Petition — Vicknair v. United States

in the APR 23 7

Supreme Cott i wncssc soos, noc

of the .

United States

OCTOBER TERM, 1979

No. @9°1675

FELIX JOSEPH VICKNAIR, ROBERT GIRARD

VICKNAIR, PAUL EDWARD VICKNAIR, JAMES

EDWARD PICKER, THOMAS D. MORGEN,

FRED MELL, EDWARD KLINE, RUSSELL JOE

KERSTING, JOSEPH KERSTING, GEORGE

CHRIST KARANICAS and FRANK S.

BUCKBEE,

Petitioners,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MICHAEL TARRE

JOSEFSBERG & TARRE, P.A.

733, City National

Bank Building

25 West Flagler Street

Miami, Florida 33130

and

JOEL HIRSCHHORN

JOEL HIRSCHHORN, P.A.

742 N.W. 12th Avenue

Miami, Florida 33136

- Attorneys for Petitioners

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INDEX

Page

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QUESTION PRESENTED

DOES THE JONES v. UNITED STATES,

362 U.S. 257 (1960), AUTOMATIC

STANDING DOCTRINE APPLY WHERE A

DEFENDANT CHARGED WITH A

POSSESSORY CRIME SEEKS TO

CHALLENGE A PRIOR ILLEGAL SEARCH,

WHICH, ALTHOUGH NOT PRODUCING

THE SEIZED CONTRABAND, TAINTED

THE SEARCH LEADING TO THE

DUNNE xin 45054 nerabaseeneaashenseunesees

CONSTITUTIONAL PROVISION INVOLVED ..

STATEMENT OF THE CASE ...................

2

3

in the

Supreme Court

of the

United States

OCTOBER TERM, 1979

NO.

FELIX JOSEPH VICKNAIR, ROBERT GIRARD

VICKNAIR, PAUL EDWARD VICKNAIR, JAMES

EDWARD PICKER, THOMAS D. MORGEN,

FRED MELL, EDWARD KLINE, RUSSELL JOE

KERSTING, JOSEPH KERSTING, GEORGE

CHRIST KARANICAS and FRANK S&S.

BUCKBEE, 7

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINION BELOW

The Opinion of the Court of Appeals is attached to

this Petition as Appendix A. The decision is reported:

United States v. Vicknair, 610 F.2d 372 (5th Cir. 1980).

JURISDICTION

The judgment of the Court of Appeals was entered

on January 25, 1980. A Petition for Re-hearing was

denied on March 24, 1980. This Petition for Writ of

Certiorari has been filed within thirty days of that

denial and is timely. Supreme Court Rules, 22(2).

Jurisdiction is invoked pursuant to Title 28 U.S.C.

§1254(1).

QUESTION PRESENTED

DOES THE JONES v. UNITED STATES,

362 U.S. 257 (1960), AUTOMATIC

STANDING DOCTRINE APPLY WHERE A

DEFENDANT CHARGED WITH A

POSSESSORY CRIME SEEKS TO

CHALLENGE A PRIOR ILLEGAL SEARCH

WHICH, ALTHOUGH NOT PRODUCING

THE SEIZED CONTRABAND, TAINTED

THE SEARCH LEADING TO THE

SEIZURE?

CONSTITUTIONAL

PROVISION INVOLVED

The Fourth Amendment To The

‘Constitution Of The United States

The right of the people to be secure in their

persons, houses, papers and effects, against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but

upon probable cause, supported by oath or

affirmation, and particularly describing the

place to be searched, and the person or things

to be seized.

STATEMENT OF THE CASE

This Petition seeks review of a Court of Appeals

opinion reversing a District Court decision granting a

Motion To Suppress evidence seized during a raid on a

house in an exclusive Coral Gables, Florida

neighborhood. The seizure led to the arrest of ten

persons, all of whom were parties to the Appeal and now

submit this Petition.

The facts are recounted in detail in the opinion.

Basically, they are undisputed. On the morning of

November 25, 1977, Coral Gables police officers and a

United States Customs official illegaly entered upon the

grounds of a Coral Gables residence and then illegally

searched a sixty six-foot boat, the Sky Top II. The

intrusion into the Sky Top II led the officers to suspect it

was not being used as the pleasure craft it appeared to

be. After leaving the vessel, the officers illegally entered

the patio of the home and attempted to look inside but

3

were unable to see through the drawn drapes. On their

way back to their vehicles, “they detected what they

believed to be the odor of marijuana coming from an air

conditioning vent on the side of the house.” 610 F.2d at

375.

Subsequently, the authorities embarked upon an

ongoing investigation and intermittent surveillance of

the house and boat. On December 13, they intensively

surveilled the house and began to search for the Sky Top

IT which had left its dockage. Because of the extended

absence of the boat, the officials concluded the vessel

had gone to pick up marijuana. A task force was formed

and when the vessel returned “after midnight on

December 14th, the police observed a human chain

unloading bales from the vessel, so the task force moved

in and made the arrest and seizure.” 610 F.2d at 375. No

warrant was obtained.

The District Court Judge concluded the Defendants

had expectations of privacy in the boat and the house

which were sufficient to provide standing for them to

challenge the November searches. The District Judge

also determined that the December seizure was tainted

by the illegal November searches because there was no

independent source for the December seizure and that

seizure was a direct result of the prior illegal search. The

Government conceded that the Defendants had

automatic standing under Jones v. United States, 362

U.S. 257 (1960) to contest the December 14th seizure.

