United States of America, Appellee, v. John Frank Galante and Theodore N. Cameriero, Appellants, 547 F.2d 733 (2d Cir. 1976)

After a jury trial before the late Judge Judd, appellants were convicted of possessing and conspiring to possess a quantity of Nikkor camera lenses stolen from interstate commerce, in violation of 18 U.S.C. §§ 659, 371. Appellant Cameriero, whose true name is Frank Ranzie, was sentenced to concurrent prison terms of four years. Appellant Galante received a five-year sentence on the conspiracy count, and a sentence of two-years probation following his release from custody on the possession count. The only issue raised by Cameriero, and the only issue of substance raised by Galante, relates to the search for the lenses and their seizure. We affirm.

The facts of this case are not complicated. On March 22, 1975, 15 cartons of Nikkor lenses, along with a large quantity of radios and electronic calculators, were stolen from the Greenpoint Terminal Warehouse in Brooklyn. The goods were concealed in the basement of a store, the "Bristol Bargain Fair," owned by Manachem Cohen, a co-conspirator who pled guilty and testified for the government. Cohen testified that Galante and an unknown person arranged for the storage of the stolen items after the theft.

On April 4, 1975, Cohen was arrested while attempting to sell some of the stolen items. Five days later, FBI agents searched the Bristol Bargain Fair under a warrant. There they found the rest of the stolen goods, but did not remove them. The store was kept under surveillance. By this time Cohen had begun cooperating with the government. On April 11, Galante called Cohen, who insisted the goods be removed, and informed him that someone was coming to pick up the stolen items. Cameriero arrived in a truck, which he proceeded to load with the assistance of Cohen. Cameriero was then arrested by the agents who had kept the store under surveillance.

Both defendants moved to suppress the lenses ultimately seized from the truck on the ground that the warrant authorizing the initial search of the Bristol Bargain Fair was insufficient.¹  Judge Judd ruled that the warrant was proper, and furthermore that Cohen consented to the search of his store.

On appeal, the government abandoned both of those favorable rulings.²  Instead, it urged that defendants Galante and Cameriero lacked standing to object to the search of Cohen's store.³  As to the conspiracy count, we hold that the appellants do indeed lack standing. On the possessory count, we hold that appellants do have standing but that the seizure of the lenses from the truck was proper.

I. Automatic Standing.

The law of standing under the Fourth Amendment has followed a tortuous path. The convolutions of the law stem from the fact that the proof that establishes the interest in the searched premises or the seized property necessary for standing is often highly probative of guilt. Thus, the criminal defendant may be put to the unpleasant task of electing his remedies. While some courts were willing to force defendants to make this Hobson's choice, Connolly v. Medalie, 58 F.2d 629, 630 (2d Cir. 1932) (L. Hand, J.), the Supreme Court was not. In Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), the Court held that one charged with a "possessory" crime would be given "automatic" standing to contest the search and seizure. Thus, in a limited class of cases, the defendant's dilemma was eliminated, since no showing of a possessory interest was necessary to challenge a search.

A different tack was taken in Simmons v. United States, 390 U.S. 377, 391-94, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). There, the Supreme Court held that evidence given by a defendant to establish standing at a suppression hearing would be inadmissible at trial. Thus, Simmons, unlike Jones, left undisturbed the rule that Fourth Amendment rights may not be asserted vicariously.

In Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973), the Court considered the interplay of Jones and Simmons. In strong language, the Court intimated that Jones served no purpose in light of Simmons ; however, inasmuch as Brown, like Simmons, involved a non-possessory crime, the Court reserved the question of overruling Jones.

The United States Attorney urges us to accept the invitation of Brown and overrule Jones. While the Sixth Circuit has done precisely that, United States v. Delguyd, 542 F.2d 346 (6th Cir. 1976), we decline to do so. We need not reach the issue to decide this case. Moreover, in view of the explicit reservation of this question in Brown, we feel that overruling Jones is properly a matter for the Supreme Court.⁴  In light of this, we hold that appellants have automatic standing to challenge the admission of the seized goods with respect to the possession count of the indictment. However, on the conspiracy count, we hold that they lack automatic standing to challenge the seizure.

