United States v. Poole

• Decision Date: 31 December 1969
• Docket Number: Crim. No. 31900.
• Citation: 307 F. Supp. 1185
• Parties: UNITED STATES of America, Plaintiff, v. Gerald Arlington POOLE, III, Defendant.
• Court: U.S. District Court — Eastern District of Louisiana

307 F. Supp. 1185

UNITED STATES of America, Plaintiff, v. Gerald Arlington POOLE, III, Defendant.

Crim. No. 31900.

United States District Court E. D. Louisiana, New Orleans Division.

December 31, 1969.

George P. Hand, Jr., Asst. U. S. Atty., New Orleans, La., for plaintiff.

Robert J. Skinner, New Orleans, La., for defendant.

ON MOTION BY DEFENDANT TO SUPPRESS EVIDENCE

CASSIBRY, District Judge:

The defendant is charged in three counts of an indictment with unlawful possession of a 12-gauge, Model 94 F Stevens "sawed-off" shotgun, by reason of his failure to comply with certain sections of the United States Code concerning registry, payment of taxes, and the necessity for a serial number. 26 U.S.C.A. §§ 5861(c), 5861(d), 5861(i), and 5871. The defendant has filed a motion to suppress the shotgun, ammunition and any other physical evidence seized by police from defendant's "overnight bag" while he was staying at certain premises in Metairie, Louisiana. The motion was heard on December 3, 1969. For the reasons discussed below, the motion to suppress is granted.

The facts are as follows. Deputy Raymond Lefevre of the Jefferson Parish Sheriff's office testified that a New Orleans detective contacted him and advised him that he suspected¹ that Charles Dickson, owner of the premises involved in this case, possessed at his apartment stolen checks and money orders. In response to this call, two New Orleans detectives, together with Deputy Lefevre and another Jefferson Parish deputy, proceeded to Dickson's apartment. The officers had neither a search nor an arrest warrant. Lefevre testified that the officers did not attempt to obtain a search warrant because they felt they had no "probable cause" sufficient to justify a search warrant. The police knocked at the door and Dickson answered. It was 1:15 A.M. Lefevre allegedly told Dickson that he was looking for stolen checks, that he did not have a search warrant, and that he (Dickson) would be within his rights in refusing to permit a search.² Dickson allegedly told Lefevre to proceed with the search, commenting that he had nothing to hide. Deputy Lefevre's testimony concerning what Dickson said was objected to by counsel for defendant as hearsay. The objection was overruled.

On cross-examination Deputy Lefevre testified that he knew the defendant Poole was staying in the apartment at the time of the search but that he had no information from any source, nor any reason to suspect, that Poole had committed a crime. The front door of the apartment opens into a living room; the rest of the apartment consists of a back bedroom and a kitchen. When the police entered and advised Dickson of his rights Poole was not present in the living room. The police found him in the bedroom with a girl named Sheri³ and brought them both out to the living room before commencing the search. Lefevre testified that he did not advise Poole that he had any right to object to the search since the apartment was Dickson's, not Poole's. The testimony of the other officers was substantially similar to that of Deputy Lefevre.

Poole testified that he arrived in New Orleans from Texas on July 5, 1969 and went to Dickson's apartment where he had permission to spend the night as a guest; that his only luggage was an overnight bag which he placed in the hall closet; that he was not aware of anyone in the apartment other than Dickson and the girl until he heard voices outside the bedroom door. He was brought to the living room and was not advised of any right to object to a search. Indeed, Poole claimed that no one ever said in his presence that there was going to be a search. He testified that he was afraid and also that his liberty was curtailed. As he attempted to move from a sofa to the closet where his overnight bag lay, an officer told him to stay where he was. It is perhaps more than coincidence that the first place the officers mentioned in their account of the search was the very closet toward which Poole had attempted to move. There they found the overnight bag. It was unzipped, and the gun, bullets and other evidence sought to be suppressed removed. Prior to unzipping the bag no officer made any attempt to ask whose it was. The evidence does not disclose whether the bag was labeled.

I.

