Appendix — Hunt v. United States (No. 74-1052)

Supreme Court brief1974

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF TEXAS, LUBBOCK DIVISION

Unitep States or AMERICA,

NeLson Bunker Hunt anp W. Hersert Hunt

Docket No. CR 5-485

Memorandum Opinion

The defendants are charged with willfully, knowingly

and unlawfully intercepting and endeavoring to intercept

wire communications of persons calling to and from tele-

phones located at the residences of six different persons in

Dallas, Texas, in violation of Title 18, United States Code,

section 2511(1)(a) and section 2. A separate count

charges such a violation for each of the six telephones.

The defendants have duly filed a motion to suppress cer-

tain evidence, alleging that it was acquired in a manner

which was violative of their rights under the fourth amend-

ment. Specifically, they seek to prevent the admission by

the government of any evidence obtained in or as a result

of the search of a red Ford Mustang in Richardson, Texas

on or about January 16, 1970. More specifically, the de-

fendants complain of the seizure of a certain tape recorder

from that automobile and the subsequent playing of the re-

cording tape located thereon by the Richardson police and

the Federal Bureau of Investigation. The contents of

this tape alerted the investigating authorities to the viola-

tions alleged in the indictment.

Patrick W. McCann III and Jon Joseph Kelly have

previously been charged in a four-count indictment flowing

from four of the wire interceptions involved in the present

ease. McCann and Kelly were convicted in another court

and sentenced to 3 years in prison. Their conviction was

affirmed by the United States Court of Appeals for the

Fifth Circuit in U.S. v. McCann, 465 F.2d 147 (5th Cir.

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1972). The trial court denied the defendant’s motion to

suppress in that case and the denial was specifically re-

viewed and affirmed by the Court of Appeals in its opin-

ion. The defendants Hunt are, however, certainly en-

titled to a separate and de novo consideration of their mo-

tion to suppress by this court.

Defendants have been afforded two evidentiary hearings

in this case during which much testimony and several docu-

ments were introduced by both sides. After considering

that evidence, along with the briefs and oral arguments of

counsel, the court files this Memorandum Opinion which

shall constitute the Findings of Fact and Conclusions of

Law pertinent to defendants’ motion to suppress.

FactuaL BackcrounD

For several days prior to the arrest of Kelly and the

search of the Mustang on January 16, 1970, the Richardson

Police Department had received several complaints from

residents of that city that certain automobiles would be

left unattended on residential streets for periods of a day

or so and that then another automobile would be substi-

tuted for the first and similarly left unattended until it

too was replaced. An investigation by the Richardson

police revealed that all of these automobiles had been

rented by certain persons who gave various hotels as their

local addresses but listed fictitious Houston home and

business addresses. The police also determined that these

persons changed hotels more than once during the period

in which the car switching occurred. A factor which was

considered to be significant by the police was the presence

of an identically arranged pile of newspapers several inches

high and on a level with the transmission hump on the right

front floorboard of all of the involved vehicles.

According to the testimony, the investigating oflicers

discussed these facts periodically (there is conflicting tes-

timony as to whether these discussions were daily or

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weekly) at meetings held between shift changes. Included

among various interpretations of these facts that were

discussed were the possibilities that these cars were being

used as a ‘‘narcoties drop,’’ that they were being used in

conjunction with a scheme to burglarize residences in the

area and that they were somehow being used by private

detectives involved in a domestic investigation. These facts

had been communicated to George M. Taylor, the arresting

officer, through these various meetings and discussions prior

to the time of the arrest.

On January 16, 1970, officer Taylor was assigned to

conduct a ‘‘stake-out’’ and surveillance of the Mustang,

which was one of the cars that had been left unattended

by the suspects on this particular day. He relieved officer

Ray Pennington, who had been watching the parked Mus-

tang during the day, and parked his own automcbile in

the driveway of a nearby residence, out of the view of

anyone in or standing next to the Mustang. At the Sep-

tember 17, 1973 hearing on the motion to suppress, Taylor

testified that, on the basis of the facts determined by or

communicated to him, he ‘‘would go out there and do it

and set up surveillance’’ and also that he was ‘‘going to

stop the car and, if somebody came to pick it up, talk to

them.’’ (Transcript, p. 30) He further testified that, at

that time, he had no knowledge that a crime was being com-

mitted by anyone connected with the automobile-switching.

About 5:00 P.M. on this same day Taylor observed a man

approach the Mustang, stop near it, stoop to pull up his

socks, look at all the tires and, finally, get in it and drive

away. Taylor then followed the Mustang but he admitted

that to this point the driver appeared to be engaged in

purely legal activity. However, Taylor then switched on

the red lights on his car so that the man in the Mustang

would pull over for questioning. Taylor testified that the

driver of the other car ran a stop sign before he pulled

over to the curb and stopped. It should be noted that Jon

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Joseph Kelly, who in fact was the driver of the Mustang

at this time, testified that he did not run a stop sign.

Taylor further stated that Kelly did not attempt to escape

or in any other way avoid the officer’s signal to stop. After

Taylor stopped his car within a few feet of the Mustang,

both drivers stepped out of their cars and met about mid-

way between the vehicles. Taylor stated the he immedi-

ately informed Kelly that he was being charged with run-

ning a stop sign and with violation of ‘‘the suspicious

persons ordinance.’’ Interestingly, both of these charges

were later dropped. Upon the officer’s request, Kelly pro-

duced a valid Texas driver’s license.

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From this point there are significant contradictions be-

tween the testimony of the two men. Taylor testified that

he asked Kelly ‘‘would it be okay if I go ahead and look

in the car’’ that Kelly replied, ‘‘okay, go ahead.’’ (Trans-

cript, pp. 48, 49). Kelly, however, testified that Taylor did

not seek permission to search the car but rather stated

that, ‘‘I’m going to look in your car, I want to see what’s

in it, I want to see what’s under the newspapers.’’ Kelly

flatly denied that he granted permission for the search.

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In any event, officer Taylor walked to the driver’s side

of the car, leaned across the front seat and unlocked the

passenger door. At that point Taylor noticed a green

briefcase protruding from beneath the pile of newspapers

on the floorboard. Taylor testified that he then asked

Kelly what was in the briefcase, to which the reply was,

‘*T have no idea.’’ Taylor also stated that Kelly told him

that a friend had dropped him off at the Mustang but that

he did not know the friend’s name nor could he further

identify him. He then lifted away the newspapers, opened

the attaché-type briefcase and discovered a tape recorder

located therein.

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Taylor testified that Kelly was close behind him during

this search but Kelly contended that he had remained at

his original position between the automobiles. Taylor

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testified that he asked Kelly certain questions, among which

was whether he was a private investigator working on a

divorce case. According to Taylor’s version of this epi-

sode, Kelly’s reply was, ‘‘I think I need to call my at-

torneys,’’ and at this point Taylor decided to arrest Kelly.

Kelly, though, has denied requesting an attorney until he

reached the police station, sometime later. Taylor then

instructed Kelly to get inside the police car. By this time

other officers had arrived to assist Taylor, and one of them

drove the Mustang, which still contained the briefcase and

recorder, to the police station. The car was parked in the

station house lot and locked, and the keys were delivered

to officer Taylor. Taylor reported to his supervisor, officer

Burleson, and then retrieved the briefcase from the locked

Mustang, without further seeking permission from Kelly

or any other person. Taylor’s testimony reveals that at

this time he still did not have specific knowledge that a

crime had been committed.

At no time did any of the investigating officers apply for

or obtain a warrant to search or seize the Mustang or any

of its contents nor, more pertinently, did they seek a war-

rant to search the seized tape by playing and listening to it.

The evidence establishes, however, that a Magistrate or

Justice of the Peace was located within five or six miles

of the police station and, therefore, that the search warrant

procedure was readily available to the police.

Despite the proximity of a Magistrate, officers Taylor

and Burleson did indeed listen to the tape on this same day,

and the record indicates that they were able to identify one

of the persons whose voice was recorded on the tape. The

officers then notified a security officer at the offices of

Southwestern Bell Telephone Company, who in turn noti-

fied Special Agent Holloman of the F.B.I. After arriving at

the police station about 7:00 P.M., Holloman listened to

the tape and then accompanied Burleson to the Richardson

home of a Mr. Rothermel, whose wife identified her voice

as being one of those on the seized recording. Employees

of Southwestern Bell then located a transmitting device on

the telephone pole behind the Rothermel home which was

used to transmit signals from their telephone line to the

recorder in the nearby car.

