# Petition for Writ of Certiorari — Hunt v. United States (No. 74-1052)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1974

## Text

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TABLE OF CONTENTS

CE es pr ee Ane he bE a eo

Be en eat carts shoo

ee eee eee

Statutory Provisions INvoLvep .—-.—~—_.............

STATEMENT OF THE CASE Ee epee te Pr

Reasons FoR GRANTING THE WrRIT......................

I.

II.

Iil.

Tse Decision BeLow ConFLicts WITH THE Dkr-
cisions or THis Court AND oF OTHER CoURTS OF
APPEALS AS TO THE PROPER PREREQUISITES FOR
Stanpinc To CHALLENGE AN ILLEGAL GovERN-
MENTAL SEARCH AND SEIZURE... Sy ree

A. Proprietary Interest Alone Grants Standing

B. Right of Privacy Does Not Require Expecta-
gg AR rete. ee

C. The Elements Required To Demonstrate
Standing Differ from Those Used To Evalu-
ate a Warrantless Seizure... -—ss.—.—sr—.sd:—«..

Tue Decision Betow Raises SIGNIFICANT AND
Recurrinc PropteMs CONCERNING A CRIMINAL
Derenpant’s Stanpinec To Contest AN Unnrras-
ONABLE SEARCH AND SEIZURE.............. ...

A. What Is the Role of Property Rights in
Establishing Standing in Search and Seizure
Cases in Light of Jones v. United States? ...

B. Can Privacy Be Applied in the Same Manner
to An Illegal Search as to An Illegal Seizure
of Property to Determine Standing? .......

Petitioners Hap Avtomatic Stanpinc Basep
Upon Jones v. United States .................

. May tHe GoveRNMENT Extenp Its True ror AN

IntTERLocuTORY APPEAL Pursuant To 18 U.S.C.
§ 3731 sy Frine a Pro Forma Motion ror Re-
I eo eee re oe ee ae

10

16

19

20

26

"
ii Table of Contents Continued
Page
ConcLusioxn .......
APPENDIX:
Memorandum Opinion of the District Court. «ss. 1
Petition for Reconsideration Filed by United States of
I 55 Oh Chey ean bine s Ras eae oh PU wed os 20a
Order of the District Court Denying Petition for Re-
fare ren ch ve a Winns ou ces Se Pus 21a |
Notice of Appeal ..... MN isk COREE ER Ce ow Eas 22a \
Order Denying Petitioners’ Motion to Dismiss the \
oa a tebe rie ob ake 4 iN vee
Opinion of the Court of Appeals... ssw... 24a
Judgment of the Court of Appeals ................. 46a
SM I 8 eS ys Wale 6 dav cide oy eos 47a
EE EE esi a cI Cla tae ake eke 48a
TABLE OF CITATIONS
CasEs:
Aceardo v. United States, 247 F.2d 568 (D.C. Cir.
1957), cert. den. 355 US. 808 ................. 12

Azzaro v. Schneckloth, 443 F.2d 1 (9th Cir. 1971) ... 12
Boyle v. United States, 395 F.2d 413 (9th Cir. 1968),

Se i oa 5 he cin se ee 12
Brandon v. United States, 270 F.2d 311 (D.C. Cir.

1959), cert. den. 362 U.S. 943 (1960)... sin. 12

Brown v. United States, 411 U.S. 223 (1973) 16, 17, 23,

29, 30

Carroll v. United States, 354 U.S. 394 (1951) ss. 30
Cash v. Williams, 455 F.2d 1227 (6th Cir. 1972), cert.

SE Me I ohio ass Cane bh ene es 13

Cassady v. United States, 410 F.2d 379 (5th Cir. 1969) 11
Combs v. United States, 408 U.S. 244 (1972) ..__.. 16, 26

Table of Citations Continued ii

Cotton v. United States, 371 F.2d 385 (9th Cir. 1967) 13
Diaz-Rosendo v. United States, 357 F.2d 124 (9th Cir.

1966), cert. den. 385 U.S. 856 __. ; 22
In Re Gelino’s, Inc., 51 F.2d 875 (7th Cir. 1931), cort.
den. 76 L.E. 558 si. 31

Glisson v. United States, 406 F. 2d 423 (5th Cir. 1969) 13
Hair v. United States, 289 F.2d 894 (D.C. Cir. 1961) 23

Hester v. United States, 256 U.S. 57 (1924) .__.. —
Holloway v. Wolff, 482 F.2d 110 (8th Cir. 1973) 18
Ex Parte Jackson, 96 U.S. 727 (1877) 20

Jackson v. Official Representatives and Employees of
the Los Angeles Police Department, 487 F.2d 885

(9th Cir. 1973) iy ea DD £ aA 12
Jeffers v. United States, 187 F. 2d 498 (D. C. Cir. 1950),
OE Te We os oes bias oe lcs 12
Johnson v. United States, 333 U.S. 10 (1948) . fi ae
Jones v. United States, 362 U.S. 257 (1960) _.2, 10, 18,
21, 22, 26, 27, 28, 29, 30
Katz v. United States, 389 U.S. 347 (1967) .. ...... 22, 24
Lurie v. Oberhauser, 431 F.2d 330 (9th Cir. 1970)... +12
McDonald v. United States, 335 U.S. 451 (1948) . __.. 25
Mancusi v. DeForte, 392 U.S. 364 (1968)....__.. 15, 25, 26

Niro v. United States, 388 F.2d 535 (1st Cir. 1968) .. 29
Northern v. United States, 455 F.2d 427 (9th Cir. 1972) 12
Parker v. United States, 407 F.2d 540 (9th Cir. 1969) 12
Patler v. Slayton, 503 F.2d 472 (4th Cir. 1974) _. 11,17, 25
Patler v. Slayton, 353 F.Supp. 276 (E.D.Va. 1973) .. 18
Pfister v. Northern Illinois Finance Corporation, 317
pe Tater bg Oy oe tye ene Gry ames Ne 31
\ Ramirez v. United States, 294 F.2d 277 (9th Cir. 1961) 12
Reese v. United States, 341 F.2d 90 (10th Cir. 1965) . 28
\ Roemer v. Neuman, 132 U.S. 103 (1889) ............ 31
_ Rosencranz v. United States, 356 F.2d 310 (1st Cir.
\ MR ira 59 a ee oe cent ew oy oteaes wy 14
_ Sendejas v. United States, 428 F.2d 1040 (9th Cir.
\ 1970), cert. den. 400 U.S. 879... 22

iv Table of Citations Continued
Page

Silverthorne Lumber Company v. United States, 251
U.S. 385 (1918) . va 20
Simmons v. United States, 390 U. S. 377 (1968) e 48
29, 30
Simpson v. United States, 346 F.2d 291 (10th Cir.
gy SI eae RNS chal Cane ge ete Ble SVU EC 13, 28
Smith v. Wunker, 356 F.Supp. 44 (D.C. Ohio, 1972) .. 27
Taylor v. United States, 286 U.S. 1 (1932) . Wee
United States v. Allsenberrie, 424 F.2d 1209 (7th Cir.
My ed ine a a ee AP ie ae SET 29
United States v. ‘Apex Distributors Co., 270 F.2d 747
I CII ro 0.0 1s rch ts Sa os eo ahr ce 30
United States v. Banks, 465 F. 2d 1235 (5th Cir. 1972),
cert. den. 409 U.S. 1062 ..:................... 10, 11
United States v. Bell, 457 F.2d (231 (5th Cir. 1972) .. 17
United States v. Birrell, 470 F.2d i13 (2nd Cir. 1972) 12
United States v. Boston, —— F.2d ——, 16 Cr.L. 2292
(9th Cir. December 9, 1974) ................ 23, 25
United States v. Bozza, 365 F.2d 206 (2nd Cir. 1966). 13, 23
United States v. Cataldo, 433 F.2d 38 (2nd Cir. “die
cert. den. 401 U.S. 977, reh. den. 402 U.S. 934 .... 15
United States v. Cobb, 432 F.2d 716 (4th Cir. 1970) 29
United States v. Connor, 450 F.2d 334 (9th Cir. 1971) 12
United States v. Dye, —— F.2d ——, 15 Cr.L. 2541 (6th
Sey SG Se, ND 0 PAGS Stat ea 29, 30
United States v. Fisher, 500 F.2d 683 (3rd Cir. 1974) 24
United States v. Goad, 426 F.2d 86 (10th Cir. 1970),.. 15
United States v. Graham, 391 F.2d 439 (6th Cir. 1968),
cert. den. sub. nom. Tucker v. United States, 390