As pointed out, the search was conducted without a warrant, and the Government rests its case wholly on Dickson's alleged consent to the search. Even assuming, however, that the Government has sustained its high burden of proof in such cases to show by clear and convincing evidence that the consent was freely and voluntarily given,⁴ Dickson's consent cannot validate the search of Poole's overnight bag in the circumstances of this case. True, in certain circumstances courts have upheld consent searches where the objects seized belonged to someone other than the person who gave the consent. In United States v. White, 268 F.Supp. 998 (D.D.C. 1966), for example, O'Neal consented to an FBI search of his photography lab-apartment which the defendant, who worked for O'Neal, occasionally used as sleeping quarters. The FBI agent who conducted the search testified that he observed blood stains, liquor bottles and glasses, coins scattered on the floor, loose papers, bullets "in full view on top of an open satchel" (268 F.Supp. 998, 1000), etc. Photographs were taken and certain items seized and removed from the premises. None of the items observed or seized were in any part of the apartment devoted to defendant's exclusive use, nor were they in any closed container which belonged to the defendant. In upholding the search the court distinguished cases "* * * where a third party consents to the search of areas specifically set aside for the use of the defendant or to the search of his personal effects * * *." White, supra, at 1001-1002. (emphasis the White court's).⁵

As the quoted language from White indicates, courts have set aside consent searches where the place or thing searched was in the exclusive possession or use of the non-consenting defendant. United States v. Blok, 88 U.S.App.D.C. 326, 188 F.2d 1019 (1951) held that a woman's supervisor could not validly consent to the search of a desk in a Government office which defendant had "exclusive right to use." In Cunningham v. Heinze, 352 F.2d 1 (9th Cir. 1965) the court, in remanding a case for an evidentiary hearing, strongly suggested that a landlady could not validly consent to a search of defendant's "room, closet and effects." In Reeves v. Warden, 346 F.2d 915 (4th Cir. 1965) the court held that the defendant's mother could not consent to a search of a room and bureau used exclusively by the defendant. In our own circuit the case of Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955), is particularly relevant to the present case. Defendant's daughter and son-in-law allowed the FBI to search locked cabinets belonging to defendant in a garage below their apartment. Defendant claimed that she was allowed to live in the garage and therefore her daughter could not consent to a search of those premises. The trial court found from conflicting testimony that the mother did not live in the garage. Thus, under the apparent rule of some cases, she would not be able to object to the search of the premises since they were not in her exclusive control and possession but rather in that of her daughter and son-in-law. Nonetheless, even accepting this finding of fact by the trial court, the Court of Appeals reversed because uncontradicted testimony showed that the locked cabinets searched were owned by the defendant. Thus, this case seems almost squarely on point with the present one.⁶

II.

The rule which emerges is that a defendant may object to a search consented to by another where the defendant has exclusive control over a part of the premises searched or over an "effect" on the premises which is itself capable of being (and is) "searched." "Enclosed spaces" over which a non-consenting party has a right to exclude others, whether rooms or effects, are protected. The reason for grounding the rule in proprietary rights is not entirely obvious. A search without a warrant presumptively violates the right of privacy of the victim. The theory of the consent exception is that a person may waive a constitutional right. How then can one person waive another's constitutional rights? If "the Fourth Amendment protects people—and not simply `areas' — against unreasonable searches and seizures," Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed. 2d 576 (1967), it is no solution to the problem to simply say that the non-consenting victim does not own the premises searched. It is privacy, not ownership, that is protected. But the Fourth Amendment protects only "reasonable expectations" of privacy, see Katz, supra, at 361, 88 S.Ct. 507 (concurring opinion of Mr. Justice Harlan) (Emphasis added), and perhaps courts have made the social judgment that when a person leaves possessions in premises over which he has no control, or right to control, any expectation of privacy on his part is unreasonable. However if a room is set aside for a non-consenting party, and he does have a right to exclude others, a third party's consent to a search of this room would upset a reasonable expectation of privacy. The argument also applies to a searchable (enclosed) effect on the premises of another. If X leaves his closed suit case in Y's apartment, this is no authorization to Y to open the suitcase or for Y to allow others to open it. When Poole left his overnight bag in Dickson's closet with Dickson's permission, he had a reasonable expectation that Dixon or anyone else would not open that suitcase without Poole's permission. That reasonable expectation was upset by the search in this case. The police admitted that they had neither a search warrant nor probable cause for the search. As to Poole, they testified that they did not even have reason to suspect that he had...