Subsequently Mr. McCann was arrested and Kelly’s

motel room was searched pursuant to a warrant. Defend-

ants recognize that this court is bound by the validity of

the search-affidavit as far as the face thereof is concerned,

but they do contend that the probable cause for the issu-

ance of the warrant was based solely upon facts which were

obtained through the allegedly invalid playing of the

seized tape and misleading facts, and, therefore, that any

evidence seized from the hotel room should be suppressed

under the doctrine announced in Silverthorne v. United

States, 251 U.S. 385 (1920), popularly referred to as the

‘‘fruits of the poisoned tree’ doctrine.

McCann also testified that the defendants in this case

had reimbursed Kelly and McCann, or the detective

agency for which they worked, for all of the expenses of

their investigation. These expenses included the rental

fees for the cars involved, rental of the various motel

rooms, and cost of the several tape recorders which were

used and a quantity of recording tape. Edited tape re-

cordings containing pertinent recorded conversations were

to be given to the Hunts. McCann further testified that

it was his understanding that the recorders, the tapes

and all the other equipment used in the surveillance for

which he was reimbursed belonged to the Hunts. Other

personnel of the detective agency, Clyde Wilson & Asso-

ciates, corroborated McCann’s testimony as to payment

for and ownership of the equipment.

The findings of this court as to the facts surrounding

the arrest and detention of Kelly, the search of the Mus-

tang and the briefcase therein, are substantially identical

to the findings made by the Court of Appeals in its opin-

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ion in United States v. McCann, supra. However, the de-

fendants herein assert that additional evidence and legal |

grounds have been presented to this court that are suffi-

cient to compel the granting of their motion to suppress,

notwithstanding the denial of a similar motion in the

Kelly-McCann case. The pertinent additional evidence

appears to be as follows:

A. Arresting officer Taylor’s testimony at the Septem-

ber ‘17, 1973 hearing that he would not have arrested

Kelly if Kelly had answered that he was working on a

divorce case;

B. Taylor’s statement that. he definitely decided to

arrest Kelly only after Kelly asserted his sixth amend-

ment rights by stating that he wanted to see his lawyer ;

C. Taylor’s testimony that when he left the Richardson

police station on the afternoon of January 16, 1970 to

stake-out the Mustang, he intended to stop and interro-

gate anyone who attempted to drive away in the car, even

though he had no knowledge that a crime was being

committed at that time;

D. Kelly’s previously unoffered testimony that he did

not give anyone permission to search the car and that he

did not tell officer Taylor that he wished to see his lawyer.

The defendants’ position is that the additional evidence

shows that the arrest of Kelly was a sham since it was

not based upon probable cause. Defendants also contend

that the ensuing search of the automobile and playing of

the tape were invalid under the fourth amendment.

Although it may be that had: this additional evidence

_ been originally presented to the District Court during the

hearing on the motion to suppress by McCann and Kelly,

that that court and the Court of Appeals would have

granted the motion, this court feels, especially in view

of the contradictory evidence between Taylor and Kelly,

i 8a

that the decision of the United States Court of Appeals

for the Fifth Circuit in McCann, supra, should control

insofar as it is applicable to the points raised in that case.

However, as will later appear, this court feels that there

are certain legal matters and facts which were neither

urged nor considered in that case, but which have a ma-

terial bearing on the matter now before the court, In

any event, this court concludes that officer Taylor had

reasonable grounds to stop the Mustang and make a gen-

eral investigative inquiry of its driver and that after

‘ the car was stopped there was either consent or probable

cause to search the car. The search of the briefcase

when it was located on the floorboard of the Mustang at

the point of arrest was also authorized for the opinion

of the Fifth Circuit held that

**Detective Taylor would have been derelict in his

duty had he not opened the briefcase.’’

However, the defendants in this case are entitled to have

this court consider their motion to suppress based upon

the testimony that has been presented to this court in

' the two evidentiary hearings. Along with the additional

evidence delineated earlier the defendants raise the fol-

lowing evidence and legal arguments which were neither

presented to nor considered by either the trial court or

the appellate court in the McCann case:

Officer Burleson and officer Taylor, after the car had been

locked and stored at the police station, obtained the brief-

case, opened it, and played the tape found on the recorder.

Subsequently, agent Holloman of the Federal Bureau of

Investigation played the tape. None of these officers

attempted to, obtain a search warrant authorizing them to

search the tape recording. Defendants take the position

that the playing of the tape without a search warrant

violates the defendants’ fourth amendment rights and that

the evidence secured by the prosecuting authorities by rea-

son of the information they obtained from this tape should

be suppressed. The court finds tiat this point was not

raised in the McCann case and that the opinion does not

indicate that the Court of Appeals in any way considered

the question of whether or not the playing of the tapes

without a warrant was a violation of the defendants’ fourth

amendment rights.

This court is of the opinion that the position of the de-

fendants is sound and that the motion to suppress should

be granted. The court’s reasoning is set out below.

STANDING

A threshold issue in this case is whether or not the

defendants have ‘‘standing’’ to challenge the validity of

the search, since they were not present at the scene. The

Supreme Court of the United States in Jones v. United

States, 362 U.S. 257 (1960), in construing the right of a

person to assert fourth amendment rights by a motion to

suppress filed under Rule 41(e), Federal Rules of Criminal

Procedure, stated:

‘‘In order to qualify as a ‘person aggrieved by an

unlawful search and seizure’ one must have been a

victim of a search or seizure, one against whom the

search was directed, as distinguished from one who

claims prejudice only through the use of evidence

gathered as a consequence of a search or seizure

directed to someone else.’’

‘“‘To establish ‘standing’, courts of appeals have

generally required that the movant claim either to

have owned or possessed the seized property or to

have had a substantial possessory interest in the

premises searched.’’

A case squarely in point on this issue of standing is United

States v. Jeffers, 342 U.S. 48 (1951). That case involved

a seizure of narcotics belonging to the defendant from an

apartment which was not his residence, in which he had no

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proprietary or possessory interest and in which he was not

present during the search. Justice Clark, writing for the

Supreme Court, held that defendant’s property interest

in the seized contraband was sufficient to support his

standing to move for suppression of the evidence. The

United States District Court for the Western District of

Pennsylvania in 1957 held in United States v. Lester, 21

F.R.D. 376, affirmed 282 F.2d 750 that ‘‘one has the requisite

standing as a person aggrieved if he claims ownership of

the seized property, although the premises searched be-

longed to another.’’ (emphasis added) The Sixth Cir-

cuit in 1965 in United States v. Thomas, 342 F.2d 133

stated that if an accused neither owned, possessed nor lived

at the searched premises, was not present at the time of

the search, and did not show any possessory interest in

the objects seized, then he would have no standing to chal-

lenge the search. Mere ownership of a searched automo-

bile gives standing, even when the owner is not present at

the search. Cash v. Williams, 455 F.2d 1227 (6th Cir. 1972).

In denying standing to an accused in United States v.

Banks, 465 F.2d 1235 (5th Cir. 1972), the Court held that

the defendant could not prevail under Rule 41(e) since

he did not have sufficient propriety interest in the premises

searched or possessory interest in the property seized.

The uncontradicted evidence produced at the eviden-

tiary hearings in this court can lead only to the conclusion

that the Hunts owned, and thus had a proprietary interest

in, the tape recorder and 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 thereby.

The government contends that United States v. Johnson,

456 F.2d 295 (5th Cir. 1972) is a ‘*white horse’’ case and

that it conclusively supports their position. The reason-

ing in Johnson, though, is inapplicable to the case sub

judice. The Court of Appeals there held that the appel-

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lant had no standing to challenge the search, but there was

no evidence in that case that he had a proprietary interest

in either the seized contraband or the searched van. Fur-

thermore, Johnson is distinguishable from Jones v. United

States, supra, because the former case did not involve a

crime of possession and the appellant was not present

during the search.

The court having determined that the defendants have

standing to challenge the search in question, the next

question to consider is the validity of the search.

VALIDITY OF THE SEARCH

In Johnson v. United States, 333 U.S. 10 (1947), the

Court stated:

‘“‘The part of the Fourch Amendment, which often is

not grasped by zealous officers, is not that it denies

law enforcement the support of the usual inferences

which reasonable men draw from evidence. Its pro-

tection consists in requiring that those inferences be

drawn by a neutral and detached magistrate instead

of being judged by the officer engaged in the often

competitive enterprise of ferreting out crime. Any

assumption that evidence sufficient to support a magis-

trate’s disinterested determination to issue a search

warrant will justify the officers in making a search

without a warrant would reduce the Amendment to a

nullity and leave the people’s homes secure only in the

discretion of police officers.’’

