United States v. Roy , 734 F.2d 108 ( 1984 )

MESKILL, Circuit Judge:

Pursuant to 18 U.S.C. § 3731 (1982), the government appeals an order of the United States District Court for the District of Connecticut, Zampano, J., suppressing two sawed off shotguns, a handgun, a police scanner, two CB radios, several burglars’ tools and various other items found in the trunk and passenger compartment of an automobile operated by appellee Michael Roland Roy. United States v. Roy, 568 F.Supp. 1127 (D.Conn.1983).

Roy was charged with two counts of unlawful possession of an unregistered shotgun in violation of 26 U.S.C. §§ 5861, 5871 (1982) and one count of unlawful possession of a shotgun and a pistol by a convicted felon in violation of 18 U.S.C. App. § 1202 (1982).

We vacate the order of suppression and remand the case for further proceedings.

BACKGROUND¹

Rocky Hill, Connecticut detectives Mazzamurro and Dodenhoff were engaged in a routine patrol in an unmarked car on the evening of December 3, 1982. At approximately 8:00 p.m. the officers drove into the parking lot of the Great Meadow Plaza, a local shopping center. The plaza had been the scene of a number of recent automobile thefts, purse snatchings and robberies. Despite the late hour, most of the stores in the plaza were open because of the holiday season.

The officers parked their car and began a surveillance of the area. They observed a “beat up” Subaru automobile with Massachusetts license plates backed into a parking space at the south end of the lot, giving the two male occupants an unobstructed view of the stores. Both men wore hats over their foreheads, sat in a slouched position and stared at the stores in front of them. The men did not appear to be talking to each other. Neither officer recognized the men or the vehicle.

Based on their “experience and expertise,” the officers surmised that a robbery was about to occur. Officer Mazzamurro radioed for a patrol car to render assistance. Almost immediately, the occupant of the front passenger seat of the Subaru, Martinez, left the car and walked toward the stores, looking over his shoulder in a nervous fashion as he walked away from the car. The driver of the automobile, Roy, then drove the car out the main entrance of the plaza and turned left' onto a local thoroughfare. Officer Mazzamurro radioed the patrol car to apprehend Martinez and then followed the Subaru out of the parking lot.

Roy drove a short distance, stopped at a stop sign and made a right turn. The officers pulled alongside the Subaru, flashed their badges and ordered Roy to stop. He complied. The officers got out of their car and approached the Subaru. Their guns were not drawn. They asked Roy for identification. As he removed a license from his wallet, the officers heard a police radio transmission coming from the interior of the Subaru. When Officer Mazzamurro asked Roy about the source of the transmission, Roy started to reach down between his legs. Concerned for their safety, the officers forcibly removed Roy from the car and arrested him for attempted robbery. Officer Mazzamurro reached under the seat and found a police scanner. A subsequent examination revealed that the brand name and serial number of the scanner had been pried off.

Following the arrest, the officers searched the interior of the car. They seized a hat, a ski mask and a pair of binoculars. One of the officers called for a wrecker to tow the car away. When they asked Roy for permission to open the trunk, he refused. One of the officers reached into the car, removed the ignition key and opened the trunk. They seized from the trunk, inter alia, two sawed off shotguns, a pistol with the serial number removed, a box of shotgun ammunition, a pry bar, two hacksaw blades, a dent puller, a hydraulic jack, a glass cutter, two CB radios, several pairs of rubber gloves and a ski mask. Several of the items were found inside bags or pouches.

Roy was taken to police headquarters and booked under the name “James Allan Robinson,” the name on an Oklahoma driver’s license which he carried. Fingerprint analysis revealed that he was not Robinson but Roy. It was subsequently learned that Roy was an escaped felon. He had pleaded guilty to armed robbery and escape in Du Page County, Illinois in 1982 and was sentenced to concurrent prison terms of fifteen and five years, respectively. After his conviction and sentencing, Roy was transferred to the federal Metropolitan Correctional Center (MCC) in Chicago to answer federal bank robbery charges in Florida. Roy escaped from the MCC in October 1982 and remained at large until his apprehension in Connecticut on December 3, 1982.²

DISCUSSION

On appeal, the government claims that the district court erred in holding that the initial stop of Roy’s car and the subsequent search and seizure were unreasonable and thus violated the Fourth Amendment. It seeks on this basis to vacate the order suppressing the weapons and the other items seized from the car. The threshold question is whether Roy, as an escaped felon, had a legitimate expectation of privacy in the automobile that was violated by the search which occurred. We conclude that Roy had no legitimate expectation of privacy in the passenger compartment or trunk of the Subaru. Therefore, he cannot successfully challenge the police conduct here. Because the district court erred in suppressing the items seized, we vacate the suppression order and remand the case for further proceedings.

