Robert Joseph Marshall v. United States

352 F.2d 1013 Robert Joseph MARSHALL, Appellant, v. UNITED STATES of America, Appellee. No. 20041. United States Court of Appeals Ninth Circuit. Nov. 3, 1965, Certiorari Denied Jan. 24, 1966, See 86 S.Ct. 618 . Raymond E. Sutton, Babcock & Sutton, Las Vegas, Nev., for appellant. John W. Bonner, U.S. Atty., Michael DeFeo, Special Asst. to U.S. Atty., Las Vegas, Nev., for appellee. Before BARNES, BASTIAN and MERRILL, Circuit Judges. BASTIAN, Circuit Judge. 1 Appellant stands convicted of violating 18 U.S.C. 2113(c). 1 His primary claim here is that the stolen Traveler's Checks, which were the basis of his conviction, were unconstitutionally seized and should have been suppressed. 2 The essential facts are that three days after the October 8, 1963 theft of $6,810.00 worth of American Express Traveler's Checks from the First Federal Savings and Loan Association of Phoenix, Arizona, appellant, who resided in an apartment complex in Las Vegas, Nevada, was placed under surveillance by the Federal Bureau of Investigation. Appellant's landlady, Mrs. Caldwell, was advised of this surveillance. On October 12, 1963, appellant deposited an unlocked briefcase with Mrs. Caldwell and left it…

Appellant stands convicted of violating 18 U.S.C. § 2113 (c). 1 His primary claim here is that the stolen Traveler’s Checks, which were the basis of his conviction, were unconstitutionally seized and should have been suppressed.

The essential facts are that three days after the October 8, 1963 theft of $6,-810.00 worth of American Express Traveler’s Checks from the First Federal Savings and Loan Association of Phoenix, Arizona, appellant, who resided in an apartment complex in Las Vegas, Nevada, was placed under surveillance by the Federal Bureau of Investigation. Appellant’s landlady, Mrs. Caldwell, was advised of this surveillance. On October 12, 1963, appellant deposited an unlocked briefcase with Mrs. Caldwell and left it in her dining room closet, instructing her not to give it to anyone else. It appears that appellant had, on several previous occasions, used Mrs. Caldwell’s apartment as a place of storage. Mrs. Caldwell promptly called the Federal Bureau of Investigation and during the ensuing telephone conversation she, at the request of an agent, opened the briefcase and informed the agent that it contained packaged Traveler’s Checks. On October 14, two special agents…

(dissenting).

I dissent. I find here no consent by appellant to search or seizure.

There was no express consent. There was no express authorization to Mrs. Caldwell to give consent. If either is to be found it must be by implication through appellant’s having placed the briefcase in Mrs. Caldwell’s possession.

By doing so he may be said to have consented to the consequences of all risks attendant upon such a surrender of possession which were reasonably foreseeable. The majority opinion holds that since it was reasonable for Mrs. Caldwell to co-operate with the Federal authorities, such co-operation was to be expected and thus was foreseeable and, by implication, consented to.

I cannot accept the reasonableness of Mrs. Caldwell’s actions as the proper test in this case. Her search was not self-motivated by curiosity. Her communication with the officers was not the result of personal suspicion, nor was their search and seizure undertaken in response to and in satisfaction of her suspicions. In all respects, she acted at the request of the officers, in response to their wishes and as their agent. 1 If it was not permissible for them to search or seize themselves, it was not…