United States v. Mustone

• Decision Date: 01 December 1972
• Docket Number: No. 72-1166 to 72-1168.,72-1166 to 72-1168.
• Citation: 469 F.2d 970
• Parties: UNITED STATES of America, Appellee, v. Christopher MUSTONE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Michael John ISABARRONE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Gene Ronald BRENNAN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

469 F.2d 970 (1972)

UNITED STATES of America, Appellee, v. Christopher MUSTONE, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Michael John ISABARRONE, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Gene Ronald BRENNAN, Defendant, Appellant.

Nos. 72-1166 to 72-1168.

United States Court of Appeals, First Circuit.

Argued October 4, 1972.

Decided December 1, 1972.

Chester C. Paris, Wakefield, Mass., and Joseph J. Balliro, Boston, Mass., with whom Henry D. Katz, Boston, Mass., was on brief, for appellants.

Henry H. Hammond, Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., was on brief, for appellee.

Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

These are appeals from convictions entered upon a three count indictment. Count I charged the appellants Isabarrone, Brennan, and Mustone with falsely making counterfeit Federal Reserve notes in violation of 18 U.S.C. § 471 (1970). Count II charged the same threesome with possession and concealing counterfeit notes in violation of 18 U.S.C. § 472 (1970), and Count III charged them with conspiracy to produce counterfeit notes in violation of 18 U.S.C. § 371 (1970). After trial by jury Isabarrone and Brennan were found guilty on all three counts. Mustone was convicted on the conspiracy count only. In these appeals appellants challenge the trial court's denial of their motions to suppress certain evidence. Mustone also questions the sufficiency of the evidence to support his conviction. For the reasons set forth below, we affirm.

The evidence adduced at trial may be summarized as follows. On January 11, 1971, Isabarrone rented a two room storefront office located at 3A Union Street, Lynn, Massachusetts from one Alfred Boyer. Brennan was present when this rental agreement was made. The new tenant promptly replaced the lock on the door between the front and rear rooms and painted the windows in the back room black. About one week later some furniture and a large heavy black box were moved into the office. During the next two and a half months Isabarrone and Brennan were observed entering and leaving the 3A Union Street premises almost every day.

On January 12, 1971, Isabarrone purchased a used platemaker and a used vertical camera. During the following weeks he purchased ink and other printing and photographic materials from various Boston printing supply houses. In making these purchases he frequently used aliases and occasionally gave nonexistent business addresses.

The Secret Service placed 3A Union Street under surveillance on February 28, 1971. On March 3, as Special Agent Patrick C. Miller stood outside the front window of this office, he heard the sound of an offset press in operation. On March 9, Secret Service security specialist Ronald Kozak observed Brennan leaving 3A Union Street carrying two large trash bags. Brennan placed these bags on the sidewalk near some garbage cans "several doors away" from 3A Union Street and then left the area. Both bags were tied closed. Kozak picked up these bags and deposited them in the Boston Secret Service office. When Agent Miller opened them the next morning he found a sheet of paper containing the impressions of three and one half counterfeit ten dollar notes and three aluminum offset plates stained with green ink.

Based primarily on this evidence government agents obtained a search warrant for 3A Union Street and on March 18 searched the premises. They found approximately $242,000 in printed but uncut counterfeit ten dollar notes, an offset press, a vertical camera, a platemaker, a black attache case containing plates used to print counterfeit notes, and a large quantity of other printing and photographic supplies. Isabarrone's and Brennan's fingerprints were found on objects inside the back room. All three appellants were arrested shortly thereafter.

On appeal appellants' primary contention is that the trial court erred in denying their Rule 41(e) motions to suppress the evidence found in the trash bags and during the search of 3A Union Street. With regard to the trash bags, appellants assert that the government's warrantless search and seizure of these bags violated Brennan's fourth amendment rights. They rely on People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262 (1971), vacated 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972), and argue that Brennan had a "reasonable expectation of privacy" as to the contents of these bags. In Krivda the California Supreme Court, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967),¹ upheld a citizen's expectation of privacy as to the contents of a trash can placed on a public sidewalk awaiting pickup by municipal rubbish collectors. There the court upheld the suppression of evidence obtained during the warrantless search of the can. We are not persuaded by this authority, however, and hold that when Brennan deposited the bags on the sidewalk he abandoned them. Implicit in the concept of abandonment is a renunciation of any "reasonable" expectation of privacy in the property abandoned. The contrary suggestion strikes us as anomalous. See United States v. Dzialak, 441 F.2d 212, 215 (2d Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 218, 30 L.Ed.2d 165 (1971); United States v. Stroble, 431 F.2d 1273, 1276 (6th Cir. 1970); United States v. Minker, 312 F.2d...