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UNITED STATES v. BETHEA

December 1, 1980

UNITED STATES of America,
v.
Robert L. BETHEA and Benjamin B. Banks, Defendants



The opinion of the court was delivered by: SIFTON

MEMORANDUM DECISION AND ORDER

This case is before the Court on a motion by the defendant Banks to suppress (1) evidence seized by the Federal Bureau of Investigation during the course of the investigation leading to this prosecution, (2) a post-arrest statement attributed to Banks, and (3) identification testimony by an eyewitness. The defendant Bethea has orally "joined in" these applications, which the Court takes to mean that Bethea seeks similar relief with regard to the evidence seized and with regard to post-arrest statements made by Bethea. The Government has stated that it will not offer an identification of defendants by the eyewitness to whose testimony the motion was addressed. There remain for decision the issues with regard to the seizures made from two trucks by the Federal Bureau of Investigation at and after defendants' arrest as well as several issues with regard to defendants' post-arrest statements.

 The first issue raised by both defendants is whether there was probable cause to arrest them. I find that there was. The information on the basis of which the arrests were made included reliable information from reliable informants, corroborated both in its innocent and inculpatory aspects by personal observations of the arresting agents. See Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). The information made it probable, although not certain, that defendants were knowingly in possession of valuable merchandise stolen from an interstate shipment. See Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879 (1949); United States v. Webb, 623 F.2d 758 (2d Cir. 1980).

 The information supplied by two confidential FBI agents was, it is conceded, second hand; that is, the informants do not appear to have personally observed the defendants in possession of the stolen merchandise. They do, however, appear to have reported information from someone with personal knowledge who was able to give a detailed description of the trucks containing the stolen merchandise and their location, capable of being tested by independent investigation. This is not a case, in other words, in which all the agents have is "a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli v. United States, 393 U.S. 410, 416, 89 S. Ct. 584, 589, 21 L. Ed. 2d 637 (1969). The fact that double hearsay is involved does not, in and of itself, negate probable cause. United States v. Fiorella, 468 F.2d 688, 691-92 (2d Cir. 1972), cert. denied, 417 U.S. 917, 94 S. Ct. 2622, 41 L. Ed. 2d 222, reh. denied, 419 U.S. 885, 95 S. Ct. 156, 42 L. Ed. 2d 128 (1974); cf. United States v. Marcello, 570 F.2d 324 (10th Cir. 1978).

 The reliability of the confidential informants' information is also strengthened by the reliability of the informants. One of the informants had worked for the Bureau for close to a decade and had supplied information leading to ten convictions as well as to the recovery of substantial amounts of stolen merchandise. The other informant, of more recent vintage, had also contributed to the recovery of substantial amounts of merchandise stolen from interstate commerce. The information supplied by each informant was corroborative of the information supplied by the other, since the information was substantially identical. Each informant's information was, to a large extent, corroborated by the agents' surveillance. The trucks were found where it was stated they would be. The description of the trucks proved accurate. The trucks were in the hands of a black crew, as predicted. Most significantly, the actions of the defendants after they became aware that they were being watched and after they were notified to stop gave basis for an inference that defendants knew that they were in possession of stolen merchandise. The agent following the defendants arrived at the conclusion that they had seen him and were attempting to flee. This impression was confirmed when the agent pulled up alongside the truck in which the defendants were moving and signaled to the watching Bethea to stop, using lights, sirens, and hands, without success. Cf. United States v. Baltazar, 477 F. Supp. 236 (E.D.N.Y.1979).

 Defendants argue, however, that, even if the arrests were proper, the search of the two trucks was not. There is a substantial question as to whether defendants have standing to complain of these searches. In all events, the search of the truck in which the defendants were moving when arrested appears proper, since it was made with defendants' consent. The other vehicle was properly seized and its open areas searched under the so-called "automobile exception" to the fourth amendment. United States v. Ochs, 595 F.2d 1247 (2d Cir.), cert. denied, 444 U.S. 955, 100 S. Ct. 435, 62 L. Ed. 2d 328 (1979). The later search of the back of the vehicle appears justified as an inventory search required to be conducted in order to avoid spoilage to the frozen meat which the truck was believed, with justification, to contain. South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).

 With regard to the U-Haul truck, the question of standing appears fairly straightforward. The truck was, according to Bethea's post-arrest statement, rented by him for another, unknown individual who asked Bethea to rent it for him, since the other individual lacked a driver's license. This accommodation by Bethea could not have created a reasonable expectation of privacy on Bethea's part in the contents of the truck. See United States v. Coats, 611 F.2d 37 (4th Cir. 1979). The fact that Bethea thereafter drove the truck to various locations for his unknown acquaintance, even if enough to establish standing while the truck was in Bethea's possession, compare United States v. Ochs, supra, 595 F.2d at 1253 n. 4, with United States v. McGrath, 613 F.2d 361 (2d Cir. 1979) (at least as to those parts of the truck to which he had access), does not appear sufficient to establish standing after Bethea had driven the truck to the location to which the unknown acquaintance had instructed it be driven and after Bethea had, thereafter, left the truck behind at that location. Even assuming that Bethea retained the key to the ignition of the U-Haul and did not simply leave the keys under the mat a question not resolved by the evidence his permission to use the truck was limited, if not at an end. *fn1" Bethea's access to the locked box of the truck was, in all events, prohibited, since he did not have in his possession any key to the locked box of the truck. Cf. United States v. Ochs, supra, 595 F.2d at 1253.

