US v. Moffett, CR 95-AR-32-S.
| Decision Date | 20 April 1995 |
| Docket Number | No. CR 95-AR-32-S.,CR 95-AR-32-S. |
| Citation | 885 F. Supp. 237 |
| Parties | UNITED STATES of America v. Marshall Wayne MOFFETT. |
| Court | U.S. District Court — Northern District of Alabama |
Rick L. Burgess, Birmingham, AL, for defendant.
Caryl Privett, U.S. Atty., Adolph J. Dean, Jr., U.S. Attorney's Office, Birmingham, AL, for the U.S.
Marshall Wayne Moffett entered a plea of guilty to a charge of possession of counterfeit United States currency in violation of 18 U.S.C. § 472 after this court had denied Moffett's motion to suppress evidence seized without a search warrant.1 With the approval of the court Moffett preserved his right to appeal the denial of his suppression motion. The evidence Moffett insists was unlawfully seized consists of purported one hundred dollar bills found inside a briefcase located inside commercial premises which had briefly been occupied by Moffett prior to his arrest. Moffett had been using the said premises pursuant to some sort of understanding with the owner. Whether or not Moffett was, in fact and law, a lessee, and, if so, what were the terms of the mutual agreement between owner and occupant, were among the matters in controversy at the hearing on Moffett's suppression motion. After hearing evidence and argument, the court orally denied Moffett's motion, but reserved the right to write an opinion prior to passing sentence on Moffett. This is the court's opinion.
Moffett's suppression effort was premised upon Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), a case in which the Supreme Court held that a landlord, simply by virtue of his position, cannot, for his tenant, consent to the warrantless search of the leased premises, and further held that evidence seized by law enforcement officers pursuant to such an ineffectual purported consent is not admissible against the tenant because obtained in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. The police officers who ultimately took possession of the counterfeit notes in Moffett's case admittedly had no search warrant. For this reason, this court, rightly or wrongly, placed the burden of proving no Fourth Amendment violation on the United States rather than on the movant.
At the evidentiary hearing conducted by this court after a preliminary consideration has been given the matter by a magistrate judge, the pertinent facts turned out to be virtually undisputed. The subject premises were part of a shopping center, owned by Robert E. Jones, who never met Moffett. It was Jones' leasing agent who dealt with Moffett. Moffett signed two separate proposed lease agreements, one using the false name, James D. Carter, as the prospective lessee, and the other using the false name, Gary Hill Moffett, as the prospective lessee. Jones, himself, never signed either of these proposed leases, and Moffett never signed any paper in his correct name. Jones did accept a month's rent from Moffett, and, through the leasing agent, did give Moffett a key to the premises. Both of the putative lease agreements contained a written addendum by which, if valid, the "lessor" was required "to put wall back between suites `E' and `D' at lessor's expense." After Moffett took possession of the premises, but before the contemplated improvements had been completed by the "lessor," and before Jones had signed any agreement (probably because of Jones' legitimate confusion and doubt about who was to become his tenant), Moffett was arrested and taken into custody on a fugitive warrant. When Jones heard about Moffett's arrest, Jones immediately came to the premises into which Moffett had partially moved, and which Jones found unlocked. He went in. One or two of his nearby tenants in his shopping center were already inside the Moffett premises. Jones soon found an openly visible, unlocked briefcase, which he thereupon opened and in which he found the currency ultimately determined to be counterfeit. Jones promptly called the local police, who just as promptly responded, and to whom Jones handed over what he had found.
If the crucial evidentiary question were whether Jones had the right to enter his own premises under the above-described circumstances, the question could be answered quickly and easily in the affirmative. The ambiguity in the understanding, the tentative character of the understanding, the proposed tenant's use of two names, and the overall peculiarity of the understanding between Jones and Moffett, if, indeed, there was any binding agreement between Jones and Moffett, was certainly of the sort to permit, if not to entice, Jones to enter his own premises after he learned of Moffett's arrest. However, the dispositive fact is not that Jones had the right to enter, but that Jones was not an agent or representative of any law enforcement agency when he entered, and when he took possession of the disputed evidence. Law enforcement was simply a passive recipient of incriminating evidence gathered by Jones. That evidence would be admissible against Moffett, and would not be the product of a Fourth Amendment violation, even if Jones had not had the legal right to enter his own commercial property, and even if Moffett's briefcase within the premises had been hidden and locked.
The Fourth Amendment only precludes "unreasonable" searches and seizures. Jones was not "searching" for incriminating evidence. Rather, as a curious and understandably concerned property owner he stumbled upon an unlocked briefcase, opened it, and handed over its contents to the police. If Jones' actions constituted a "seizure," it was an objectively reasonable seizure. Moffett had absolutely no expectation of privacy, insofar as Jones was concerned, under the totality of these particular circumstances, all of which were created by Moffett himself. See generally United States v. Hall, 47 F.3d 1091 (11th Cir.1995), and cases cited therein.
The ultimate fact is the same fact that the Eleventh Circuit found to exist when it reversed this very court in United States v. Handley, 763 F.2d 1401 (11th Cir.), cert. denied, 474 U.S. 951, 106 S.Ct. 318, 88 L.Ed.2d 301 (1985), namely, that the "impropriety in the taking of these depositions would authorize their suppression under the fifth amendment if and only if such conduct may be imputed to the government. (emphasis supplied). Handley at 1405. Although the constitutional violation which this court, as a trial court, had found to exist in Handley and upon which it suppressed involuntary depositions, was a Fifth Amendment violation and not a Fourth Amendment violation, the applicable principle of law is precisely the same in Handley and in the instant case. In Handley, this court, on what it believed to be substantial evidence, had found as a fact that a lawyer for civil plaintiffs had become the agent of the government when he obtained involuntary incriminating depositions from potential criminal targets by threatening them with contempt. The undersigned was deeply impressed by the Eleventh Circuit's subsequent holding in Handley, because the undersigned judge was notoriously removed from the case for having committed egregious error by finding that the civil lawyer who took those suppressed depositions was the government's agent, and...
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United States v. Laughlin
...to his property. Stitcher "had the right to enter his own premises under the above-described circumstances," see United States v. Moffett, 885 F. Supp. 237, 239 (N.D. Ala. 1995). Moreover, the police told him that he did not have to enter the premises. Stitcher entered not as an agent or re......
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