SID SS sh ckiok Dineen TTR Ieee VAY els ks 13
United States v. Greely, 413 F.2d 1103 (D.C. Cir.
United States v. Healy, 376 U.S. 75 (1964) ........ 31

United States v. Health, 260 F.2d 623 (9th Cir. 1958) .. 30
United States v. Hines, 419 F.2d 173 (10th Cir. 1969) . 30
United States v. Jeffers, 342 U.S. 48 (1951) . .11, 20, 22, 24

Table of Citations Continued Vv
| Page

United States v. Kenaan, 496 F.2d 181 (1st Cir: 1974) 26
United States v. Konigsberg, 336 F.2d 844 (3rd Cir.
1964), cert. den. sub. nom. Celso v. United States,
ak AE. Ce RE PS BIRD GaP IEG 29
United States v. Lopez, 420 F.2d 313 (2nd Cir. 1969) 13, 23
United States v. Mancusi, 379 F.2d 897 (2nd Cir. 1967),
_aff’d sub. nom. Mancusi v. DeForte, 392 U.S. 364
ae i
United States v. Mersky, 361 U. S. 431 (1960) . .
United States v.'Micheli, 487 F.2d 429 (1st Cir. 1973) . 16
United States v. Moody, 485 F.2d ‘531 (3rd Cir.1973) . 11
United States v. Nardolillo, 252 F.2d 755 (1st Cir.

BE Vacs Vian Cheated KUL Hah wa b be ke RO 30
United States v. Peachtree National Distributors, 456
F.2d 442 (5th Cir. 1972) . 31
United States v. Price, 447 F.2d" 23 (2nd Cir. 1971),
cert. den. 404 U.S. 912... 29
United States v. Sacco, 436 F.2d 780 (2nd Cir. 1970),
cert. den. 404 U.S. 834... 13

United States v. Smith, 495 F. 2d 668 (10th Cir. 1974) 29
United States v. Thomas, 342 F.2d 132 (6th Cir. 1965),

_ cert. den. 382 U.S. 855 ..... 12
United States v. Twilligear, 460 F.2d 79 (10th Cir.
1972), cert. den. 382 U.S. 855 Be ees

United States v. West, 453 F.2d 1351 (3rd Cir. 1972) 11, 23
United States v. Wilson, 472 F.2d 901 (9th Cir. 1972),

cert. den. 414 U.S. 868... 18
United States v. Wing, 450 F.2d 806 (9th Cir. 1971),

‘cert. den. 405 U.S. 994 ..... Shae!
Weeks v. United States, 232 U.S. 383 (1914) © . 20
Will v. United States, 389 U.S. 90 (1967) .......... 30

Williams v. United States, 412 F.2d 729 (5th Cir. 1969) 28
Wilson v. United States, 218 F.2d 754 (10th Cir. 1955) 13

vi Table of Citations Continued

Page
Statutes anp Rutes:
United States Constitution, Amendment Four .. 3, 9, 12, 14,

17, 19, 21, 24, 26
RR i Sle Pn ae a ote 6
i eee ee on ee
Oe ee A sh he ack ee 3,27
MUR (MG)... eee
ee Os ss. Meer
28 U.S.C. §1254(1) ...... tes ans.

Federal Rules of Criminal Procedure, Rule 41(e) 6, 13, 20

MISCELLANEOUS:

Some Observations on the Supreme Court’s Use of
Property Concepts in Resolving Fourth Amend-
ment Problems, 21 Catholic University Law Re-

GE hori ete cn ei. coke x 19
Standing to Object to Search and Seizure, 118 Univer-
sity of Pennsylvania Law Review 333 (1970) ..-—s-:119

Suppression of Illegally Obtained Evidence: The
Standing Requirement on its Last Leg, 18 Catholic
University Law Review 150 (1968) .... ... 20,22

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“aa

IN THE

Supreme Court of the United States

OctToBER 'TERM, 1974

No. 74-1052

NELSON BuNKER Hunt and W. HErsBert Hunt,
Petitioners,
v.

UnirTep States oF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

The petitioners, Nelson Bunker Hunt and W. Her-
bert Hunt, respectfully pray that a Writ of Certiorari
issue to review the judgment and opinion of the United
States Court of Appeals for the Fifth Cireuit en-
tered in this proceeding on December 23, 1974.

OPINION BELOW

The opinion of the Court of Appeals is reported at
505 F.2d 931 (5th Cir. 1974), and appears in the
Appendix hereto at page 24a. The opinion of the
United States District Court for the Northern Dis-
trict of Texas appears at 366 F.Supp. 172 and appears
in the Appendix at page Ia.

PEA AB BAT BU ER he ibe hy nti OS me

Set rae eT

2

JURISDICTION

The judgment of the Court of Appeals for the Fifth
Cireuit was entered on December 23, 1974. On Janu-
ary 10, 1975, an order entered by Mr. Justice Powell
extended petitioners time for filing this petition to
February 21, 1975. This petition was timely filed
within that date. The Court’s jurisdiction is invoked
pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether demonstration of a possessory interest
in property seized by police authorities is sufficient
to create standing to challenge the illegai seizure.

2. Whether by its nature a possessory or proprie-
tary interest in an item inherently includes a reason-
able expectation of privacy in that item sufficient to
confer upon a defendant standing to contest an un-
reasonable seizure without a further showing of ex-
pectation of secrecy.

3. Whether the prerequisites for standing to chal-
lenge an illegal search and seizure are identical to
the criteria by which a warrantless search and seizure
are measured.

4. Whether for purposes of ‘‘automatie standing”’
pursuant to Jones v. United States, 18 U.S.C. § 2511
(1)(a) is a possessory crime with respect to tape
recordings containing information, the possession of
which information is illegal.

5. Whether the Government can extend the time in
which to note its appeal in a criminal case pursuant
to 18 U.S.C. § 3731 by merely filing a pro forma mo-
tion for reconsideration in the District Court.

AREAL ‘ RM REE RE NEE HE NI LE

3

STATUTORY PROVISIONS INVOLVED
Fourth Amendment to the United States Constitution:

The right of the people to be secure in their per-
sons, houses, papers, and effects, against unrea-
sonable searches and seizures, shall not be vio-
lated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched and the persons or things to be seized.

Title 18 U.S.C. § 3731:

Title 18 U.S.C. § 3731 is lengthy, and is contained
in full in the Appendix at page 47a.

Title 18 U.S.C. § 2511(1)(a):

Title 18 U.S.C. § 2511, et seq., is lengthy and repro-
duced in full in the Appendix at page 48a.

Title 18 U.S.C. § 2510(4):
Section 2510. Definitions

As used in this chapter—
* * * *
(4) ‘‘intercept’’ means the aural acquisition of
the contents of any wire or oral communication

through the use of any electronic, mechanical, or
other device.

