United States v. Alfred B. Diggs ( 1976 )

OPINION

MARIS, Circuit Judge,

with whom

ALDI-SERT, ROSENN and WEIS, Circuit Judges, concur.

This is an appeal from an order of the district court holding unlawful under the Fourth Amendment the action of two agents of the Federal Bureau of Investigation in taking possession of a locked metal box, opening the box and examining the contents, at the urging of the holder of the box, and suppressing the box and the $17,-080 in United States currency which was found in it as evidence to be used in the defendant’s trial for bank robbery. The district court’s view was that the holder of the box, a gratuitous bailee, was not empowered to authorize the agents to open the box and that since they did so without obtaining a search warrant their action amounted to an unreasonable search and seizure in violation of the constitutional prohibition. The findings of the district court and the uncontradicted evidence as to matters not included in those findings but which we regard as significant disclose the following situation:

On Tuesday, January 14, 1975 three armed men robbed the National Central Bank in Harrisburg, Pennsylvania. Investigation by the FBI led to the arrest of the defendant, Diggs, on Monday, January 20th. He was thereafter indicted for his alleged participation in the robbery. After a mistrial, Diggs’ renewed motion to suppress the box and its contents as evidence was granted by the court after a hearing. During the weekend after the robbery and before his arrest, Diggs and his common-law wife, Christine Mahone, visited Christine’s uncle and aunt, the Rev. and Mrs. Andrew T. Bradley, at the home of the latter in New Bern, North Carolina. During this visit, Christine Mahone handed Mrs. Bradley a small metal box,¹ stating that it contained “stocks and bonds and silver paper and important papers that they had saved up for the children”² and she asked her to keep it for them “so they wouldn’t be tempted to spend it.” Mrs. Bradley then placed the box in her husband’s bedroom closet. No key to the box or instructions concerning it were given to the Bradleys. They did not then know that it was locked and they attached no particular significance to it.

On January 20th, being concerned about the existing bad weather, Mr. Bradley telephoned his sister in Harrisburg and asked about his niece’s safe return. During this conversation his sister told him of Diggs’ arrest. Mr. Bradley then telephoned his niece and found her to be evasive inasmuch as she didn’t disclose the fact that Diggs had been arrested until she was questioned and then described it as “some silly mess.” Moreover, she told Mr. Bradley that she had been questioned by the FBI in Harrisburg and had told them of her visit to North Carolina and, in response to a specific question, had denied that she had left anything at the Bradleys’ home. She stated further that the FBI would probably come to question him and that he should deny that they had left anything with the Bradleys.

The telephone conversation with the niece recalled to Mr. Bradley’s mind the metal box which the niece had left with Mrs. Bradley, and from the conversation Mr. Bradley felt that “something was very much wrong” and he was pretty well convinced that Diggs and Christine Mahone “knew something or were involved in the bank robbery.” The Bradleys became increasingly worried not only with regard to their niece’s possible involvement in the robbery, but also with regard to their continuing to hold the box if it contained stolen property which should not be in their possession.³ Their agitation increased during, the two following days. Mr. Bradley felt that since his niece had lied to the FBI as to the box it was necessary to open it and find out just what was in it. This he felt he had the right to do⁴ but he wanted it done in the presence of witnesses. He consulted friends as to his problem and it was suggested that he contact the FBI. Finally, on the evening of January 23rd, he talked to his lawyer about it. The latter then called the local resident agent of the FBI, Agent Fanning, who in turn telephoned Mr. Bradley to make an appointment for the next day. However, Mr. Bradley said he did not want to wait but wanted to see the agent immediately about a bank robbery at Harrisburg.

