United States v. William Leroy Eldridge

302 F.2d 463, 1962 U.S. App. LEXIS 5327

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 20, 1962
• Docket: 8435
• Status: Published

Opinions

SOBELOFF, Chief Judge.

William Leroy Eldridge appeals from his conviction on a charge of stealing two radios (handie-talkies), the property of the United States Coast Guard, in violation of 18 U.S.C.A. § 641. The principal question for decision is whether the stolen articles, seized by state police officers from the trunk of Eldridge’s car, were properly admitted in evidence.

On April 1, 1961, Eldridge, a member of the Coast Guard stationed at Norfolk, and his service buddy, Nethereott, were given liberty, and they drove in Eldridge’s car to Elizabeth City, North Carolina. The following day Nethereott obtained Eldridge’s permission to use the car to take his young daughter, who lived in Elizabeth City, for a ride around town. The keys to the ignition and trunk were given to him.

That afternoon local police officers received a message from Nethercott’s mother-in-law that there was a stolen rifle in the back seat of the ear which was then parked in front of her home. There had been several recent thefts of firearms in the area and the police went to investigate. After looking through the car window and seeing a rifle partly uncovered on the back seat of the car, they left to secure a search warrant. On returning, they called Nethereott from the house, asked him about the rifle and sought his permission to look at it. This granted, they asked if they might search the car further. He opened the glove compartment where a pistol and a knife were found. However, as far as the record shows, none of the weapons was stolen property.

In the trunk of the car, which Nethercott voluntarily opened, the officei's found and seized the two stolen Coast Guard radios, which they later turned over to federal authorities. The warrant authorizing a search was not served or shown to Nethereott, apparently because it was thought that his willing cooperation made the warrant unnecessary. The foregoing facts are not in dispute.

At trial, Eldridge moved under Rule 41(e), Fed.R.Crim.P., 18 U.S.C.A., to exclude the radios from evidence, claiming that they had been taken in violation of the Fourth Amendment. Specifically, he contended that the search was unlawful because it was conducted without his consent, without a warrant, and not incident to a lawful arrest. Essentially his contention is that the protection of the Fourth Amendment is a personal right that could not be waived for him by Nethereott, a gratuitous bailee of the car. The District Court denied the motion on the grounds that the state officers acted upon probable cause and that the search was not of the general exploratory type condemned in United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932).

On the preliminary question of Eldridge’s standing to seek suppression of the evidence, we have no doubt. Although he was temporarily out of possession of the car at the time of the search, the bailment was to be of short duration. It would be hyper-technical to say that he' lacked a sufficient interest in his own car to challenge the manner in which the radios he has been found guilty of stealing were taken from it. See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Also, since the “silver platter” doctrine has been authoritatively repudiated, our decision is unaffected by the fact that the radios were seized by state rather than federal officers. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).

On the merits of the constitutional issue we agree with the result reached by the District Court. Not every search made without a warrant is illegal.¹ The Fourth Amendment prohibits only “unreasonable” searches and seizures.² Such decisions as have been cited to us or discovered by research have only a peripheral bearing on the question to be decided in this case. Lower federal courts have deemed searches reasonable if consented to by the person in lawful possession of the articles seized, or the premises on which they are found, as where the defendant’s partner consented to a search,³ where an office manager in sole control of the office and the corporate records consented to the search and seizure,⁴ where the owner-occupant of a house consented to search of the living room in which the defendant customarily slept on a couch,⁵ where the wife of the defendant consented to a search of their home,⁶ and where an owner consented to a search of his garage and the article seized, which had been stored there by the defendant, was not packaged⁷ or otherwise concealed. These decisions do not furnish particularly helpful guides to the answer to the precise question raised here, namely, whether the bailor’s constitutional immunities were violated in the search consented to by his bailee.⁸

The appellant mistakenly contends that the recent case of Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), supports him. That case is not analogous to this, for here consent was given by the bailee in actual lawful possession of the ear, and it is the bailor who claims that his constitutional rights were violated by the search. If Chapman sheds any light whatever on the question that concerns us here, it is possibly in the indication it gives that authorization of the search may come from a person in actual lawful possession, and that his rights may not be waived by an owner who has the right to reclaim possession, but has not done so.

