The opinion of the court was delivered by: TENNEY
Defendant moves herein for an order: (1) pursuant to Rule 16 of the Federal Rules of Criminal Procedure directing the United States Attorney to permit defendant's counsel to inspect and copy any relevant statements or confessions made by said defendant; and (2) pursuant to Rule 41 of said Rules directing suppression of certain evidence seized during a search of a basement beneath defendant's place of business conducted pursuant to a search warrant.
Defendant is charged in a three-count indictment with having in her possession chattels, each having a value of more than $100.00, to wit, three Underwood typewriters, which had been stolen from an interstate shipment, knowing the same to have been stolen, in violation of Title 18 U.S.C. § 659 (1964).
Motion for Discovery and Inspection.
Defendant alleges that at the time of her arrest, she was taken to an office of the Federal Bureau of Investigation where she was questioned with respect to the charges set forth in this indictment. A written statement was signed by her but she was not given a copy of it. The Government contends that no sufficient reason has been given for the Court to exercise its discretion and grant defendant the relief sought.
Rule 16(a) of the Federal Rules of Criminal Procedure provides in pertinent part that
Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant * * * within the possession, custody or control of the government * * *.
I have recently held that under the amended Rule 16(a), a defendant is not required to advance a "compelling" reason for discovery and inspection before a motion under said Rule is granted. Nevertheless, some demonstration of need will be required before the Court will grant such request. United States v. Leighton, 265 F. Supp. 27, S.D.N.Y., Jan. 23, 1967; United States v. Diliberto, 264 F. Supp. 181, S.D.N.Y., Jan. 5, 1967; cf. United States v. Roberts, 264 F. Supp. 622 S.D.N.Y., Dec. 29, 1966.
No such showing has been made herein, and, accordingly, this motion will be denied unless defendant, within ten (10) days of the date of this order, will submit an affidavit to me setting forth the grounds for the request. If such affidavit is submitted, the Government will be afforded an opportunity to answer within five (5) days of its receipt of said papers.
Defendant alleges that on or about August 31, 1966, agents of the Federal Bureau of Investigation visited her store in Manhattan while she was absent therefrom. A search warrant was served on her son, who was in charge of the store at that time. The agents "then * * * proceeded to the basement of said premises and conducted a search thereof." While searching said basement, three typewriters, empty cartons and papers were found and seized. Defendant seeks to suppress the use of these items on the ground that there was no probable cause for the issuance of the search warrant.
Before reaching the issue of probable cause, I have serious reservations with respect to the standing of this defendant to challenge the search. Any discussion of standing necessarily must include a detailed examination of the Supreme Court's decision in Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). In Jones, the defendant was convicted of violating the federal narcotics law, to wit, 26 U.S.C. § 4704(a) (sale, etc., of narcotics not from the original stamped package) and 21 U.S.C. § 174 (facilitating concealment and sale of narcotics knowing the same to have been illegally imported). Prior to trial, he moved to suppress any evidence obtained pursuant to the execution of a search warrant because the warrant had allegedly been issued without probable cause. The district judge denied the motion on the ground that petitioner neither alleged ownership of the seized articles nor had an interest in the apartment searched greater than that of an invitee or guest, and, hence, lacked standing to object.
In reversing Jones' conviction, the Supreme Court noted that "ordinarily * * * it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy." Id. at 261, 80 S. Ct. at 731. To show this invasion of privacy or "to establish 'standing' Courts of Appeal have generally required that the movant claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched." Ibid. However, where a conviction may be obtained on a mere showing of possession (such as a federal narcotics conviction), Rule 41(e) of the Federal Rules of Criminal Procedure should not be utilized to deprive a defendant of standing. Otherwise, a defendant in such a ...