It is well established that searches conducted outside of the

judicial process, without prior approval of a judge or

magistrate, are per se unreasonable under the Fourth

Amendment—subject to only a few specifically established

and well-delineated exceptions. Katz v. United States, 389

U.S. 347 (1967) ; Coolidge v. New Hampshire, 403 U.S. 443

(1971) ; United States v. Graves, 477 F.2d 1306 (5th Cir.

1973).

12a

In determining whether or not the search of the tape

recorder (i.e., the playing of the tape found thereon) comes

within one of the exceptions to the general requirement of

a search warrant, the court has kept in mind that the

Court of Appeals has already approved the procedures of

the police in this case up to and including the opening of

the briefcase. Therefore, this court must now examine the

circumstances surrounding this latter search in light of

the exceptions to the general rule.

The Sixth Circuit has delineated very explicitly these

‘exigent circumstances?’ exceptions to the general require-

ments of a search warrant in United States of America v.

Nelson, 459 F.2d 884 (6th Cir. 1972), as follows:

(1) Search of an Automobile

The search involved in this case cannot fall within this

exception. The traditional basis for this exception is the

inherent mobility of an automobile and the consequent

danger that the vehicle and its contents may be moved be-

fore a search warrant can be obtained. See Carroll v.

United States, 267 U.S. 132 (1925) and Chambers v. Ma-

roney, 399 U.S. 42 (1970). ‘This rationale is inapplicable

here, however, because the automobile and its contents were

validly seized at the scene of the arrest and transported

to the police station. The recorder and the tape were then

carried into the station house, where the tape was played.

Thus the search was conducted not at the point where the

automobile was seized but later in the police station and,

had the police delayed the search of the tape in order to

obtain a search warrant, there would have been no danger

that the tape could have been carried away in the auto-

mobile.

(2) Incident to Lawful Arrest

The search of the tape recorder and the playing of the

tapes was not made incident to a lawful arrest. See Chimel

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v. California, 395 U.S. 752 (1969). The search was not

made at the scene of the arrest and in fact was made some

two hours later after Kelly had been arrested and locked

in his cell in the city jail. The Fifth Circuit in United

States v. Davis, 423 F.2d 974 (1970), held under somewhat

similar circumstances that there was no justification for

search without a warrant. In that case a search was con-

ducted three and a half hours after the arrest of the ac-

cused, and while searching for the pistol the police went to

his home and without a warrant searched the home. The

Fifth Cireuit held that, to be incident to an arrest, the

search must be justified by the need to seize weapons or

the need to prevent the destruction of evidence, but that

these justifications are lacking where the search is remote

in time or place from the point of arrest.

It would be unreasonable to hold that, although the tape

recorder was seen and discovered at the place of arrest,

that the playing of the tape thereon was also incident to

arrest when there was absolutely no danger of its destruc-

tion, it was in the possession of the police and the driver

of the car was in jail, and there is no indication that the

search was in any way connected with a seizure of weapons

or an attempt to prevent the escape of Kelly or anyone else.

In Brett v. United States, 412 F.2d 401 (5th Cir. 1961),

the appellate court held that a search of an accused’s cloth-

ing, which had been placed in custody of the jailer in the

prisoners’ property room, made three days after arrest

was invalid. The court held that this search was not inci-

dent to arrest and was not even close to or contemporane-

ous with the time of arrest. In that case the Fifth Circuit

held that none of the circumstances justifying application

of the ‘‘search incident’’ exception were present because

there was no danger that the clothing would be removed

nor that they concealed weapons which could be used by

the defendant in an escape attempt and there was ample

time to obtain a search warrant. The same statements and

findings can be applied to the case under consideration by

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this court. The court went on to hold: ‘‘Focus in the

Fourth Amendment today is on privacy rather than on

property rights.’’ Id. at 406. The Fifth Circuit in a sub-

sequent case, United States v. James, 432 F.2d 303 (1970),

found that a search made after the time of arrest and at a

different place from the arrest itself was necessary for

effective law enforcement and that such effective law en-

forcement would have been frustrated if there was any

delay as there were conspirators possibly still at large.

Of course James can be distinguished from Hunt, because

at the time of the search in the latter case, the police could

have had no indication that there were co-conspirators

loose who might escape.

In Chimel v. California, supra, the Court, in holding the

warrantless search of a room invalid, quoted Trupiano v.

United States, 334 U.S. 699 (1948), which stated:

‘*A search or seizure without a warrant as an incident

to lawful arrest has always been considered to be a

strictly limited right. It grows out of the inherent

necessities of the situation at the time of arrest. But

there must be something more in the way of necessity

than merely a lawful arrest.’’

Id. at 759. The requisite necessity is clearly lacking in the

present case.

(3) Plain View Doctrine

The plain view doctrine is not applicable here. See

Harris v. United States, 390 U.S. 234 (1968). Although

the briefcase was seen by the officer while engaged in the

lawful search of the car, this court does not hold that the

seizure or opening of the briefcase was unlawful, but that

it was the playing of the tape itself, (without authority of

a properly issued search warrant) that this court holds to

be unwarranted.

The government has argued that the contents of the tape

were in plain view, just as would be the writing on a piece

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of paper. That argument is illogical, however, for there

are obvious intrinsic differences between the two. This

court holds that the playing of the tape was a separate

search in itself and that the recorded conversations were

not in the ‘‘plain view’’ of the investigating officers. The

government further argues that the playing of the tapes

was an analysis of lawfully obtained evidence to determine

whether it was an instrumentality of crime rather than a

search for evidence. The prosecution compares the play-

ing of the tape to dusting for fingerprints, analyzing sus-

pected narcotics, and testing blood found on weapons. This

attempted analogy is not persuasive to the court. The

government’s semantics are not sufficient to overcome this

court’s opinion that the playing of the tape was a search

of the tape recorder for the purpose of finding incriminat-

ing evidence.

(4) Consent

Of course, if anyone having authority to do so had con-

sented to the playing of the tape, then the search would

have been valid even without a warrant. Frazier v. Cupp,

394 U.S. 731 (1969). The only person that could have given

consent in this case was Kelly. Even if Taylor’s version

of what happened at the scene of arrest is accepted, that is

that consent to look into the car was obtained, this cannot

be construed as consent to play the tape. Consent is clearly

not present under the facts of this case.

(5) Immediate Threat of Life

Again, at the time this tape was played no one accused

or under suspicion in this case, was in close proximity to

either the tape recorder or the tape. Only Kelly was pres-

ent at the police station and he was incarcerated during the

search. To state that it was necessary to play the recorder

and the tape thereon in order to prevent an immediate

threat to life would be absurd. See Terry v. Ohio, 392

U.S. 1 (1968).

l6a

(6) Officers in Hot Pursuit of a Fleeing Felon

The only pursuit involved in this case was the initial

pursuit by Taylor of Kelly when he drove away in the

Mustang. Even had the search taken place immediately

after that pursuit, the exception would not apply because

Taylor had no knowledge that Kelly had committed a crime.

Regardless, the search with which this court is concerned

took place two hours later at the police station and was in

no way connected with the initial pursuit. See Warden,

Md. Penitentiary v. Hayden, 387 U.S. 294 (1967).

Exigencies of the Situation

Although the above-discussed categories have been listed

as exceptions to the search warrant requirement of the

Fourth Amendment, the reported cases also hold generally

that ‘‘exigent cireumstances’’ must be present before a

warrantless search may be conducted. See, e.g., Coolidge

v. New Hampshire, 403 U.S. 443 (1971). While the six

categories are in fact examples of ‘‘exigent circumstances,’’

this court is of the opinion that a more general analysis of

the exigencies in the case at bar is required.

In 1948 the Supreme Court of the United States held in

McDonald v. United States, 335 U.S. 451, at page 456, that:

‘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 consti-

tutional mandate that the exigencies of the situation

make that course imperative.’’

It is well settled that the burden is upon the United States

of America to show an exception to the rule that a search

without a warrant is per se unreasonable. To do so exi-

gent circumstances must be shown to have existed.

In United States of America v. Arturo Garay, et al., 477

F.2d 1306 (5th Cir. 1973) at page 1308 the court held:

‘*While the exigencies of the situation may well have

justified the warrantless detention of appellants, they

Di ee ee

Rt re PR SRY aT Cen nee att Dean ae

17a

cannot validate the search of the suitcases made at the

time when appellants were under restraint, if not un-

der formal arrest. At that point, appellants were in-

capable of concealing or destroying the suitcases or

their contents. Nor was there any significant proba-

bility that the suitcases would escape search by being

moved to Chicago or Detroit aboard the airplane. ... ’’

In that case the appellants had been arrested at an airport

and their two suitcases had been loaded aboard their plane.