STATEMENT OF THE CASE

This matter involves a warrantless search and
seizure of materials by a police officer who, according
to his later testimony, did not secure a warrant because
he suspected no crime. On January 16, 1970, a private
detective named Jon Joseph Kelly, who was hired by
petitioners to investigate massive embezzlements of
their financial interests, was stopped in his automobile

4

by Officer George Taylor of the Richardson, Texas,
Police Department. Taylor had been instructed when
he reported to work that day to go out and conduct
surveillance on a red Mustang, one of several cars
which had been parked in a suburban neighborhood
in the same general location on succeeding days.
Taylor informed his superior that he was going to
stop the car if anyone came for it, and inquire of him
what it was he was up to. He indicated that although
he was suspicious, he had no knowledge of any crime
that this person had committed or may have com-
mitted.

After Taylor had the Mustang under surveillance
for 30 to 40 minutes, a man later identified as Jon
Joseph Kelly arrived and drove off in the Mustang.
Taylor immediately went after Kelly. As Taylor
pulled out of the driveway where he was hiding and
onto the street, he turned on his red lights. The reason
Taylor was going to stop Kelly at that time was sim-
ply that Taylor was curious. Both Taylor and Kelly
testified that Kelly noticed Taylor’s lights and pulled
over to let him by. At that point, Taylor claims Kelly
slow rolled a stop sign, which Kelly vehemently denied
doing. Indeed, Taylor said when he stopped Kelly it
was only his intention to question Kelly. Taylor agreed
that Kelly made no effort to get away and that he had
a valid driver’s license.

Although Taylor’s and Kelly’s stories vary com-
pletely as to what was stated with regard to permis-
sion to search the car and what type of search wés
conducted, Taylor testified that he did search the car

and he found a briefcase with a tape recorder and an’

FM radio inside. After he looked in the briefease,
he had no knowledge or belief of any specific crime

awe POEL DE EO NEA en eo Oe LEASEE RR

5

having been committed. Taylor then asked Kelly if
he was a private investigator and Kelly replied that
he was. Taylor asked if Kelly was out on a divorce
case, and at that point, Kelly asked to see a lawyer.
If Kelly had answered yes to being on a divorce case
instead of asking for a lawyer, Taylor testified that
he would have let him go. When Kelly asked for a
lawyer, Taylor decided to take Kelly into custody for
slow rolling a stop sign. Thus Taylor testified :

When he told you he wanted to consult an attor-
ney rather than answering he was on a divorce
case you made up your mind at that point you
were going to take him in rather than issue him
a ticket?

Yes, sir.

So the attorney was the turning point, when he
exercised his Sixth Amendment right and asked
for a lawyer?

Yes, sir.

Although Kelly’s car was legally parked at that
point, the police seized Kelly’s car from the street and
took it to the police station. Taylor did not remove the
briefcase with the tape recorder from Kelly’s car while
the car was being transported because Taylor did not
believe that the case or the car contained contraband.
He stated that if he thought that there was contra-
band in the car he would have removed it and taken
it in his car with him, but he saw nothing illegal about
the recorder in the case.

After placing Kelly in the police interrogation
room, Taylor received the keys for Kelly’s car from
another officer who informed Taylor that the car was
locked in the lot adjacent to the station. Kelly was not
read his rights up to that time and was not taken to

3
s
tha Ne a 6

BE RT ee Lae

E

6

a magistrate or allowed to post the preset collateral.
He was held in custody for five hours before being
charged with the minor stop sign violation although
the maximum sentence for the offense was only a fine
with no jail sentence and a preset collateral schedule
was in effect. During this illegal detention of Kelly,

' Taylor went out to conduct a second search of Kelly’s
‘ear and seized the previously discovered tape recorder
which belonged to the Hunts. When asked why he did
not secure a search warrant to search Kelly’s car
when it was parked at the police station, Taylor an-
swered :

Well, I didn’t feel that there was any need for a
search warrant at that time, I mean, I still didn’t
know that the man committed anything wrong,
what did I need a search warrant for?

Taylor stated that if he did have a belief as to a
crime, he would have obtained a warrant. Taylor and
his superior both testified that there was a magistrate
available within a reasonable distance.

After the recorder, which belonged to the petition-
ers, was seized without cause or warrant from Kelly’s
locked car, Lt. Berleson of the Richardson police,
removed the tape from the recorder. He then played
the tape found in the seized tape recorder. At that
time he did not know why Kelly had been arrested;
he did not know of any crime to which the tape might
relate; he did not know if the contents of the tape
were illegally or legally obtained; and he made no
effort to obtain a search warrant. The evidence thus
seized led to an investigation which resulted in the
indictment of the petitioners upon charges of wire-
tapping pursuant to 18 U.S.C. § 2511(1)(a), and un-
der 18 U.S.C. § 2.

TPR MAL PP ETE CRRA ERE AT SMT SN SET SOMERS HY = *

7

The uncontradicted testimony in the District Court
upon the hearings of petitioners’ Motion to Suppress
established that the tape recorder from which the tape
in question was taken and which was seized from the
car parked next to the police station was the sole
property of the defendants Nelson Bunker Hunt and
W. Herbert Hunt. At the first hearing on this motion,
W. J. Everett and Patrick McCann, two men who will |
be the key government witnesses against the petition-
ers should this case go to trial, testified concerning
the ownership of tf tapes and equipment seized, and
the car that was searched. Everett testified that on
January 16, 1970, he was president of Clyde A. Wilson
and Associates Investigative Service in Houston, and
that he was in charge of the investigation including
the wiretap. Kelly monitored the tapes on the street
and worked directly for Everett. McCann was the
wiretapper in charge of purchasing, assembling and
installing the equipment including the tapes and re-
corders. Everett stated that the Hunts, the petitioners
herein, were billed for and paid for the recording
equipment used and seized and for the rental of the
seized car. Everett further testified neither he nor his
firm owned that equipment. He stated that petition-
ers paid Kelly’s and MeCann’s expenses and that they
were acting as agents of the petitioners in renting the
ears and in the use and possession of the equipment.

Patrick McCann testified that he was in the elec-
tronics manufacturing business. He stated that he
purchased the tape recorders and manufactured the
electronic equipment involyed in the wiretap for the
Hunts. McCann further related how he had gone out
to survey the job to determine what equipment he
would have to sell to the Hunts. He testified that he
furnished his own capital to manufacture his products

inten. a

8

and then sold them to the men who paid for them.
When asked about the seized recorder and tape, Mc-
Cann unequivocally stated that the equipment ‘‘be-
longed to the Hunts’’. He further stated that the tapes
made were turned over to the Hunts and that the red
Mustang automobile which was seized on January 16,
1970, was rented by him and was paid for by the
Hunts.’

It was the uncontradicted testimony of Everett and
McCann that the District Court concluded:

The uncontradicted evidence produced at the evi-
dentiary hearings in this Court can lead only to
the conclusion the Hunts owned, and thus had a
proprietary interest in, the tape recorder and the
tapes since they ultimately paid for both the tape
recorder and the tapes. This proprietary interest
is sufficient to give the Hunts standing to chal-
lenge the search and the evidence gathered there-
by. (Appendix page 10a.)

The District Court further concluded that the search

and seizure in question was illegal by virtue of the

absence of a search warrant. (See Appendix page 19a.)

On December 14, 1973, the thirtieth day following
the issuance of the District Court’s order and the last

1 In a separate case, which took place after oral argument in the
Court below, McCann stated further that ‘‘[T]he tapes and the
equipment that were sold to the Hunts remained the property of
the Hunts and would always, as far as I was concerned, because
I never take back equipment.’’ Additionally, he stated ‘‘ And since
I purchased the equipment, and I sold it to the Hunts, as far as 1
was concerned, it was their personal property.’’ Evidence adduced
from Kelley in that same proceeding further corroborated Ever-
ett’s and McCann’s statements that the tape and equipment were
the property of the Hunts. A Motion to Supplement the Record
with this newly acquired evidence was filed with the Court on
November 26, 1974, but was denied summarily by the Court of
Appeals on December 9, 1974.