The Court of Appeals reversed. First it refused to

apply the Jones standing concept:

The Defendants here ask us both to conclude

that Jones’ automatic standing is still a valid

exclusionary precept and to extend its

umbrella to protect against the admission of

evidence seized in a later valid search even

though the contested search did not produce

the evidence seized. Assuming the continued

force of Jones, we decline to accept the

invitation to apply it as a shield against

otherwise valid searches.

United States v. Vicknair, 610 F.2d at 378.

After striking the Defendants’ automatic standing

to challenge the November search, the Court of Appeals

went on to find that the Defendants had no expectation

of privacy in the Sky Top IJ and thus were unable to

challenge that search. Although believing the

expectation of privacy in the residence was greater, the

Court found the illegal entry of the residence generated

only an odor of marijuana, and that the subsequent

December search was not tainted by that de minimus

piece of evidence. Therefore, the Court of Appeals

concluded the December seized evidence was not

tainted by the portion of the prior illegal search for

which the Defendants had standing to complain.

Certiorari is sought because the Court of Appeal’s

refusal in this case to apply automatic standing, thereby

foreclosing the Defendants from the ability to challenge

the illegal search which led to their arrest, poses an

important question yet unanswered by this Court.

'The ‘otherwise valid search” was the December search, but

the court itself noted the absence of a warrant for that search and

the issues thus raised. 610 F.2d at 382, n.7.

REASON FOR GRANTING CERTIORARI

THIS CASE PRESENTS AN IMPORTANT

QUESTION OF FEDERAL CON-

STITUTIONAL LAW WHICH SHOULD BE

RESOLVED BY THIS COURT.

There can be no dispute that the November search

of the Sky Top II was illegal and that it generated the

evidence which resulted in the December surveillance,

raid, seizure and arrests. If Jones v. United States

provided automatic standing for the Defendants to

challenge the November Sky Top II search, the

December seizure would fall as fruit of the poisonous

tree. Wong Sun v. United States, 371 U.S. 471, 488

(1963).

Jones v. United States held:

No just interest of the Government in the

effective and rigorous enforcement of the

criminal law will be hampered by recognizing

that anyone legitimately on premises where a

search occurs may challenge its legality by way

of a Motion to Suppress when its fruits are

proposed to be used against him.

362 U.S. 257 at 267.

Brown v. United States, 411 U.S. 223, 229 (1973)

disdained application of automatic standing in a case

where ‘‘the Defendants: (a) were not on the premises at

the time of the contested search and seizure; (b) alleged

no proprietary or possessory interest in the premises;

and (c) were not charged with an offense that includes,

6

as an essential element of the offense charged,

possession of the seized evidence at the time of the

contested search and seizure.’’ Because Simmons uv.

United States, 390 U.S. 377 (1968) corrected the self-

incrimination problem which gave rise to Jones, the

Court found no need to apply Jones’ automatic standing

to the Brown facts. The Court said:

We simply see no reason to afford such

“automatic standing’ where, as here, there

was no risk to a defendant of either self-

incrimination or prosecutorial self-

contradiction.

Brown v. United States, 411 U.S. at 299.

The Court of Appeals focused only upon the

prosecutorial self-contradiction rationale in concluding

that Jones’ automatic standing had no application to

these Defendants:

The rationale of the “automatic standing”’

doctrine is ‘“[w]hen the time of the possession

charged and the time of the search coincide or

overlap, it is indeed inconsistent for the

government to argue the defendant lacked

sufficient possession to confer standing to

challenge the search but had sufficient

possession at the same time for conviction.”

United States v. Colbert, 5 Cir. 1973, 474 F.2d

174, 177.

610 F.2d at 382.

But that conclusion overlooked the self-

incrimination component of the Jones doctrine and the

Simmons correction as applied to this case. These

Defendants were charged with a possessory crime. The

evidence of that crime was the direct result of a search of

the premises in which they claimed a proprietary

interest. The evidence was seized and the Defendants

were arrested on the premises which had been the

subject of the prior illegal search. Simmons merely held

that a Defendant’s testimony regarding standing (his

proprietary interest) may not thereafter be admitted

against him on the issue of guilt. 390 U.S. at 394.

That does not, of course, answer the question

whether his testimony may be admitted against him for

other purposes. The Court has held that statements of a

Defendant procured in violation of Miranda, while

inadmissible on the issue of guilt, may be used to

impeach’a Defendant. Harris v. New York, 401 U.S. 222

(1971). It has also been said that the protective shield of

Simmons is not to be converted into a license for false

representations. United States v. Kahan, 415 U.S. 239

(1974). And in New Jersey v. Portash, 440 U.S. 450

(1979), the Court held that where a statement is coerced

or involuntary, as in the case of one made under a grant

of immunity, then such a statement cannot be used to

impeach.

But a statement asserting Fourth Amendment

standing under the protective umbrella of Simmons is

hardly one which is coerced or involuntary. It is likely,

therefore, that the rule of Harris, not Portash, would

apply to make such a statement usable for

impeachment purposes. If that be the case, then the risk

of self-incrimination exists notwithstanding Simmons,

and the need for the absolute standing rule of Jones

remains.

Thus, this case presents the important, but

unanswered question of whether the potential for self-

incrimination, standing alone, triggers interests

sufficient to invoke the Jones’ automatic standing

doctrine, thereby allowing Defendants charged with a

possessory crime the right to challenge the illegality of a

prior invalid search which resulted in a subsequent

seizure and arrest.

