United States v. Arthur Joseph Trickey

711 F.2d 56, 1983 U.S. App. LEXIS 26199

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 30, 1983
• Docket: 82-1262
• Status: Published

Opinions

NATHANIEL R. JONES,

Circuit Judge.

In August 1980, the appellant, Arthur Trickey, approached Silas DeKalita and requested a loan of $15,000 in order for appellant to produce counterfeit money. In return, DeKalita would receive $75,000 in real currency. DeKalita contacted the United States Secret Service and, on September 8, 1980, he met with agent Hall and related his conversation with the appellant.

Following the instructions of agent Hall, DeKalita arranged several meetings between the appellant and Kelemen, an undercover agent. Appellant and agent Kelemen met and outlined a plan for distributing the counterfeit money. At a second meeting, appellant and Kelemen discussed the possibility of Kelemen contributing $15,000 or purchasing necessary equipment of approximately the same value. Appellant would not agree to allow Kelemen to purchase the equipment rather than providing the money; therefore, they could not reach an agreement. However, Kelemen indicated that he might participate in the distribution of the counterfeit money.

In early 1981, appellant discussed the possibility of producing counterfeit money with one Michael Beck, -with the assistance of Beck’s father. Beck agreed to assist in photographing the' bills and in making plates from the negatives. On or about May 16, 1981, appellant showed DeKalita the backs of four counterfeit bills and told him that they were from the first batch that they had printed.

On the next day, the Secret Service agents began a surveillance of a building located at 2561 Swagger Road in Milling-ton, Michigan. The building was apparently an outer building located on property where Richard Trickey, the appellant’s nephew, resided. Appellant rented the smaller building from Richard Trickey. Upon obtaining a telephonic search warrant from Magistrate Walker, the agents proceeded to the building which was owned by appellant’s nephew and executed the search warrant. This small building had no working plumbing facilities, no furniture, and the windows were boarded up. The kitchen had been converted into a dark room and upon conducting a search, the agents found and seized a printing press, a camera, paper, ink and various other printing materials. No counterfeit bills or direct evidence that counterfeit money had been produced on the premises were found, however.

Appellant and Richard Trickey were arrested at the scene on May 17, 1981 and arraigned on a complaint the following day. This complaint was subsequently dismissed and, thereafter, appellant was indicted on July 23,1981 and arraigned a week later, on July 30, on a charge of conspiracy to counterfeit. Appellant filed a motion to quash the indictment due to the government’s failure to indict him within sixty days of his arrest. The motion to quash was denied.

Prior to trial, appellant filed a motion to suppress the evidence seized from the premises on the ground that the search warrant was invalid. He argued that the magistrate failed to place each person whose testimony formed a basis of the application for the warrant under oath. As such, the agents had failed to fully comply with the requirements of Federal Rule of Criminal Procedure 41(c)(2)(D) in obtaining the telephonic search warrant. The district court determined that the warrant was invalid on this basis. Accord United States v. Shorter, 600 F.2d 585 (6th Cir.1979). However, the court concluded that the appellant lacked standing to challenge the validity of the search because he had no legitimate expectation of privacy in the premises as required by United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) and Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

In United States v. Salvucci, supra, the Supreme Court abolished the notion that an individual charged with crimes of possession has “automatic standing” to challenge the validity of a search under the Fourth Amendment. The Court noted that mere legal possession of a seized good does not subject the possessor to Fourth Amendment deprivation. Rather, an illegal search only violates the rights of those who have “a legitimate expectation of privacy in the invaded place.” 448 U.S. at 91-92, 100 S.Ct. at 2552-2553; quoting Rakas v. Illinois, 439 U.S. at 140, 99 S.Ct. at 429.

The government submits that the appellant had no legitimate expectation of privacy in the outbuilding because it was not maintained like a home or dwelling. Rather, it was maintained in a manner that was more akin to a business. In support of this position, they rely on United States v. Bailey, 628 F.2d 938 (6th Cir.1980), and United States v. Clayborne, 584 F.2d 346 (10th Cir. 1978). While this Court recognizes that Bailey has some application in this context, we do not construe those cases involving beepers to have general applicability to a determination of whether the premises in the instant case are entitled to Fourth Amendment protections.

In United States v. Bailey, supra, this Court developed a two-tier analysis for purposes of determining when an individual may raise a Fourth Amendment challenge. The Court explained:

First, where he knowingly has exposed information to public scrutiny, the Fourth Amendment does not apply. Second, even where an individual has exhibited a subjective expectation that certain information will remain private, the Fourth Amendment will not apply unless society is prepared to recognize that expectation as legitimate .... A defendant who asserts a Fourth Amendment challenge must meet both the subjective expectation and the legitimacy criteria.

628 F.2d at 941.

In the instant case, the appellant maintained his printing activity in an outbuilding that was located on residential property. He had boarded up the windows such that it was clear that he did not intend to expose this activity to the public. Rather, he exhibited both a subjective and an objective expectation that the information and activities conducted therein would remain private. Moreover, since appellant was the lessee of the premises, the activity which he exhibited an expectation of privacy for would certainly be recognized by society as legally justified. Clearly, both the owner and the lessee of the premises would be recognized by society as having a legitimate expectation of privacy as to the outbuilding.

Furthermore, the assertion that the premises were maintained in a manner similar to a business does not abolish the proprietor’s Fourth Amendment protections. It merely makes such protections less significant than they would be in the context of a home. The controlling factor in this inquiry is that the individual have a legitimate expectation of privacy in the premises. Accord Rakas v. Illinois, 439 U.S. 128, 143-48,99 S.Ct. 421, 430-33, 58 L.Ed.2d 387 (1978). The appellant clearly has such a legitimate expectation in regard to the outbuilding and, therefore, he has standing to challenge the validity of the search warrant and to have the evidence suppressed during the trial. Accordingly, the judgment of the district court is REVERSED and REMANDED for a new trial.