Appeal by the United States, pursuant to 18 U.S.C. § 3731, from an order of the United States District Court for the Eastern District of New York, Hon. George C. Pratt, Judge, granting the suppression of evidence. Affirmed.
Mulligan and Oakes, Circuit Judges and Frederick vP. Bryan, District Judge.*fn*
This is an appeal by the United States from an order of the United States District Court for the Eastern District of New York, Hon. George C. Pratt, suppressing evidence against the five named appellees.*fn1 The sole issue before us is whether they have standing to contest a warrantless search of a garage in Brooklyn, New York. We affirm the order of the district court.
In late August 1975, a tractor-trailer containing a load of Stanley tools was stolen from the premises of a truck leasing company in Bridgeport, Connecticut. The tools were in the course of interstate transit from Connecticut to Illinois. The tractor without the trailer was later found in Staten Island. In conjunction with its investigation of the case, the FBI established a surveillance of a two-story garage building at 226 39th Street, Brooklyn, New York which was leased to "No-Name Transportation Inc." On the afternoon of September 2, 1975 the appellees Schnitzer and Lemanski were observed driving separate vehicles which they double-parked in the street adjacent to the garage door before they entered the building. Later that afternoon a truck was driven out of the garage, made a U-turn in the street and was driven back in, cab first. Shortly thereafter the defendant Montevecchi drove up to the garage and entered. The agents observed cartons being removed from the building and placed in the trunk of Schnitzer's car. The defendant Schneider was observed leaving the building and moving his car behind Schnitzer's vehicle. Four agents drove up to the building and upon seeing them Schneider fled into the garage where he was arrested. The agents discovered cartons of Stanley tools on the floor and in trucks parked in the garage. Another agent went upstairs to the second floor where he found Montevecchi together with the five named appellees in an office which also contained Stanley cartons. All were placed under arrest. Schnitzer's car trunk was opened and four cartons of Stanley tools removed.
The defendants were charged in a two-count indictment with unlawful possession on September 2, 1975 of Stanley hand tools recently stolen from an interstate shipment, 18 U.S.C. §§ 659 and 2, and with conspiracy to possess the tools, 18 U.S.C. § 371. After a four-day hearing the district court granted the motion to suppress all evidence in the case seized as the result of the warrantless search of the garage. The court found that the United States had failed to establish probable cause for the arrest of Schneider, and therefore had not shown exigent circumstances justifying the entry into the building. At the suppression hearing the United States Attorney conceded in open court that all the defendants had standing to contest the validity of the search and seizure inside the premises at 226 39th Street, stating:
They, Mr. Montevecchi and Mr. Schneider, have a proprietary interest in the premises in view of their position with the No Name Transportation Corporation. And the other defendants [the appellees here] were all clearly inside the premises at the time of the search and seizure. So clearly there was the expectation of privacy. And we do not contest their standing.*fn2
This prior concession of standing is not binding upon the government since standing involves a question of law. United States v. Tortorello, 533 F.2d 809, 812 (2d Cir.), cert. denied, 429 U.S. 894, 97 S. Ct. 254, 50 L. Ed. 2d 177 (1976). The government then moved on October 26, 1976 to reopen the suppression hearing on the ground that there was additional evidence to establish probable cause for the arrest of the defendant Schneider as well as the failure of the appellees here to establish their standing to contest the legality of the search. After argument the court denied the motion by order on November 22, 1976. As indicated, the appeal of the United States is limited to the standing of the appellees and there is no issue of probable cause before us.
The law of standing to suppress materials derived from an illegal search in the case of an offense where possession is an essential element has been evolving and is fully discussed in recent opinions of this court. United States v. Galante, 547 F.2d 733, slip op. 959, 963-67 (2d Cir. 1976); United States v. Tortorello, supra, at 812-13. These opinions establish that despite intimations of its mortality in Brown v. United States, 411 U.S. 223, 36 L. Ed. 2d 208, 93 S. Ct. 1565 (1973), Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), which grants automatic standing to those accused of the commission of a crime which requires proof of possession such as the count here based on 18 U.S.C. § 659, is still the law of this circuit. The government does not argue otherwise. It takes the position however that with respect to the conspiracy count, since actual possession of the stolen goods is not a necessary element of the crime, the automatic standing rule of Jones is not applicable. We agree and have so held, United States v. Mejias, 552 F.2d 435, 445 (2d Cir. 1977); United States v. Galante, supra, slip op. at 965.*fn3 The question before us then is whether the appellees have actual as distinguished from automatic standing.
As to actual standing, Jones v. United States, supra, at 267, held that "anyone legitimately on premises where a search occurs may challenge its legality . . . when its fruits are proposed to be used against him." Mancusi v. DeForte, 392 U.S. 364, 368, 20 L. Ed. 2d 1154, 88 S. Ct. 2120 (1968) held that the Fourth Amendment right does not depend upon a property right in the invaded place "but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion." The government does not dispute, nor could it, that the defendants' standing here may be based upon presence. In its brief it concedes that the appellees clearly had a reasonable expectation of privacy in the office on the second floor of the structure, but denies that it extended to the garage which it contends was a part of the building totally distinct and separate.
We have examined the photographs and the floor plan of the premises at 226 39th Street. They reveal a very modest two-story building with a prominent sign on the front over the driveway into the garage proclaiming that it housed "No-Name Transportation Inc.", its address, phone number and "Import-Export-Domestic Trucking." In addition to the customary roll-up garage door, there was a normal size door immediately to its left as the building is faced. This door opened onto a stairway to the upstairs offices as well as another door on ground level which led into the garage. As we have indicated, the entire building was leased to "No-Name Transportation Inc." and the government's concession that the defendants were lawfully entitled to privacy while upstairs is an admission that they were lawfully on the premises as licensees or guests. We are asked therefore to find that somehow this modest and seemingly cramped quarters must be severed, for expectation of privacy purposes, into separate parts. In view of the physical layout described we see no logical reason to make such a narrow and technical distinction. As indicated in Mancusi v. DeForte, supra, at 367, the word "houses" used in the Fourth Amendment is not to be taken literally and the protection of the Amendment may be extended to commercial premises. Go-Bart Importing Co. v. United States, 282 U.S. 344, 75 L. Ed. 374, 51 S. Ct. 153 (1931) (offices); Taylor v. United States, 286 U.S. 1, 76 L. Ed. 951, 52 S. Ct. 466 (1932) (private garage). The ostensible business conducted was domestic trucking and in the limited quarters here involved there is no valid reason to separate the carton loading operation taking place in the garage from that of the upstairs office. Cartons of Stanley tools were found both upstairs and downstairs and the clandestine enterprise was taking place in both locations. The presence of the staircase does not diminish the expectation of privacy on either level. We limit this holding to the physical facts before us and do not suggest that in other cases involving a more elaborate enterprise or more spacious facilities the conclusion would be the same.
The cases relied upon by the United States are factually distinguishable. In United States v. Calhoun, 510 F.2d 861 (7th Cir.), cert. denied, 421 U.S. 950, 44 L. Ed. 2d 104, 95 S. Ct. 1683 (1975) the defendant used a disabled, abandoned truck as a place to conceal illicit drugs. In addition to its main holding that exigent circumstances justified a warrantless search of the truck, the court in questioning Calhoun's standing, pointed out in a footnote that at the time of the arrest and search the defendant was not in the truck but outside. The court noted that if "X's friend's home is searched while X is a guest therein, X too may have standing to object to the search. However, once X quits the premises the ...