Acceding to the insistent request of the obviously distraught Mr. Bradley, Agents Fanning and Shields came to the Bradley home about 12:30 A.M. on January 24th. Mr. Bradley related to them the facts and circumstances in which he was involved, and which we have already outlined. Agent Fanning then corroborated by telephone the fact of the January 14th robbery, the fact of Diggs’ arrest, the fact that the stolen money had not yet been recovered, and the fact that Christine Mahone had not mentioned leaving any metal box in North Carolina. The agents then asked Mr. Bradley to get the box. He brought it from his bedroom closet and placed it on a coffee table in front of Agent Shields who picked it up and shook it. It was then discovered that it was locked. At this point Mr. Bradley informed the agents that neither Diggs nor Christine Mahone had left a key with him but he continued to insist that the box be opened in the agents’ presence.

There was a United States magistrate domiciled in New Bern from whom a search warrant could have been obtained in approximately two hours. The agents had no reason to think that Mr. Bradley would open the box, conceal it or otherwise interfere with it if they decided to leave his house to obtain a search warrant. The district court found that Mr. Bradley would have been satisfied with the delay and he did at one point so testify. But later he appears to have clarified what he meant when he testified, “It wouldn’t have satisfied me. But I would have had to go along with it.”⁵ Indeed, Mrs. Bradley testified that her husband had insisted that the agents come to their home that night “because he couldn’t take it” any longer.⁶

While Agent Fanning was on the telephone attempting to locate a locksmith, Agent Shields tried various keys which he had with him and discovered that his desk key fit the box’s lock. He turned the key, removed it, and slid the box with the lid still shut across the table to Mr. Bradley, saying “I’ll give you the pleasure of opening up the box.” Mr. Bradley then raised the lid, revealing the contents of the box, $17,-080 in cash, including 28 $20 “bait” bills from the robbed bank. The agents removed, counted and separated the bills, wrapping them in paper supplied by the Bradleys and initialling the wrappers. They then replaced the money in the box and took custody of the box and its contents. Mr. Bradley testified that he took full responsibility for the opening of the box which was his decision alone,⁷ that if these agents had left without opening it he would have called the FBI somewhere else, for he wanted the box opened that night.⁸ It seems clear from the evidence that the Bradleys had reached an emotional state in which they had to have the box opened in the presence of witnesses and its contents made public in order to clarify the situation. Their urgent desire to learn the truth was highlighted by Mr. Bradley’s statement that if the contents should prove to be innocent, he would call his niece and apologize.

The defendant contends and the district court held that these facts disclose an unreasonable search and seizure by the FBI agents of property as to which he had a justified expectation of privacy and that since the search was accomplished without a search warrant it violated the Fourth Amendment and rendered the seized property inadmissible as evidence against him. We do not agree for the reasons which we shall state.

We may lay to one side the many search and seizure cases involving a custodian of a defendant’s property whom the latter has not placed in the position of being unwittingly involved in his alleged crime. When such a custodian, for example a hotel employee, yields to the demands of government agents that they be given access to the defendant’s property or effects, the resulting search and seizure is uniformly held to be unreasonable in the absence of a warrant. In such a case the custodian’s lack of any interest in or special relationship to the defendant’s property deprives of validity the consent to the search which he has given without authority from the owner.

The present case presents a very different picture. Here the Rev. Andrew T. Bradley, an innocent man, received for safekeeping from his niece, Christine Ma-hone and her husband, the defendant, a metal box which she told Mrs. Bradley contained savings for their children. Thereafter Mr. Bradley learned that the defendant had been arrested for bank robbery after his return from the visit which he and Christine Mahone made to the Bradley home and that Christine Mahone had lied to the FBI about leaving the box with him. He became suspicious that the box in his possession might contain stolen property. Becoming more and more distraught, he reached a point where he could not take it any longer, contacted FBI agents and insisted that they come to his home immediately, even thought it was late at night, so that the box might be opened in their presence and the truth as to the contents thus publicly revealed. At his insistence the box, which was found to be locked, was unlocked with a key furnished by one of the agents and was opened by Mr. Bradley, an act for which he took full responsibility, and in it was discovered a large sum of money, including bills identified as stolen from the robbed bank.