PO ae SLO

9

day provided for an appeal pursuant to 18 U.S.C.
§ 3731, the government filed a petition in the District
Court for reconsideration. (See Appendix, page 20a.)
This motion did not present any new matters. The
motion was summarily denied on December 18, 1974
(see Appendix XI, page 21a) and 28 days later on
January 15, 1975, the government finally noted an ap-
peal. (See Appendix VII, page 22a.) Accordingly, pe-
titioners filed a Motion to Dismiss the Appeal in the
Court of Appeals on the grounds that the appeal was
not taken within the thirty days provided by 18 U.S.C.
§ 3731, nor was it an appeal from an order suppressing
the evidence. This motion was denied on May 17, 1974.

On December 23, 1974, the Court of Appeals re-
versed the District Court, holding in essence that the
Fourth Amendment operates to protect privacy and
that in order to establish standing to contest a search
or seizure, a defendant must be able to demonstrate
an expectation of privacy in the thing or place searched
regardless of any proprietary interest. This petition
raises fundamental questions of the interpretation and
relationship of the expectation of privacy to the
Fourth Amendment and its meaning in matters of
seizures as opposed to searches.

REASONS FOR GRANTING THE WRIT
I.

THE DECISION BELOW CONFLICTS WITH THE DECISIONS OF
THIS COURT AND OF OTHER COURTS OF APPEALS AS
TO THE PROPER PREREQUISITES FOR STANDING TO
CHALLENGE AN ILLEGAL GOVERNMENTAL SEARCH AND

SEIZURE.
The testimony in the United States District Court
was uncontradicted and the District Court so found
that the Hunts owned the seized tape and tape re-

ORIOLE ow

Ye

Rae

SR poss ss yescemczccar a OUTST ROG Oe MRNAS

10

corder. On the basis of a possessory interest in this
property, the District Court found standing to chal-
lenge the illegal search and seizure. The Court of
Appeals in considering the matter determined that
even though the Hunts may have owned the items
seized, that by virtue of the Hunts not having physical
custody of those items and precise knowledge as to
their nature they did not have a privacy interest in
them. The Court of Appeals noted that ‘‘[i]n the
absence of a demonstrable expectation of privacy in
the tape recorders and tapes, defendants can have no
standing to protest the search and seizure.’’ (Appen-
dix page 41a.) The reasoning of the Court below has the
following practical and legal effects: first, the Court’s
opinion stands for the proposition that a proprietary
interest in things seized does not of itself yield stand-
ing to contest an illegal seizure; second, by applying
the ‘‘privacy”’ test in the manner described above, the
Court below has equated the concept of ‘‘privacy’’ with
that of “‘secrecy;’’ third, by applying the rigid tests
described above, the Court of Appeals has confused
the elements required to demonstrate standing with
those used to constitutionally evaluate a warrantless
search and seizure.

(A) Proprietary Interest Alone Grants Standing.

The Hunts maintain they have an inherent expecta-
tion of privacy by virtue of ownership of the tape
recorders and tapes even assuming arguendo that there
was no specific demonstration of expectation of pri-
vacy. Under rulings by this Court and other circuits a
proprietary interest per se satisfies the requirements
for standing.’

*The Fifth Circuit itself in United States v. Banks, 465 F.2d
1235 (5th Cir. 1972), cert. den. 409 U.S. 1062, held that the defend-

es oe

SAR VON HN eed Wy ee Ma ene ed oF

\ 11

This Court has long held that a possessory interest
in things seized will yield standing to contest a search
and seizure. \United States v. Jeffers, 342 US. 48
(1951); Jones v. United States, 362 U.S. 267 (1960).
The Fifth Circuit’s ruling below is further inconsist-
ent with the ruling of the United States Court of
Appeals for the Fourth Circuit in Patler vy. Slayton,
503 F.2d 472 (4th Cir. 1974). In that matter defend-
ant Patler complained of the search of his father-in-
law’s farm from which some spent bullets belonging
to the defendant were seized by the police. The Court
held that Patler had standing to challenge the search
in part because he demonstrated a possessory interest
in the property searched. The Third Circuit in United
States v. West, 453 F.2d 1351 (3rd Cir. 1972), stated,
in reliance upon the rationale of Simmons v. United
States, 390 U.S. 377 (1968), that a defendant has
standing to contest the seizure of an item owned by
him, 453 F.2d at 1356. See also United States v. Moody,
485 F.2d 531, 533 (3rd Cir. 1973). In United States v.
West, 453 F.2d 1351 (3rd Cir. 1972), the Court of
Appeals for the Third Circuit held that the defendant
could assert a possessory interest in a shotgun for

ant Banks had standing to object to the search and seizure of a
printing press used to manufacture counterfeit currency which
Banks had purchased directly with his own funds and which was
seized from a co-conspirator’s garage. In the Banks opinion the
Court stated simply that Banks had standing because ‘‘Banks
owned the seized equipment.’’ 465 F.2d 1241. See also Cassady v.
United States, 410 }'.2d 379 (5th Cir. 1969). In the opinion below
the Court sought to distinguish Banks saying that there was ‘‘in
Banks no dispute as to the full measure of Banks’ title to the press,
nor any controversy as to his direct and enduring relationship to.
the machine.’’ Appendix page 41a. The distinction thus made by the
Court of Appeals is meaningless in view of the record below which
shows unequivocably that the Hunts had full title and right to own-
ership in the tape and equipment seized.

12

purposes of standing even though he did not have
dominion and control over the gun. Similarly, the
Court of Appeals for the Secorid Cireuit in United
States v. Birrell, 470 F.2d 113 (2nd Cir., 1972), held
that the defendant by virtue of ownership of records ‘
in question had standing to contest the search of those
records which were in the custody of the police as the
result of an unrelated matter.

The Ninth Circuit in Lurie v. Oberhauser, 431 F.2d

330 (9th Cir., 1970), held that where defendants at

the police station all denied knowledge or ownership —

of a seized suitcase, they could not object to seizure of
same as ‘‘the right to protection against unreasonable
search and seizure is personal and a defendant in a
eriminal case who claims no proprietary interest in the
seized property has no standing to object to its ad-
mission as evidence on Fourth Amendment grounds.”’

431 F.2d 333. See also Ramirez v. United States, 294 |

F.2d 277, 281 (9th Cir., 1961), and cases cited therein.’

3 Similarly, numerous other Ninth Cireuit cases as well as cases
from the United States Cireuit Courts of Appeals of the District of
Columbia, and Sixth and Tenth Circuits have held possessory inter-
est in seized objects is sufficient to confer standing.

Ninth Cireuit—Boyle v. United States, 395 F.2d 413 (9th Cir.,
1968), cert. den. 393 U.S. 1089. See also Parker v. United States,
407 F.2d 540 (9th Cir. 1969) ; United States v. Connor, 450 F.2d
334 (9th Cir. 1971); United States v. Wing, 450 F.2d 806 (9th
Cir. 1971), cert. den. 405 U.S. 994; Azzaro v. Schneckloth, 443 F.2d
1 (9th Cir. 1971); Northern v. United States, 458 F.2d 427 (9th
Cir. 1972) ; Jackson v. Official Representatives and Employees of
Los Angeles Police Department, 487 F.2d 885 (9th Cir. 1973).