This case falls squarely within the holding of Brown. The petitioners in that case were charged with transportation of stolen goods in interstate commerce and conspiracy to commit that crime. The stolen goods were recovered from a warehouse owned by a co-conspirator. There was no question that the search of the warehouse did not comport with the Fourth Amendment. In holding that the appellants lacked standing to raise the Fourth Amendment claim, Chief Justice Burger wrote:

In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. The vice of allowing the Government to allege possession as part of the crime charged, and yet deny that there was possession sufficient for standing purposes, is not present. The Government cannot be accused of taking "advantage of contradictory positions."

Id. at 229, 93 S. Ct. at 1569. All three legs of this test are met here. Neither Galante nor Cameriero was present at the time of the search.⁵  They did not, and could not, allege an interest in the Bristol Bargain Fair. Finally, possession is not an essential element of a conspiracy to possess.

Appellants make much of the fact that the jury might have inferred knowledge from the government's proof of possession. Moreover, they correctly point out that one of the overt acts charged in the indictment involved possession.⁶  However, even added together, these factors do not transform possession into an essential element of the offense of conspiracy to possess charged here.

Brown limits the Jones rule to cases in which "possession at the time of the contested search and seizure is 'an essential element of the (crime) charged.' " The Court goes on to define such a situation as one in which the prosecution's case "depend(s) on . . . possession of the seized evidence at the time of the contested search and seizure." 411 U.S. at 228, 93 S. Ct. at 1569. This is simply not such a case.

The government is under no obligation to prove possession in a prosecution for conspiracy to possess. United States v. Sacco, 436 F.2d 780, 784 (2d Cir.), cert. denied, 404 U.S. 834, 92 S. Ct. 116, 30 L. Ed. 2d 64 (1971); United States v. Hodge, 539 F.2d 898, 902 (6th Cir. 1976). The fact that the prosecutor chose to introduce evidence on this point does not convert possession into an element of the offense.⁷ 

Nor does the fact that the second overt act charged in this indictment involves possession convert this conspiracy into a possessory offense. In Brown, the indictment charged three overt acts involving possession,⁸  and yet the conspiracy was held outside the ambit of the automatic standing rule. We reached an identical result in United States v. Sacco, supra. There, in a conspiracy to transport stolen goods in interstate commerce, the grand jury alleged possession of the goods as an overt act. 436 F.2d at 783. This Court nonetheless declined to apply the Jones rule. Id. at 784. We adhere to the rule of Brown and Sacco and decline to find automatic standing in this case.⁹ 

II. Actual Standing on the Conspiracy Count.

The fact that a defendant lacks automatic standing under Jones does not, of course, deprive him of an opportunity to raise a Fourth Amendment claim. He may, in reliance on Simmons, testify at a suppression hearing in order to establish the requisite interest. In such a proceeding, the burden of establishing standing is upon the defendant seeking suppression. United States v. Masterson, 383 F.2d 610, 613-14 (2d Cir. 1967), cert. denied, 390 U.S. 954, 88 S. Ct. 1048, 19 L. Ed. 2d 1147 (1968). We hold that appellants did not establish standing here.¹⁰ 

The passage from Brown quoted above suggests the two ways in which a defendant who lacks automatic standing may raise a Fourth Amendment claim.¹¹  Either presence at the time of search or an interest in the premises will establish standing. Neither factor is present here.