CONCLUSION

For that reason, Certiorari should be granted.?

Respectfully submitted,

MICHAEL TARRE

JOSEFSBERG & TARRE, P.A.

733, City National

Bank Building

25 West Flagler Street

Miami, Florida 33130

Telephone: (305) 377-8155

and

JOEL HIRSCHHORN

JOEL HIRSCHHORN, P.A.

742 N.W. 12th Avenue

Miami, Florida 33136

Telephone: (305) 324-5320

Attorneys for Petitioners

2We note that two recently heard cases, United States v.

Salvucci, No. 79-244 and Rawlings v. Kentucky, No. 79-5146,

argued March 26, 1980, 27 Crim.L.Rppr. 4009-4011, may have an

impact upon this petition. Therefore, any action upon this petition

should await the decisions in Salvucci and Rawlings and the

submission of a supplemental or reply brief pursuant to Rule 24(4)

and (5) of this Court.

10

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of the

foregoing Petition for Writ of Certiorari were mailed to

the Honorable Wade McCree, Solicitor General of the

United States, Department of Justice, Washington,

D.C. 20530, and one copy mailed to Barbara D.

Schwartz, Esquire, Assistant United States Attorney,

300 Ainsley Building, 14 N.E. First Avenue, Miami,

Florida 33132, this day of April, 1980.

MICHAEL TARRE

11

Appendix

UNITED STATES of America,

Plaintiff-Appellant,

Vv.

Felix Joseph VICKNAIR, Robert Girard Vicknair,

James Edward Picker, Thomas D. Morgen, Fred

Mell, Edward Kline, Russell Joe Kersting, Joseph

Kersting, George Christ Karanicas and Frank S.

Buckbee,

Defendants-Appellees.

No. 78-3561.

United States Court of Appeals,

Fifth Circuit.

Jan. 25, 1980.

Appeal from the United States District Court for

the Southern District of Florida.

Before GODBOLD, GEE and RUBIN, Circuit

Judges.

ALVIN B. RUBIN, Circuit Judge:

Police officers illegally went on private property in

an exclusive suburban Miami neighborhood because

they suspected it was being used for smuggling. Two

weeks later, in an early morning raid on the same home,

they seized nearly 30,000 pounds of marijuana and

arrested the persons found on the property.

Subsequently, the persons arrested were charged on a

App. 1

three count indictment with conspiracy to import and

possess marijuana with intent to distribute, importation

of marijuana and possession with intent to distribute.!

The issue is whether the prior entry spread taint

sufficient to require suppression of the product of the

later seizure.

After hearing testimony and argument on a motion

to suppress both the evidence seized during the raid and

statements made by some of the defendants after the

raid, the district court granted it. The government now

asks us to reverse that decision.

I.

On November 22, 1977, the Coral Gables Police

Department received a report from a neighbor of the

residence at 9330 Balada Street that the house and

grounds were not being well kept and that, although the

house appeared uninhabited, boats would arrive in the

canal at the rear of the property and people would enter

and leave the residence at odd hours of the day and

night. After preliminary observation of the house and a

boat docked behind it, the police discovered that the

house was titled in the name of Alvero Cabrera and the

boat, the “Sky Top II,” was owned by the FBV

Corporation. The investigation also revealed that the

“Sky Top II’ and Felix B. Vicknair, president of FBV

Corporation, were suspected by federal authorities of

involvement in marijuana smuggling:

'The defendants-appellees were charged under 21 U.S.C.

§§841(a)(1), 952(a), 960(a)(1) and 963.

App. 2

On November 23, the Coral Gables Police

Department set up a 24-hour surveillance of the

residence and the boat. The surveillance continued until

the morning of November 25. During that time no

suspicious activities were observed at the house or on

the boat. On the morning of November 25, the police,

accompanied by a Customs officer, decided to call on

the occupants of the premises and, if possible, to search

the “Sky Top II” for contraband. The party were in

mufti but, accompanied by a uniformed officer, drove to

the front of the residence in a marked police car. Unable

to obtain an answer to their knocks on the front door, the

members of the party went around the house and across

the backyard to the Sky Top II. They then boarded the

vessel and conducted a search that the government

concedes was illegal. They observed that, although the

exterior of the vessel gave the impression that it was a

pleasure craft, the interior was messy, the carpets were

rolled up and it had few of the normal accounterments of

luxury. However, they found no signs of contraband.

The officers left the vessel and proceeded to the

back of the residence where they entered its screened-in

patio, circled its swimming pool and knocked on the

back door. They received no response and, finding that

the drapes and shutters prevented them from seeing

inside the residence, they left. On their way back to the

police car they detected what they believed to be the

odor of marijuana coming from an air conditioning vent

on the side of the house.

The Police Department thereafter continued its

investigation of 9330 Balada, but reduced its

surveillance to intermittent spot checks of the house and

App. 3

boat. On December 13, they received information that

the ‘Sky Top II” had left its dockage. They staked out

the house and began a helicopter search of the coast.

Small craft warnings were announced, so the weather

was not favorable for pleasure cruising. Therefore, after

five hours of fruitless searching, the police concluded

that the vessel had gone to sea to pick up marijuana,

and they assembled a task force of police officers.2 When

the vessel returned after midnight on December 14, the

police observed a human chain unloading bales from the

vessel, so the task force moved in and made the arrests

and seizure.

