Williams v. United States

• Decision Date: 29 May 1969
• Docket Number: No. 26142.,26142.
• Citation: 412 F.2d 729
• Parties: Albert Lee WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

412 F.2d 729 (1969)

Albert Lee WILLIAMS, Appellant, v.UNITED STATES of America, Appellee.

No. 26142.

United States Court of Appeals Fifth Circuit.

May 29, 1969.

Paul Shimek, Jr., Pensacola, Fla. (Court appointed), for appellant.

Clinton Ashmore, U. S. Atty., Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., for appellee.

Before THORNBERRY and DYER, Circuit Judges, and KEADY, District Judge.

THORNBERRY, Circuit Judge:

Albert Lee Williams, defendant-appellant herein, was convicted by a jury under a four-count Dyer Act indictment (18 U.S.C. §§ 2312and2314) which charged him with unlawful transportation in interstate commerce of a stolen motor vehicle; unlawful transportation in interstate commerce of a forged Travelers Express money order in the amount of $100, knowing the same to have been forged; unlawful transportation in interstate commerce of another forged money order in the amount of $110, knowing the same to have been forged; and unlawful transportation in interstate commerce of a tool to be used in forging a security, namely a Travelers Express check writer, knowing the same to have been stolen.The principal issue presented on appeal is whether a warrantless search of the stolen automobile by Florida police officers violated appellant's fourth-amendment rights.The district court denied a motion to suppress incriminating evidence recovered by the search.Our interpretation of the cases in this difficult area compels us to reverse.

To summarize the facts in the light most favorable to the Government: July 12, 1967, a 1967 Ford was stolen in Tuscaloosa, Alabama.July 20, a grocery store in Birmingham was burglarized and among the things stolen were a number of money order blanks and two Travelers Express check writing machines.August 2, appellant arrived in Pensacola, Florida in a 1967 Ford and registered at a Holiday Inn.Subsequently, two forged money orders, the two that were alleged in the indictment, were cashed for him by local establishments.When a porter attempted to cash a third money order for appellant at the front desk of the motel, he was told that the money order was no good.He promptly notified local police.The officers went to the motel, questioned the porter, found appellant in a parking lot, and arrested him for vagrancy.Appellant later pled guilty to vagrancy.

While he was being taken to the county jail, one of the officers learned from the porter that the suspect had been driving a 1967 Ford with an Alabama license plate.On the evening of August 4, before booking appellant on a charge of vagrancy and putting him in a cell, the officer questioned him about the car.According to the officer, appellant stated he did not own the automobile and had no knowledge of it.A check with Alabama officials revealed that the Alabama license number was registered to a 1957 Buick.At this point, the officers declared the car to be abandoned, and had it towed to the jail parking lot, impounded, and searched.In the trunk, they found blank money orders, two check writing machines, one of which was alleged in the indictment, and a revolver.It did not occur to the officer in charge that he should get a warrant.Appellant later asserted a possessory interest in the automobile and urged that the evidence obtained in the search and the fruits thereof be suppressed.

At the outset, we reject the Government's suggestion that we need not consider the validity of the automobile search because the fruits of the search relate to only one of the four counts while concurrent sentences of equal length were assessed for each of the four.Because of the concurrent sentences of equal length, it is argued that we can affirm the conviction on the basis of the three counts to which the search does not relate.We are clear, however, that the search relates to each of the counts so that the conviction would have to be reversed if the search were held invalid.The serial number obtained in the course of the search helped officers identify the stolen car and nail down the first count.The blank money orders found in the trunk tended to show that the stolen car was used to transport in interstate commerce the money orders that were cashed in Pensacola and alleged in the second and third counts.Finally, as the Government concedes, one of the check writers found in the trunk was the subject of the fourth count.

