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October 29, 1985


The opinion of the court was delivered by: GLASSER

GLASSER, United States District Judge:


 Thomas Manning and Carol Manning, two of the seven defendants named in this case, have moved this Court for an order suppressing certain physical evidence seized from a house they occupied at 1885 Dodgeville Road, Jefferson, Ohio. A hearing was held on October 2, 1985. The findings of fact and conclusions of law that follow must be read against the background of the indictment and the orders thus far issued determining a variety of other pretrial motions.

 The defendants have been charged in a twelve count indictment alleging a conspiracy to bomb buildings possessed and used by the United States and buildings used in interstate commerce; the actual bombing of six buildings used in interstate commerce including buildings used or possess by IBM, South African Airways, Motorola Corp., General Electric Corp. and Union Carbide Corp; the actual bombing of two Army Reserve Centers, a Navy Reserve Center and a Navy Recruiting District Office; and an attempted bombing of a building housing the offices of the Honeywell Corporation. Those events are alleged to have occurred between 1982 and 1984.

 The defendants were for these and other reasons, the objects of an intensive nationwide search for approximately ten years. Some were being sought for the murder of a New Jersey State Trooper; some for bank robbery; one for attempted murder of a Massachussetts State Trooper; some or all for a series of bombings in Massachusetts between 1976 and 1979 and for a variety of other crimes. Searches of former residences of the Mannings and of Levasseur in Pennsylvania in 1982 yielded ammunition, ammunition boxes an other inculpatory material.

 On the morning of November 4, 1984, the defendants Levasseur, Gros, Curzi, Laaman and Williams were arrested in and around Cleveland, Ohio. Thomas and Carol Manning were still at large. What transpired thereafter relevant to this motion was the subject of the testimony of Daniel A. Gordon, a special agent of the FBI for 19 years.

 Agent Gordon testified that at approximately 11:00 P.M. on November 4, 1984 he became aware that the Mannings were residing in the area of Routes 6 and 11 in Ashtabula, Ohio. He subsequently ascertained the precise location of the residence from a telephone number that was previously furnished by defendant Williams and from a description of the house furnished by Carmen Levasseur who also disclosed that Carol Manning was using the name Leah Carr (Tr. 570-571). He was aware that the Mannings and Levasseur were wanted for bombings and were involved with explosives and dynamite (Tr. 573, 577). Agent Gordon, together with numerous other law enforcement officers, arrived at the Manning house at approximately 3:55 A.M. on November 5, 1984. Through a loudspeaker, the occupants of the house were directed to come out. Federal arrest warrants were outstanding for both Thomas and Carol Manning and when there was no response to the direction to come out, the agents entered the house. Entry was initially through the basement or a side window because of concern that the front and back doors might be booby-trapped.

 The house was thoroughly searched for hidden occupants and none were found. In an upstairs bedroom, Agent Gordon saw four shoulder weapons on a wall. He also saw a Bearcat scanner -- a radio device that was turned to the frequency used by the FBI. Gordon also noted three footlockers in that bedroom, one of which was padlocked. It was suggested by another agent that the footlockers could contain explosives or be booby-trapped and that a bomb technician should examine them for the safety of the law enforcement officers in the house (Tr. 577). A bomb technician, Agent Atherton, was summoned. He opened the footlocker without incident and Agent Gordon observed that it contained several guns and numerous boxes of ammunition (Tr. 588). Those items were left in the footlocker and not seized at that time. Gordon then phoned the Cleveland office of the FBI and related that information in connection with a request for a search warrant (Tr. 579). He knew before arriving at the Manning house that proceedings to obtain a search warrant were under way in Cleveland with respect to this house (Tr. 583). The house was then cleared and Special Agent Lloyd Buck was directed to maintain control of the house and to exclude all persons until the search warrant arrived.

 Agent Gordon testified that after the house was searched for hidden persons and before the footlockers were opened he could have withdrawn all law enforcement persons to a safe distances from the house and kept it under surveillance until a search warrant was obtained but he chose not to do so (Tr. 597-98). That decision was prompted, he testified, for the safety of the officers on the scene because the footlockers could have exploded while they were still in the house (Tr. 610).

 Agent James Lyon of the FBI was also called as a witness. He testified that he had been assigned to the investigation of this case since December 1982. He testified that the Mannings had rented the Dodgeville Road house under the names of Steven and Leah Carr. Rent was payable monthly in advance on the 22nd calendar day of each month and was paid through the month of November (Tr. 639). The Mannings never returned to the house after they left it. It is reasonable to infer that they left that house on November 4, 1984 for the following reason. When the defendant Williams was arrested on the morning of November 4th, he was transported to the Cleveland office of the FBI and interviewed by Agent Sommers. Williams was asked if he did not know but even if he did, that information would be useless because they would be long gone (Tr. 616). Williams also stated that immediately prior to his arrest in the Curzi/Laaman house, a telephone call was received from Carol Manning. While he was speaking to her, he put her "on hold" to answer another incoming call. That call was from the Cleveland FBI advising him to surrender. The Mannings knew, therefore, on the morning of November 4th of the presence of the FBI and of the arrest of their co-defendants (Tr. 616-18).

 The Mannings were arrested approximately six months later, on April 25, 1985, in Norfolk, Virginia. On the 16th of November, 1984, they rented a house at 134 Conway Avenue in that city. The lease was in the name of Allison S. Boone, as tenant, from month to month, at a rent of $425 per month (Govt's Exh. H-11). Thomas Manning was using the name of Charles Boone (Tr. 619). Received in evidence were a variety of exhibits seized from the Norfolk house pursuant to a search warrant. Photographs of the premises in which the Mannings lived (Exhs. H-10-A-H-10-E) depict a house that is moderately but comfortably furnished. Rent receipts from November 19, 1984 through April 24, 1985 were seized as were money orders to utility companies and department store receipts. Also seized were newspaper articles describing the arrests in Ohio on November 4, 1984 and the defendants who were then arrested. The Government attaches special significance to an article from the Winchester Star on which is a handwritten notation "11/5 Mon." Testimony was received that the Winchester Star is sold only in a particular area in the State of Virginia (Tr. 632) form which it may be inferred that on that day, the Mannings were in that part of Virginia and purchased that paper. Also received in evidence were the defendants' Exhibits A through E which include the lease of the Dodgeville Road house; a J.C. Penney order form dated 11/5/84 for a dog bed and a money order payable to the Star Beacon.


 The Government contends that the search and seizure prior to the issuance of the search warrant was proper for any or all of the following reasons: (1) the Mannings had abandoned the Dodgeville Road house prior to the arrival of the police; (2) exigent circumstances justified the warrantless search and seizure; and (3) the contents of the footlocker would inevitably have been discovered.

 "The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search and seizure." Rakas v. Illinois, 439 U.S. 128, 130-31, 58 L. Ed. 2d 387, 99 S. Ct. 421, n.1 (1978). The proponents of this motion, Thomas and Carol Manning, offered no testimony which would establish an expectation of privacy in the premises in which they assert Fourth Amendment rights nor have they submitted affidavits in support of their motions in which they allege facts which would establish such an expectation. Indeed, since the only evidence raising an expectation of privacy in the Dodgeville Road house is a lease naming Steven and Leah Carr as tenants and there being no assertion by the movants (except by implication from the bringing of the motion) that Steven and Leah Carr and Thomas and Carol Manning are one and the same, the violation of any Fourth Amendment rights of these movants may be questioned. The Government has not challenged their standing to ...

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