Petition for Writ of Certiorari — Stone v. United States

TOPICAL INDEX

Page

IY a dic cohen dwe i cald omindewianlscwiee acai 1

tis ak. ada ckm an neoredainieuk we wok 2

Questions Presented ........... Lokiaenadcoacsimien 2

Constitutional Provisions Involved ................. 2

i til inlcs cate ecde nec eaebenihwudaiicke 3

Reasons for Granting the Writ ..................... 5

SE rid ceara keratin aaeaiehdard Ramune meinem eaan 5

Eat aac rae dh aa iarsalaon ushinioiniraaealaieouca eae 7

I aloe ic clalas yar pisaGoiethod union meabiaiietalareeabgrad Min iets 8

SSPE LELRLO LOP ILE LOPLI ALOE SE LIP LIE. NEES LIE SIS LDE EDEL ALI TCL EOE

TABLE OF CASES AND AUTHORITIES CITED

Page

Anderson v. United States, 399 F. 2d 753 (10th Cir.

RD nics Ware Gis aia bes wine enim mia aien ahi ea ias ao 8

Brubaker v. United States, 183 F. 2d 894 (1965) ...... 7

Katz v. United States, 389 U.S. 347, 351 (1967) ...... 7

Moody v. United States, 376 F. 2d 525 (1967) ........ 7

Moore v. Illinois, 408 U.S. 786, 798-800 (1972) ....... 5

Pasterchik v. United States, 400 F. 2d 696 (9th Cir.

1968) cert. denied, 395 U.S. 982 (1969) ........... 8

Roberts v. United States, 332 F. 2d 892 (8th Cir.

1964) cert. denied, 380 U.S. 980 (1965) ............ 8

Stoner v. California, 376 U.S. 483 (1964) ............ 7

Thomas v. United States, 376 F. 2d 564 (1967) ........ 6

United States ex rel. Cabey v. Mazurkiewicz, 431 F.

ee SE rc i Sada ocagebucieeareesas 8

United States v. Airdo, 380 F. 2d 103 (1967) ......... 7

United States v. Alloway, 397 F. 2d 105 (6th Cir.

Seg ERD ec ae Ene am Parana MEA pre pe 8

United States v. Baker, 419 F. 2d 83 (1969) .......... 6

United States v. Kwitek, 433 F. 2d 18, 20 (1970) ..... 6

United States v. Mackiewicz, 401 F. 2d 219 (2nd Cir.),

cert. denied, 393 U.S. 923 (1968) ................. 8

United States v. Ravich, 421 F. 2d 1196 (1970) ....... 6

United States v. Reid, 410 F. 2d 1223 (1969) ........ 6

United States v. Thompson, 421 F. 2d 373 (5th Cir.

SE ccs aac cpa kina ven ohuesa cyabeeats@nanented 8

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

ERWIN W. STONE,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

AND REQUEST FOR SUMMARY REVERSAL

Erwin W. Stone, your Petitioner herein, respectfully

prays that a Writ of Certiorari issue to review the judg-

ment of the United States Court of Appeals for the Seventh

Circuit, and the Petitioner further requests Summary Re-

versal.

OPINIONS BELOW

The opinion of the Court of Appeals is reported verbatim

here. (App. ‘*A’’, pp. 1-16) It has not as yet been

— ERE AAT PEL IPN LS PL NP EO SE EERE LE ASE HAO

2

officially reported. The opinion of the Court of Appeals

denying rehearing and hearing en banc is reported ver-

batim herein. (App. ‘‘B’’, p. 1) The opinien of the

District Court for the Southern District of Illinois is re-

ported verbatim herein. (App. ‘‘C’’, pp. 1-3)

JURISDICTION

The judgment of the Court of Appeals was entered on

November 29, 1972. (App. ‘‘A’’, p. 1) A petition for

rehearing was denied on January 3, 1973. (App. ‘‘B’’, p.

1) The jurisdiction of this Court is invoked under the

provisions of 28 U.S.C., See 1254(1).

QUESTIONS PRESENTED

Whether a gun admitted into evidence, which was ad-

mittedly not used in the crime charged, violated the de-

fendant’s right to a fair trial under the due process of

the Fifth Amendment?

Whether evidence used against the Petitioner was the

result of an illegal search and seizure, thereby violating

his rights under the Constitution of the United States?

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States provides

in pertinent part as follows:

‘The right of the People to be secure in their persons,

houses, papers and effects, against unreasonable search

and seizures, shall not be violated * * *.’’

The Fifth Amendment to the Constitution of the United

States provides in pertinent part as follows:

6¢* * * nor be deprived of life, liberty, or property,

without due process of law * * *”’

——

STATEMENT

Jurisdiction in the Trial Court was based on Title 18

of the United States Code, Sees. 2113(a), (b), (d), (Armed

Bank Robbery).

The Defendant was indicted in three counts for the crime

of Bank Robbery on March 11, 1970. The Defendant was

arrested and charged with the crime eleven months later.

At the trial, four bank employees who had witnessed the

crime testified as to the events of the day in question. None

of them was able to make an unequivocal positive identi-

fication of the Defendant, but two employees thought the

Defendant was the man who had robbed the bank. The

bank robber was masked and wore a cap.

Two acquaintances of the Defendant testified that he

admitted to them that he had committed the bank robbery.

One said the Defendant had told her that he was planning

to rob the bank, and gave this witness some monies from

the bank robbery, and advised her that he had buried the

gun and clothing used in the robbery. Thereafter, an alter-

cation developed between the two, and the Defendant ad-

vised this witness that if she reported the crime he would

kill her, and showed her a small pistol which he carried.

