediately before his search observed "some markings around the walls, ceiling and window area" of the cell occupied by the defendant. Shortly after the search the accused was transported to Valentine for detention. A reasonable basis for searching a person in custody exists whenever there is reason to believe that he may have anything which may be used as a weapon. The presence of markings on the walls, ceilings and window area, otherwise unexplained, gives reason to believe that some weapon is in the occupant's possession. Additionally, protective searches must be allowed whenever an inmate is about to be transported from one building to another, even without reason to suspect the presence of a weapon within the broad principle of such cases as Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); and Baskerville v. United States, 227 F. 2d 454 (C.A. 10th Cir. 1955).
The Supreme Court of the United States in Jones v. United States, 362 U. S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) swept away a line of decisions of lower courts to the effect that one could not object to an unlawful search and seizure unless he had a proprietary interest in the premises searched amounting to "ownership in or right to possession of the premises," the interest of a "lessee or licensee," or "dominion." The court in the Jones case said:
Whether Jones sets the perimetrical boundaries of the issue of standing cannot presently be determined. In a...
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