District of Columbia Circuit—Jeffers v. United States, 187 F.2d
498 (D.C. Cir. 1950), affirmed 342 U.S. 48; Accardo v. United
States, 247 F.2d 568 (D,C. Cir. 1957), cert. den. 355 U.S. 898;
Brandon v. United States, 270 F.2d 311 (D.C. Cir., 1959), cert. den.
362 U.S. 943.

Sixth Circuit—United States v. Thomas, 342 F.2d 132, 134 (6th

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13

In contrast to the cases cited from various circuits
above, the Second Circuit has held similarly to the
opinion below that a possessory interest per se will not
establish standing absent a further affirmative showing
of an expectation of privacy. See United States v.
Bozza, 365 F.2d 206 (2nd Cir. 1966); United States
vi Sacco, 436 F.2d 780 (2nd Cir., 1970), cert. den.,
404 U.S.' 834; United States v. Lopes, 420 F.2d 313
(2nd Cir. 1969).

The question of whether a possessory interest alone
in an item seized is sufficient to render a person ‘‘ag-
grieved’’ within the meaning of Rule 41, Federal
Rules of Criminal Procedure, and thus as having the
requisite standing has also been prevalent in numerous
prosecutions under the Dyer Act, 18 U.S.C. §.2312.

The question in these cases ordinarily arises where ©

the defendant accused of stealing or transporting the

automobile in question is not in the vicinity of the |

automobile when it is seized. The United States Courts
of Appeals for the Ninth and Tenth Circuits have held
that a thief who claims ownership of a stolen car in
question has standing to challenge the search and
seizure of the same. See Coiton v. United States, 371
F.2d 385 (9th Cir. 1967), Simpson v. United States,
346 F.2d 291 (10th Cir. 1965). Similarly, see Glisson
v. United States, 406 F.2d 423 (5th Cir., 1969). See
also United States v. Graham, 391 F.2d 439 (6th Cir.
1968) cert. den. sub nom Tucker v. United States, 390
U.S. 1035.

Cir., 1968), cert. den., 382 U.S. 1855; Cash v. Williams, 455 F.2d
1227 (6th Cir; 1972), cert. den. 400 U.S. 995.

Tenth Circuit—United States v. Twilligear, 460 F.2d 79 (10th
Cir. 1972) ; Wilson v. United States, 218 F.2d 754 (10th Cir. 1955) ;
Simpson v. United States, 346 F.2d 291, 294 (10th Cir 1965).

14

Further, the Court below initially inquired into the
nature of the possessory interest of the Hunts in the
material seized. The Court appeared to conclude at

_ Appendix page 39a that the private detectives involved

were independent contractors rather than agents and
that accordingly the Hunts’ title to the materials seized
was tenuous.” The application of agency-property con-
cepts made by the Court below in determining the
measure of property interest has been rejected by the
United States Court of Appeals for the First Circuit
in Rosencranz v. United States, 356 F.2d 310 (1st
Cir. 1966). The Court noted in Rosencranz that
‘*lw]while he was as absentee, reluctant, unknowledge-
able, and uninterested an owner as may be imagined,
he was still the only holder of legal title to the
premises. ”’

(B) The Right of Privacy Does Not Require An Expectation
. of Secrecy.
The Court of Appeals held that ‘‘[I]t is almost

certainly true that property rights cannot support a

Fourth Amendment claim in the absence of a reason-
able expectation of privacy in the property involved.”’
(Appendix page 34a) Petitioners do not contest this
general principle of law in that they assert that a pos-
sessory or proprietary interest in things seized in and
of itself entails an expectation of privacy in the item
in that there will not be unreasonable governmental

intrusion. However, the manner in which the Court

* The Court however conditioned its discussion in this regard with
the observation that the law of agency might not be totally relevant :

Whatever title defendants ‘may possess in the disputed evi-
dence, we cannot help but reflect that this discussion of master
and servant law and legal title has taken us very far from the
substance of Fourth Amendment rights. (Appendix page 40a.)

15

below elucidated that general principle has the effect
of requiring that the property owner have more than
an inherent expectation against governmental intru-
sion but rather a demonstrable expectation of secrecy.

Petitioners respectfully assert that privacy may
more properly be defined as the ‘‘right to be left
alone’’ by government or others, and not as a state
of secretiveness and a proprietary interest in itself
gives rise to that right.

The United States Court of Appeals for the Second
Circuit noted in United States vy. Cataldo, 433 F.2d

38 (2nd Cir. 1970) cert. den. 401 U.S. 977, reh. den.

402 U.S. 934, the general rule that a possessory in-
terest in seized papers entitles the owner to a reason-
able expectation of privacy. The Tenth Circuit in
United States v. Goad, 426 F.2d 86, 89 (10th Cir.
1970), also stated that an invasion of privacy exists
when property in which the defendant claims a pos-
sessory interest is seized. The Second Circuit in United
States v. Mancusi, 379 F.2d 897 (2nd Cir. 1967), af-
firmed sub. nom. Mancusi v. De Forte, 392 U.S. 364
(1968), held that the right of privacy existing in
Mancusi’s business papers was the right to be left alone

by the government. That principle was approved and
clearly defined by this Court in Mancusi, supra, 392
| US. at 369:
[I]t seems clear that if De Forte had occupied a
‘‘private”’ office in the union headquarters, and
union records had been seized from his desk or
filing cabinet in that office, he would have had
standing. ... In such a ‘‘private’’ office, De Forte

3 would have been entitled to expect that he would
4 not be disturbed except by personal or business
; invitees, and that records would not be taken

16

except with his permission or that of his union
superiors. It seems to us that the situation was
not fundamentally changed because De Forte
shared an office with union officers. De Forte still
could reasonably expect that only those persons
and their personal or business guests would enter
the office, and that records would not be touched
except with their permission or that of union
higher-ups. (citations omitted)

The language of the Court thus dispells the notion
that ‘‘privacy”’ for standing purposes means or other-
wise necessitates the need for ‘‘secrecy’’, for the exist-
ence of Mancusi’s records was not secret and the rec-
ords themselves were not guarded. Mancusi had
nothing more than an expectation that his papers
would be left alone, and it is that expectation which
constitutes privacy. See also Combs v. United States,
408 U.S. 224 (1972).

The United States Court of Appeals for the First
Circuit has also recognized this specific principle in
United States v. Micheli, 487 F.2d 429 (1st Cir. 1973),
where it noted that ‘‘the rudest of governmental in-
trusions into someone’s private domain may occur by
way of a search of a personal belonging which has
been entrusted to a nearby hook or shelf.’’ 487 F.2d
at 481.

(C) The Elements Required To Demonstrate Standing Differ from
Those Used To Evaluate a Warrantless Seizure.

The Court below indicated that its reading of Brown
v. United States, 411 U.S. 223 (1973), prompted it to
the conclusion that standing may be obtained by the
proper allegation by a criminal defendant of any
‘legitimate interest’’ of any kind in premises searched
or items seized. (Appendix page 38a) However, the

17

Court below exceeded the Brown ruling in holding that
in order to demonstrate the legitimate interest peti-
tioners must prove that the contested search or seizure
was unreasonable by virtue of disturbing a reasonable
expectation of privacy. (Appendix page 38a) The
Court of Appeals has converted the normal process for
establishing standing, by showing a legitimate inter-
est, to a process of demonstrating success upon the
merits. Thus the Court held:

Brown concisely states the rule of standing in
Fourth Amendment cases: defendants must dem-
onstrate a ‘‘legitimate interest’’ of some kind in
the premises searched or objects seized. That in-
terest may or may not be founded on some common
law proprietary interest; the decisive factor in
determining whether a search or seizure is ‘‘rea-
sonable’ for Fourth Amendment purposes is
whether the complaining party’s reasonable ex-
pectations of privacy have been unreasonably dis-
turbed. (Appendix page 38a)

The Court has accordingly taken the standard of ex-
pectation of privacy applicable to test the reasonable-
ness of a search and made it a requirement for
standing. See also United States v. Bell, 457 F.2d 1231
(5th Cir. 1972). Petitioners contend that the Court’s
approach, by which it has rendered consideration of
standing and evaluation of the merits as identical, is
in contrast to the rulings of other circuits which have
treated the concepts as distinct.

