US v. Taddeo

• Decision Date: 30 October 1989
• Docket Number: No. Cr. 89-59L.,Cr. 89-59L.
• Citation: 724 F. Supp. 81
• Parties: UNITED STATES of America, Plaintiff, v. Dominic TADDEO, Defendant.
• Court: U.S. District Court — Western District of New York

724 F. Supp. 81

UNITED STATES of America, Plaintiff, v. Dominic TADDEO, Defendant.

No. Cr. 89-59L.

United States District Court, W.D. New York.

October 30, 1989.

Gregory West, Sp. Atty., U.S. Dept. of Justice, Syracuse, N.Y., for plaintiff.

Herbert J. Lewis, Darweesh, Callen & Lewis, Rochester, N.Y., for defendant.

DECISION AND ORDER

LARIMER, District Judge.

Pending before the Court is defendant Taddeo's motion to suppress several firearms that were seized from a box in the trunk of a rented car that he was driving when he was arrested on an indictment warrant on February 11, 1987. The court held a suppression hearing on the issue on September 11, 1989. Two witnesses testified for the Government, Robert E. Hutt, an Alcohol and Tobacco Firearms ("ATF") Agent and Paul Camping, an officer with the Rochester Police Department ("RPD"). The defendant did not testify and produced no evidence.

FACTS

The following facts were developed at the suppression hearing:

Defendant Taddeo and his girlfriend, Bertha Mungillo, were indicted on February 11, 1987, in Criminal Indictment No. 87-34L. The indictment warrant issued that same day.

In anticipation that a warrant would issue, several officers had defendant under surveillance in order that they might arrest him as soon as the warrant was obtained. These officers, including Camping and Hutt, were part of a task force involving officers from four separate police agencies: the Federal Bureau of Investigation (FBI), ATF, RPD and the Monroe County Sheriff's Department.

The officers had defendant under surveillance for about ten or fifteen minutes before they were properly positioned to make the arrest. At that point, several officers converged on defendant in their automobiles. At approximately 3:30 p.m. on February 11th, defendant was stopped. Defendant was alone in the vehicle, which was a late model Lincoln Town Car.

The Lincoln had been rented by Mungillo in her name on February 9, 1989, from Budget Rent-a-Car of Rochester, New York, using Mungillo's American Express Card. No mention of defendant is made on the service contract. In the space for "Additional Drivers" the rental agent typed "None Authorized." Defendant maintains that he had Mungillo's permission to drive the car. Officer Camping testified that the car's license plate number indicated that it was a rental car and they had verified that before they arrested Taddeo.

Uniformed RPD officers initially approached defendant and removed him from the car. ATF Agent Hutt then took defendant to a marked police car. Defendant was advised of his rights and he stated that he wanted to speak with a lawyer. Officers advised defendant that they were seeking Mungillo, and defendant provided some information as to where she might be located. Hutt testified that he told defendant that the car was going to be impounded and Hutt asked if there were any valuables in the car. Defendant's only response was that he wished to speak to a lawyer.

Shortly after that conversation, another ATF agent, Robert Izzo, took defendant's car keys and opened the trunk of the car. At this point, defendant was handcuffed and seated in the police cruiser. Agent Izzo and other officers on the scene noticed in the trunk an open box containing a sawed-off shotgun and several handguns.

Later on, after a search warrant for the car had been issued, agents seized the weapons. The Government seeks to use these weapons as evidence against defendant at trial.

At the suppression hearing, both Agent Hutt and Officer Camping testified that they decided to impound Taddeo's vehicle as soon as he was arrested. Officer Camping, an officer with the RPD for twenty years, testified that he had been involved in the investigation that led to the indictment of Taddeo in No. 87-34L. He testified that when Taddeo was arrested, his car was pulled over to the curb on Lake Avenue, a busy six-lane highway near the center of downtown Rochester. The car was stopped in a bus lane which was marked "No Standing" during rush hour, 7 to 9 A.M. and 4 to 6 P.M. In Camping's view, the car was in such a position that it had to be moved and impounded. In his view, the car was a hazard at that location at that time of day. In Camping's view, the car was towed for three reasons. First of all, it was stopped incident to Taddeo's arrest and it was necessary to remove the car to a safe location should there be a later decision for further examination of the car by means of a warrant. He also believed that the car presented a hazard to other motorists since it was located in a restricted lane which would require buses and other vehicles to drive around it into heavy rush-hour traffic. In addition, he believed that the car was a rental car, valued at between $25,000 and $30,000 and that it had to be secured to protect it from vandalism or theft.