Neither Galante nor Cameriero had any interest, prior to the crime, in the Bristol Bargain Fair. The mere fact that they chose to warehouse their merchandise there will not confer standing on them. One who conceals contraband or stolen goods on the premises of another does not thereby acquire an interest in those premises. United States v Tortorello, 533 F.2d 809, 812-14 (2d Cir. 1976); United States v. Sacco, supra, 436 F.2d at 784. As Brown emphasizes, a co-conspirator or co-defendant obtains no special rights in this respect. See also Alderman v. United States, 394 U.S. 165, 172, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969). As we stated in United States v. Sacco, supra, 436 F.2d at 784:

Nor does Sacco have standing by virtue of his interest in the stolen television sets. His claim amounts to the contention that he had a sufficient possessory interest in the stolen goods to entitle him to object to their seizure. However, as this court said in United States v. Lopez, 420 F.2d 313, 316 (2d Cir. 1969), "it does not follow that a 'possessory interest' in goods seized from another's premises is sufficient in itself to entitle a defendant to suppression." In United States v. Bozza, 365 F.2d 206, 223 (2d Cir. 1966), we made it plain that the values sought to be protected by the Fourteenth (sic) Amendment are not "served by holding that a thief who has left evidence of his crime on the premises of a confederate is subrogated to the latter's right to complain of a search and seizure."¹² 

It is clear that neither appellant was present at the time of the initial search. Thus, under Brown, as far as the conspiracy count is concerned, both Cameriero and Galante lack standing to challenge the validity of the warrant.¹³ 

III. The Validity of the Seizure With Respect to the Possession Count.

Although appellants have standing to challenge the introduction of the stolen lenses on the possession count, that does not itself require suppression of the evidence. Obviously, one can have standing to contest a search and seizure, and still fail to establish a violation of the constitutional standard. We hold that this is such a case.

The FBI did not seize the lenses at the time they searched the Bristol Bargain Fair. Rather, they left them there and obtained Cohen's cooperation in the investigation. Cohen then called his co-conspirators, and demanded that they remove the goods. The store was kept under surveillance; when Cameriero arrived with a truck to take away the stolen goods, he was arrested as he loaded it.

If the FBI had not made the initial search, but had simply placed the Bristol Bargain Fair under surveillance on the information set out in the search warrant, the seizure of the lenses from the truck would have been valid. Thus, we must answer two related questions. First, we must determine if the illegal search was the "but-for" cause of the seizure. Second, even if we find that to be the case, we must determine if the illegal search so tainted the subsequent seizure as to render it "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). See Fruit of the Poisonous Tree A Plea for Relevant Criteria, 115 U. Pa. L. Rev. 1136 (1967).

As we noted above, it is not at all clear that the initial, illegal search was the but-for cause of the subsequent seizure. Had the police never sought a warrant, or had their application for one properly been denied, they would in all likelihood have placed the Bristol Bargain Fair under surveillance. As we indicated above, a seizure growing out of such activity would have been entirely valid. The mere fact that an invalid warrant was obtained will not, standing alone, invalidate a subsequent seizure. A contrary holding would penalize the police for seeking a warrant, precisely what the Fourth Amendment commands. In this case, the warrant application was made in good faith; it was the understandable mistake of the magistrate in granting it that raises the possibility that the excellent police work involved here will go for naught. We are unwilling to hold that the police are placed in a weaker position when they attempt to comply with the demands of the Fourth Amendment than when they fail to do so.

Even if we assume, however, that the search of the basement was the but-for cause of the subsequent seizure of the lenses, our inquiry is not at an end. We recently faced a similar situation in United States v. Mullens, 536 F.2d 997 (2d Cir. 1976). There, a search conducted under an invalid warrant revealed $11,000 in counterfeit money in the possession of the defendant's mother. Mullens was told by the police that the money had been found and that his mother was heavily implicated. In the face of this, he led the Secret Service to his printing press and counterfeiting plates. He then gave a full confession.

At trial, the defendant moved to suppress all the evidence, contending that nothing would have come to light had it not been for the initial, illegal search. We held that his voluntary cooperation with the Secret Service broke the chain of causation leading to the seized contraband. For the Court, Judge Lumbard wrote:

Appellant contends that were it not for the unlawful search of his home, his parents would never have been brought to police headquarters and he would not have cooperated with the authorities. Rather than being voluntary, he insists that his filial affection left him with no choice but to act as he did once he learned that his parents were being detained. However, even if true, this reason for his actions falls short of the showing necessary to render either his confession or his consent to search involuntary. Were we to adopt the "but for" reasoning proposed by appellant, "virtually no statement would be voluntary because very few people give incriminating statements in the absence of official action of some kind," . .

