Court of Appeals for the Seventh Circuit

United States v. Gerard Fredrick Lisk, Jr.

1975 U.S. App. LEXIS 12748 · 522 F.2d 228

September 16, 1975 · Docket 75-1033

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Opinion

STEVENS, Circuit Judge.

The question is whether a firearm seized during an illegal search of a bailee’s automobile is admissible in support of a charge that the bailor illegally possessed the firearm five days before it was seized. The district court granted defendant’s motion to suppress; we reverse.

The essential facts are stipulated. The indictment charged that defendant possessed an explosive bomb on September 25, 1972.1 On that date the bomb was placed in the trunk of an automobile owned by one Michael Hunt; defendant told Hunt to hold the bomb until defendant asked for its return. Defendant had no interest in Hunt’s car but, according to the stipulation, retained a proprietary interest in the bomb, including the right to its return.

On September 30, 1972, the bomb was seized from the trunk of Hunt’s automobile by law enforcement officers. According to the stipulation, it “is conceded, for the purposes of this hearing, that the search of the automobile and the subsequent seizure of the firearm were unlawful.” Defendant was not in the automobile at any time on September 30, 1972.

Defendant’s position may be simply stated. He had a property interest in the alleged firearm and therefore is entitled to Fourth Amendment protection against its seizure. The remedy for a violation of his constitutional right is suppression of the evidence and return of the property. The government’s response is equally simple: only Hunt’s privacy was invaded by a search of the trunk of his car, and therefore defendant has no standing to challenge the constitutionality of the search or to object to the admissibility of evidence obtained thereby. In short, defendant contends that his interest in the property establishes his standing; the government contends that the absence of any invasion of his privacy forecloses standing.2

Although the issue seems simple and clear-cut, and certainly the problem must be one that frequently arises, we have been surprised to find no authority directly in point.

There is a difference between a search and a seizure. A search involves an invasion of privacy; a seizure is a taking of property. The owner of a chattel which has been seized certainly has standing to seek its return.3 It does not necessarily follow that he may also object to its use as evidence; 4 moreover, he “may have standing to raise a Fourth Amendment claim and yet lose on the merits.’’ Alderman v. United States, 394 U.S. 165, at 190 n. 2, 89 S.Ct. 961, at 975, 22 L.Ed.2d 176, opinion of Harlan, J. (emphasis in original).

In this case it is important to identify the precise Fourth Amendment violation which the defendant urges. For we have been frequently reminded “that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.” Aiderman v. United States, 394 U.S. 165, 171— 172, 89 S.Ct. 961, 965.

Hunt’s car was searched and defendant’s property was seized. The invasion of Hunt’s privacy was a violation of Hunt’s Fourth Amendment rights, but this violation is clearly not available to the defendant as a basis for suppressing evidence acquired thereby. Defendant must rely on the seizure of the firearm as a violation of his own Fourth Amendment rights. But if we assume that his rights were untouched by the search of Hunt’s car, as far as defendant is concerned the case is the same as though the firearm had been found in plain view in a public place and then seized.5

Defendant’s ownership of the bomb might give him standing to challenge such a seizure, but it would not establish its invalidity.6 If the seized item was contraband or the product of criminal activity, it was clearly subject to seizure; indeed, since the decision in Warden v. Hayden, even if it was mere evidence, a reasonable belief that it would aid in a particular apprehension or conviction would be sufficient justification for its seizure. See 387 U.S. at 307, 87 S.Ct. 1642.7 If the seizure was lawful, the evidence is admissible against defendant even though it could not be used against Hunt because it was found during a search which violated his Fourth Amendment rights.

In sum, defendant has standing to object to the seizure, but no standing to object to the search. Having put the search to one side, he has not demonstrated that the evidence should be suppressed on the ground that his Fourth Amendment rights were violated by the seizure.8

Reversed.

.

. Defendant is specifically charged with possession of an explosive bomb consisting of a metal pipe approximately 18" in length and IV2" in diameter, crimped at each end with 2 electrical wires protruding from the center thereof, and containing an explosive material. Defendant denies that the article was in fact a firearm within the meaning of 26 U.S.C. §§ 5861(d) and 5871; he emphasizes the fact that the stipulation merely describes the item as an “alleged” firearm,

Defendant denies that the article was in fact a firearm within the meaning of 26 U.S.C. §§ 5861 (d) and 5871; he emphasizes the fact that the stipulation merely describes the item as an “alleged” firearm, .

. The district court held that defendant had “automatic standing” to contest the search and seizure under clause (c) of the formulation in Jones v. United States, 362 U.S. 257, 263, 80 S.Ct. 725, 4 L.Ed.2d 697, because possession of the firearm was an essential element of the offense charged by the government and therefore the government could not deny that defendant had possession sufficient for standing purposes. But that portion of Jones applies only when possession of the seized evidence “at the time of the contested search and seizure” is an essential element of the offense charged. See Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 36 L.Ed.2d 208. In this case, the charge related to defendant’s actual possession on September 25, 1972, whereas the seizure occurred on September 30, 1972, when, at best, defendant may have had constructive possession of the item. In this court defendant has expressly disavowed reliance on the automatic standing doctrine.