The luggage checks were in the possession of the police and

even there the search of these suitcases without a warrant

was declared invalid. The court went on to hold:

‘*In short, the officers could and should have held the

bags until they obtained a warrant authorizing an ex-

amination of the contents.’’

Id. at 1308. Further, this court is of the opinion that the

motion to suppress in this case should be granted under the

holding of the Fifth Circuit in United States of America v.

Soriano, et al., 482 F.2d 469 (5th Cir. 1973).

There the officers had observed the defendants place three

suitcases in the trunk of a taxicab. The court held that the

officers’ previous knowledge justified the stopping of the

taxicab and the arrest of the accused. The officers also took

the suiteases from the trunk and on the scene opened and

searched them. It was held that the agents had probable

cause to believe that the occupants of the taxicab were

carrying narcotics and they were justified in opening the

trunk and removing the suitcases and could seize the suit-

eases. However, the crucial question there was whether the

officers could open and search the validly-seized suitcases

without first obtaining a warrant. The court, after holding

that the suitcases were effects under the Fourth Amend-

ment, held that the search wags invalid.

The government argued that the exigent circumstances

required an immediate search without a warrant and that

SS CS EF Se Le oO ee ae = IDPS

18a

in any event no warrant was needed to search personal

property after that property had been validly seized. The

court expressly rejected both contentions and, with respect

to the right to search personal property validly seized

without a warrant, held:

‘In this case the search significantly increased the in-

terference with privacy. As a factual matter it differed

markedly from the initial seizure after which the con-

tents of the suitcases remained undisclosed to the

world.’’

‘Thus the search was unlawful because it intruded on

an interest protected by the Fourth Amendment and

because a warrant could have been readily obtained

without prejudicing the need for effective law enforce-

ment.

Id.at _. Certainly the evidence sought to be suppressed

in the Hunt case falls within the purview of this holding.

The search made after the seizure, that is the playing of the

tape, significantly increased the interference with privacy

and it differed markedly from the initial seizure which was

and is here held to be proper. After the initial seizure, the

contents of the tape remained undisclosed and a warrant

could have been readily obtained from the proper authority

without impairing the ability of the police to enforce the law

in this case.

The police had probable cause to stop and arrest Kelly

and to seize the tape recorder and tape. ‘‘These were legiti-

mate intrusions by way of seizure, but such legitimate

intrusions by way of seizure do not topple like dominoes all

remaining privacy interests in the personal effect.’’ Page

12, United States v. Soriano, supra. The Fifth Circuit in

Soriano also quoted the Supreme Court in Chimel v. Cali-

fornia, supra,:

‘‘There is no reason why, simply because some inter-

ference with an individual’s privacy and freedom of

movement has lawfully taken place, further intrusions

ww One MT Rete Meas Us bin

ie AW ae a re et aD

19a

should automatically be allowed despite the absence

of a warrant that the Fourth Amendment would other-

wise require.’’

It is the holding and conclusion of this court that though

the detention of Kelly, his arrest, and the seizure of the

briefcase and the tape recorder were warrantéd by the cir-

cumstances and were all legitimate intrusions upon fourth

amendment rights, the further intrusion of playing the

seized tape was not justified.

Accordingly it is Orperep that the defendants’ motion to

suppress the admission into evidence of the tape and the

contents thereof be Granrep. It is further Orperep that

this motion to suppress will be granted as to all evidence

gathered as a result of the playing of the tape under the

doctrine of Silverthorne v. United States, 251 U.S. 385

(1920) and Wong Sun v. United States, 371 U.S. 471 (1962).

An order will be issued accordingly.

The Clerk will furnish a copy hereof to each attorney.

Enrterep this 14th day of November A.D. 1973.

/s/ Harsert O. Woopwarp

Halbert O. Woodward

United States District Judge

20a

Filed Dec. 14, 1973

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

Cr. No. 5-485

Unirep States or AMERICA

Netsox Bunker Hunt and W. Hersert Hunt

Petition for Reconsideration

Comes now the United States of America, by its under-

signed attomeys, and hereby petitions this Honorable

Court to reconsider and rescind its Order of November 14,

1973, and to deny the Motion to Suppress filed herein. The

grounds for this Petition are set forth in the attached

Memorandum filed herewith.

Dated:

Respectfully submitted,

Frank D. McCown

United States Attorney

By: R. H. StepHens

Attorneys for the United States

ee ee eter oY Sn eae

SR Sorceeme. mints

2la

Filed Dee. 1, 1973

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

Cr. No. 5-485

Unttep States or AMERICA

Netson Bunker Hunt and W. Hersert Hunt

Order

This court entered its final order granting a motion to

suppress certain evidence in the above case which final

order was dated November 14, 1973. The United States

of America has now filed with this court a -auuseoas for

reconsideration.

The court has examined the government’s petition and

memorandum in support thereof and is of the opinion that

such petition should be and the same is hereby Denrep.

The Clerk will furnish a copy hereof to each attorney.

Enterep this 18th day of December A.D. 1973.

/s/ HALBerT O. Woopwarp

Halbert O. Woodward

United States District Judge

Filed Jan. 15, 1974

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

Criminal No. Cr 5-485

Unirep Srates or AMERICA

‘

Netson Bunker Hunt and W. Hersert Hunt

Notice of Appeal

Notice is hereby given that the United States of America

hereby appeals to the United States Court of Appeals for

the Fifth Cireuit from the Court’s order entered in this

action on December 18, 1973, suppressing certain evidence

of the government.

I, Frank D. McCown, United States Attorney for the

' Northern District of Texas, hereby certify that this appeal

is not taken for the purpose of delay and that the evidence

so suppressed is substantial proof of facts material in

these proceedings.

/s/ Frank D. McCown

Frank D. MeCown

United States Attorney

Sworn to before me this 15th’ day of

January 1974.

U. S. District Clerk

Northern District of Texas

By Lez Sutiivan

Deputy |

eee ee ee

23a

Filed May 17, ’74

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 74-1142

Unitep States or AMERICA,

Plaintiff-Appellant,

versus

Netson Bunker Hunt and W. Hersert Hunt,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Texas

Before Gewinx, Gopso_p and Cxark, Circuit Judges

By the Court:

Ir Is Orpverep that appellees’ motion to dismiss the

appeal is denied.

W.G.

JCE

24a

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

No. 74-1142.

Unrrep Srates or America, Plaintiff-Appellant,

Neutson Bunker Hunt and W. Hersert Hunt,

Defendants-A ppellees.

Dee. 23, 1974.

Defendants, charged with intercepting telephone commu-

nications, moved to suppress tape recorder seized by officer

from automobile of employee of private investigation

agency allegedly hired by defendants to perform electronic

surveillance and to suppress evidence gathered as result of

playing of tape. The United States District Court for the

Northern District of Texas at Lubbock, Halbert O. Wood-

ward, J., 366 F.Supp. 172, held that stop and search of the

automobile were proper but that playing of tape violated

defendants’ Fourth Amendment rights and government

appealed. The Court of Appeals, Goldberg, Circuit Judge,

held that defendants had no expectation of privacy in the

tape recorder and tape which they had never seen and

which they did not know existed until after the disputed

search and seizure, and that principal-agent relationship

between defendants and investigators, although sufficient

to imply culpability for agents’ violation of wiretapping

statute, was not sufficient to confer standing for Fourth

Amendment purposes.

Reversed and remanded.

Set Op eC Teer ek wT Mere eee nee Pera

25a

Appeal from the United States District Court for the

Northern District of Texas.

Before Rives, Gewin and Govpsero, Circuit Judges.

Gotpsere, Circuit Judge:

This case presents a troublesome question of standing to

contest the legality of a police search and seizure of certain

instruments of electronic surveillance allegedly employed

by brothers Nelson Bunker Hunt and W. Herbert Hunt

against a group of their own relatives and some employees

of their father, H. L. Hunt. After indictment on charges

of wilfully, knowingly and unlawfully intercepting and

endeavoring to intercept wire communications of certain

persons in violation of 18 U.S.C. §§ 2511(1)(a) and (2),

defendants filed a motion to suppress the disputed evidence

pursuant to Rule 41(e) of the Federal Rules of Criminal

Procedure. After a hearing, the district court concluded

that defendants had standing to contest the search and

seizure and that a part of the search was in fact illegal, and

accordingly granted the motion to suppress. Since we find

no warrant in the Fourth Amendment for surrogate

privacy, we believe that the district court erred in finding

a sufficient nexus between the search and defendants’

Fourth Amendment rights to confer standing to contest the

police action. We must reverse.