The second acquaintance testified that after the occur-

rence, the defendant showed him a safety deposit box which

contained the fruits of the crime; subsequently this wit-

ness traveled with the defendant under duress to various

cities in I]linois and Iowa where the defendant allegedly

converted the stolen money into cashiers’ checks.

The defendant testified in his own behalf and maintained

his innocence.

i... Se One Sane ae a Se cit LE LEER PES PERL es

+

The introduction of a .22 caliber pistol into evidence was

apparently unconnected with the robbery. This revolver

was taken from underneath the mattress in the defendant’s

home at the time of his arrest. Although a gun was used

in the bank robbery, testimony indicated that the firearm

used in the robbery was of a longer barrel. Government’s

counsel, in his closing argument, conceded as much stating,

‘*Now I’m not suggesting, ladies and gentlemen, that this

was the gun in which the bank robbery was completed. In

fact, the barrel isn’t long enough * * *’’. The prosecutor

indicated that the purpose for which the gun had been

introduced was to corroborate the testimony of both wit-

nesses to whom the defendant allegedly confessed, as well

as to promote an image of the defendant as a dangerous

and generally disreputable person.

The defendant was arrested at home and removed from

the premises. The defendant refused to give his consent

to search his home to the agents of the Federal Bureau of

Investigation. While the defendant was outside the prem-

ises, the defendant’s wife was told by the agents that she

could sign the consent to search or that they could get a

search warrant. This was denied by the agent in charge

of the case. The wife of the defendant did sign a consent

to search. Thereupon the agents searched the house and

seized a tackle box in a different room where the defendant

was arrested containing duplicate copies of the money

orders and cashiers’ checks obtained by the defendant. The

tackle box and its contents were admitted into evidence

over the objection of the defendant.

The defendant testified that he did not give his wife per-

mission to consent to the search. The F. B. I. agent in

charge testified that he had conversed with the Assistant

United State’s Attorney handling the case, presumably

before the search, and had been advised there was insuffi-

5

cient probable cause for the authorization of a search

warrant.

The defendant was sentenced for a period of fifteen (15)

years, which was entered on the 30th day of July, 1971.

REASONS FOR GRANTING THE WRIT

I.

The court below has decided Federal questions of sub-

stance in conflict with the due process principles enunciated

in this Court. It has departed from the accepted and usual

course of judicial proceedings, and its sanction of such

departure by the Trial Court resulted in an erroneous

judgment and a miscarriage of justice, and deprived the

Petitioner of his rights to due process of law and equal

protection of the law.

Moore v. Illinois, 408 U.S. 786, 798-800 (1972), was the

cornerstone upon which the admission of the weapon in

the case at bar was held to be relevant and probative under

the circumstances of the case. It is suggested that Moore

was applied too broadly. In Moore, the introduction of a

16-gauge shotgun into evidence in a murder trial in which

the victim had been killed by a 12-gauge shotgun, was

permissible under the due process clause. The prosecutor

stated that the purpose was to show that the defendant

and his companion were the type of people that used shot-

guns. The Court held that it did not violate the defendant’s

right to a fair trial under the due process clause of the

Fourteenth Amendment. In Moore, the shotgun that was

admitted into evidence was obtained during an arrest while

the defendants were in an automobile. The possession of

the shotgun itself at that time was illegal. In the case at

bar, the gun was kept in a home, and the defendant had

every lawful right to keep said weapon where it was found.

6

The issue of the admission of the gun was squarely

raised and we submit that its public importance is obvious,

and that it was wrongly decided below.

The position taken by the Court of Appeals in this case

manifests a flagrant repudiation of the standards which

due process requires. The Seventh Circuit itself has held

in United States v. Reid, 410 F. 2d 1223 (1969), that the

introduction of testimony concerning dangerous weapons

found among the belongings of a defendant charged with

a crime, no part of which depends upon the use or owner-

ship of the weapon, has consistently been regarded as

prejudicial error requiring a new trial. In United States

v. Kwitek, 433 F’. 2d 18, 20 (1970), the Court held that it

was prejudicial error to allow two revolvers, which were

neither offered or received into evidence, to be seen by

the jury and testimony concerning them to be received in

a case of armed robbery of a bank. The Court offered a

cautionary instruction that the pistols had not been offered

into evidence, and must not be considered by the jury as

evidence against the defendant. Even with a cautionary

instruction, the Seventh Circuit reversed, and it is noted,

that in the case at bar, no cautionary instruction was ten-

dered.

The Second Circuit has held no error in U.S. v. Baker, 419

F. 2d 83 (1969), Cert. den. 397 U.S. 976, where during a

search incident to an arrest of the defendant, F.B.I. agents

discovered and seized two guns which were admitted at the

trial. Further, the Second Circuit has held in U.S. v. Ravich,

421 F. 2d 1196 (1970), Cert. den., 400 U.S. 894, that the

introduction of evidence that the defendant possessed guns

on or before the date of the bank robbery, had probative

value. The Circuits are in conflict.