Also, we must reject the reason given by the district court and advanced by the Government in this Court for upholding the search.The trial judge ruled and the Government argues here that Lovette v. United States, 5th Cir.1956, 230 F.2d 263 precludes appellant from asserting a fourth-amendment right against unlawful search of the stolen automobile.In Lovette,the defendant denied the illegal possession of whiskey with which she was charged and also denied any claim to or possession of certain premises wherein federal officers found the whiskey.As she had denied any ownership or possessory interest, the Court held the defendant to be without standing to assert a fourth-amendment right against unlawful search of the premises.Parr v. United States, 5th Cir.1958, 255 F.2d 86 is to the same effect.The Government contends that the casesub judice is controlled by Lovette and Parr by virtue of Albert Williams' initial statement to the officer that he did not own a car and did not know anything about the 1967 Ford.Having made this statement, it is contended that he cannot be heard at a later time to assert a personal fourth-amendment right in the automobile.We have reached two conclusions with respect to the applicability of Lovette and Parr.First, it should be said that these cases announce a rule of no-standing for defendants who come into court and deny the possession of certain property with which they are charged but at the same time assert a fourth-amendment right against the unlawful search of that property.This rule of no-standing is not strictly applicable to the case at bar because appellant was strongly asserting a possessory interest in the automobile by the time he came into court.Second, and more importantly, so far as standing is concerned, Lovette and Parr are no longer viable.In Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, a narcotics case, the defendant had been faced with the common dilemma of having to deny any interest in the searched premises but at the same time having to assert a fourth-amendment right against the unlawful search of those premises.The Court held that his standing to assert a constitutional right could not be foreclosed by the necessity of his having to deny the possession of property with which he was charged.In the words of the Court"the possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41(e)."362 U.S. at 264, 80 S.Ct. at 732.In Glisson v. United States, 5th Cir.1969, 406 F.2d 423, this Court applied the reasoning of Jones to a Dyer Act case in which the defendant denied possession of a certain truck but at the same time asserted a fourth-amendment right against the unlawful search of that truck.As applied to the Dyer Act case now before us, Glisson means that the very nature of the prosecution against Albert Williams, i.e., the fact that his possession of the stolen automobile was the basis for the prosecution, suffices to confer standing upon him to maintain the illegality of the search.¹

In the interest of clarity, we repeat that the standing doctrine formulated in Lovette and Parr is no longer viable and that appellant has standing to assert a fourth-amendment right despite his initial disclaimer of any interest in the automobile.To rule that he has standing does not mean, however, that his initial disclaimer has no bearing on the reasonableness of the search.We put aside the obstacle of standing and proceed to the merits of the fourth-amendment question; at this stage, appellant's initial disclaimer is one of the factors to be considered.

With respect to the search, the critical facts are that officers made a warrantless examination of the automobile after it had been impounded at the county jail and after appellant had been put in jail on a charge of vagrancy.It is apparent that there was time to procure a warrant.Though Williams disclaimed any knowledge of the car prior to the search, the officers had been informed by motel personnel that he had been using it.Prior to impounding the car and making a search, the officers had checked the Alabama license number and received information which gave them probable cause to think the car was stolen.The declared reason for impounding it was that it had been abandoned.The declared reason for the search was that it was police policy to inventory all impounded cars.Having restated the facts, we must evaluate them in the light of Preston v. United States, 1964, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777;Cooper v. California, 1967, 386 U. S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 and their progeny, which is to say that we must delve into a rather mysterious area of the law.

In Preston,the defendant was arrested on a charge of vagrancy while seated in his automobile.The vehicle was subsequently taken into police custody to remove it from the street and was searched shortly thereafter.In reversing a conviction for conspiracy to rob a bank, which was based on evidence secured in the course of the search, the Supreme Court held that where the warrantless search of an automobile is too remote in time or place to have been made incident to arrest, it fails to meet the test of reasonableness under the fourth amendment.In Cooper,the defendant was arrested on a narcotics charge and his automobile impounded.About a week later, police conducted a warrantless search of the automobile for narcotics.Though the search was concededly not incident to...