These facts when contrasted with those of the usual search and seizure case highlight the basic issue which confronts us, namely, which of two conflicting rights shall prevail, the right of the defendant owner to have the privacy of his property protected against a warrantless governmental search and seizure, or the right of the custodian into whose hands that property has been placed and who has been unwittingly involved by the defendant in his alleged crime promptly and voluntarily to exculpate himself by disclosing the property and his connection with it to government officers without requiring them to secure a search warrant.

In the case of United States v. Botsch, 364 F.2d 542 (2d Cir. 1966), cert, denied, 386 U.S. 937, 87 S.Ct. 959,17 L.Ed.2d 810 (1967), the Court of Appeals for the Second Circuit was presented with a case which similarly involved the validity of the consent to a warrantless search given by a custodian of the defendant’s property who had been unwittingly involved by the defendant in his alleged crime. The facts in the Botsch case were, of course, not the same as those of the case before us, but the basic issue in that case was, we think, identical with that with which we are here confronted. In that case the defendant, Botsch, was engaged in a scheme to obtain by fraud through the use of the mails merchandise which was to be sold in his sporting goods store in Huntington, New York. In furtherance of the scheme, Botsch rented from one Kenneth Stein a small shack at Say-ville, New York, to which the fraudulently acquired merchandise was to be shipped and he arranged with Stein, who as landlord had retained a key to the shack, to unlock it to permit delivered merchandise to be stored inside and also to sign any required receipts. Botsch kept Stein supplied with cash to cover freight charges and came almost daily to pick up the accumulated merchandise. The fraud consisted in Botsch’s purchasing the merchandise in the name and on the credit of an established business in Sayville with which he had in fact no connection. Confusion inevitably ensued, complaints were made to the post office authorities, and two postal inspectors visited Stein who willingly disclosed the full circumstances under which the shack had been rented to Botsch. Stein, by this time concerned that his property was being used for illegal purposes, unlocked the shanty and asked the inspectors if they wished to enter in order to examine what was stored there. Although they did not possess a search warrant, the officers accepted Stein’s invitation and, once inside, one of them compiled a list of the shippers’ names imprinted on several empty parcels found therein.

The warrantless search of the shanty thus made by the postal inspectors was attacked by the defendant as unlawful under the Fourth Amendment. The Court of Appeals for the Second Circuit held, however, that under the circumstances of the case the search was entirely reasonable⁹ and did not contravene the Constitution’s prohibition against unreasonable searches and seizures, saying:

“Stein, having been made an unwitting accomplice by Botsch, had a vital interest in cooperating with the Inspectors so that he could remove any taint of suspicion cast upon him. Indeed, any individual under similar circumstances would have a right to promptly and voluntarily exculpate himself by establishing that his role in the alleged scheme was entirely innocent and passive.” 364 F.2d at p. 547.

The court went on to point out that this right to exculpate oneself decisively distinguished the case from those condemned in thé so-called “hotel” cases. While in each of those cases the hotel manager or clerk possessed a key to the hotel room searched, this was merely to enable the usual conveniences to be furnished the guest. In none of those cases was the manager or clerk an innocent accomplice in illegal activities. Thus it was the custodian’s innocent involvement in the crime and not his possession of a key which was the significant factor making the search reasonable. Concluding its discussion of this issue the court said:

“It would be a harsh doctrine, indeed, that would prevent an innocent pawn from removing the taint of suspicion which had been cast upon him by a defendant’s cunning scheme. Stein’s innocence stood or fell on the very merchandise which, only after inquiry and inspection, could exculpate him.