The Fifth Cireuit in Thomas v. U.S., 376 Fed. 2d 564

(1967), held that the introduction of a chain and bullwhip

7

found with the gun was prejudicial. The Sixth Circuit in

Brubaker v. U.S., 183 F. 2d 894 (1965) in an indictment

based upon the Dyer Act, the Court held that the intro-

duction of loaded guns which were found in a suitcase in

the automobile was prejudicial, on the basis that they had

no connection with the crime. The Ninth Circuit in Moody

v. U.S., 376 F. 2d 525 (1967), held that a loaded gun, which

was found in a glove compartment in an automobile in a

narcotic’s indictment required reversal when the loaded gun

was offered into evidence, and there was no connection with

the narcotic charge.

IL.

The Court of Appeals’ determination that the wife’s con-

sent to search under the circumstances constitutes a most

sweeping departure from the accepted and usual protections

guaranteed by the Fourth Amendment. The question pre-

sented is of profound significance as to search and seizure.

It is axiomatic that the constitution endows every citizen

with an individual right to the preservation of his privacy

against official intrusion. ‘‘The Fourth Amendment pro-

tects people, not places,’’ Katz v. United States, 389 U.S.

347, 351 (1967). The Courts have recognized that the prin-

cipal object of the Fourth Amendment is the protection of

privacy, rather than property. The privacy of a transitory

hotel resident was protected in Stoner v. California, 376

U.S. 483 (1964) where the Court held that it was the De-

fendant’s constitutional right which was at stake and not

the night clerk’s nor the hotel’s. It was a right which only

the defendant could waive by word or deed either directly

or through an agent.

The Seventh Circuit in United States v. Airdo, 380 F. 2d

103 (1967) rejected the agency rationale in the context of

marital relationships while restating the rule regulating

consent by a wife to a search of the dwelling occupied by

8

her and her husband. The Court acknowledged the rule that

where two persons have equal rights to the use or occupation

of the premises, either may give consent to a search, and the

evidence thus disclosed can be used against either. The con-

siderations most applicable to the third persons consent in

such cases are not related to principles of agency connecting

the defendant with the person acquiescing in the search,

but rather concerned with reasonableness under all the cir-

cumstances of the search consented to by a person having

immediate control and authority over the premises or the

property searched.

This view is in accord with the holdings of a number of

other circuits. United States ex rel. Cabey v. Mazurkiewicz,

431 F. 2d 839 (3rd Cir. 1970); United States v. Thompson,

421 F. 2d 373 (5th Cir. 1970); United States v. Mackiewicz,

401 F. 2d 219 (2nd Cir.), cert. denied, 393 U.S. 923 (1968) ;

Pasterchik v. United States, 400 F. 2d 696 (9th Cir. 1968)

cert. denied, 395 U.S. 982 (1969); Anderson v. United

States, 399 F. 2d 753 (10th Cir. 1968); United States v.

Alloway, 397 F.. 2d 105 (6th Cir. 1968); Roberts v. United

States, 332 F. 2d 892 (8th Cir. 1964), cert. denied, 380 U.S.

980 (1965).

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari and Request for Summary Reversal should be

granted. The decision below is palpably erroneous.

Respectfully submitted,

MICHAEL J. COSTELLO

Suite 911

Ridgely Building

Springfield, Illinois 62701

Attorney for Petitioner

Of Counsel:

COSTELLO & McGARY

Springfield, Illinois

January, 1973

——

App. A-1

APPENDIX A

Inthe .

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

September Term, 1972 — September Session, 1972

No. 71-1580 )

UNITED STATES OF AMERICA, | yaad states District

Plaintiff-Appellee, Court for the

Southern District of

v. f Mlinois

No. 7072

ERVIN W. STONE, Py

Defendant-Appellant. |

Argued September 22, 1972 — Decided November 29, 1972

Before SWYGERT, Chief Judge; CUMMINGS and

SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge. The defendant was con-

vieted by a jury of the robbery of the State Bank of Latham,

Illinois.’ Numerous alleged errors are raised in this appeal,

each of which is considered below. We affirm the judgment

of conviction.

The bank robbery occurred at approximately 3:00 P.M.

on March 11, 1970. Witnesses to the robbery testified that

the robber wore a gray cloth mask, gloves and a hat, and

'The indictment charged defendant with violating 18 U.S.C. §§2113

(a),(b) and (d).

_

carried a gun having a barrel approximately six inches

long. The robber was identified as being a man with a fair

complexion, dark reddish hair and over six feet tall. The

defendant was arrested and charged with the crime eleven

months later.

App. A-2

At the trial, the four bank employees who had witnessed

the crime testified as to the events of the day in question.

None of them was able to make an equivocal positive iden-

tification of the defendant, but two employees thought the

defendant was the man who had robbed the bank.

The principal evidence indicating that Stone was the bank

robber came from the testimony of two acquaintances of

his and from testimony which showed that he was suddenly

in possession of large sums of money. Linda Hudspeth,

who had known Stone since September, 1969, testified that

the defendant told her he was planning to rob the Latham

bank and asked her to purchase a gray scarf for him, which

she did in February, 1970. She also testified that Stone

called her late in the afternoon of March 11, 1970, and

told her he had just robbed the bank. The following day

Stone reportedly gave her three hundred dollars and told

her that he had buried the gun and clothing used in the rob-

bery. Somewhat later an altercation apparently developed

between the witness and the defendant. Mrs. Hudspeth

stated that she threatened to report the crime and that Stone

told her if she did he would kill her. Stone showed her a

small pistol which he carried.

