United States v. Winbush, 19801.

• Decision Date: 04 June 1970
• Docket Number: No. 19801.,19801.
• Citation: 428 F.2d 357
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecil WINBUSH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

428 F.2d 357 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Cecil WINBUSH, Defendant-Appellant.

No. 19801.

United States Court of Appeals, Sixth Circuit.

June 4, 1970.

Carol G. Emerling (Court-appointed), Cleveland, Ohio, on brief for appellant.

Robert B. Krupansky, U. S. Atty., Timothy J. Potts, Asst. U. S. Atty., Cleveland, Ohio, on brief for appellee.

Before WEICK, EDWARDS, and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This is a direct appeal from a judgment of conviction of possession of stolen mail in violation of 18 U.S.C. § 1708. Two issues are presented: (1) whether the District Court erred in admitting into evidence property found on appellant's person by a hospital aide, and, (2) whether the court's instruction that possession of recently stolen property permits the inference that the possessor knew the property was stolen was erroneous.

In response to a radio call, two Cleveland, Ohio police officers found appellant unconscious and lying in the hall of a building. They took him to a hospital for emergency treatment. They were accompanied by a female friend of appellant who told the admitting room attendant that appellant's name was John Moore. A community service aide who worked in the hospital examined the contents of appellant's pockets in an endeavor to establish his identity and to ascertain if his person contained any advice about abnormal reactions to medical procedures. It was established hospital practice to do this when emergency room patients are unable to communicate. In the course of the examination he found an envelope containing seventeen checks imprinted with the name of a restaurant, two wallets, credit cards and other items of identification. Upon making this discovery, the community aide ran after the departing officers and showed them the property he had obtained. The officers, who had not participated in the search, ascertained that the checks had been stolen from the United States mail and placed appellant under arrest.

Appellant contends that since it would have been illegal for the police to have conducted the search and to have seized the incriminating items, the court should not have admitted them over objection. We disagree.

In Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1920), the Supreme Court speaking of the protection afforded by the Fourth Amendment against unlawful searches and seizures said: "* * * 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 * * *."

Following Burdeau, other courts have declined to exclude evidence in criminal cases when obtained by private persons. In Barnes v. United States, 373 F.2d 517 (5th Cir. 1967), the owner of a motel opened the luggage of a departed guest and discovered a forged bank check which he turned over to the police. Approving admission of...