Sometime in late October or early November, 1969, the

defendant Hunt brothers allegedly contacted one Everett,

the president of a Houston, Texas, private investigation

718 U.S.C. § 2511 provides, in pertinent part:

(1) Except as otherwise specifically provided in this Chapter

any person who—

(a) willfully intercepts, endeavors to intercept, or procures

any other person to intercept or endeavor to intercept, any

wire or oral communication . . . shall be fined not more than

$10,000 or imprisoned not more than five years, or both. [Sec-

tion two lists various exceptions to the general rule of section

one. ]

26a

agency, regarding the possibility of employing his agency

to perform electronic surveillance of certain residences in

Dallas, Texas. The Hunts purportedly represented to

Everett that they had been the victims of extensive embez-

zlement and desired to obtain information concerning sus-

pected employees. Everett contacted McCann, an elec-

tronics expert, and asked him to travel to Dallas to make an

estimate of the job requirements and costs. When McCann

returned to Houston and reported his findings, Everett

contacted the Hunts and the deal was consummated.

The electronic surveillance operation required the use of

tape recorders and tapes, which McCann purchased at

retail stores, and certain other paraphernalia, including

telephone transmitters, most of which McCann manu-

factured himself. McCann engaged a man named Watson

to install some of the electronic equipment on strategically-

located telephone poles and in various rental automobiles

which were parked on a rotated basis outside the target

houses. McCann and Kelly, an employee of Everett’s

detective agency, worked in Dallas throughout late Decem-~

ber, 1969, and early January, 1970, rotating the automobiles

which McCann and Kelly would rent, use and then return to

the various rental agencies. The pair also changed the

tapes when necessary, ‘‘condensed’’ the original tapes—

edited out extraneous telephone conversations— and gave

the master tapes to defendants.2 McCann returned to

Houston on or about January 9, and at some point there-

after, Everett presented defendants with a bill for all

expenses incurred by McCann, Kelly and Watson, includ-

ing the cost of the equipment, auto rental fees and food and

lodging expenses, and for the cost of the services of the

three gentlemen. When defendants paid their bill, Everett

2 The original tapes were erased and reused after their contents,

as edited, had been transferred to the master tapes.

—

sent them an itemized receipt. Everett later paid McCann,

Kelly and Watson for their services and reimbursed them

for their expenses.

27a

The spectacle of strange automobiles appearing and re-

maining unattended for some hours before being removed

and replaced by other strange unattended autos did not pass

unnoticed in the quiet Dallas suburb of Richardson, Texas,

where one of the ‘‘suspected’’ Hunt employees lived. An

alarmed neighbor alerted the Richardson police to the

unusual activity on January 9 and the police began to sur-

veill the surveillers. On January 16, 1970, after the police

investigation of the matter had turned up some very sus-

picious circumstances relating to the recent activities of

McCann and Kelly, but before the police were able to decide

whether the pair were involved in the narcotics trade, a

burglary ring, or the investigation of an unpleasant divorce,

a Richardson police officer observed Kelly enter a suspected

auto and drive away. The officer followed and indicated to

Kelly that he should pull over; Kelly promptly did so.

After a brief conversation, the officer walked over to

Kelly’s vehicle, noticed a pile of newspapers on the floor,

lifted the papers and discovered a tape recorder. He then

arrested Kelly and the two men drove to a police station,

where police officers proceeded to play one of the tapes

without bothering to obtain a search warrant beforehand.

The playing of the tape prompted an investigation which

led to the indictment and conviction of McCann and Kelly

on federal wiretap charges and to the indictment of defend-

ants here.

The facts of the original search of Kelly’s car were re-

counted at length by this Court in United States v. McCann,

| 5 Cir. 1972, 465 F.2d 147, cert. denied, 412 U.S. 927, 93 S.Ct.

‘ 2747, 37 L.Ed.2d 154, and need not be repeated here ; suffice

4 it to say that we found that the officer who searched the

28a

automobile had both Kelly’s consent to search and probable

cause todo so. The defendants here claim that our decision

in McCann suffered from a lack of certain evidence which

they have now supplied—evidence which tends to indicate

that Kelly did not consent to the search of the auto and that

the officer had no probable cause to search the vehicle in

any case. The district court below found otherwise, 366

F.Supp. 172, and concluded that the stop and search of

Kelly’s auto were proper. The court also found, however,

that the playing of the tape constituted a second search

without a warrant, and that this search violated defendants’

Fourth Amendment rights. Applying the fruit of the

poisonous tree doctrine, Wong Sun v. United States, 1963,

371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Silverthorne v.

United States, 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319,

the district court ordered that ‘‘all evidence gathered as a

result of the playing of the tape’’ be suppressed. 366 F.

Supp. at 183. Since defendants have no standing to con-

test either search, we pretermit further discussion of the

legitimacy of those searches.

The requirement that a litigant have ‘‘standing’’ to con-

test a particular lawsuit is based upon the metaphysical

notion that, in our adversary legal system, a court must be

very certain that the parties before it have ‘‘a personal

stake in the outcome of the controversy,’’ Baker v. Carr,

1962, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663,

678, so that each side will represent its particular interests

to the best of its abilities and thus afford the court a fully-

informed choice between two clearly-stated alternatives.

See Flast v. Cohen, 1968, 392 U.S. 83, 88 S.Ct. 1942, 20

L.Ed.2d 947. In practice, of course, things do not always

work out that way; many individuals and groups who are

genuinely interested in a given controversy may be unable

—

a Be WIE. Oe

29a

to satisfy the traditional requirements for standing. For

this reason, among others, the law of standing has been

liberalized over the past decade in many areas to comport

with the reality of litigant interest. See, e.g., Data Pro-

cessing Service v. Camp, 1970, 397 U.S. 150, 90 S.Ct. 827,

25 L.Ed.2d 184; Barlow v. Collins, 1970, 397 U.S. 159, 90

S.Ct. 832, 25 L.Ed.2d 192; Flast v. Cohen, supra; Griswold

v. Connecticut, 1965, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d

510. At the same time, the policies supporting a standing

requirement have retained sufficient vitality to ensure that

litigants must show more than a de minimis interest before

they will be admitted into the courtroom. See, e. g., Sierra

Club v. Morton, 1972, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d

636.

In some respects, the necessity of standing to object to

unconstitutional searches and seizures is more anomalous

than most standing requirements. The major rationale

for the exclusionary rule, whereby evidence obtained in an

unconstitutional manner may not be used in a criminal

prosecution, is that only such a drastic means will effec-

tively deter law enforcement officials from violating the

Fourth Amendment rights of citizens. See Mapp v. Ohio,

1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Weeks v.

United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed.

652.° Given this premise, one might suppose that any citi-

zen should be able to apprise the courts of unconstitutional

searches and seizures; otherwise, policemen might in some

cases break the law with impunity. However that may be,

there is no precedent for not demanding standing to ques-

tion a search. The courts have settled upon a requirement

of some ‘‘standing’’ to contest Fourth Amendment viola-

* For a lengthy critique of the deterrent efficacy of the exclu-

sionary rule, see Oaks, Studying the Exclusionary Rule in Search

and Seizure, 37 U.Chi.L.Rev. 665 (1970); see also the dissent of

Chief Justice Burger in Bivens v. Six Named Unknown Agents,

1971, 403 U.S. 388, 411, 91 S.Ct. 1999, 29 L.Ed.2d 619.

30a

tions, reasoning that the added deterrent effect of a ‘‘no

standing’’ or minimal standing rule in search and seizure

cases would be of slight social value in comparison with the

large social cost imposed by criminals who would take

advantage of sucharule. Although as an abstract proposi-

tion of law, the standing requirement might not have logical

primordialty, it does possess interpretative validity and

solidity; it is not the case ‘‘that anything which deters

illegal searches is thereby commanded by the Fourth

Amendment.’’ Alderman v. United States, 1969, 394 U.S.

165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176, 187.

In order to determine the precise extent of the standing

requirement as it applies in this case, we must first analyze

just what demonstrable interests are requisite to standing;

we must determine what individual rights and liberties the

Fourth Amendment protects.

It is often aserted that the Fourth Amendment’: function

is to preserve and protect ‘‘the right of privacy’’ for all

citizens. As is frequently the case with broad generaliza-

tions, this characterization says at once too much and too

little. The Fourth Amendment provides that:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

The Amendment was enacted while the memory of British

tyranny was fresh in the minds of the Founding Fathers.