A second acquaintance of the defendant, Andrew Skelton,

testified that he had gone to school with Stone and been a

friend of his for twelve years. According to his testimony,

Stone called him on February 13, 1970, and told him he was

going to rob a small bank because he needed money for

support payments. Skelton testified that he next saw Stone

App. A-3

on May 5, 1970, when the defendant drove Skelton to a

bank in Greenview, Illinois, where he had previously rented

a safe deposit box, and showed the witness a green tackle

box containing white envelopes filled with money. The

witness stated that he told Stone he did not wish to become

involved but that Stone threatened him with a .22 caliber

pistol. Subsequently, Skelton traveled with Stone to var-

ious cities in Iowa and Illinois where the defendant con-

verted the allegedly stolen money into cashier’s checks.

Testimony from other persons substantiated much of Skel-

ton’s testimony. A green tackle box taken from the de-

fendant’s home when he was arrested was identified by

Skelton as the box containing the money.

The government produced numerous witnesses who testi-

fied to substantial deposits made to the defendant’s bank

account during May of 1970, to expenditures of $4,250 for

a truck and $725 for a boat in May, 1970, and to the fact

that Stone’s name appeared on money orders and drafts

purchased at various banks. Thus, even without the posi-

tive identification of the defendant by the bank employees,

the evidence was substantial that Stone was the bank robber.

L.

Stone’s first complaint relates to the introduction of a

.22 caliber pistol into evidence which was apparently un-

connected with the robbery of the Latham State Bank. The

revolver was taken from underneath the mattress in the

defendant’s home at the time of his arrest. Although a

gun was used by the bank robber, testimony indicated that

it was unlikely that the gun introduced at trial could have

been the firearm used in the robbery.? Government counsel,

in his closing argument, conceded as much, stating: ‘‘ Now,

I’m not suggesting, ladies and gentlemen, that this was

?The bank employees testified that the gun used in the robbery had

a long barrel.

ODE I I Fee SS EST

a

the gun in which the bank robbery was completed. In fact

the barrel isn’t long enough ....’’ In the remainder of

his argument, the prosecutor indicated that the purpose

for which the gun had been introduced was to corroborate

the testimony of Mrs. Hudspeth and Skelton as well as to

promote an image of the defendant as a dangerous and

generally disreputable person.’

App. A-4

<2>

Stone argues that the introduction of this gun for these

purposes was improper and prejudicial to his case. In

Moore v. Illinois, 408 U.S. 786, 798-800 (1972), the Su-

preme Court held that the introduction of a 16-gauge

shotgun into evidence in a murder trial in which the

victim had been killed by a 12-gauge shotgun was permis-

sible under the due process clause. The prosecutor in

that case stated that his purpose in introducing the

weapon was to show that the defendant and his com-

panion were ‘‘the type of people that use shotguns.’’ Under

this ruling, there can be no question but that the intro-

duction of the gun in this case did not violate the defen-

dant’s right to a fair trial under the due process clause

of the Fourteenth Amendment.

Defendant nevertheless argues that under federal evi-

dentiary standards, the introduction of the gun was an

abuse of discretion on the part of the trial judge. The

trial judge has wide discretion in the admission or exclu-

3The prosecutor stated:

“I’m asking you to look at the threats of violence made to these

people in the bank. I'm asking you to look at what Linda told us.

You don’t tell anybody, or you'll get a bullet in the head. I’m

asking you to look at what Joe Skelton told us, don’t you do

anything or I'll kill you. I'll shoot you with this gun. If I don’t get

you, somebody else will, and then I finally ask you to consider,

here’s a man sleeping in his bed in his home with young children

running around the house, his wife and young children running around

the house, sleeping in bed at approximately twelve noon, on a weekday,

with a fully loaded revolver right under the mattress where he’s

sleeping.” (R. 493-94)

App. A-5

sion of collateral evidence. There can be no doubt that

the gun had probative value in substantiating the state-

ments of Mrs. Hudspeth and Skelton. Defendant argues

that evidence of threats against these witnesses was inad-

missible, and that even if admissible, there was no show-

ing that the gun introduced into evidence was the weapon

with which they were threatened. These arguments ignore

the circumstances present in this case. Mrs. Hudspeth and

Skelton were both subjected to rigorous cross-examination

designed to discredit their testimony and to show that

Mrs. Hudspeth was a disappointed girl friend who in fact

threatened to kill the defendant. Both witnesses were

cross-examined as to why they had waited so long to tell

authorities their stories. Stone did not object at the trial

to testimony as to threats. Once the threats were in evi-

dence, and the credibility of the witnesses was attacked,

the .22 caliber pistol became highly relevant as tending

to prove that the defendant could in fact have carried out

the alleged threats.‘ We cannot say that any possible preju-

dicial effect outweighed the probative value of the pistol

under these circumstances.

Defendant also alleges error in admission into evidence

of the fruits of a search of his home made pursuant to

his wife’s consent shortly after Stone’s arrest. Stone in-

sists, first, that his wife could not legally give consent to

such a search unless an ‘‘agency’’ relationship is estab-

lished; and second, that even if a spouse’s consent were

otherwise sufficient, the consent in this case was the prod-

uct of coercion. The first part of this argument is without

merit. In United States v. Sferas, 210 F. 2d 69, 74 (7th

‘The Revised Draft of the Proposed Rules of Evidence for the United

States Courts and Magistrates, Rule 401 (March 1971), defines relevant

evidence as “evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

51 F-R.D. 315, 342.

Y

Cir.), cert. denied, 347 U.S. 935 (1954), this court held

that ‘‘where two persons have equal rights to the use or

occupation of premises, either may give consent to a search,

and the evidence thus disclosed can be used against either.’’