It was established that title to the house was in the

name of a straw man and Felix B. Vicknair, the father of

the defendants, Felix J. Vicknair, Paul Edward Vicknair

and Robert G. Vicknair, was its owner. We find it

unnecessary to sum up the evidence concerning how

each defendant established his right to be in the house

or on the vessel. We set forth in a footnote the

contentions made in the defendants’ brief.* It suffices

At the time the decision to gather a task force was made, the

vessel had been absent from its mooring for the longest period of

time noted by the police since they began surveillance on November

23.

3a. Felix J. Vicknair. The trial court found that Felix B.

Vicknair, this Defendant’s father, was the actual owner of the house

at 9330 Balada and of the “Sky Top II’. This Defendant had his

father’s permission to use the house, and it was his responsibility to

maintain the premises. He performed repairs upon and maintained

the ‘Sky Top IT” and had authority to board the boat. He believed

the house was either owned or leased by his father and that the

lease extended to the dock where the boat was moored. No one

could board or use the boat without his father’s permission.

App. 4

for present purposes to accept their testimony that each

had an invitation or permission from Felix Vicknair or

from one of his invitees to enter the house or to reside in

it or to use the vessel or to stay on it.

b. Paul Edward Vicknair. He too believed his father, Felix B.

Vicknair, either owned or leased the house. He helped maintain

both the house and boat and had to receive his father’s or brother’s

(Felix J. Vicknair) permission to permit someone on the boat or to

permit someone to use the house. He lived in the house on a part-

time basis, both before November 25 and between November 25

and December 14, 1977. He kept clothing in the house and was

responsible for its contents and the security of the boat while living

there.

c. Robert G. Vicknair. He believed his father, Felix B.

Vicknair, either owned or leased the house. He lived in the house

full time during November, 1977, and for five or six months

previously. He was responsible for the security of the house and

boat. He had to receive his father’s or brother’s (Felix J. Vicknair)

permission to let anyone use the house or boat.

d. Thomas Morgan. He was married to the daughter of Felix

B. Vicknair’s girlfriend. On and before November 25, 1977, he had

slept on board the “Sky Top II” and used the boat with Vicknair’s

permission. He had previously stayed in the Balada residence and

had permission to stay there. He was permitted to bring his friends

to the house and on board the boat.

e. Fred Mell. During October and November, 1977, including

November 25, 1977, he lived in the Balada Street house with Felix

B. Vicknair’s permission. He kept his clothes in the house. He went

on the “Sky Top IT’ only with Felix B. Vicknair’s permission. There

had been a break-in at the house two months before November 25,

and Mell was living there to assure its security.

f. Joseph Kersting and Russell Kersting. Joseph A. Kersting

was the captain of the “Sky Top II” and responsible for running and

maintaining it. He performed mechanical repairs on the “Sky Top

II” with the assistance of his son, Russell Kersting, and occasionally

App. 5

rN

The government contends that since the search of

the premises at 9330 Balada on November 25 was

constitutional the November search did not taint the

evidence seized in December and the Fourth

Amendment rights of the defendants were not violated

with the assistance of Co-Defendant Frank Buckbee. Kersting left

his tools and clothes on board the vessel. He shared a key to the

vessel with Russell. Kersting did not use the vessel for the purpose

of pleasure, although he was permitted to do so. His wife, daughter

and son would stay on the vessel while in the area for shopping

purposes. Russell sometimes stayed on the boat overnight.

g. James Picker. Picker was Felix B. Vicknair’s son-in-law.

He understood that Felix B. Vicknair owned the “Sky Top II,” and

he had to have his permission to use it. He had stayed at the Balada

Street house with Vicknair’s permission. He had been on the vessel

six or seven times prior to November 25 with friends and family.

h. Edward Kline. Kline had been on the vessel three times

within the three-month period prior to November 25. He went on

the “Sky Top II” only with Felix B. Vicknair’s permission.

i. Frank Buckbee. Frank Buckbee performed mechanical

work with Joseph Kersting on the “Sky Top II” on about six

occasions, for which services he was paid by Felix B. Vicknair. He

frequently kept tools and clothes on the vessel. He stayed on the

boat several times. He had access to the keys of the vessel so as to be

able to perform mechanical repairs on the vessel, but he could not

use the vessel at his discretion although he was never prohibited

from bringing others with him.

App. 6

+

by the November search.‘ The district judge concluded

that the November search of both boat and house were

illegal, that each defendant had a reasonable

expectation of privacy in the areas searched and that the

evidence obtained in December was tainted by the

November activities.

II.

The government concedes that the search of the

“Sky Top II’ was warrantless, unauthorized and not

within any exception to the Fourth Amendment.

However, it contends that the entry onto the premises of

9330 Balada, although technically trespass, did not rise

to the level of a Fourth Amendment violation. It also

contends that none of those arrested had a reasonable

expectation that what was discovered in November

would be private, and that, therefore, none can assert

the unconstitutionality of the November entry.

In the normal discharge of their function, police

officers must occasionally enter upon private property

without the permission of the owner. See. e. g.,

‘Our standard of review of a judgment granting a motion to

suppress in a criminal case is the same as that applicable under

Rule 52(a), Federal Rules of Civil Procedure. See United States v.

Cruz, 5 Cir. 1978, (en banc), 581 F.2d 535, 540-41. If the district

judge failed to enter separate findings of fact and conclusions of

law, we must ascertain whether there is a reasonable view of

evidence in the record to support his disposition of the motion.