“It is urged, moreover, that we should invalidate the November 6 search because the government failed to establish that it would have been prejudiced by any delay which would have resulted from a formal search warrant application. We recognize the force of this argument; courts should not be niggardly in extending the protection of constitutional rights and there is much to be said for interposing a magistrate between enforcement officers and potential defendants. Nevertheless, in the circumstances presented here, we are not persuaded that the officers’ failure to obtain a warrant rendered the search unreasonable. Once Stein, without being urged, coerced or imposed upon, invited the inspection, we believe for the reasons already stated, that Daly and Mailloux were wholly justified in examining the premises.” 364 F.2d at p. 548.

We are in agreement with the rule applied by the Court of Appeals for the Second Circuit in the Botsch case, namely, that the right of the custodian of the defendant’s property who has been unwittingly involved by the defendant in his crime to exculpate himself promptly and voluntarily by disclosing the property and explaining his connection with it to government agents, must prevail over any claim of the defendant to have the privacy of his property maintained against a warrantless search by such agents. We are satisfied that the rule is applicable to the present case. Indeed, its application in this case is even clearer. For here it was the custodian, Mr. Bradley, who first informed the agents at New Bern of the crime and of his suspicions about the box in his possession and who insisted that they come to his home immediately the same evening, so that the box might be opened in their presence and the truth learned so that he might be exculpated. In the Botsch case, the inspectors had come to Stein because of information as to Botsch’s alleged crime which they had received from other sources, and it was only after they had arrived on the scene and had spoken to him that he became concerned that his property, the shanty, was being used for illegal purposes and unlocked it and asked the inspectors if they wished to enter and inspect the premises, which they did without a warrant. It is true, of course, that Stein had a key and unlocked the shanty for the inspectors. We do not think that this was of any significance with respect to the question with which we are concerned, however. For the part which Botsch induced Stein unwittingly to play in the unlawful scheme required that he open the shanty to receive the fraudulently obtained merchandise, whereas the part which Christine Mahone and the defendant, Diggs, induced the Bradleys unwittingly to play required them merely to keep the box containing the stolen money safely for them, not to open it.

We yield to no one in our adherence to the rule that the courts should be liberal in upholding the Fourth Amendment’s protection of privacy by requiring government agents to obtain a warrant before making a search and seizure. It is a rule which this court follows and applies.¹⁰ Its violation is deterred by the exclusionary rule which was laid down by the Supreme Court many years ago¹¹ under which the government is denied the use of the fruits of a warrantless search and seizure made by its agents. The rationale of that rule¹² does not seem to us to apply to the facts of the present case, however. For here the resemblance of the FBI agents’ participation in the opening and inspection of the box to the ordinary government planned search and seizure is as remote as can possibly be imagined. Here the “seizure” was the agents’ acceptance of the box at the insistence of its custodian and the “search” was their participation in its opening, again at his insis-. tence, both actions having taken place without any prior plan or intention to do so on the part of the agents who did not even know that the bank robbery had been committed until they were summoned to the Bradley home. It taxes credulity to label as an unreasonable search and seizure the action of FBI agents in responding to the urgent request of an innocent but compromised individual for aid in exculpating himself. We recall in this connection Justice Clark’s remark in Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684, 1693, 6 L.Ed.2d 1081 (1961): “There is no war between the Constitution and common sense.”

However, if we assume that the participation of the FBI agents in the opening and inspection of the box at the insistent demand of Mr. Bradley must technically be regarded as a governmental search and seizure within the meaning of the Fourth Amendment, we think that it was validly consented to by Mr. Bradley and that the failure of the agents to obtain a search warrant was, therefore, not unreasonable. When the defendant and Christine Mahone left the box containing the stolen money with the Bradleys for safekeeping they thereby involved the latter in the alleged crime. Therefore, by doing so they put the Bradleys in a position where they had a vital personal interest in the box, a sufficient relationship to it to entitle them to give such a permission for the search as would be binding on Diggs. This does not mean, of course, that it was a property interest which they were given. For, as the Supreme Court said in United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974), “authority which justifies the third-party consent does not rest upon the law of property,” but rather upon the possession of “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Just as in the ordinary case of an individual who shares with a defendant joint access to or control over property for most purposes,¹³ the defendant, Diggs, must be held to have assumed the risk that the Bradleys whom he had thus involved in criminal conduct as custodians of the box might, when they learned the facts which appeared to incriminate them, disclose its contents in order to exculpate themselves, as in fact they did.