This holding is applicable here and the wife’s consent, un-

less given under coercion, is binding upon her husband.

See also United States v. Johnson, 413 F. 2d 1396, 1400

(5th Cir. 1969); Roberts v. United States, 332 F. 2d 892,

896-897 (8th Cir.), cert. denied, 380 U.S. 980 (1964).

The question of whether a consent is given voluntarily

and without coercion is one of fact. Stone argues that

two factors allegedly present in the instant case preclude

a finding that the consent was freely given. Mrs. Stone

executed the consent form giving F.B.I. agents authority

to search the house approximately eight minutes after

defendant’s arrest. There was some testimony that she

was upset at the time but the record does not indicate

that she was any more disturbed than any other person

would be likely to be at the sudden intrusion of police

officials under these circumstances. To hold that the mere

condition of being ‘‘upset’’ by the presence at one’s home

of F.B.I. agents is enough to make any consent the product

of coercion might effectively foreclose almost all searches

conducted pursuant to a voluntary consent. We decline

to so hold.

The defendant also argues that the F.B.I. agents told

Mrs. Stone that if she did not consent they could obtain

a search warrant. The testimony on this point is conflict-

ing. Mrs. Stone testified that she was positive that the

F.B.I. agents said they could get a search warrant. The

F.B.I. agent in charge of the Stone case testified that to

his knowledge no one stated that the F.B.I. could obtain

a warrant. He further testified that it would have been

highly unlikely that anyone would so state since the F.B.1.

App. A-6

—

had previously been advised that there was insufficient

probable cause for authorization of a warrant. The trial

judge heard the testimony of these witnesses and observed

their demeanor on the witness stand and believed the testi-

mony of F.B.I. agent Joseph Giglio. There is no basis for

overturning this conclusion. Mrs. Stone testified that no

threats were made to her by the F.B.I. agents and that

she read and signed the consent form voluntarily. We

conclude that there was no error in the ruling of the

district court.

App. A.-7

iit

The defendant argues that the government failed to

disclose evidence favorable to the accused prior to trial.

This argument is premised on the fact that the govern-

ment had knowledge, prior to trial, that two of the bank

employees could not identify the defendant. Stone insists

that failure to inform the defendant of this evidence before

trial violated his due process rights under the holding of

Brady v. Maryland, 373 U.S. 83 (1963). However, in

Brady, the defendant never had the benefit of the excul-

patory statement. The government in this case produced

the two witnesses at trial and they testified that they

could not identify the defendant. Stone has failed to show

that any prejudice resulted from a failure to make the

testimony available to him at an earlier time.

IV.

Additional errors are alleged relating to a jury instruc-

tion as to reasonable doubt; separate instructions as to

each count of the indictment; failure to give an instruc-

tion on the weight and credibility to be given the testi-

mony of Skelton and Mrs. Hudspeth; failure to grant a

mistrial when a witness wept on the stand; failure to

declare a mistrial because the prosecutor referred to a

juror by name; and failure to grant a mistrial because

2B OE ICEL EERIE ELIT OL LEE BITE LE OIE NOP MNES

App. A-8

of adverse newspaper publicity. Defendant also attacks

the sufficiency of the evidence to sustain the guilty verdict.

We have examined these contentions and find them to be

without merit. The judgment is affirmed.

AFFIRMED.

SWYGERT, Chief Judge, dissenting.

I would reverse the conviction of the defendant on the

single ground that the Federal Bureau of Investigation

conducted an illegal search of the defendant’s home and

that the evidence obtained by that search should have been

suppressed.

The evidence showed that on the day of the defendant’s

arrest seven or eight special agents of the F.B.I. arrived

at his home shortly before noon. The defendant was sleep-

ing at the time, and his wife admitted the agents. After

being awakened from sleep, the defendant dressed. He

was then handcuffed and placed in an automobile. Several

minutes after her husband was taken from the house, the

agents presented Mrs. Stone with a written consent to

search the premises of the home, which consent she signed.

The agents thereupon searched the house and seized a

tackle box containing duplicate copies of the money orders

obtained by the defendant. The tackle box and its con-

tents were admitted into evidence over the objection of

the defendant.

Mrs. Stone testified that the agents told her that she

could sign the consent to search or that they could get a

search warrant. This was denied by the F.B.I. agent in

charge of the case. Mrs. Stone also testified that she was

quite upset at the time. The testimony of two agents is

contradictory on this point: one said Mrs. Stone appeared

calm when she signed the consent; another said that she

OO

App. A-9

appeared to be upset. The defendant testified that he

never gave the F.B.I. agents permission to search nor

did he give his wife permission to consent to the search.

A significant aspect of the question presented in this case

is the fact that the F.B.I. agent in charge testified that

he had conversed with the Assistant United States Attor-

ney handling the case—presumably before the search—

and had been advised that there was insufficient probable

cause for the authorization of a search warrant.

L

It is axiomatic that the Constitution endows every citi-

zen with an individual right to the preservation of his

privacy against official intrusion. The ‘‘Fourth Amend-

ment protects people, not places.’’ Katz v. United States,

389 U.S. 347, 351 (1967). The right of privacy which the

Constitution protects is not strictly coextensive with spa-

tial expanses over which a person has some superior

interest recognized by the law of property. As the Su-

preme Court said in Warden v. Hayden, 387 U.S. 294, 304

(1967), ‘‘tw]e have recognized that the principal object

of the Fourth Amendment is the protection of privacy

rather than property, and have increasingly discarded fic-

tional and procedural barriers rested on property con-

cepts.’’ Thus the defendant in Katz was protected from

governmental intrusion by phone tap into a public tele-

phone booth. Similarly, the privacy of a transitory hotel

resident was protected in Stoner v. California, 376 U.S.