United States v. Montos, 5 Cir. 1970, 421 F.2d 215, 219 n.1, cert.

denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532. Here,

although the district judge did not make factual determinations on

every disputed point in the record, we accept those that he made

unless they are clearly erroneous and review other controversies by

the Montos standard.

App. 7

Nordskog v. Wainwright, 5 Cir. ly7?™ 546 F.2d 69;

United States v. Anderson, 8 Cir. 1977, 552 F.2d 1296.

Police excursions onto private property have been

upheld when designed to observe illegal acts through an

unobstructed window, United States v. Johnson, D.C.

Cir. 1977, 182 U.S.App.D.C. 383, 561 F.2d 832, cert.

denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080, or

to confirm an informant’s tip that contraband was

hidden in the crawlspace beneath a house, Giacona v.

United States, 5 Cir. 1958, 257 F.2d 450, cert. denied,

385 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104. The police

excursion onto the premises at 9330 Balada, however,

was neither entirely innocent nor within the scope of

ordinary police routine. The police suspected that the

house and boat were being used for marijuana

smuggling. Their visit was made to confirm those

suspicions. Receiving no response to loud knocking on

the front door, they went to the rear of the residence and

boarded and searched the “Sky Top II.” Discovering no

contraband, they then entered an enclosed area of the

residential premises and continued the search with

fruitless attempts to peer into closed windows.

The government asserts that the presence of a

marked police car and a uniformed officer, the attempts

to rouse any occupants of the house and the absence of

any clandestine or surreptitious behavior by the police

officers define their conduct as a mere trespass, a

technical illegality, rather than an unconstitutional

search. Such threads of distinction weave too fine a

cloth to cover the unconstitutionality of the entry.

[1, 2] A search need not be clandestine to be

unlawful. The police crossed the premises with the

admittedly illegal purpose of searching the “Sky Top

App. 8

II.” If that is not enough to infect the entire entry, their

entry into an enclosed area of the premises and their

attempts to observe the interior of the house through

closed and shuttered windows belies the assertion that

their sole purpose was to locate the owner of the

premises. The district court was fully supported in

concluding that the record painted a picture of

warrantless intrusion onto private property to confirm

suspicions of illegal activity and to conduct an illegal

search of a vessel docked at the rear. The parade of a

uniformed officer and marked police car does not mask

the background of invalid purpose. The district court

was correct in finding the November search

unconstitutional.

Il.

[3] To challenge successfully the admissibility of

evidence obtained unconstitutionally, a defendant must

establish that his own Fourth Amendment rights were

violated by the conduct upon which he wishes to base

exclusion. See United States v. Reyes, 5 Cir. 1979, 595

F.2d 275, 278. The district judge ruled that all of the

defendants had a reasonable expectation of privacy in

the Balada Street residence and the ‘‘Sky Top II” at the

time of the November searches. On appeal we are asked

to decide whether, indeed, defendants’ constitutional

rights were violated on November 25. The defendants

not only assert that they had a reasonable expectation of

privacy, but further contend that the “automatic

standing” rule of Jones v. United States, 1960, 362 U.S.

257, 80 S.Ct. 725, 4 L.Ed.2d 697, requires us to conclude

that their rights were violated by the November search.

Although all parties have dealt identically with the boat

and the house, there are significant differences between

App. 9

the legal standards applicable to the entry of each, for

reasons we shall discuss, and we must consider them in

some respects separately.

A. Automatic Standing

In Jones the Supreme Court held that the

government was estopped from denying that an

unconstitutional search had invaded a defendant’s

Fourth Amendment rights when it was charging the

defendant with a crime involving possession of the very

goods seized during the search. Starting from the

implicit premise that the seizure of his property renders

both the seizure itself and any unconstitutional search

designed to effectuate that seizure an invasion of a

defendant’s Fourth Amendment rights, see United

States v. Jeffers, 1951, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed.

59, the Court concluded that the premise was

established whenever the government charged a

defendant with a crime involving possession of the goods

seized. “In cases where the indictment itself charges

possession,’ the Court reasoned, “the defendant in a

very real sense is revealed as a ‘person aggrieved by an

unlawful search and seizure’... .”Jones v. United

States, 362 U.S. at 264, 80 S.Ct. at 733, 4 L.Ed.2d at

704.

The defendants here ask us both te conclude that

Jones automatic standing is still a valid exclusionary

precept and to extend its umbrella to protect against the

admission of evidence seized in a later valid search even

though the contested search did not produce the

evidence seized. Assuming the continued force of Jones,

we decline to accept the invitation to apply it as a shield

against otherwise valid searches.

App. 10

[4] Although the holding in Jones was broadly

phrased, subsequent cases have more accurately defined

its precept. As later stated by the Supreme Court in

Brown v. United States, 1973, 411 U.S. 223, 93 S.Ct.

1565, 36 L.Ed.2d 208, the “automatic standing’”’

doctrine applies when a defendant is ‘charged with an

offense that includes, as an essential element of the

offense charged, possession of the seized evidence at the

time of the contested search and seizure.” Id. at 229, 93

S.Ct. at 1569, 36 L.Ed.2d at 214. (Emphasis supplied).