The British military had latterly become accustomed to

taking whom or what they wanted at any time they wanted,

and for any reason or no reason at all. This course of

)

3la

official conduct did not find favor with a generation of

Americans which accounted the rights of personal liberty

and private property as the most valuable and basic of

human expectations. The rights of liberty ( including the

right of privacy) and of property were not as clearly dif-

ferentiated in the minds of eighteenth-century Anglo Amer-

ieans as they are in modern estimation. Blackstone, for

example, was of the opinion that property is the right

to exclude,* and American jurisprudence preserved this

conceptual unity of privacy and property for Fourth

Amendment purposes for a very long time.

In Boyd v. United States, 1886, 116 U.S. 616, 6 S.Ct. 524,

29 L.Ed. 746, the United States Supreme Court held that a

federal statute compelling production of certain private

papers was an unconstitutional “invasion of [the defend-

ant’s] indefeasible right of personal security, personal lib-

erty and private proeperty”’ which struck at “the very

essence of constitutional liberty and security’’. 116 U.S.

at 630, 6 S.Ct. at 532, 29 L.Ed. at 751. Boyd was an affirma-

tion of the principle that some things cannot be searched

or seized regardless of whether a proper procedure is fol-

lowed, that a search of private papers is per se an ‘‘un-

reasonable search.’’ This doctrine of absolute immunity

of certain types of personal property from search or

seizure was not undone until 1914, when the Supreme Court,

in Weeks v. United States, supra, adopted the exclusionary

rule and substituted a concern for proper procedure for

i the former concern for the nature of the thing searched

or seized. Even after Weeks, the philosophical legacy of

32a

Blackstone and Boyd was so firmly implanted in the col-

lective consciousness of American courts that instrumental-

ities of a crime could not be seized until 1921, Gouled v.

United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, and

‘mere evidence’’ of a crime could not be seized until 1967.

Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d

782.

The procedural revolution begun in Weeks has taught

us that the Amendment builds no impermeable barrier be-

tween an individual’s person, house, office, automobile or

strongbox and the outside world. If law enforcement offi-

cials follow the proper procedures to ensure that they can

demonstrate sufficient interest in a particular person, place

or thing, then they may seize and examine the object of

their investigation.

Perhaps the fact that policemen can now, under the

proper conditions, search and seize anyone or anything has

compelled the courts to make a careful study of which

search procedures are repugnant to those widely-held con-

cepts of personal security and dignity which have been sub-

sumed into the ‘‘right of privacy.’’ It is this study which

led to Justice Stewart’s comment in Katz v. United States,

1967, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576,

582, that ‘‘the Fourth Amendment protects people, not

places.’’ This part of the Fourth Amendment inquiry has

required a determination, not of what privacy is—for

everyone assumes agreement on that point*—but of

whether a given individual in a given situation could have

a reasonable expectation of privacy in the particular place

or thing searched. So it was that in Jones v. United States,

1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the Supreme

Court determined that an invitee had a cognizable privacy

5 Justice Stewart defines the ‘‘general right of privacy’’ as an

individual’s ‘‘right to be let alone by other people.’’ Katz v.

United States, supra, 389 U.S. at 350-351, 88 S.Ct. at 511, 19

L.Ed.2d at 581. See Fried, ‘‘Privacy,’’ 1968, 77 Yale L.J. 475.

33a

interest in preserving the apartment in which he was a

guest from unlawful intrusion by the police. In Katz v.

United States, supra, the Court ruled that an individual

has a significant privacy interest in insulating his own tele-

phone conversations from electronic monitoring, whether

he makes his calls from his own home or from a public

telephone booth.

If modern Supreme Court interpretations of the Fourth

Amendment are dominated by the concept of the right of

privacy, the Court has not foresworn an examination of

property rights in order to determine the presence or ab-

sence of privacy interests. Although the Court announced

in Warden v. Hayden, supra, “‘[t]he premise that prop-

erty interests control the right of the Government to

search and seize has been discredited,’ 387 U.S. at 304,

87 S.Ct. at 1648, 18 L.Ed.2d at 790, that same Court de-

termined two years later in Alderman vy. United States,

supra, that an individual’s property interest in his own

home was so great as to allow him to object to electronic

surveillance of conversations emanating from his house,

even though he himself was not a party to those conversa-

tions.®

In summary, although the right of privacy has been the

major theme of modern Fourth Amendment jurisprudence,

the property rights rationale cannot be ignored altogether."

Perhaps it would not be too much to say that the continu-

ing concern with property rights is prompted by the re-

Principles developed

22 L.Ed.2d at 197.

* As Justice Black noted in dissent in Griswold vy. Connecticut,

supra, *‘{t]he average man would very likely not have his feelings

soothed any more by having his property seized openly than by

having it seized privately and by stealth... .”’ 381 U.S. at 509,

85 S.Ct. at 1695, 14 L.Ed.24 at 530.

34a

alization that an individual often has a very reasonable

expectation of privacy in his private property, and that it

is this expectation which the Fourth Amendment protects.

There may be a cognizable Fourth Amendment interest in

the absence of a traditional property right, but it is almost

certainly true that property rights cannot support a

Fourth Amendment claim in the absence of a_ rea-

sonable expectation of privacy in tae property involved.

Such an analysis would go far in explaining the

Court’s tendency in the lact fifteen years to discard

traditional property concepts in search and seizure cases

where, as in Jones, Hayden and Katz, those concepts seem

no longer to reflect modern expectations of privacy in the

place or thing in question, and the willingness of the Court

to rely on those same property concepts where, as in

Alderman, the common law continues to reflect modern

ideas of personal dignity and security.

We have discussed the logical and constitutional bases of

the standing requirement in Fourth Amendment cases;

we now address ourselves to an examination of the case

law on the subject. Since this action comes to us in the

posture of an appeal of an order suppressing evidence

pursuant to Rule 41(e) of the Federal Rules of Criminal

Procedure, we begin with an exposition of that Rule, which

provides in pertinent part that:

A person aggrieved by an unlawful search and seiz-

ure may move the district court ... for the return of

the property and to suppress for the use as evidence

anything so obtained on the ground that (1) the prop-

erty was illegally seized without a warrant...

The Supreme Court held in Jones v. United States, supra,

that in order to qualify as a ‘‘person aggrieved by an un-

lawful search and seizure’’ for purposes of Rule 41(e),

‘‘one must have been a victim of a search and seizure, one

against whom the search was directed, as distinguished

35a

from one who claims prejudice only through the use of evi-

dence gathered as a consequence of a search or seizure

' directed at someone else.’’ 362 U.S. at 261, 80 S.Ct. at 731,

4 L.Ed.2d at 702. '

Since Jones, the development of the law of standing

in Fourth Amendment cases has turned on whether the de-

fendant in question was a “victim” of the search, the ‘‘one

against whom the search or seizure was directed.’’ Gen-

erally, a defendant satisfies the standing requirement if

he has an adequate possessory interest in the place or ob-

ject searched to give rise to a reasonable expectation of

*Many standing cases since Jones have concerned themselves

with the phrase ‘legitimately on the premises.’’ For example, an

sindividual who has paid for his hotel room has a’ reasonable ex- |

pectation of privacy in that room, Garza-Fuentes y. United States,

5 Cir, 1968, 400 F.2d 219, cert. denied, 1969, 394 U.S. 963, 89 S.Ct.

1311, 22 L.Ed.2d 563 ; one who hides from the police in @ hotel room

Rie

able proposition that an individual may have a reasonable

expectation of privacy in a place other than his own home.

In this tradition, in Mancusi v. DeForte, 1968, 392 U.S. 364,

88 S.Ct. 2120, 20 L.Ed,2d 1154, the Supreme Court found

that an individual could reasonably expect freedom from

governmental intrusion into his working area, even though

he shared parts of an office with others. Conversely, a

defendant cannot claim standing if he neither has a cog-

nizable property interest.in the place or thing searched,

nor was he present at the time of the search. United

States v. McConnell, 5 Cir. 1974, 500 F.2d 347; United

States v. Palazzo, 5 Cir. 1974, 488 F.2d 942; United States

v. Sullivan, 5 Cir. 1973, 488 F.2d 138.

In Jones, the Court also created the doctrine of ‘‘auto-

matic standing,’’ whereby, in a case where possession of

the seized evidence is itself an essential element of the

offense with which the defendant is charged, the Govern-

ment is precluded from denying that the defendant has the

requisite possessory interest to challenge admission of the

evidence.®

*The Court adopted the Jones rule in order to eradicate the

unseemly practice whereby prosecutors would deny at the sup-

pression hearing that a defendant charged with a possessory offense

. actually owned the disputed ‘evidence, thereby forcing the defend-

ant to claim ownership; the prosecutor would then confront the

hapless defendant at trial with his claim of ownership made at the

suppression hearing. Jones enabled a defendant in such a case to

contest a search without admitting ownership. In Simmons v.