483 (1964), where the Court held:

It is important to bear in mind that it was peti-

tioner’s constitutional right which was at stake here,

and not the night clerk’s nor the hotel’s. It was a

right, therefore, which only petitioner could waive by

word or deed, either directly or through an agent.

376 U.S. at 489.

ee ee

App. A-10

In sum, the central policy of the fourth amendment is to

protect from official search areas ‘‘where, like a home...

a person has a constitutionally protected reasonable ex-

pectation of privacy.’’ Katz v. United States, 389 U.S. at

360 (Harlan, J. concurring).

A reasonable individual expectation of privacy may be

officially invaded only under special circumstances. Fore-

most of course is when a search warrant is issued by a

magistrate. Recently the Supreme Court said: ‘‘The pres-

ence of a search warrant serves a high function. Absent

some grave emergency, the Fourth Amendment has inter-

posed a magistrate between the citizen and the police.’

Chimel v. California, 395 U.S. 752, 760 (1969). The Court

went on to say:

And so the Constitution requires a magistrate to pass

on the desires of the police before they violate the

privacy of the home. We cannot be true to that

constitutional requirement and excuse the absence of

a search warrant without a showing by those who

seek exemption from the constitutional mandate that

the exigencies of the situation made that course im-

perative. 395 U.S. at 760 (1968), quoting McDonald

v. United States, 335 U.S. 451, 456 (1948).

Thus the warrant requirement is removed when the search

may be justified by an emergency or ‘‘exigent’’ circum-

stance. For example, a warrantless search of a stopped

automobile was authorized in Carroll v. United States,

267 U.S. 132 (1925), in response to the reality that a

vehicle may move on and disappear before a warrant

can be obtained. Similarly, Chimel allowed a warrantless

search incident to an arrest whenever the arresting of-

ficer reasonably fears attack by the arrestee with a weapon

concealed on his person, or fears that the arrestee will

be able to dispose of easily destructible or concealable

evidence before a warrant may be obtained.

— -

App. A-11

Another exception to the warrant requirement is a search

which follows the voluntary consent of the person whose

privacy is sought to be invaded. As indicated by the

Supreme Court in Stoner, the essence of this exception is

a waiver of the constitutional right to privacy, and not

a subordination of personal expectations of privacy to

paramount policies of law enforcement. The same cannot

be said of search by consent of third parties. This ex-

ception rests, I submit, on a different footing—more akin

to that which justifies a warrantless search in exigent

circumstances than to the waiver theory underlying a pure

consent search.

IL.

Only where a true agency may be shown, in the strictest

legal sense of that term, may a third party consent to

a waiver of another’s rights under the fourth amend-

ment. Stoner v. California, 376 U.S. at 489. This is a

corollary of the long settled rule that constitutional rights

may be waived by their holder and none other. With re-

spect to agency in the husband-wife setting, it is an

established principle that the marital relationship entrusts

the wife with neither actual nor apparent authority to

bind her husband in commercial transactions. Restate-

ment (Second) of Agency §22 (1957). A fortiori, this view

applies to so personal a matter as the waiver of con-

stitutional rights. In United States v. Airdo, 380 F. 2d 103

(7th Cir. 1967) this Cireuit rejected the agency rationale

in the context of marital relationships while restating the

rule regulating consent by a wife to a search of the dwell-

ing occupied by her and her husband:

[W]e acknowledge the rule that ‘‘where two persons

have equal rights to the use or occupation of premises,

either may give consent to a search, and the evidence

thus disclosed can be used against either.’’. . . The

considerations most applicable to the third person’s

ae 4 ELA ER INP MIEN BEN IT EU ATR Ee a He

App. A -12

consent in such cases are not related to principles

of agency connecting the defendant with the person

acquiescing in the search, but rather concern the rea-

sonableness, under all the circumstances, of a search

consented to by a person having immediate control

and authority over the premises or property searched.

United States v. Airdo, 380 F. 2d 103, 106-107 (7th Cir.

1967), cert. denied, 389 U.S. 913 (1967) (emphasis

added).

This view is in accord with the holdings of a number of

other circuits. United States ex rel. Cabey v. Mazurkiewicz,

431 F. 2d 839 (3d Cir. 1970); United States v. Thompson,

421 F. 2d 373 (5th Cir. 1970); United States v. Mackiewicz,

401 F. 2d 219 (2nd Cir.), cert. denied, 393 U.S. 923 (1968) ;

Pasterchik v. United States, 400 F. 2d 696 (9th Cir. 1968),

cert. denied, 395 U.S. 982 (1969); Anderson v. United

States, 399 F. 2d 753 (10th Cir. 1968); United States v.

Alloway, 397 F. 2d 105 (6th Cir. 1968); Roberts v. United

States, 332 F. 2d 892 (8th Cir. 1964) cert. denied, 380 U.S.

980 (1965).

The touchstone of the rationale underlying the rule

enunciated in Airdo is ‘‘the reasonableness, under all the

cireumstances’’ of the third person consent, the voluntari-

ness of that consent aside. Some courts have justified a

search by third party consent by reasoning that a party

who lives with another or shares an interest in property

with another ‘‘takes the risk’’ that the other will consent

to a police search of the shared dwelling or property.

