The opinion of the court was delivered by: WERKER
In a memorandum decision of September 19, 1978, I suppressed the contents of a briefcase as illegally searched under United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). The relevant facts surrounding the search are contained in that decision and will not be reiterated at length here. Defendants McGrath, Schaller and Buckle took an active role in the suppression hearing, as they also did in a subsequent hearing necessitated by a question of fact concerning whether a certain Columbia spiral notebook was contained in the briefcase. After I concluded that the notebook was seized from the briefcase, the government for the first time challenged the standing of McGrath and Buckle to contest the constitutional validity of the briefcase search. However tardy the instant standing motion may be viewed by those defendants, the issue is nevertheless properly before the court to determine as 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); United States v. Banerman, 552 F.2d 61, 63 (2d Cir. 1977).
The Supreme Court has stated in Brown v. United States, 411 U.S. 223, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973), that defendants will lack standing to attack a search and seizure where they:
"(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."
Id. at 229, 93 S. Ct. at 1569. In the present case there is no issue of "automatic standing" under (c) above since neither McGrath nor Buckle is charged with possession of the contents of the briefcase. See Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). The focus is thus upon (a) and (b) of the Brown rationale. In determining whether McGrath and Buckle lack standing under either test, the language of Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1968), is instructive. "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." Id. at 174, 89 S. Ct. at 966. Stated differently, a defendant must show "that the evidence was seized as a result of an unlawful invasion of his own legitimate expectation of privacy in the place searched or in his person, papers, or effects." United States v. Riquelmy, 572 F.2d 947, 950 (2d Cir. 1978) (citations omitted). Ownership or possession of the property seized, or a substantial interest in the searched premises are the usual means of establishing standing. Id. Property rights alone, though, without a reasonable expectation of privacy in the property concerned, will not accord standing to assert a fourth amendment violation. United States v. Hunt, 505 F.2d 931, 941 (5th Cir. 1974), Cert. denied, 421 U.S. 975, 95 S. Ct. 1974, 44 L. Ed. 2d 466 (1975). With this in mind I now turn to the present case.
A brief synopsis of the relationship of McGrath and Buckle to the truck and the briefcase seized from its floor is appropriate to determine their respective interests in those items. On the evening of the arrest in Hurley, McGrath, the registered owner of the pickup truck, was not present. The truck was driven by defendant Buckle, with Schaller in the front passenger seat, when the agents stopped the truck on Dug Hill Road and searched it after Buckle and Schaller were ordered out of the vehicle. Schaller is the sole and undisputed owner of the briefcase and its contents; neither McGrath nor Buckle lays claim to the case or any of its contents. Given this set of facts, the government contends that even if McGrath and Buckle are held to have standing to contest the search and seizure of the truck and its interior, they nevertheless lack standing to contest the briefcase search by virtue of their lack of a possessory interest therein which would give rise to a legitimate expectation of privacy as to the contents of the briefcase. This position is a sound one for the following reasons.
McGrath, as owner of the vehicle, had a proprietary interest in the truck and a concomitant expectation of privacy, albeit a diminished one, Cardwell v. Lewis, 417 U.S. 583, 590, 94 S. Ct. 2464, 2469, 41 L. Ed. 2d 325 (1974), therein. Since McGrath had lent the truck to Buckle, the latter was a bailee with a temporary possessory interest through his authorized use. As such, his lawful presence in the truck when it was stopped by the agents gives rise to the same reasonable expectation of privacy in the vehicle. United States v. Edwards, 577 F.2d 883, 892 (5th Cir. 1978), Vacating en banc United States v. Edwards, 554 F.2d 1331 (5th Cir. 1977).
As to Schaller's briefcase and its contents, however, there can be no successful argument that either McGrath or Buckle had any proprietary or possessory interest, or legitimate expectation of privacy therein. Although they had a reasonable expectation of privacy in the pickup truck as the "premises" searched, that privacy expectation does not extend to cover Schaller's briefcase as a discrete, closed receptacle used exclusively by Schaller to store and transport his own personal effects. Since the essence of a fourth amendment violation is unwarranted governmental intrusion into the area where one possesses a reasonable expectation of privacy, United States v. Chadwick, 433 U.S. at 11, 97 S. Ct. at 2483; United States v. Riquelmy, 572 F.2d at 951, McGrath and Buckle must be regarded in this instance as attempting to assert vicariously Schaller's fourth amendment rights, because Schaller alone possessed in the briefcase and its contents a reasonable expectation of privacy that was violated by the warrantless search. Thus McGrath and Buckle, having suffered no breach of their own privacy expectations, are defendants "aggrieved solely by the introduction of damaging evidence." Alderman v. United States, 394 U.S. at 172, 89 S. Ct. at 965.
The status of McGrath and Buckle as Schaller's coconspirators does nothing to advance their claims of standing. " "Coconspirators and codefendants have been accorded no special standing' to enforce the exclusionary rule." United States v. Capra, 501 F.2d 267, 281 (2d Cir. 1974), Cert. denied, 420 U.S. 990, 95 S. Ct. 1424, 43 L. Ed. 2d 670 (1975), Quoting Alderman v. United States, 394 U.S. at 172, 89 S. Ct. at 965. Further, neither Buckle's presence in the truck with Schaller, nor the contention that the briefcase search was as much directed at McGrath and Buckle as it was toward Schaller, affords a reason why Buckle or McGrath should be found to have standing. See United States v. Riquelmy, 572 F.2d at 952 (fact that all defendants were traveling together at time of search and were treated by police as a unit did not give them standing to contest the search of an overcoat draped over the arm of one defendant).
For the above reasons, defendants McGrath and Buckle lack standing to challenge the constitutional validity of the search of Schaller's briefcase.
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