Thus, in Brown the Court refused to apply the

automatic standing doctrine to defendants charged with

transporting stolen goods in interstate commerce

because the seizure of the goods took place after the time

when the defendants were alleged to have had them in

their possession.®

[5] Similarly, in this case the possession which is

an element of the crime with which defendants are

charged did not take place until two and one half weeks

after the challenged entries. The rationale of the

“automatic standing” doctrine is ‘“‘[w]hen the time of

the possession charged and the time of the search

coincide or overlap, it is indeed inconsistent for the

government to argue the defendant lacked sufficient

possession to confer standing to challenge the search but

had sufficient possession at the same time for

5We note that this court has expressed some doubt about the

continued validity of Jones. See United States v. Reyes, 5 Cir. 1979,

595 F.2d 275, 279 n. 2; United States v. Edwards, 6 Cir. 1978 (en

banc) 577 F.2d 883, 892, 896, cert. denied, 439 U.S. 968, 99 S.Ct.

458, 58 L.Ed.2d 427; United States v. Archbold-Newball, 5 Cir.

1977, 554 F.2d 665, 678-79, cert. denied, 434 U.S. 1000, 98 S.Ct. 644,

54 L.Ed.2d 496. Nothing in this opinion is to be considered a

discussion of that issue, which is evidently not now before us.

App. 11

conviction.”’ United States v. Colbert, 5 Cir. 1973, 474

F.2d 174, 177. This foundation is absent here. It is

entirely consistent for the government to contend that

defendants lacked any interest in the areas searched on

November 25, but were later in possession of marijuana

that subsequently was brought to those premises.

The December events did not result in the seizure of

the defendants’ property in such fashion that a search

and an almost simultaneous seizure were “tied” for

purposes of determining whether defendants’ personal

Fourth Amendment rights were violated. Cf. United

States v. Jeffers, 1951, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed.

59. The length of time between the contested search and

the seizure two weeks later, as well as the fact that no

evidence was secured against defendants during the

earlier search makes the events separate in law as they

were in fact. All searches leading to the discovery of the

contraband do not per se invade the rights of defendants

charged with a possessory offense. Therefore, we

conclude that the defendants do not have automatic

standing to contest either the December seizure or the

November entries.

[6] To justify exclusion of the evidence seized in

December each defendant must establish that he had a

reasonable expectation of privacy in the boat and the

house in November before we can conclude that there

was an unconstitutional invasion of their privacy and

extend that to infect the December events. The district

judge decided that such an expectation had been shown.

Because this is a legal conclusion involving substantive

Fourth Amendment analysis, see Rakas v. Illinois, 1978,

439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, it is subject

App. 12

to full review by this court. The conclusion rests,

however, upon several factual premises that are

supported by the record and, therefore, are binding on

us: each of the defendants had permission from some

other defendant or from Felix B. Vicknair to use the

“Sky Top II” and be upon the Balada Street property

and several of the defendants stayed on the vessel from

time to time, both day and night, or lived in the house.

B. The Sky Top II

[7,8] Assuming these factual premises to be

correct, and viewing the evidence in the record as

favorably as possible to defendants, we conclude that no

defendant had a reasonable expectation of privacy in

the “Sky Top II.” The fact that defendants were

associated together in an illegal enterprise does not alter

the focus of our inquiry. We must look to each

defendant’s individual privacy or property interest in

the premises searched to determine whether the search

invaded his substantive Fourth Amendment rights. See

United States v. Dyar, 5 Cir. 1978, 574 F.2d 1385,

1390—91. cert. denied, 439 U.S. 982, 99 S.Ct. 570, 58

L.Ed.2d 633; United States v. Hunt, 5 Cir. 1974, 505

F.2d 931, 939, cert. denied, 1975, 421 U.S. 975, 95 S.Ct.

1974, 44 L.Ed.2d 466.

The “Sky Top II” did not belong to any of the

defendants. It was the property of a corporation, FBV

Corporation; while Felix B. Vicknair is identified as

president of the corporation, the record contains no

evidence of corporate action that would give any

defendant a reasonable expectation of personal privacy

while he was on or was using corporate property. The

App. 13

issue is not the legality of the defendants’ presence on

the vessel but whether presence even by direct

invitation of the corporate executive is equivalent to a

legitimate expectation of privacy in the area. See Rakas

uv. Illinois, 1978, 439 U.S. 128, 142, 99 S.Ct. 421, 480, 58

L.Ed.2d 387, 400. Nor would it have been sufficient, had

it been shown, that a particular defendant may actually

have expected privacy on the boat as a result of the

invitation, for “‘[l]egitimation of expectations of privacy

by law must have a source outside of the Fourth

Amendment, either by reference to concepts of real or

personal property law or to understandings that are

recognized and permitted by society.” Id. at 143 n. 12,

99 S.Ct. at 480-31 n. 12, 58 L.Ed.2d at 401 n. 12. We can

find no such source to legitimate defendants’

expectations here.

[9] Several of the defendants who hold shares in

the FBV Corporation assert this proprietary interest as a

partial basis for their privacy claims in the vessel.

Whatever Fourth Amendment interests the corporation

may have in the ‘Sky Top II,”’ however, do not aid the

stock-holding defendants here. When corporate

property is seized or searched, an individual cannot

assert the corporation’s Fourth Amendment rights

ahsent a showing that he had an independent privacy

interest in the goods seized or the area searched. See

United States v. Bush, 5 Cir. 1978, 582 F.2d 1016;

United States v. Britt, 5 Cir. 1975, 508 F.2d 1052, cert.

denied, 423 U.S. 825, 96 S.Ct. 40, 46 L.Ed.2d 42. See

also United States v. Cella, 9 Cir. 1977, 568 F.2d 1266.