See, e.g., Marshall v. United States, 352 F. 2d 1013 (9th

Cir. 1965); State v. McCarthy, 20 Ohio App. 2d 275, 253

N.E. 2d 789 (1969),* in other words, that a person holding

*Some courts have offered what may be another explanation of the

joint possession rule. See, for example, Roberts v. United States. 332

F.2d 892 (8th Cir. 1964), where the Eighth Circuit stated:

[T]he right of the wife . . . to enter the home which was in her

possession and control cannot be seriously questioned and .. . her

App. A-13

only part interest in the use of premises cannot reasonably

expect that his dealings within those premises be free

from official prying. What is being said, essentially, is

that a spouse or cotenant lacks a personal interest cog-

nizable under the fourth amendment. With this view, I

strongly disagree. The constitutional right of privacy is

individual to each person and may not be compromised

so as to permit police intrusion by the mere sharing with

another of the situs or property from which that right

emanates in concrete form.

A fatal flaw in the ‘‘risk’’ theory is shown by cases hold-

ing that where one tenant gives permission to search an

apartment, evidence obtained in that search is inadmissible

against a cotenant having equal rights in the premises if

the latter was present at the time of search and objected

thereto. Lucero v. Donovan, 354 F. 2d 16 (9th Cir. 1968) ;

see Dorsey v. State, 2 Md. App. 40, 232 A. 2d 900 (1967) ;

Tompkins v. Superior Court, 59 Cal. 2d 65, 27 Cal. Rptr.

889, 378 P. 2d 113 (1963); Carlton v. United States, 391 F.

2d 684, 686 n. 4 (8th Cir. 1968); contra, People v. Smith,

6 Cal. Rptr. 866 (Dist. Ct. App. 1960). This question is

pertinent: If it is true that the objector has accepted

the ‘‘risk’’ of a consent search and no longer expects

privacy of his affairs in the dwelling, why does his presence

*(Continued)

invitation to and authorization to the officers to enter and search

was an outgrowth thereof. It is not a question of agency, for a wife

should not be held to have authority to waive her husband’s con-

stitutional rights. This is a question of the wife’s own rights to

authorize entry into . . . premises where she lives and of which

she had control. 332 F.2d at 896 (emphasis added).

This analysis is apparently distinct from “risk” theory, and assumes

that an absent party whose dwelling is searched is the holder of unwaived

fourth amendment rights to privacy. Unfortunately, the position fails

to explain why these rights of the absent party become irrelevant upon

the consent of a wife or cotenant. or how the right of entry of the

wife has as its natural “outgrowth” the right to authorize a police search

against her husband.

App. A-14

have an impact on the legality of the search? The question,

I submit, cannot be answered. Nevertheless, I do agree

that the absence of a party whose property is sought to

be searched is an important consideration relevant to the

reasonableness of a search by third party consent.

Ill.

In my judgment, search by third party consent rests on

the same policy of government need which supports an

exception to the warrant requirement in exigent circum-

stances. When time or a lack of probable cause does not

permit a warrant to be obtained, a search by consent is

often the only way in which a dwelling may legally be

searched. Thus, the precise issue of third party consent

should be this: Are the police to be deprived of the benefits

of a consent search of a shared premises when the only

party who could effectively waive his fourth amendment

rights to privacy, and who might do so if asked, is absent

from those premises? I suggest that the answer lies in

the reasonableness of this kind of search, considering all

the attendant circumstances. The exigencies of the situa-

tion, the relationship of the parties, the whereabouts of

the absent party, and the reasons for his absence are all

relevant factors.

Not all third parties may effectively consent, of course.

Where the third party has interests indifferent or adverse

to those of the absent person, consent will not lie. For

example, the hotel clerk, as in Stoner, is indifferent to the

privacy interest of the room renter. The estranged wife

is adverse to her husband’s fourth amendment rights. Cf.

Kelly v. State, 184 Tenn. 143, 197 S.W. 2d 545 (1946). Con-

versely, the common interests and intimate character of

the relationship of the parties may lend support for the

App. A-15

third party consent search. See United States ex rel. Cabey

v. Mazurkiewicz, 431 F. 2d 839, 843 (3d Cir. 1970).

Basic to the third party consent rationale is the premise

that the absent party might, were he present, consent to

the search, in which event no constitutional rights would

be violated. Therefore the whereabouts of the absent party

is highly important, as is the cause of his absence. See 39

U. Cin. L. Rev. 807, 814 (1970) ; 79 Harv. L. Rev. 1513, 1519

(1966). When the person who could waive his right to pri-

vacy is absent from his dwelling by reason of flight or

hiding from law enforcement officers for fear of arrest, as in

Wade v. Warden, Maryland Penitentiary, 278 F. Supp. 904

(D. Md. 1968), a strong case for third party consent to

search is presented. The suspect has consciously made

himself unavailable to the police, and it is entirely his

fault that they cannot obtain his answer to their request

to search. If, on the other hand, his absence is not in re-

sponse to a fear of arrest, but simply the result of an

errand or other everyday activity, the case becomes less

clear.

In the present case, the defendant was not ‘‘absent’’ in

any sense in which that term should be used in the context

of a third party consent search. He was in official custody

at the scene of the search only minutes prior to the con-

sent of his wife and, after that, was in custody in transit

to and at the police station. Without the slightest difficulty,

the arresting officers could have requested his consent to

search. They did not, perhaps in fear of a negative reply,

and it is now contended that his wife’s consent was valid

on the basis of a rule which rests, as I see it, on the actual

impossibility of presenting the suspect with a request to

search. I reject this contention, and suggest that the rule

App. A-16

of Airdo, however sensible in other settings, was wrongly

applied to the facts of this case.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit.