 Banks' claim of standing to complain of the search of the U-Haul has no basis in the evidence since, according to both his own statement and Bethea's, Banks had no interest at all in the truck.

 Whether the search and seizure of the U-Haul without a search warrant was justified is a closer question. Clearly, there was probable cause to believe the truck contained stolen merchandise. However, unlike the Cadillac at issue in Ochs, supra, the U-Haul was not in the possession of the defendants, it was not illegally parked, and it was not on a busy street at rush hour. There was, in other words, less basis for concern in this case than that which existed in the passage from Chimel v. California, 395 U.S. 752, 764 n.9, 89 S. Ct. 2034, 2040 n.9, 23 L. Ed. 2d 685 (1968), *fn2" on which the Ochs court relied to authorize the search of the Cadillac. Nevertheless, according to both defendants' statements, a third party was expected to arrive momentarily to pick up the U-Haul. In fact, his arrival was overdue. If seizure was permissible if another appeared to claim the vehicle, there appears little reason to say that seizure was not appropriate at once. See United States v. Ochs, supra, 595 F.2d at 1253.

 Once seized, it is clear that the truck was appropriately searched for inventory purposes. Implicit in the inventory process is not only the determination as to what has been taken into custody, but also the assumption of some degree of responsibility for the care of that which has been seized. South Dakota v. Opperman, supra, 428 U.S. at 378, 96 S. Ct. at 3101. The contents of the cab of the truck was carefully catalogued to determine what had been taken. The contents of the locked box was inventoried and removed to a refrigerated location, since the agents had every reason to believe that they had taken into custody frozen meat which would spoil. Thus, even assuming defendants have standing to complain of the search of the U-Haul, the search of the truck was proper. Accordingly, so much of defendants' motions as seeks to suppress evidence of the rental contract and toll receipts recovered from the cab of the truck and of the boxes of meat found in the back of the truck is without merit.

 With regard to the truck in which defendants were located when they were stopped the so-called C&M truck defendants standing is, likewise, questionable. According to Bethea's post-arrest statement, the truck was owned by his employer who lent it to Banks, who then let it be used by an unknown third individual, who asked that it be left with the U-Haul at a specified location in Staten Island. Neither Bethea nor his companion, according to both defendants, had access to the locked box in which the meat was recovered. While Bethea was a passenger in the car at the time it was stopped, this fact alone is insufficient to establish a legitimate expectation of privacy under Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978). Nor does there appear to be any reason why Bethea's status as an employee of the owner of the truck or as a person who had driven the truck in the past would establish the kind of expectation of privacy referred to in Rakas. The only pieces of property found in the truck connecting Bethea with it were two Exxon credit card receipts in his name. The presence of these receipts in the truck is consistent with Bethea's presence in the truck as an employee, but not, in and of itself, sufficient to establish an expectation of privacy on Bethea's part, particularly as regards the locked box in which the stolen meat was found.

 The question of standing with regard to Banks as the driver of the C&M truck is closer. Cf. United States v. McGrath, supra, with United States v. Ochs, supra, 595 F.2d at 1253 n. 4. Banks, according to both his own account and that of Bethea, had, moreover, sufficient power over the C&M truck to rent it to another individual, Hurst; and although Hurst returned the truck with its box locked, even as against Banks, that fact should not destroy a reasonable expectation of privacy on Banks' part as a result of Banks' possessory interest in the truck both before it was rented out and after it was returned.

 Both defendants appear, however, to have voluntarily consented to the opening of the C&M truck. *fn3" Consent was consistent with the defendants' position assumed from the start that they did not know why they were stopped, that they did not know what was in the truck, that they did not have access to the truck's locked box, and that they had no papers on the truck's contents. Both men volunteered keys, saying they did not know if the keys would work Banks by cocking his hip to show the pocket in which he had put the keys to the truck, Bethea by saying there were keys on the dashboard. Only after the unsuccessful attempt to use the keys were the men asked if they would object to the locks being broken off. At the time of this consent, both men had been given their Miranda warnings, although no warning concerning their rights, if any, to insist on the issuance of a search warrant was given. Although they had been stopped at gun point and were handcuffed, both men are mature and appeared calm. The fact that no written consents to search were requested or obtained does not negate voluntary consent, nor does the absence of an advice of rights. On all of the facts, I see no basis for finding that the wills of these two men were overborne by the agents or that the defendants' agreement to let the truck be inspected was anything less than an intelligent waiver of such privacy expectations as the defendants might have in the truck's contents.

 For the reasons set forth above, defendants' motions to suppress the evidence derived from the search of the two trucks, namely, Government Exhibits 12 (a meat carton), 14, 15 and 16, (photographs of the contents of the trucks) 7, (the U-Haul rental contract) and 13 (a Goethals Bridge receipt) ...


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