Appeal from a judgment of the United States District Court for the Eastern District of New York, entered by Mark A. Costantino, Judge, after a jury trial convicting appellants of three counts charging conspiracy to commit bank robbery, 18 U.S.C. § 371, armed bank robbery, 18 U.S.C. § 2113(d), and unarmed bank robbery, 18 U.S.C. § 2113(a). The appellants' convictions under 18 U.S.C. § 371 and § 2113(d) are affirmed, and their convictions under 18 U.S.C. § 2113(a) are vacated.
Before Moore, Friendly and Meskill, Circuit Judges.
After a jury trial in the United States District Court for the Eastern District of New York before the Honorable Mark A. Costantino, Joseph Smith and Marty Cannon were convicted of conspiracy to commit bank robbery, armed bank robbery, and unarmed bank robbery. The issues raised by this appeal are whether the trial court properly denied the defendants' pre-trial motion to suppress evidence seized during a warrantless automobile inventory and whether articles so seized were properly admitted into evidence at the trial.
At 10:00 A.M. on February 27, 1979, three men entered a Chase Manhattan Bank branch in Staten Island, New York. One of the men vaulted the counter and demanded the teller give him whatever money was there. He remained behind the counter for five to ten minutes, talking to the teller as he collected the cash. At the same time another robber walked up to the desk of the assistant manager and, pointing a gun, demanded to be taken to the vault. The assistant manager complied, and, after filling up a sack with money from the vault, the three robbers fled with $124,539 in cash.
When the assistant manager was shown a seven picture FBI photospread two days after the robbery, he identified the picture of Joseph Smith as closely resembling the man who had wielded the gun. That same day the teller identified a figure in a bank surveillance photo as the robber who had vaulted the counter. Twelve days later when presented with a photospread and asked if she recognized anyone who was in the bank the day of the robbery, the teller selected the picture of Marty Cannon as resembling the robber who had vaulted the counter and spoken to her.
On February 28, 1979, the day after the robbery, Smith (who did not have a driver's license) persuaded his sister to rent a car for him from a Staten Island agency. On March 8, 1979, Smith was arrested in Baltimore, Maryland, by City Police Officer Charles Busse for speeding and driving without a license (Smith was driving the rented car at the time). While on foot patrol on March 17, 1979, Officer Busse observed Smith and another man working under the hood of a 1977 Buick parked along a Baltimore street. Shortly thereafter Officer Busse saw the two men get in the car and drive away. He called a patrol car and followed the 1977 Buick for a short distance. When he ascertained that Smith was in the driver's seat, he pulled the car over and asked Smith for his driver's license. Smith could not produce any license, and was arrested. Smith's companion was told he could leave, but as he did so, Officer Busse observed a brown manila envelope containing marijuana on the floor by the passenger seat. The companion was also arrested, and both men were charged with possession of marijuana and placed in a police paddy wagon.
Pursuant to Baltimore police procedures, the officers took the car keys and unlocked the glove compartment and trunk in order to remove the contents for inventory and safekeeping. A temporary Pennsylvania registration certificate found in the glove compartment listed the owner of the car as one Foster Thompson. Among the items taken from the trunk were: a white plastic bag containing several photographs, a recent Florida hotel bill and a birth certificate in the name of Martin Cannon; a blue Tourister flight bag containing a pair of diamond-soled sneakers; and a larger blue Tourister suitcase containing various items of clothing. The flight bag was marked with an "M. Cannon" identification tag.
Immediately after the property was removed, the car was towed to the Baltimore city yard. The property was taken to the Baltimore Police Department Northwest District Office, where it was reinventoried. FBI Special Agent Samuel M. Wichner examined the property there during the late Saturday and early Sunday morning hours of March 17th through 18th. The property was then removed to Baltimore Police Headquarters, where it was placed in a storage room for safekeeping. Agent Wichner took possession of the property on April 26, 1979, and sent the diamond-soled sneakers to the FBI laboratory in Washington, D.C. for analysis. There it was positively established that one of the sneakers matched the latent sneaker prints lifted from the bank's counter by the FBI the day of the robbery. Also, a photograph found in the white plastic bag showed Cannon in the shoes and jumpsuit worn at the bank by one of the robbers, and a matching sweatsuit was found in the larger suitcase.