App. B-1

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

January 3, 1973

Before

HON. LUTHER M. SWYGERT, Chief Judge

HON. WALTER J. CUMMINGS, Circuit Judge

HON. ROBERT A. SPRECHER, Circuit Judge

UNITED STATES OF AMERICA, }

rae Appeal from the

Plaintiff-Appellee, United States District

Court for the

= ™ + Southern District of

No. 71-1580 Illinois,

ERVIN STON E, Southern Division.

(CR 7072)

Defendant-Appellant.

On consideration of the petition for rehearing and sug-

gestion that it be heard en banc filed in the above-entitled

cause, no judge in active service having requested a vote

thereon, nor any judge voted to grant the suggestion, and

a majority of the members of the panel having voted to

deny a rehearing,

IT IS ORDERED that the petition for a rehearing in

the above-entitled cause be and the same is hereby denied.

OSA LEADERS ELLE DELILE FEEL POSAPAL SE LRE FT L EE S

App. C-1

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ILLINOIS

SOUTHERN DIVISION

UNITED STATES OF AMERICA, |

Plaintiff,

-vs- > Criminal No. 7072

ERVIN W. STONE,

Defendant. ]

OPINION AND ORDER

This cause came on to be heard on the Motion of the

defendant Ervin W. Stone, for a new trial. Defendant

has been convicted by a jury for armed bank robbery.

At the trial of the above entitled cause, the United States

introduced a hand gun into evidence which had been seized

from the defendant’s home. The United States pointed

out that the gun ‘‘probably’’ was not used by the defen-

dant during the bank robbery. The Court admitted the

hand gun into evidence over the objections of the defendant.

The defendant alleges, among other things, that the gun

has no probative value in this matter, and that it has a

highly prejudicial effect upon the jury.

In light of this allegation the Court must determine

whether or not the gun has probative value, and if probative

value does exist, the Court must weight the probative

value of this evidence against any tendency it might have

to create unfair prejudice.

The hand gun was offered into evidence to give the jury

an opportunity to pass on the issue of whether or not the

App. C-2

hand gun was in fact the firearm used in the commission

of the robbery, or in the subsequent transaction with wit-

ness Skelton; to corroborate the testimony of the witnesses

Skelton and Hudspeth that the defendant had threatened

to kill them if they divulged their knowledge that the

defendant had robbed the Bank and to demonstrate the

defendant’s ability to carry out the threat.

The Court is of the opinion, as it was at the time of

trial, that the purpose for which the hand gun was offered

into evidence is of a highly probative nature, and that its

probative value far outweighs any prejudicial effect it may

have had upon the jury. Accordingly, this Court holds

that the hand gun is relevant, properly admitted into evi-

dence, and that its probative value far outweighs any preju-

dicial effect it may have had upon the jury.

Assuming arguendo, that it was error to admit the hand

gun into evidence, the Court must determine ‘‘if the error

was harmless and whether there is a reasonable possibility

that the evidence complained of might have contributed to

the conviction.’’ Fahy v. Connecticut, 375 U.S. 85 (1963).

In Chapman v. California, 386 U.S. 18, 24 (1967), the

Court stated, ‘‘Before a federal constitutional error can

be held harmless, the Court must be able to declare a

belief that it is harmless beyond a reasonable doubt.’

In addition to the standards set out in the Fahy and

Chapman cases (supra) the Court must also take Rule

52(a) of the Federal Rules of Criminal Procedure into ac-

count. Rule 52(a) states: ‘‘Any error, defect, irregularity

or variance which does not affect substantial rights shall

be disregarded.’’

Again, assuming arguendo, that it was error to admit the

hand gun into evidence, such error was harmless beyond

a reasonable doubt since it did not effect any substantial

a oe aS.

ee ae

App. 0-3

rights of the defendant whatsoever, nor is there any reason-

able possibility that the evidence complained of might have

contributed to the conviction of the defendant.

At the trial there was a mass of evidence demonstrating

defendant’s guilt beyond a reasonable doubt. The evidence

at the trial included: (1) the eyewitness identification by

the two bank employees; (2) the testimony of two persons

whom the defendant told that he had committed the robbery,

and who testified as to their roles in the planning of the

crime; (3) the defendant’s sudden and unexplained ac-

cumulation of great sums of money; and (4) the defen-

dant’s trip throughout Illinois and Iowa converting into

traveler’s and cashier’s checks at approximately thirty

different banks.

In light of the overwhelming evidence adduced at the trial,

if error did exist, it was harmless beyond any reasonable

doubt. Harrington v. California, 395 U.S. 250 (1969) ; Chap-

man v. California, 386 U.S. 18, 22-26 (1964); United States

v. Satterfield, 410 F. 2d 1351, 1354 (7th Cir. 1969); United

States v. Lipowitz, 401 F. 2d 591, 593 (3rd Cir. 1968),

since no substantial rights of the defendant were affected

nor is there any reasonable possibility that the evidence

complained of might have contributed to the conviction

of the defendant.

In light of the foregoing rationale, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that defen-

dant’s Motion for a New Trial be, and the same is hereby

denied.

Entered this 30th day of July, 1971.

/s/Omer Poos

Chief U.S. District Judge