The United States Court of Appeals for the Fourth
Circuit held in Patler v. Slayton, 503 F.2d 472 (4th
Cir. 1974), that Patler had standing to contest a search
and seizure by virtue of a possessory interest in the
property searched and the fact that the search was
directed against him. Nevertheless, the Court noted,

(Olea SeepEtp

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18

‘*Having standing to raise the propriety of the search,
Patler has, however, failed to demonstrate a reason-
able expectation of privacy in the property actually
searched.’’ 503 F.2d at 478. The Court of Appeals
thus very distinctly found the concepts of standing
and review of the merits as different, and in so doing
overruled the District Court which had initially con-
fused the matter. See Patler v. Slayton, 353 F.Supp.
276 (E.D.Va. 1973). Similarly, the United States
Court of Appeals for the Eighth Cireuit in Holloway
v. Wolff, 482 F.2d 110 (8th Cir. 1973), rejected a con-
tention of the State defendant that Holloway lacked
standing because of his inability to show an expecta-
tion of privacy in the premises in question which he
had visited for a short time. For standing purposes
the Court rejected this contention finding that Hollo-
way had standing pursuant to the rule of Jones v.
United States, 362 U.S. 257, and that a further demon-
stration of privacy was thus irrelevant to the stand-
ing question. The Court then went on to consider the
merits of the search in separate parts of the opinion,
its consideration being based upon several different
doctrines of search and seizure law relevant to evalu-
ating the merits. The United States Court of Appeals
of the Ninth Circuit specifically noted this distinction
which had been missed by the District Court therein,
in United States v. Wilson, 472 F.2d 901 (9th Cir.
1972), cert. den. 414 U.S. 868.

i
4
3
3

19
a

THE DECISION BELOW RAISES SIGNIFICANT AND RECURRING
PROBLEMS CONCERNING A CRIMINAL DEFENDANT’S
STANDING TO CONTEST AN UNREASONABLE SEARCH
AND SEIZURE.

The decision below raises anew the continuing ques-
tion of what are the prerequisites for a defendant to
establish standing to protest an illegal search and
seizure. The question raised with respect to standing
conferred by proprietary interests in things seized is,
in the words of the Court below, ‘‘troublesome.”’ (Ap-
pendix page 25a) That the Court below thought the
problems raised in this matter ‘‘troublesome”’ is clearly
demonstrated by its attempt to present a careful
analysis of the particulars of the problem in a lengthy
evaluation of the subject, as well as by some of its
tentatively drawn conclusions.’ The central issue in
these considerations is the relationship of property
interests not covered by the Jones rule in establishing
standing. This open question has led to much scholarly
review, for example see, Note, Some Observations on
the Supreme Court’s Use of Property Concepts in
Resolving Fourth Amendment Problems, Catholic
University Law Review, Volume 21, at p. 1 (1971), as
well as many proposed solutions, see for example, Note,
Standing to Object to Search and Seizure, University
of Pennsylvania Law Review, Volume 118 at 333
(1970).

° For example at Appendix page 34a: ‘‘[B]ut it is almost cer-
tainly true that property rights cannot support the Fourth Amend-
ment claim in the absence of a reasonable expectation of privacy
in the property involved.’’

20

(A) What Is the Role of Property Rights in Establishing Sianding
in Search and Seizure Cases in Light of Jones v. United States?

The requirement that a defendant have standing in
order to invoke the exclusionary rule has become im-
bedded in modern Constitutional jurisprudence. It is
further required by the Federal Rules of Criminal
Procedure, Rule 41(e), although whether or not the
language of that rule conforms to the full scope of
the Court’s power to grant relief pursuant to the
Fourth Amendment has been suggested to be an open
question. See Grove, Suppression of Illegally Obtained
Evidence: The Standing Requirement on It’s Last
Leg, Catholic University Law Review, Volume 18 at
150 (1968). Most commentators have observed that
initially standing considerations were couched in terms
of property interest. In this respect, the legality of
contested searches was measured in terms of trespass
to the home, Weeks v. United States, 232 U.S. 383
(1914), the office, Silverthorne Lumber Company v.
United States, 251 U.S. 385 (1918), the garage, Taylor
v. United States, 286 U.S. 1 (1932), and hotel rooms,
Johnson v. United States, 333 U.S. 10 (1948). The
development of Fourth Amendment law also applied
the trespass concept to personal property. For exam-
ple the early case of Ex Parte Jackson, 96 U.S. 727
(1877), held that letters in sealed packages were pro-
tected. The development of the property concept, par-
ticularly with respect to standing is strongly embodied
in this Court’s opinion in United States v. Jeffers,
342 U.S. 48 (1951). In that case it was held that the
criminal defendant had standing not on the basis of
a possible interest in the premises, but rather on the
basis of his interest in the personal property seized.
The Court noted, ‘‘It being his property, for purposes

2
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21

of the exclusionary rule, he was entitled on motion
to have it suppressed as evidence on his trial.’’ 342
U.S. at 54. ~

Jones v. United States, 362 U.S. 257 (1960), ex-
panded the standing rule to include ‘‘automatic stand-
ing’’. The Court held in Jones that standing auto-
matically exists in a case where possession of the seized
evidence is itself an essential element of the offense
with which the defendant is charged or, even where
possession is not central to the charge, where the
person seeking suppression was lawfully on the
searched premises at the time of the search. The latter
requirement abrogates the need for property intersts
in the place searched or the things seized under certain
circumstances. The question that has arisen is whether
or not Jones adds an additional means of obtaining
standing to the traditional property concepts or
whether it abrogates those property concepts in fav or
of a different standard.

This Court’s language in Simmons v. United States,
390 U.S. 377 (1968), states very clearly that Jones
expanded the traditional property concepts rather
than abrogated them in favor of a different standard :~

At one time, a defendant who wished to assert a
Fourth Amendment objection was required to ~
show that he was the owner or possessor of the
seized property or that he had a possessory in-
terest in the searched premises. In part to avoid
having to resolve the issue presented by this case,
we relaxed those standing requirements in two
alternative ways in Jones v. United States, supra.
390 U.S. 389.

Despite the apparent clarity of the relationship be-
tween Jones and earlier cases based on property in-

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22

terests, there has been confusion among the Courts as
to the post-Jones standing criteria. The confusion in
part seems to have resulted from the language in Jones
with respect to privacy interests and the emphasis upon
that concept in the case of Katz v. United States,
389 U.S. 347 (1967), which did not involve standing.
The result is that while a proper reading of Jones
and subsequent cases suggests that standing may be
obtained by the alternate methods of property interest
or automatic standing pursuant to Jones, that never-
theless, some Courts have allowed standing only in the
Jones context or else only within a “‘right to privacy”’
context. As one commentator has noted, one of the
results has been that United States v. Jeffers, 342 U.S.
48 (1951) which grants standing on a property con-
cept, has been ignored by some Courts or held by others
to be valid only upon a technical adherence to the facts
in that case. See Grove, Suppression of Illegally Ob-
tained Evidence: The Standing Requirement on It’s
Last Leg, 18 Catholic University Law Review 150
(1968).