United States, 1968, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.22 1247,

however, the Court held that when a defendant testifies in suppori

of a motion to suppress evidence on Fourth Amendment Grounds,

his testimony may not thereafter be admitted against him at trial

on the issue of guilt. Although Simmons appears to have removed

much of the opportunity for the sort of abuse at which the Jones

rule is aimed, and although the Court has recently cast some doubts

on the continued vitality of Jones, Brown v. United States. 1973,

411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208, the rule is still the law.

i / ]

a a

37a

One of the most significant aspects of the law of standing

in search and seizure cases, and one that clearly reflects

the intensely personal nature of Fourth Amendment rights,

is the rule that interpersonal relationships cannot make a

“vietim’’ of one who is not otherwise ‘‘one against whom

the search or seizure is directed.” Generally speaking,

the Fourth Amendment protects the ‘‘I’’ but not the

‘‘thou.”’ So it is that one spouse may not complain if

the other is searched. United States y. Altizer, 5 Cir.

1973, 477 F.2d 846; but see Alderman vy. United States,

supra, 394 U.S. at 193-194, 89 S.Ct. at 977, 22 L.Ed.2d at

198 (Harlan, J., concurring in part and dissenting in part).

Nor may one business partner assert an interest in the

search of another partner solely on the basis of the part-

nership relation. United States v. Frick, 5 Cir. 1973, 490

F.2d 666. Finally, Alderman vy. United States, supra, dic-

tates that co-defendants and co-conspirators may not assert

the Fourth Amendment rights of their alleged partners in

crime solely on the basis of their interpersonal association,

because Fourth Amendment rights are personal ones. See

United States v. Sullivan, supra; Granza v. United States,

5 Cir. 1967, 377 F.24 746. Since co-defendants and co-

conspirators can often make out some semblance of a prop-

erty right in the sorts of things that might be searched and

seized from their cohorts, Alderman demonstrates once

again the primacy of privacy in the modern Fourth Amend-

ment schema.

The Supreme Court has recently restated the law of

standing in search and seizure cases, in Brown v. United

States, 1973, 411 U.S, 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.

In Brown, two defendants were convicted of conspiring

with a third individual to transport stolen goods in inter-

state commerce. Evidence obtaincd from an allegedly un-

lawful search of the ¢o-conspirator’s premises was ad-

mitted in the separate trial of the other two defendants.

The Court, relying on Alderman, concluded that the dis-

38a

puted evidence was rightfully admitted against defendants,

who alleged a possessory interest in neither the premises

searched nor the merchandise seized :

[T]here is no standing to contest a search and seizure

where, as here, the defendants: (a) were not on the

premises at the time of the contested search and seiz-

ure; (b) had no proprietary or possessory interest

in the premises; and (c) were not charged with an

offense that includes, as an essential element of the

offense charged, possession of the seized evidence at

the time of the contested search and seizure...’’ 411

U.S. at 229, 93 S.Ct. at 1569, 36 L.Ed.2d at 214.

Although the rule of standing applied to the specific

facts of Brown might appear at first glance to be some-

what more restrictive than previous formulations with

respect to the search and seizure of objects, the Court’s

later remark that defendants ‘‘failed to allege any legiti-

mate interest of any kind in the premises searched or the

merchandise seized,’’ 411 U.S. at 229, 93 S.Ct. at 1569, 36

L.Ed.2d at 214 (emphasis added), clearly indicates that

Brown conforms to the general rule of standing, and that

the Court has not neglected the language in the Fourth

Amendment concerning ‘‘papers, and effects.’’ See United

States v. Groner, 5 Cir. 1974, 494 F.2d 499, cert. denied,

— US. —, 95 S.Ct. ——, 41 L.Ed.2d ——. Brown

concisely states the rule of standing in Fourth Amendment

causes : defendants must demonstrate a ‘‘legitimate interest’’

of some kind in the premises searched or the objects seized.

That interest may or may not be founded on some common

law proprietary interest; the decisive factor in determin-

ing whether a search or seizure is ‘‘reasonable’’ for Fourth

Amendment purposes is whether the complaining party’s

reasonable expectations of privacy have been unreasonably

disturbed.

39a

Defendants here were not present at the search in ques-

tion, nor are they charged with a possessory offense, so

that they cannot claim either of those bases for standing.

Rather defendants contend that they may contest the search

on three other grounds: 1) their possessory interest in the

seized tape recorders and tapes; 2) their agency relation-

ship with McCann and Kelly; and 3) the prohibitions of

the Texas search and seizure Statute, coupled with the

federal policy giving full effectuation to state exclusionary

rules. We will examine these contentions in turn.

Defendants claim that their proprietary interest in the

tape recorders and tapes is sufficient to brffig them within

the well-established rule conferring standing upon indi-

viduals having a possessory interest in the place or object

searched or seized. Because their bill from Everett in-

cluded the cost of every item seized, defendants claim title

to every tape recorder and tape used in the operation.

They point to the testimony of McCann and Everett at the

suppression hearing below, to the effect that the equipment

“belonged to the Hunts,”’ as irrefutable evidence of their

possessory interest in the electronic surveillance equipment.

Finally, defendants rely on our recent decision in United

States v. Banks, supra, for the proposition that legal title

to an object always conveys standing to complain of a

search thereof.

The first major difficulty with defendants’ argument is

that their claim of ownership is a very tenuous one. The

record demonstrates that Everett and McCann occupied a

contractual position in relation to the Hunts that is very

close to the common law notion of an ‘‘independent con-

tractor.””*° Defendants contacted Everett about doing a

For an exposition of the conflicting and confusing develop-

ment of independent contractor law, see Comment, ‘‘ Risk Admin-

istration in the Marketplace: A Reappraisal of the Independent

Contractor Rule,’’ 1973, 40 U.Chi.L.Rev. 661.

40a

job for them; Everett consulted McCann, who determined

how the job could best be completed and how much it would

cost; the defendants agreed to the price proposed by

Everett, and had no more to do with the operation until

they paid the bill. Everett had already retained Kelly as

an employee of his detective agency ; McCann hired Watson

as a specialist. McCann and Kelly purchased every item

of equipment with their own financial resources, paid for

every rental car, every motel room, every meal with their

~ funds, and were reimbursed by Everett upon completion

of the project. Defendants never saw any of the equip-

ment, either during or after the operation, except for

certain master tapes, none of which were taken in the dis-

puted search and seizure.

Whether an individual is a servant or an independent

contractor depends upon whether the employer has a right

to control the details of the work, Strangi v. United States,

5 Cir. 1954, 211 F.2d 305; Newspapers, Inc. v. Love, Tex.

1964, 380 S.W.2d 582, and the record does not show that

the defendants at any time had any desire to interfere

or could have interfered with the operation as planned by

McCann and Everett and enacted by McCann, Kelly and

Watson. The nature of the contractual relationship be-

tween Everett and McCann on the one hand and defendants ,

on the other, makes defendants’ claim to ownership of the

tape recorders and tapes a diaphanous one at best.

Whatever title defendants may possess in the disputed

evidence, 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. As

we have indicated above, the constitutional right of protec-

tion against unreasonable searches and seizures attaches

only when an individual’s reasonable expectation of privacy

is shattered by illegal Government intrusion. Whatever

minimal possessory interest defendants may have in the

seized equipment, we have been unable to discern the

3 41a

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 dis-

puted search and seizure. If Jones, Katz, Alderman and

Brown teach us anything, they indicate that common law

notions. about proprietary relations offer no per se rules

in search and seizure cases ; a naked assertion of possessory

interest may be indicative but cannot be dispositive of the

existence of a cognizable privacy interest in the place or

thing searched. In the absence of a demonstrable expecta-

tion of privacy in the tape recorders and tapes, defendants

can have no standing to protest the search and seizure.

They may not vicariously assert the Fourth Amendment

rights of McCann and Kelly.

