United States v. Nelson, 71-1155

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation459 F.2d 884
Docket NumberNo. 71-1155,71-1156.,71-1155
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Oscar O. NELSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Willie WYNDER, a/k/a Willie Winder, Defendant-Appellant.
Decision Date21 April 1972

Ronald D. Krelstein, Memphis, Tenn. (Court Appointed), for appellant Nelson.

Thomas A. Buford, Memphis, Tenn. (Court Appointed), for appellant Wynder.

Larry E. Parrish, Memphis, Tenn., for appellee; Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief.

Before EDWARDS, McCREE and MILLER, Circuit Judges.

EDWARDS, Circuit Judge.

The concept that a man's home is his castle is an ancient one. It has had a profound effect upon our legal history. Its application to the innocent and the guilty, the rich and the poor is no figment of the imagination of modern-day judges.

"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!" William Pitt, Earl of Chatham, Speech on the Excise Bill.

This appeal involves two unauthorized and warrantless police searches of a dwelling place in the nighttime. Concerning these two searches we find no "exigent circumstances" authorizing disregard of the Fourth Amendment's1 prohibition against warrantless searches of homes. Products of the obviously illegal searches (stolen postal money orders) were introduced at trial of appellants after a motion to suppress had been denied.

We reverse.

Appellants were convicted after a jury trial in the United States District Court for the Western District of Tennessee, Western Division, on an indictment charging:

"On or about March 25, 1970, in the Western District of Tennessee, Western Division,
a/k/a Willie Winder

defendants, with intent to convert same to their own use, knowing same to have been stolen, unlawfully, wilfully and knowingly did receive, conceal and retain certain goods and property of the United States of America, to wit: one-hundred and seventy-five (175) postal money order forms, one (1) validating stamp for the United States Post Office at Bourbon, Mississippi, ten (10) limitation stamps in the amounts of $2.00, $5.00, $10.00, $20.00, $40.00, $50.00, $60.00, $80.00, $90.00 and $100.00, respectively, and one-hundred and one United States Postage Stamps, said property being of a value in excess of one-hundred ($100.00) dollars; in violation of Title 18, United States Code, § 641 and Title 18 United States Code, § 2."

The proofs of appellants' guilt in this case are very substantial. We recite the facts from the point of view favorable to the government, which the jury obviously believed. United States v. Glasser, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

On March 27, 1970, shortly after midnight, a man identified at trial as appellant Nelson appeared at the Alamo Plaza Motel in Memphis, Tennessee, and registered for himself and a "Mr. and Mrs. Garnett" in two adjoining rooms. Nelson's nervous conduct, the fact that the Mississippi license number on the car of the parties differed from that supplied by Nelson, the fact that the room clerk thought one of Nelson's companions was wearing a wig, and the fact that the three backed their car up to the motel and then ran with their luggage to the room aroused the room clerk's suspicions. When Nelson came back and insisted on leaving the key before the three of them went "out on the town," the room clerk twice entered the rooms and searched them. He then hailed a passing police car and showed a police lieutenant a memorandum he had typed concerning his observations:

"Entered, left 4 bags in Room 706 ____

3 overnight bags of whiskey, sack of money, tools and guns, one some clothes inside.
1 large suitcase with a cutting torch inside.

_____________________________________ rented room at 2:00 a.m., 3-27-70 left bags and returned keys to office at 2:10 ____

Told Gibson that he could keep the keys as long as he had the rooms rented, and he stated, "I'd rather not have them on me."

A police stakeout was immediately set upon the two rooms concerned. The police lieutenant then twice entered the rooms in question with the room clerk and they searched the baggage which it contained. Among other things he found the blank postal money orders which were ultimately the subject of the indictment and of the motion to suppress. On the second search he also found a Bank-Americard in the name of Thelma Turner, with a Mississippi address. Inquiry to the National Crime Information Center concerning the numbered postal money orders, the gun and the BankAmericard did not produce any information. But inquiry with Mississippi authorities in the county referred to on the Bank-Americard did produce information that a post office burglary had occurred in the vicinity of Leland, Mississippi, in which a large number of postal money orders had been taken.

After the two warrantless police searches had uncovered conclusive proof of the commission of the crime for which appellants have now been convicted, a Memphis police inspector who had arrived on the scene sought a search warrant by an affidavit which referred to the post office burglary near Leland, Mississippi, and listed the stolen money orders among the first of the items sought to be seized. The affidavit for the search warrant also listed items about which the motel manager had given information prior to the illegal police searches. The warrant was issued, appellants were arrested outside the motel, the police entered the rooms and seized the money orders and other items. Appellants were tried and convicted as outlined above.

It is clear, of course, that the motel manager's consent to and participation in the two warrantless police searches did not serve to waive appellants' constitutional rights in relation to their rented rooms. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951).

In this case there were five searches of residential premises. Only the last was protected by a search warrant.

The first two searches were conducted by the motel manager. His testimony, which was accepted by the District Judge, was that he acted on his own initiative and not as a police agent. These searches were probably violations of state trespass laws, but the Fourth Amendment's prohibition against unreasonable searches is addressed only to state action:

"The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued." Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921).

The District Judge held in effect that the police were entitled to employ the evidence uncovered by these two searches and we agree. Burdeau v. McDowell, supra; United States v. McGuire, 381 F.2d 306 (2d Cir. 1967).

The District Judge also held, however, that the information derived from the first two searches by the motel manager furnished reasonable cause for the warrantless police searches and the seizure of the evidence admitted at trial. He relied in part upon his view that the appellants might at any time have returned and removed the evidence.

As we have noted, however, from the moment of police arrival on the scene up to the actual arrests, there had been a police cruiser (later two) "staked out" in surveillance of the motel rooms. Further, the "exigent circumstances" exceptions which allow warrantless searches and seizures are narrowly construed, particularly when they are sought to be applied to residential premises.

These exceptions to the general requirement of a search warrant include the following categories. But none of them appear applicable to the facts of this case.

1) These searches were not searches of an automobile. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L. Ed.2d 419 (1970); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L. Ed.2d 1067 (1968); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

2) These searches were not incident to lawful arrests. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

3) These searches were not based on the plain view doctrine. See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, 374 U.S. 23, 43, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

4) They were not based on consent. See Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L.Ed.2d 684 (1969); Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477, rehearing granted and reversed on other grounds, 330 U.S. 800, 67 S.Ct. 857, 91 L.Ed. 1259 (1947).

5) They were not based upon an immediate threat to life. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968); Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205 (1963); United States v. Barone, 330 F.2d 543 (2d Cir. 1964).

6) They did not occur while the officers were in hot pursuit of a fleeing felon. See Warden, Md....

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