We are satisfied that under the facts of this case the part played by the FBI agents in searching and seizing the metal box at the insistence of Mr. Bradley, assuming that it was a governmental search and seizure, was not an unreasonable one within the meaning of the Fourth Amendment, and was, therefore, not in violation of that Amendment even though it was not made pursuant to a warrant. It is suggested that the test is not whether the search was reasonable but rather whether it would have been unreasonable to have required the government agency to procure a search warrant before making it. It is true that the Supreme Court has so stated¹⁴ although the prevailing opinions in South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) speak in terms of the reasonableness of the search. It has also been said that a warrantless search is per se unreasonable under the Fourth Amendment.¹⁵ But at the same time, exceptions to this apparently absolute rule have been recognized,¹⁶ for example, in the case of a search consented to by one who is deemed to have had authority to give consent. In these exceptional cases it has been held that it would be unreasonable to require the procurement of a search warrant. In upholding warrantless searches in these exceptional cases the courts are, of course, necessarily holding that the searches were not unreasonable within the prohibition of the Fourth Amendment. It must be concluded, we believe, that a governmental search is constitutionally reasonable if it would be unreasonable under the circumstances to require the prior procurement of a search warrant and that, by the same token, such a search is constitutionally unreasonable if, under the circumstances, it would be reasonable to require the agents to obtain a search warrant. It would appear, therefore, that the question whether we should focus on the reasonableness of requiring the procurement of a search warrant rather than on the reasonableness of the search itself is largely one of semantics.

We would accordingly reverse but since six judges do not concur in this disposition and we do not favor affirmance we are constrained to join with Judge Gibbons in directing that the order of the district court be vacated and the case remanded for the finding referred to in Judge Gibbons’ opinion. Upon such remand it will, of course, be open to the court to make any further additional findings which it may deem relevant to a just determination in the light of the opinions filed in the case.

It will be so ordered.

1 . There was no evidence as to the actual ownership of the box and the court made no finding on the point. It does appear, however, that Diggs obtained the box from the automobile in which he and Christine Mahone had driven to New Bern and handed it to Christine who then, herself, handed it to Mrs. Bradley with the statement which we have quoted. It would, therefore, appear that Christine had a sufficient interest in the box to enable her to deal with it as a joint owner.

2 . Transcript of Suppression Hearing, p. 75.

3 . Transcript, pp. 31, 77, 78.

4 . The district court found as a fact that the FBI agents were not given the impression by the Bradleys that they had authority to open the box. We do not quarrel with this finding as to the agents’ understanding. However, the Bradleys testified that they believed that they did have such authority and Mr. Bradley said that he had not intended to give the agents a contrary impression. The district court, which was apparently not concerned with the Bradleys’ state of mind, made no finding on this point. Transcript, pp. 86-88, 111, 119.

5 . Transcript, p. 131.

6 . Transcript, p. 89.

7 . Transcript, p. 111.

8 . Transcript, pp. 115-116.

9 . The court pointed out that the reasonableness of a search depends upon the facts and circumstances of the case, citing United States i Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653 (1950). See South Dakota v. Opperman, -U.S. -, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

10 . See, e. g. United States ex rel. McArthur v. Rundle, 402 F.2d 701, 704 (3d Cir. 1968).

11 . Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).

12 . United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Stone v. Powell, - U.S. -, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

13 . See United States v. Matlock, 415 U.S. 164, 169-171, 94 S.Ct. 988, 39 L.Ed.2d 242 and cases there cited.

14 . Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. United States District Court, 407 U.S. 297, 315, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).

15 . See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

16 . South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).