Smith and Cannon were indicted in the Eastern District of New York on April 5, 1979 for conspiracy to commit bank robbery, 18 U.S.C. § 371, armed bank robbery, 18 U.S.C. §§ 2113(d) and 2, and unarmed bank robbery, 18 U.S.C. § 2113(a) and 2. On June 13th a hearing was held before Judge Costantino during which the defendants attempted to suppress all the physical evidence including the sneakers, sweatsuit, photograph, birth certificate, and other papers that had been secured by the Baltimore Police Department officers pursuant to their warrantless inventory of the 1977 Buick and its contents. Neither Smith nor Cannon presented any evidence at the suppression hearing, and neither defendant claimed any possessory or ownership interest in the 1977 Buick or its contents. The trial court refused to suppress the evidence, finding that the car was lawfully stopped, that the evidence was obtained pursuant to a valid inventory search of the car for the purpose of securing the property, and that Cannon had no standing to object to the inventory search. (App. 40-41, 44 and 46). The trial was held on June 14 and 15, 1979, and the jury returned a verdict of guilty on all three counts for both defendants. On August 2 and 3, 1979, both Smith and Cannon were sentenced to concurrent terms of imprisonment of five years on Count One, twelve years on Count Two, and twelve years on Count Three.
The central issue Smith and Cannon raise on appeal is whether the evidence seized during the warrantless inventory of the 1977 Buick should be suppressed. Smith argues that it must, relying on the holding of Arkansas v. Sanders, 442 U.S. 753, 766, 99 S. Ct. 2586, 2594, 61 L. Ed. 2d 235 (1979), "that the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile" lawfully stopped by the police. Cannon, relying on Jones v. United States, 362 U.S. 257, 261, 80 S. Ct. 725, 731, 4 L. Ed. 2d 697 (1960), argues that despite his lack of a proprietary or possessory interest in the vehicle, he still has standing to challenge the validity of the search because he was the person "against whom the search was directed". The Government, he claims, must not be allowed to use the fruits of the search against him after denying him standing to challenge the search.
The latest pronouncement of the Supreme Court in this area of search and seizure law is Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Prior to Rakas, the question of whether a defendant had standing to suppress seized evidence was couched in terms of whether he was "legitimately on (the) premises where a search (occurred)", Jones v. United States, 362 U.S. 257, 267, 80 S. Ct. 725, 734, 4 L. Ed. 2d 697 (1960). In our post-Rakas world, however, a defendant is obliged to show that he had a legitimate expectation of privacy in the area searched before he can invoke the protection of the Fourth Amendment. This analytical approach has already been utilized by this Court in United States v. Ochs, 595 F.2d 1247, 1252-53 (2d Cir. 1979), and United States v. McGrath, 613 F.2d 361, 365-66 (2d Cir. 1979). See also United States v. Rivera, 465 F. Supp. 402, 411 (S.D.N.Y.1979). We hereby apply it again.*fn1
Rakas held that for a defendant to dispute the legality of a search, he must first demonstrate that the Government infringed his individual Fourth Amendment rights. In so doing, Rakas reaffirmed the holding of Katz v. United States, 389 U.S. 347, 353, 88 S. Ct. 507, 512, 19 L. Ed. 2d 576 (1967), that the capacity to claim the protection of the Fourth Amendment depends "upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded places", and of Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 967, 22 L. Ed. 2d 176 (1969), that Fourth Amendment rights are personal rights which may not be vicariously asserted. Thus, the threshold question in such cases is whether the defendant had a legitimate expectation of privacy in the area searched or in the articles seized.
Legitimate expectations of privacy are in turn determined "by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society". Rakas, 439 U.S. at 144 n.12, 99 S. Ct. at 431 n.12. The defendants in Rakas were passengers in a lawfully stopped car. The majority found they
"asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized. . . . the fact that they were "legitimately on (the) premises' in the sense that they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular area of the automobile searched. . . . We have on numerous occasions pointed out that cars are not to be treated identically with houses or apartments for Fourth Amendment purposes. . . . (The defendants here) made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an ...