Mullens' argument is founded upon a misconceived identity between those choices which are physically or psychologically coerced and those which are merely difficult. Only the former are void under our law. The line, of course, is often a subtle one and must depend in each instance upon an evaluation of the totality of the circumstances presented.

536 F.2d at 999-1000.

This case presents a similar situation. The initial search was directed at Cohen. When the searchers were about to leave without having found the stolen items, Cohen, realizing that he was heavily implicated, led the police to their hiding place. Thereafter, he began to cooperate with the police, by allowing the store to be staked out and luring his confederates to the scene. We hold that, under the totality of the circumstances, the seizure of the lenses from Cameriero was the product of Cohen's voluntary cooperation with the FBI,¹⁴  and, as such, was valid under the Fourth Amendment. Cohen's actions broke the chain of causation. The stolen goods in the Bristol Bargain Fair were not forever immune from seizure by reason of the initial unlawful search.¹⁵  They merely could not be introduced as the product of that police conduct. Here, there were independent, intervening causes; hence, the lenses were properly admitted into evidence.¹⁶ 

Thus, we conclude that, as to the conspiracy count, appellants lack standing to contest the search of the Bristol Bargain Fair. As to the possession count, we hold that the seizure of the lenses was not so tainted by the illegal search as to require suppression. We have carefully considered Galante's other contention and find it to be without merit. The judgment of conviction is affirmed.

IRVING R. KAUFMAN, Chief Judge (concurring):

I completely agree with Judge Meskill's able analysis of the difficult questions of standing presented by this case. My difference relates entirely to the majority's view that the seizure of the stolen camera lenses was lawful, although the search was not.

I have always thought that evidence discovered as a result of an unconstitutional search was inadmissible, regardless of the time when it was seized. Moreover, I am not convinced that the agents did not in fact seize the contraband when they discovered it on April 9. Although the record is not too clear on the point, the agents seem to have inspected the cartons to assure themselves that the basement cache really contained the stolen camera lenses. Cf. United States v. Sokolow, 450 F.2d 324 (5th Cir. 1971). And, more importantly, the agents plainly exercised dominion over the camera lenses from the moment they were discovered. Under these circumstances, it is clear that the lenses were as much in the Government's possession as if the agents had carted them away.

Although it may be reasonable in this case to distinguish between the search and the seizure, I do not agree that Cohen's "voluntary" cooperation dissipated the taint of the unlawful search. Unlike in United States v. Mullens, 536 F.2d 997 (2d Cir. 1976), Cohen did not freely come forward to exonerate a third party. See United States v. Ceccolini, 542 F.2d 136, 142, n.9 (2d Cir. 1976). Rather, Cohen's cooperation was induced by his desire to mitigate the consequences of a prosecution against him for a serious offense, based at least in part upon the discovered lenses.

Moreover, I am reluctant to extend Mullens to a case like this, because one found in possession of incriminating evidence always has a powerful incentive to cooperate "voluntarily" in a further investigation. The difficulty I have with the majority's analysis is the extent to which it could be carried. If, for example, police unconstitutionally searched a narcotics suspect and discovered contraband, they could partly evade the exclusionary rule by inducing the suspect's cooperation and also delaying formal "seizure" until the drug was passed to a colleague. I fear that such an attenuation would unjustifiably diminish the rule's deterrent effect.

I do believe, however, that on the unusual facts in this case, the law enforcement officials would have discovered the camera lenses even if they had not conducted the April 9 search. The majority correctly observes that the FBI would have placed the Bristol Bargain Fair under surveillance in any event. Cohen, after his initial arrest, was anxiously pressing Galante to remove the cameras. It is inconceivable on these facts that the stolen camera lenses would not have been discovered when Cameriero arrived to cart away the contraband. Accordingly, despite my reservations regarding the majority's application of Mullens, I concur.