Thus, no defendant can bolster his Fourth Amendment

claim by a property interest. Each must rest upon his

own justifiable expectations to establish a zone of

App. 14

privacy in the “Sky Top II’ entitled to Fourth

Amendment protection.

[10] Ownership of the “Sky Top II’ for direct

invitation from its owner is not the exclusive way to

establish a Fourth Amendment interest in privacy

aboard the vessel. A defendant’s attempts to maintain

his privacy, see United States v. Chadwick, 1977, 433

U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L-Ad.2d 538, 548;

Katz v. United States, 1967, 389 U.S. 347, 351, 88 S.Ct.

507, 511, 19 L.Ed.2d 576, 581, and his use of an area, see

Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725,

4 L.Ed.2d 697; United States v. Britt, 5 Cir. 1975, 508

F.2d 1052, 1055, cert. denied, 423 U.S. 825, 9 S.Ct. 40, 46

L.Ed.2d 42, are both relevant considerations that may

establish the existence of a privacy interest even absent

property rights in the area. See Rakas v. Illinois, 1978,

439 U.S. 128, 150, 99 S.Ct. 421, 435, 58 L.Ed.2d 387, 405

(Powell, J., concurring).

[11] Pursuing that line, those of the defendants

who had keys to the vessel and who sometimes slept on

it contend they have thus shown a privacy interest.

They compare themselves with the defendant in Jones

vu. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4

L.Ed.2d 697, whose possession of a key to a friend’s

apartment, storage of personal possessions in the

apartment and right to exclude others from the

apartment was enough to make him a person aggrieved

by an illegal search that took place while he was present

at the apartment.

The Fourth Amendment protects the reasonable

expectations of privacy of those in airplanes, United

App. 15

States v. Ivey, 5 Cir. 1977, 546 F.2d 139, cert. denied, 431

U.S. 943 97 S.Ct. 2662, 53 L.Ed.2d 263, in automobiles,

Delaware v. Prouse, 1979, 440 U.S. 648, 99 S.Ct. 1391, 59

L.Ed.2d 660, and aboard vessels. While we have not

settled definitively the full scope of Fourth Amendment

protection against entries on vessels by Coast Guard and

customs officials, see United States v. Whitmire, 5 Cir.

1979, 595 F.2d 1303, petition for cert. filed, 48 U.S.L.W.

3262 (Sept. 5, 1979, No. 79-375); United States v.

Williams, 5 Cir. 1979, 589 F.2d 210, rehearing en banc

granted, 600 F.2d 18, we cannot ignore the obvious fact

that the mobility of airplanes, automobiles and boats

makes them at least factually different from real

property. Id. See United States v. Martinez-Fuerte,

1976, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d

1116; United States v. Cadena, 5 Cir. 1979 (on

rehearing), 588 F.2d 100.

What is a reasonable expectation of privacy is by

definition related to time, place and circumstance.

While Felix B. Vicknair had given each of his sons

permission to use the vessel, none of them was residing

aboard it in November, and none testified that he had

ever used it as a temporary or permanent residence.

Access to the relatively small vessel, apparently on a

come-as-you-wish basis, was shared with six other

defendants, and with the wife, daughter and son of

defendant Joseph Kersting, who also sometimes stayed

on the vessel. No one used the vessel as a home or

permanent living quarters, cf. United States uv.

Williams, 5 Cir. 1977, 544 F.2d 807. Considering the

corporate ownership of the vessel; the latitude to use it

given to so many people second-hand from the corporate

president as to some, and third-hand from his sons as to

others; the lack of separate space, quarters or lockers for

App. 16

anyone; and the apparently indiscriminate coming and

going of so many people it could hardly be said that

there was any expectation of privacy for anyone aboard

the vessel.

At the time of the November search no defendant

was aboard the vessel or in a position to exclude others

from it. In fact, the police officers apparently

encountered not even a locked door obstructing their

access to the vessel. Except for the times when each

defendant was personally aboard the vessel, no

defendant knew exactly who would be aboard or when.

Moreover, the intermittent use of the vessel by the

defendants does not indicate any intention by any of

them to preserve some personal area of privacy upon the

“Sky Top II.” The least casual visitor to the vessel had

stayed aboard overnight only a half-dozen times in the

three months preceding the illegal search. He

apparently left work clothes and tools aboard, but there

is no indication that he attempted to secure them from

intruders or that, during his stay on the vessel, he had

exclusive dominion over it.

We decline to hold that these individuals who had

no direct authority from the corporate owner to use its

property and no reasonable expectation of real privacy

from other individuals have somehow shown those

efforts to maintain privacy and the protected use of an

area necessary to give them an expectation reasonable in

a constitutional sense. We, therefore, conclude that

none of the defendants was personally aggrieved by the

illegal search of the “Sky Top II.” See United States v.

Byers, 5 Cir. 1979, 600 F.2d 1130; United States v.

Reyes, 5 Cir. 1979, 595 F.2d 275.

App. 17

C. The Residence

The claims of some of the defendants to a

reasonable expectation of privacy in the residence are

more substantial. However, no evidence was obtained

by the illegal entry on these premises and the only lead

obtained was the odor of marijuana. This alone, for

reasons we set forth below, was not sufficient to taint the

December events. Therefore we need not discuss the

claims of privacy at the residence.