But that portion of Jones applies only when possession of the seized evidence “at the time of the contested search and seizure” is an essential element of the offense charged.See Brown v. United States, 411 U.S. 223, 229 , 93 S.Ct. 1565 , 36 L.Ed.2d 208 .In this case, the charge related to defendant’s actual possession on September 25, 1972, whereas the seizure occurred on September 30, 1972, when, at best, defendant may have had constructive possession of the item.In this court defendant has expressly disavowed reliance on the automatic standing doctrine..

. Similarly, the owner of property seized pursuant to a warrant expressly describing that property has standing to challenge the warrant. United States v. Banks, 465 F.2d 1235, 1241 (5th Cir. 1972), cert. denied, 409 U.S. 1062, 93 S.Ct. 568, 34 L.Ed.2d 514.

United States v. Banks, 465 F.2d 1235, 1241 (5th Cir. 1972), cert. denied, 409 U.S. 1062 , 93 S.Ct. 568 , 34 L.Ed.2d 514 ..

. “The exclusion in federal trials of evidence otherwise competent but gathered by federal officials in violation of the Fourth Amendment is a means for making effective the protection of privacy.”

Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697.

Jones v. United States, 362 U.S. 257, 261 , 80 S.Ct. 725, 731 , 4 L.Ed.2d 697 ..

. Indeed, with respect to defendant’s rights, the case is the same as though Hunt had given his consent to a search of the trunk of his car. Cf. Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684.

Cf.Frazier v. Cupp, 394 U.S. 731, 740 , 89 S.Ct. 1420 , 22 L.Ed.2d 684 ..

. “The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be ‘unreasonable’ within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized *231that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.”

Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782.

Searches and seizures may be ‘unreasonable’ within the Fourth Amendment even though the Government asserts a superior property interest at common law.We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.”Warden v. Hayden, 387 U.S. 294, 304 , 87 S.Ct. 1642, 1648 , 18 L.Ed.2d 782 ..

. Although defendant has correctly empha-. sized the fact that he has not conceded that the seized item was in fact a firearm within the meaning of the statute, we do not think this point is of critical importance in evaluating the constitutionality of the seizure. Under Warden v, Hayden, supra, the evidentiary character of the item provides adequate justification. Since the grand jury saw fit to indict the defendant for his earlier possession of the item, we must assume that there is probable cause to believe that it has been correctly described in the indictment, in which event its character as relevant evidence seems clear.

Under Warden v, Hayden, supra, the evidentiary character of the item provides adequate justification.Since the grand jury saw fit to indict the defendant for his earlier possession of the item, we must assume that there is probable cause to believe that it has been correctly described in the indictment, in which event its character as relevant evidence seems clear..

. We recognize that the government stipulated that the seizure as well as the search was unlawful. Presumably this legal conclusion was predicated on the absence of a warrant or other justification for opening the trunk of Hunt’s car. On that assumption, the seizure was unlawful in the sense that it violated Hunt’s rights. We do not understand the government to have stipulated that the seizure also violated the defendant’s rights, and therefore was unlawful in that sense as well.

In any event, even if the stipulation could be so read,

“We are not bound to accept, as controlling, stipulations as to questions of law. Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 61 L.Ed. 722.”

Estate of Sanford v. Commissioner of Internal Revenue, 308 U.S. 39, 51, 60 S.Ct. 51, 59, 84 L.Ed. 20. See also Case v. Los Angeles Lumber Products Co., Ltd., 308 U.S. 106, 114, 60 S.Ct. 1, 84 L.Ed. 110; Cory Corp. v. Sauber, 284 F.2d 767, 773 (7th Cir. 1961), cert. denied, 366 U.S. 935, 81 S.Ct. 1659, 6 L.Ed.2d 847.

Presumably this legal conclusion was predicated on the absence of a warrant or other justification for opening the trunk of Hunt’s car.On that assumption, the seizure was unlawful in the sense that it violated Hunt’s rights.We do not understand the government to have stipulated that the seizure also violated the defendant’s rights, and therefore was unlawful in that sense as well.In any event, even if the stipulation could be so read, “We are not bound to accept, as controlling, stipulations as to questions of law.Swift & Co. v. Hocking Valley Ry.Co., 243 U.S. 281, 289 , 37 S.Ct. 287 , 61 L.Ed. 722 .”Estate of Sanford v. Commissioner of Internal Revenue, 308 U.S. 39, 51 , 60 S.Ct. 51, 59 , 84 L.Ed. 20 . See also Case v. Los Angeles Lumber Products Co., Ltd., 308 U.S. 106, 114 , 60 S.Ct. 1 , 84 L.Ed. 110 ; Cory Corp. v. Sauber, 284 F.2d 767, 773 (7th Cir. 1961), cert. denied, 366 U.S. 935 , 81 S.Ct. 1659 , 6 L.Ed.2d 847 .