A review of the decisions of the Courts of Appeals
on this question bears out this confusion. Several
Courts of Appeals have recognized Jones as expand-
ing the class of those who have standing to challenge
an unlawful search and seizure. The United States
Court of Appeals for the Ninth Circuit stated in Diaz-
Rosendo v. United States, 357 F.2d 124, 131 (9th Cir.
1966) cert. den., 385 U.S. 856, that ‘‘the Jones deci-
sion expanded the class of those who have standing to
challenge an unlawful search and seizure. .. .’’ The
Ninth Circuit later noted in Sandejas v. United States,
428 F.2d 1040, 1043 (9th Cir. 1970) cert. den., 400 U.S.
879, that Jones modified the standing rule ‘‘to include

"

i
4

23

in the class of ‘aggrieved persons’ not only one against
whom the search was directed or had a traditional
property interest in the thing searched or seized, or
was legally present on the searched premises but also
one who is being charged with either actual or con-
structive possession of the seized property.’’ A similar
treatment of the problem has been stated by the United
States Court of Appeals for the Second Cireuit in
United States v. Bozza, 365 F.2d 206, 222 (2nd Cir.
1966). See also United States v. Boston, F.2d
—,, 16 C.L, 2292 (9th Cir. 12/9/74); Umted States
v. West, 453 F.2d 1351 (3rd Cir. 1972).

In contrast to this approach, some Courts have
merged the various concepts in trying to ferret out
the appropriate standard. In the decision below, the
Court of Appeals borrowing language from Jones has
conditioned the traditional property concepts for
standing upon ‘‘privacy’’ concepts: ’

Generally, a defendant satisfies the standing re-
requirement if he has an adequate possessory in-
terest in the place or object searched to give rise
to a reasonable expectation of privacy. Ownership
usually constitutes such an interest, ... but a reas-
onable expectation of privacy in the enjoyment
of a place or object may attach where there is little
or no proprietary interest. (citations omitted).
Appendix page 35a.
Tne Court goes on to interpret this Court’s decision
in Brown v. United States, 411 U.S. 223 (1973), to
hold that a proprietary interest will not yield standing
absent an underlying reasonable expectation of pri-
vaey. See also Hair v. United States, 289 F.2d 894
(D.C. Cir. 1961) ; United States v. Lopez, 420 F.2d 313.
By this latter interpretation the Court below has essen-

24

tially abrogated the traditional property coneept by
tacking on to the traditional rules an additional hur-
dle for a defendant to overcome in the form of a dem-
onstration of privacy. Similarly, see United States v.
Fisher, 500 F.2d 683, 690 (3rd Cir. 1974). This inter-
pretation clearly delimits the ruling of Jeffers, supra.

(B) Can Privacy Be Applied in the Same Manner to An Illegal
Search as to An Illegal Seizure of Property to Determine
Standing?

For reasons that have been discussed supra it is
Petitioners’ contention that ownership of an item in-
herently includes an expectation that that item will be
left undisturbed by intruders and further that that
expectation constitutes the privacy element contem-
plated by modern Fourth Amendment jurisprudence.
The Court below, however, appears to require more
than that sort of inherent expectation of privacy for
example where it notes that ‘‘we have been unable to
discern the slightest privacy interest that defendants
could reasonably assert in objects which they have
never seen and of whose particular existence they were
unaware until after the disputed search and seizure.’’
(Appendix page 40a) This finding factually ignores
the uncontroverted testimony that the recorder be-
longed to the Hunts and that it was seized without a
warrant at the police station. The reasoning of the
Court raises the unsettled question of whether privacy
can be applied in the same manner to an illegal search
as it can to an illegal seizure.

At the heart of this question is the fundamental
definition of the term privacy. It is Petitioners’ con-
tcntion that privacy means the right to be left alone.
Katz v. United States, 389 U.S. 347, 350 (1967). The

25

Fifth Circuit in the opinion below has ignored that
concept, in effect holding that the Hunts’ expectation
that their property would be left alone did not consti-
tute a reasonable expectation of privacy. As stated
above, the Court of Appeals has redefined privacy as
requiring more than the expectation of being left
alone, but additionally, having the expectation that
one’s possessions will be unseen, unknown, or hidden to
intruders. As the Hunts made no efforts to secret their
possessions aside from entrusting them to the private
investigators the Court below denied them standing by
virtue of a supposed lack of privacy within the Court’s
own definition.

As a practical matter the Court of Appeals’ stand-
ard of ‘‘secretness’’ may be identical to an ‘‘expecta-
tion of privacy’’ standard (in the sense of ‘‘being left
alone’’) when that standard is applied to a search. For
example, one would expect one’s house to be ordinarily
immune from visual search, but not one’s open field,
which is in plain view to the world. See Hester v.
United States, 265 U.S. 57 (1924). In this context,
with respect to a search, privacy may in practice be
the same as secrecy. However, this rationale fails when
applied to seizures. Accordingly, even though some-
thing may be in plain view in an open field, or even
on a public sidewalk, it would be reasonable, in the
absence of exigent circumstances, McDonald v. United
States, 335 U.S. 451 (1948), for the property owner
to have an expectation of privacy sufficient for stand-
ing to expect that police authorities will let him alone
and not seize his property without a warrant. See
Patler v. Slayton, supra, 503 F.2d 472 (4th Cir. 1974).
Mancusi v. DeForte, 392 U.S. 364 (1968), impliedly
teaches the same lesson: a union officer could reason-

26

ably expect that his records, which were kept in a pub- .

lic office, and the existence of which were known gen-
erally, would be left alone unseized by intruders. See
United States v. Kenaan, 496 F.2d 181 (1st Cir. 1974).
See also United States v. Boston, —— F.2d ——, 16
Cr.L. 2292 (9th Cir. 12/9/74), which makes this dis-
tinction in connection with ‘automatic standing”’
eases. Boston holds that ‘“‘privacy’’ considerations
which normally apply to a search, and which are ren-
dered unimportant by the Jones rule, are not relevant
to the seizure question. With respect to the latter, in-
terests other than ‘‘privacy’’, e.g. possessory interests,
must be “offended”’.

The practical application of the ‘‘privacy rule’’* as
ean be seen is perplexing and difficult. It is respect-
fully submitted that the solution of the Court below
trammels the Fourth Amendment and is wholly un-
practical. For this reason, the guidance of this Court
is needed in respect to this issue.

III.

PETITIONERS HAD AUTOMATIC STANDING BASED UPON
JONES v. UNITED STATES.

This case raises the new and unsettled question of
whether an indictment charging that the defendants
“‘wilfully, knowingly, and unlawfully did intercept
and endeavor to intercept wire communications”’ is a
possesory offense and gives them automatic standing

* This Court’s language in Combs v. United States, 408 U.S. 224

(1972) raises the question of whether ‘‘privacy’’ is even a proper .

criterion. In Combs the Court refers not to expectation of privacy
but, in the language of Mancusi ‘‘a reasonable expectation of free-
dom from governmental intrusion ... .’’ 408 U.S, at 227.

J

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27

to contest the seizure of tapes and the information
contained therein. Pursuant to Jones v. United States,
263 U.S. 257 (1960), in cases where an indictment

, charges a possessory crime, or a crime in which posses-

sion is an essential element, the defendant has the
benefit of ‘‘automatic standing’’ to contest the seizure
of evidence sought to be used against him.

To succeed in its wiretapping case, ‘the government
must prove as an element of the offense that the peti-
tioners intercepted or endeavored to intercept any wire
or oral communication. Pursuant to the definition con-
tained in 18 U.S.C. §2510(4), “‘ ‘intercept’ means the

aural acquisition of the contents of any wire or orai

communication through the use of any electronic, me-
chanical, or other device.’’ (emphasis added) See also
Smith v. Wunker, 356 F.Supp. 44 (D.C., Ohio, 1972),

. holding that for purposes of §2510(4) ‘‘aural acquisi-

tion’’ means to come into possession through the sense
of hearing. Simply stated, possession of the knowl-
edge of a communication, which is intangible, forms
the basis of a conviction under §2511(1)(a). The issue
in the present case narrows to whether the only pos-

sible tangible embodiment of that knowledge—a tape

recording—deserves treatment pursuant to Jones as
a possessory element since the tape seized contained
the information which the petitioners are accused of ©

possessing.