IV.

[12] In determining whether evidence is tainted

by an illegal search, the proper inquiry is “whether,

granting establishment of the primary illegality, the

evidence . . . has been come at by exploitation of that

illegality or instead by means sufficiently

distinguishable to be purged of the primary taint.”

Wong Sun v. United States, 1963, 371 U.S. 471, 488, 83

S.Ct. 407, 417, 9 L.Ed.2d 441, 455. Not every fruit that

grows from poisonous trees is constitutionally lethal. If

the government can demonstrate either that the

evidence sought to be suppressed was acquired through

an independent source, Silverthorne Lumber Co. v.

United States, 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed.

319; United States v. Fredericks, 5 Cir. 1978, 586 F.2d

470, 479 n. 13, cert. denied, 1979, 426 U.S. 962, 99 S.Ct.

1507, 59 L.Ed.2d 776, or that the connection between an

illegal search and evidence thereafter obtained has

become “so attenuated as to dissipate the taint,”

Nardone v. United States, 1939, 308 U.S. 338, 341, 60

S.Ct. 266, 268, 84 L.Ed. 307, 312, exclusion is not

justified.

App. 18

[13] It is implicit in the holdings of the Supreme

Court on the subject, see United States v. Ceccolini,

1978, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268;

Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct.

266, 84 L.Ed. 307; Wong Sun v. United States, 1963, 371

U.S. 471, 83 S.Ct. 407; 9 L.Ed.2d 441, that the

commission of police illegality during the course of an

investigation does not require the complete

abandonment of the inquiry and a cessation of efforts to

uncover criminal conduct. See United States v. Cella, 9

Cir. 1977, 568 F.2d 1266.

[14] The district judge rejected the defendant-

appellees’ assertion that police surveillance was

increased after the November entry, but he concluded

that there was no “‘independent source’”’ of the evidence

at issue and that the December seizures would not have

taken place had the November caper not occurred. His

determination to exclude the evidence rested upon those

factual conclusions. In light of our conclusion that the

defendants may not challenge the search of the “Sky

Top II,” however, the decision to exclude the evidence

seized in December was incorrect, for the only

information obtained during the illegal November

search, apart from that received on the boat, does not

taint the December seizure.

Prior to the detection of the odor of marijuana

emanating from the Balada Street residence, the police

had ample reason to suspect that the residence and boat

were involved in a smuggler’s plot. Their observations of

the boat confirmed their suspicions of its role. The odor

they detected as they passed by the home’s air-

conditioning vent may have produced self-assured

smiles, but in light of the evidence already before them

App. 19

it could not have contributed to their decision to

continue investigating the boat and residence. In fact,

following the November entry police surveillance

focused not on the residence itself, but on the “Sky Top

II.” The raid on December 14 was prompted by the

police appraisal that the activities of the “Sky Top IT”

indicated that its interior likely was loaded with

smuggled goods.® The odor of marijuana [was, at best, a

de minimis piece of information in view of what the

police had before them,] provided neither impetus nor

direction to the police investigation, see United States v.

Cales, 9 Cir. 1974, 493 F.2d 1215; United States v.

Bacall, 9 Cir. 1971, 443 F.2d 1050, cert. denied, 404 U.S.

1004, 92 S.Ct. 565, 30 L.Ed.2d 557, and serving at most

to confirm suspicions that were already strongly

supported by independent sources of evidence. See

United States v. Pike, 5 Cir. 1975, 523 F.2d 734, cert.

denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830.

The evident facts are worth noting again: no

evidence was obtained in the November entry; no leads

were produced by the police walk around the house; the

information acquired did not contribute to the shape of

the investigative effort; the police did not utilize

illegally obtained leads to trap a criminal and then

contend that the existence of legally obtained leads that

°The intensification of police efforts that led to the December

seizures began on December 13 when the police discovered that the

“Sky Top II’ was absent from its Balada Street mooring despite

small craft warnings for the area and that a helicopter search had

failed to locate the vessel in the coastal waters. Defendants-

appellees concede that smugglers ply their trade primarily at night

and in rough seas in order to avoid detection. Therefore, the long

absence of the “Sky Top IT” on a stormy night was a significant in-

dication to the police that smuggling might be in progress.

App. 20

led in the same direction purged the taint. United States

v. Castellana, 5 Cir. 1974, 488 F.2d 65, reversed on other

grounds, 500 F.2d 325 (en banc). The simple failure of

the police to disengage a focused and continuing

investigation following their illegal detection of a

suspicion-confirming aroma cannot alone establish the

taint necessary to warrant exclusion of the evidence in

this case. The whiff of marijuana was not so Fourth-

Amendment-noxious as to require the suppression of

everything that followed.

We are satisfied that there is no evidence

supporting the assertion that the December seizures

were the result of police exploitation of their

observations at the side of the Balada Street residence

in November. We therefore conclude that the seized

evidence was obtained from sources and by means

independent of any invasion of defendants’ Fourth

Amendment rights and that the evidence obtained was

admissible against them. We reach the same conclusion

with respect to the alleged taint of what they thereafter

said.

The judgment of the district court suppressing the

evidence against the defendants is REVERSED, and the

case is REMANDED for further proceedings consistent

with this opinion.’

"The trial court did not consider and we do not now express any

view concerning whether the December search was itself valid in

the absence of a warrant.

App. 21