DISCUSSION

The Fourth Amendment guarantees the "right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend IV. Defendant maintains that the guns were detected as the result of an unlawful intrusion into the trunk of the rented car he was driving, and that any objects seized as a consequence of that intrusion should be excluded from evidence at his trial.

The Issue of Standing

By its terms, "the Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). In other words, Fourth Amendment claims cannot be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387 (1978); United States v. Smith, 621 F.2d 483, 486 (2d Cir.1980), cert. denied 449 U.S. 1086, 101 S.Ct. 875, 66 L.Ed.2d 812 (1981). "A person who is aggrieved by an illegal search of a third person's ... property has not had any of his Fourth Amendment rights infringed." Rakas, 439 U.S. at 134, 99 S.Ct. at 425.

Defendant, by claiming that police violated his Fourth Amendment rights, bears the burden of showing that his own rights were violated, and that he has standing to contest a search. Rakas, 439 U.S. at 138-39, 99 S.Ct. at 427-28 (1978). Because of the personal nature of Fourth Amendment rights, the Supreme Court has reasoned that the critical element necessary to establish standing is the defendant's legitimate expectation of privacy in the space invaded. Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980); United States v. Paulino, 850 F.2d 93, 96 (2d Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1967, 104 L.Ed.2d 435 (1989).

The Supreme Court has established a two-part analysis to determine whether a defendant had a reasonable expectation of privacy in the area searched: first, the defendant challenging the search must demonstrate his subjective expectation that the space invaded would remain private and, second, he must objectively show that society accepts that expectation as reasonable. California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988); followed in Paulino, 850 F.2d at 97.

Note that neither ownership nor possession of the space invaded automatically qualify such a subjective expectation as objectively reasonable. Paulino, 850 F.2d at 96. Expectations of privacy are related to, but need not wholly rely upon, a defendant's common-law interest in the property searched. Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12 (defendant passengers in a co-defendant's getaway car lacked standing to contest an illegal search of the car which produced evidence leading to their robbery conviction).

In the instant case, defendant claims no ownership of the vehicle, of the box or of the weapons seized. It is undisputed that Mungillo rented the car under her name; it is undisputed that defendant's name appeared nowhere on the rental agreement. Indeed, Mungillo signed a rental contract specifically agreeing not to lend anyone the car. Defendant nonetheless predicates his standing argument in his moving papers on the fact that Mungillo gave him permission to use the rental car. In short, by the terms of Greenwood, defendant claims first that he had a subjective desire to keep the guns free from scrutiny and, second, that his expectation of privacy was objectively reasonable.

As to the first part of the Greenwood test—defendant's desire to keep the guns hidden—this Court need make no finding. (Although, looking to defendant's conduct under the circumstances, as well as to the possible consequences to him of weapons possession, his subjective desire to keep the guns private seems obvious.)

Defendant's claimed expectation of privacy fails the second part of the Greenwood test. Defendant essentially contends that, since all the items seized were locked in the trunk of the car he was driving, his expectation of privacy was reasonable. This contention lacks merit.

Counsel has not cited, nor has our research produced, any Second Circuit opinion squarely on point—that is, whether a defendant in sole possession and control of an automobile rented by a third party who voluntarily lent him the car can assert standing to challenge a warrantless search of the vehicle. Other circuits have considered this precise question, however, and they have uniformly held that there is no reasonable expectation of privacy under these circumstances.

In United States v. Obregon, 748 F.2d 1371 (10th Cir.1984), the defendant was driving alone cross-country in a car rented by a friend in Miami when officers at a roadblock in New Mexico stopped him. On the pretext of a training exercise the officers obtained Obregon's permission to search the car and found cocaine stashed in his suit bag. Id.

Defendant Obregon had the keys to the car and may have had permission to use it, but this is not determinative of the standing inquiry in this case. Defendant was driving a rented vehicle and was not named on the rental agreement or any other documents, either

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