As far as petitioners are aware, this question has
never been presented to the courts previously. The way
in which it is answered will define the boundaries of
“automatic standing’’ and eliminate much confusion
in (a) prosecutions which do not appear on their face
to be for possessory crimes, but are (such as §2511),
and (b) prosecutions in which possession is not an ele-

28

‘;ment of the crime, but is inextricably bound up with
the proof of it.

The lower courts have wrestled with these consid-
erations in prosecutions for interstate transportation
of stolen motor vehicles, a violation of 18 U.S.C. §2312
(the Dyer Act, now known as the National Motor Ve-
hicle Thefts Act). While the Dyer Act is not on its
face a crime of possession, courts have often granted
Jones standing to defendants charged with its viola-
tion, who seek to suppress illegally obtained evidence
that they possessed the automobile. The rule that a
jury may infer from the possession of an automobile
recently stolen in another state that the possessor of
the vehicle knew that it was stolen, and that he trans-
ported it in interstate commerce has led these courts

to hold that such possession is in essence the basis for

conviction under the Dyer Act. For that reason, auto-
matic standing under Jones has been found even
though though possession is not per se an element of
interstate transportation of motor vehicles. Simpson
v. United States, 346 F.2d 291 (10th Cir., 1965) ; Reese
v. United States, 341 F.2d 90 (10th Cir., 1965) ; Wil-
liams Vv. United States, 412 F.2d 729 (5th Cir., 1969).
The above recited Dyer Act cases reveal the unsettled
nature of the parameters of Jones in connection with
defining a ‘‘possessory’’ offense in cases where the
possession of an item does not constitute the crime per
se but is the only or best tangible evidence of its com-
mission.

Another and similar controversy over the definition
of a possessory crime under Jones exists where pos-
session of an item is but one element of a crime. A re-
_ strictive interpretation of Jones was made in United

7

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29

States v. Konigsberg, 336 F.2d 844 (3rd Cir. 1964),
cert.den., sub.nom., Celso v. United States, 379 U.S.
930, the court there holding that where possession was
only one element of the offense charged (unlawful
possession of goods stolen from interstate commerce),
‘automatic standing’ under Jones would not lie.
Compare with United States v. Cobb, 432 F.2d 716
(4th Cir. 1970). But see United States v. Allsenberrie,
424 F.2d 1209 (7th Cir. 1970); Niro v. United States,
388 F.2d 535 (1st Cir. 1968) ; all holding that standing
would lie when possession constitutes one essential
element of the crime charged.

Thus, this Court’s formulation of automatic standing
in Jones has met with at least three diverse interpre-
tations in the Federal Courts. Several courts require
that possession be the sole element of the offense in
order for the defendant to invoke standing. Other
courts allow automatic standing where possession con-
stitutes at least one element of the offense. Still others
will grant automatic standing in the absence of any
possessory element at all, where the offense is in es-
sence a possessory offense and may be proven by
resort to a ‘‘possessory presumption”’.

Because of these vastly differing interpretations of
Jones, and particularly because of further recent
questioning of the vitality of Jones in light of Sim-
mons V. United States, 390 U.S. 377 (1968) ; see United
States v. Cobb, supra; United States v. Price, 447 F.2d
23 (2nd Cir. 1971); United States v. Smith, 495 F.2d
668 (10th Cir. 1974) and in light of Brown v. United
States, 411 U.S. 223 (1973), see United States v. Dye,
— F.2d ——, 15 Cr.L. 2541 (6th Cir. 8/22/74), the
guidance of the Supreme Court is required."

30

IV.

MAY THE GOVERNMENT EXTEND ITS TIME FOR AN INTER-
LOCUTORY APPEAL PURSUANT TO 18 U.S.C. §3731 BY
FILING A PRO FORMA MOTION FOR RECONSIDERATION.

Congress has provided in Title 18, U.S.C. § 3731 that
the government may appeal from an order ‘‘suppress-
ing evidence’’ and that

The appeal... shall be taken within thirty days
after the decision, judgment or order has been
rendered and shall be diligently prosecuted.

In the instant case, the government filed a motion for
reconsideration of an order suppressing evidence, Ap-
pendix 5, and later appealed from an order denying
reconsideration.

Government appeals in criminal cases are ‘‘some-
thing unusual, exceptional, not favored’’. Carroll v.
United States, 354 U.S. 394 (1951). Such appeals in
the Federal Courts have thus been limited by Congress
to narrow categories of orders terminating the prose-
cution, see 18 U.S.C. §3731, and the Criminal Appeals
Act has traditionally been strictly construed by the
courts against the governments right of appeal. Will
v. United States, 389 U.S. 90 (1967), United States v.
Greely, 413 F.2d 1103 (D.C. Cir. 1969) ; United States
v. Mersky, 361 U.S. 481 (1960); United States v.
Hines, 419 F.2d 173 (10th Cir. 1969); United States
v. Apex Distributing Co., 270 F.2d 747 (9th Cir.
1959) ; United States v. Heath, 260 F.2d 623 (9th Cir.
1958) ; United States v. Nardolillo, 252 F.2d 755 (1st
Cir. 1958).

*This court itself noted the troublesome question of the contin-
uning vitality of Jones in view of Simmons in Brown v. United
States, 411 U.S. 223, 228 (1973).

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31

Since the government must be held to such a strict
standard, their appeal must be from the proper order.
The order of December 18, 1973, from which the gov-
ernment appealed, was not an order suppressing evi-
dence, but was rather an Order denying the govern-
ment’s petition for reconsideration. Congress has en-
acted no law giving the Court of Appeals jurisdiction
to entertain such an appeal and numerous courts have
held that the denial of a motion for reconsideration is
itself not appealable by the government. Roemer v.
Neuman, 132 U.S. 103 (1889); Pfister v. Northern
Illinois Finance Corp., 317 U.S. 144 (1943); United
States v. Greely, 413 F.2d 1103 (D.C. Cir. 1969) ; In Re
Gelinos, Inc., 51 F.2d 875 (7th Cir. 1931). Similarly,
see United States v. Peachtree National Distributors,
456 F.2d 442 (5th Cir. 1972).

The petitioners are not unaware of this Court’s lan-
guage in United States v. Healy, 375 U.S. 75 (1964),
which, unlike the present interlocutory appeal deals
with an appeal from a final order. However, the bur-
dens on the Federal Judiciary have greatly increased
in the ten years since Healy was decided. ‘‘ Unfavored”’
government appeals play their part in this overload.
It is perfectly consistent with the twin goals of re-
stricting government appeals, and aiding the Courts’
dockets, to refuse to hear appeals taken in the dilatory
manner as the one herein.

For these reasons, a Writ of Certiorari should issue
to review the judgment and opinion of the Fifth Cir-

cuit.

32

CONCLUSION

Pur J. HirscnKorp

Joun D. Grav

JONATHAN SHAPIRO
108 North Columbus Street
Post Office Box 1226
Alexandria, Virginia 22313
(703) 836-5555

Rateu B. SHANK
2827 First National Bank Building
Dallas, Texas 75202
(214) 748-9676

TRAVIS SHELTON
1507 Thirteenth Street
Lubbock, Texas 79401
(806) 763-5201

Attorneys for Petitioners

PEPE S AL LI go PORTE:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0783%3A1. Public record. Not legal advice.