There is nothing in our Banks case which confers stand-

ing upon defendants. In that case, Adams, Banks, Moody

and George operated a counterfeiting ring. Banks pur-

chased the printing press and certain other equipment;

Moody furnished a garage to house the press; Adams,

Banks and George operated the press; George distributed

the counterfeit currency; Adams, Banks and George took

equal shares of the proceeds. George was apprehended in

the act of distributing some of his artwork, and gave infor-

mation that led to the issuance of a warrant to search

Moody’s garage, which search led to the discovery of the

press, the arrest of Adams and Banks, and the claim of the

a, latter two individuals that the warrant was unconstitu-

"tionally defective. We keld that Adams had no standing

to object to the search, because he was not present at the

time of the search and had no possessory interest either

in Moody’s garage or in the printing press. On the other

hand, we found that Banks certainly had standing to object

to the seizure of a press which he had purchased directly

with his own funds (for which he had not been reimbursed

by his partners in crime) and which he: had operated in

the course of the common criminal scheme. There was in

42a

Banks no dispute as to the full measure of Banks’ title to

the press, nor any controversy as to his direct and endur-

ing relationship to the machine. In short, there was in

Banks that affirmative showing of reasonable expectation

of privacy in the seized equipment that is so lacking

here.

A case which is much more analogous to the present con-

troversy than Banks is United States v. Johnson, 5 Cir.

1972, 456 F.2d 295. In Johnson, defendant had paid one

_ Langner $450 to travel to Mexico, purchase marijuana

from a pre-arranged contact and return the marijuana to

him in the United States. Langner was stopped on his re-

turn to this country, the marijuana discovered and seized,

and Johnson arrested. We found that Johnson had no

standing to challenge the search for want of a sufficient

privacy interest in the marijuana; he was not the individ-

ual at whom the search was aimed. Johnson’s possessory

interest in the seized marijuana was arguably greater than

that of defendants here in the disputed electronic equip-

ment because Johnson had arranged all the details of the

operation and expected to receive the marijuana upon

Langner’s safe return; none of these things can be said

about defendants in this cas».

Defendants also argue that they must be awarded stand-

ing of the Jones variety in order to prevent the Govern-

ment from contending on the one hand that defendants are

responsible as principals for the violations by their agents

McCann and Kelly of the federal wiretapping statute, while

avowing on the other hand that this same principal-agent

relationship does not suffice to confer standing upon de-

fendants to contest a search of their agent Kelly’s auto

and electronic equipment. There is no merit in this argu-

ment.

This is not a case, as Jones was, where the Government’s

contradictory allegations create a cruel dilemma whereby

ee. cn

a defendant accused of a possessory offense must either

incriminate himself at the suppression hearing or waive

Finally, defendants claim standing by virtue of Texas

law and the Supreme Court’s decision in Elkins vy. United

States, 1960, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669,

to forbid federal courts to utilize evidence which would be

excluded in state courts by operation of a state exclusion-

44a

ary rule. Article 38.23 of the Vernon’s Ann. Texas Code

of Criminal Procedure provides that:

No evidence obtained by an officer or other person in

violation of any provisions of the Constitution or laws

of the State of Texas, or of the Constitution or laws of

the United States of America, shall be admitted in evi-

dence against the accused on the trial of any criminal

As defendants correctly point out, Article 38.23 is a broad

state exclusionary rule. See Mapp v. Ohio, supra. De-

fendants argue that the disputed evidence here was illegally

obtained, so that it would be inadmissible in Texas courts,

and that the rule of Elkins forbids federal courts to admit

evidence that state courts would thus exclude:

[W Jhen a federal court sitting in an exclusionary state

admits evidence lawlessly seized by state agents, it not

only frustrates state policy, but frustrates that policy

in a particularly inappropriate and ironic way. For

by admitting the unlawfully seized evidence the federal

court serves to defeat the state’s effort to assure obedi-

ence to the Federal Constitution. . . . 364 U.S. at 221,

80 S.Ct. at 1446, 4 L.Ed.2d at 1680.

Defendants contend that Texas is so desirous of deterring

its law enforcement officers from making illegal searches

and seizures that Article 38.23 minmizes, if not eschews,

standing requirements in state cases. From this premise,

defendants conclude that Elkins prevents federal courts

from requiring standing in Texas search and seizure cases

where, as here, Texas officers are involved.

Defendants cite us no Texas cases in support of their

novel proposition, and with good reason: Texas law re-

quires standing in search and seizure matters, and this state

requirement differs in no material respect from the fed-

eral law of standing as outlined above. Stiggers v. State,

45a

Tex.Cr.App. 1974, 506 S.W.2d 609; Clemons vy. State, Tex.

Cr.App. 1973, 501 S.W.2d 92; Booth v. State, Tex.Cr.App.

1973, 499 S.W.2d 129. Texas law confers no standing upon

defendants here.

We: have carefully examined the record and considered

the defendants’ various arguments. Neither the one nor

the otthers convince us that defendants enjoyed a reason-

able expectation of privacy in the disputed evidence. Un-

der the rule of Johnson, and of Jones, Katz, Alderman and

Browm, the Hunts cannot be said to be “‘aggrieved’’ by the

searches of Kelly’s automobile and the tapes; neither

Search was in any way directed at the defendants. To hold

otherwise would stand these precedents on their heads.

Fourth Amendment guarantees partake of a privateness

which is not subject to barter or bailment. There is no

standimg room for persons positioned as defendants under

the Fourth Amendment as elucidated in the exegesis of our

judicial forebearers.

Reversed and remanded.

46a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Octoser Term, 1974

No. 74-1142

D. C. Docket No. CR 5-485

Unirep States or America,

Plaintiff-Appellant,

Netson Bunker Hunt anp W. Hersert Hunt,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Texas

Before Rives, Gewix anp Gotpserc, Circuit Judges.

Judgment

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

record from the United States District Court for the

Northern District of Texas, and was argued by counsel;

On ConsmveraTiION WHEREFORE, it is now here ordered

and adjudged by this Court that the judgment of the said

District Court in this cause be, and the same is hereby, re-

versed; and that this cause be, and the same is hereby re-

manded to the said District Court in accordance with the

opinion of this Court.

December 23, 1974

Issued as Mandate:

—s

47a

18 U.S.C. § 3731

Cuaprer 235—Aprpgar

§ 3731. Appeal by United States.

In a criminal case an appeal by the United States shall

lie to a court of appeals from a decision, judgment, or order

of a district court dismissing an indictment or information

as to any one or more counts, except that no appeal shall lie

where the double jeopardy clause of the United States Con-

stitution prohibits further prosecution.

An appeal by the United States shall lie to a court of ap-

peals from a decision or order of a district courts suppres-

sing or excluding evidence or requiring the return of seized

property in a criminal proceeding, not made after the de-

fendant has been put in jeopardy and before the verdict or

finding on an indictment or information, if the United States

attorney certifies to the district court that the appeal is

not taken for purpose of delay and that the evidence is a

substantial proof of a fact material in the proceeding.

The appeal in all such cases shall be taken within thirty

days after the decision, judgment or order has been ren-

dered and shall be diligently prosecuted.

Pending the prosecution and determination of the appeal

in the foregoing instances, the defendant shall be released

in accordance with chapter 207 of this title.

The provisions of this section shall be liberally construed

to effectuate its purposes.

As amended Jan. 2, 1971, Pub.L. 91-644, Title IIT, § 14(a),

84 Stat. 1890.

48a

18 U.S.C. § 2511

§ 2511. Interception and disclosure of wire or oral com-

munications prohibited

(1) Except as otherwise specifically provided in this

chapter any person who—

(a) willfully F respi endeavors to intercept, or

procures any other person to intercept or endeavor to

intercept, ary wire or oral communication ;

(b) willfully uses, endeavors to use, or procures any

other person to use or endeavor to use any electronic,

mechanical, or other device to intercept any oral com-

munication vhen—

(i) such device is affixed to, or otherwise transmits

a signal throngh, a wire, cable, or other like connec-

tion used in wire communication; or

(ii) such device transmits communications by

radio, or interferes with the transmission of such

communication; or

(iii) such person knows, or has reason to know,

that such device or any component thereof has been

sent through the mail or transported in interstate or

foreign commerce ; or

(iv) such use or endeavor to use (A) takes place on

the premises of any business or other commercial

establishment the operations of which affect inter-

state or foreign commerce; or (B) obtains or is for

the purpcse of obtaining information relating to the

operations of any business or other commercial es-

tablishment the operations of which affect interstate

or foreiga commerce ; or

(v) such person acts in the District of Columbia,

the Commonwealth of Puerto Rico, or any territory

or possession of the United States;

any other person the contents of any wire or oral com-

munication. knowing or having reason to know that the

informatior was obtained through the interception of

49a

a Wire or oral communication in violation of this sub-

section ; or

of any wire or oral communication, knowing or having

shall be fined not more than $10,000 or imprisoned not

more than five years, or both.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.