Nethercott’s right to possession of the vehicle was less formal or durable than that of the tenant Chapman to occupancy of the house under his lease. Still, for the time being Nethercott was clothed with rightful possession and control and could do in respect to the automobile whatever was reasonable and not inconsistent with its entrustment to him. No restriction was imposed on him except to return with the car by a certain hour. Although the defendant knew of the presence of the stolen radios in the trunk, he apparently did not think it worthwhile to take the precaution of forbidding his bailee to open the trunk or permit anyone to look into it. He reserved no exclusive right of privacy in respect to the trunk when he delivered the key. In responding as he did to the police, Nethercott did not exceed the authority Eldridge had seemingly given him. Using the key to open the trunk was not an unwarranted exercise of dominion during the period of his permissive possession and use. Access to the trunk is a normal incident to the use of an automobile. And if, when he voluntarily opened the trunk, Nethercott did not exceed proper bounds because he had to that extent at least concurrent rights therein with Eldridge, was the ensuing search by the police unreasonable? We think not.

Had the police done more than look with Nethercott’s consent into the trunk and observe what was readily visible and not covered over or concealed in package or wrapper—if, for example, they had explored under the floor carpeting or behind the upholstery—we might have a different case. United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); United States v. Kirschenblatt, 16 F.2d 202, 203, 51 A.L.R. 416 (2d Cir. 1926). There is no suggestion that Nethercott obtained possession of the car with any deceptive purpose against Eldridge or in collusion with the officers.

Conscious of our duty to maintain jealously the constitutional standards of the Fourth Amendment in criminal prosecutions, and to be on guard against the excesses of overzealous officers, we nevertheless must recognize that some searches may be so eminently reasonable as not to fall under the interdict of the Amendment. Upon consideration of the circumstances we conclude that the bailee’s consent made this a reasonable search.

In light of this conclusion we do not reach such questions as whether the officers had adequate grounds for a lawful search apart from the bailee’s consent,⁹ or whether an unexecuted warrant may have the potency to vitalize an otherwise illegal search.¹⁰ Nor do we reach Eldridge’s further contention that the confession given by him to the federal authorities was excludable as the “fruit” of an illegal search and seizure.

Affirmed.

1 . See United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951).

2 . See generally Anno., 31 A.L.R.2d 1071, 1078-96 (1953).

3 . United States v. Sferas, 210 F.2d 69, 74 (7th Cir. 1954) ; United States v. Goodman, 190 F.Supp. 847, 850 (N.D.Ill. 1961).

4 . United States v. Antonelli Fireworks Co., 155 F.2d 631, 636 (2d Cir. 1946); cf. United States v. Maryland Baking Co., 81 F.Supp. 560 (N.D.Ga.1948).

5 . Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959); cf. Woodard v. United States, 102 U.S.App.D.C. 393, 254 F.2d 312 (1958).

6 . Stein v. United States, 166 F.2d 851, 855 (9th Cir. 1948); United States v. Pugliese, 153 F.2d 497, 499 (2d. Cir. 1945) (dictum); Driskill v. United States, 281 F. 146 (9th Cir. 1922); United States v. Sergio, 21 F.Supp. 553 (E.D.N.Y.1937); but see, Cofer v. United States, 37 F.2d 677, 679 (5th Cir. 1930). The Supreme Court, in Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), expressly left this question open. For an interesting discussion of the early cases, see Cass v. State, 124 Tex.Cr.R. 208, 61 S.W.2d 500 (1933).

7 . Cutting v. United States, 169 F.2d 951, 12 Alaska 143 (9th Cir. 1948). See also, Von Eichelberger v. United States, 252 F.2d 184 (9th Cir. 1958); Reszutek v. United States, 147 F.2d 142 (2d Cir. 1945).

8 . The recent case of Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), is not apposite on the facts. Its holding that search of a hotel room several hours after a guest had vacated it was reasonable, where made with the consent of the hotel manager, appears to be consistent with the notion that possession and control is the touchstone in determining validity of consent.

9 . Cf. Chapman v. United States, 365 U.S. 630, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948).

10 . Cf. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958).