A defendant cannot invoke the Fourth Amendment’s protections unless he has a legitimate expectation of privacy against the government’s intrusion. United States v. Jacobsen, — U.S. -, -, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); Illinois v. Andreas, — U.S. -, - - -, 103 S.Ct. 3319, 3322-24, 77 L.Ed.2d 1003 (1983); United States v. Knotts, 460 U.S. 276, _, 103 S.Ct. 1081, 1084, 75 L.Ed.2d 55 (1983); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (citations omitted). The Supreme Court has on several occasions endorsed the two point test formulated by Justice Harlan in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), to determine if a defendant has a legitimate expectation of privacy. See, e.g., Michigan v. Clifford, — U.S. -, -, 104 S.Ct. 641, 646, 78 L.Ed.2d 477 (1984) (plurality opinion); United States v. Knotts, 460 U.S. at -, 103 S.Ct. at 1084; Smith v. Maryland, 442 U.S. at 740-41, 99 S.Ct. at 2580-81; Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12, 99 S.Ct. 421, 430-31 n. 12, 58 L.Ed.2d 387 (1978). Justice Harlan’s test to ascertain whether a legitimate expectation of privacy existed is:

[F]irst that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.”

Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

We have little doubt that Roy harbored a subjective expectation of privacy, at least as to the trunk of the Subaru. His locking the weapons and several other items in the trunk of the car indicates as much. See United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982).

Therefore, Roy satisfies the first part of Justice Harlan’s test. However, Roy fails to satisfy the second part of the test; his expectation of privacy in the automobile is not one that society is prepared to recognize as legitimate. In Rakas v. Illinois, the Supreme Court, citing Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697 (1960), explicitly noted that society did not recognize as reasonable the privacy rights of a defendant whose presence at the scene of the search was “wrongful.” 439 U.S. at 141 n. 9, 99 S.Ct. at 429 n. 9. The Court noted two examples of persons who did not have legitimate expectations of privacy due to wrongful presence: a person present in a stolen automobile at the time of the search, id., and “[a] burglar plying his trade in a summer cabin during the off season.” Id. at 143-44 n. 12, 99 S.Ct. at 430-31 n. 12.

Roy’s presence in Rocky Hill on December 3 was also wrongful, since he was an escapee from the MCC in Chicago. See 18 U.S.C. § 751 (1982) (inmate who escapes from federal custody commits a criminal act). At the time of the search and seizure, Roy was no more than a trespasser on society. Cf. State v. Hiott, 276 S.C. 72, 77, 276 S.E.2d 163 (1981) (“As prison escapees, defendants obviously were not legitimately on the premises.”).³ His position is not unlike that of the Supreme Court’s hypothetical burglar or occupant of a stolen car.

This is not to say that Roy’s escape deprived him of all expectations of privacy. We consider an escapee to be in constructive custody for the purpose of determining his legitimate expectations of privacy; he should have the same privacy expectations in property in his possession inside and outside the prison. See Robinson v. State, 312 So.2d 15, 18 (Miss.1975) (“appellant’s Fourth Amendment rights were no greater as an escapee than they were while he was in the confines of the penitentiary”).

Roy’s legitimate privacy expectations were severely curtailed while he was incarcerated. See, e.g., Bell v. Wolfish, 441 U.S. 520, 556-57, 99 S.Ct. 1861, 1883, 60 L.Ed.2d 447 (1979); Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974); Lanza v. New York, 370 U.S. 139, 143-44, 82 S.Ct. 1218, 1220-21, 8 L.Ed.2d 384 (1962); Stroud v. United States, 251 U.S. 15, 21-22, 40 S.Ct. 50, 52-53, 64 L.Ed. 103 (1919); Hodges v. Stanley, 712 F.2d 34, 35 (2d Cir.1983) (per curiam); Palmer v. Hudson, 697 F.2d 1220, 1223-24 (4th Cir.) (collecting cases), cert. granted, — U.S. -, 103 S.Ct. 3535, 77 L.Ed.2d 1386 (1983). Cf. United States v. Thomas, 729 F.2d 120, 123 (2d Cir.1984) (parolee who has been legitimately released from the physical confines of prison retains only a limited legitimate expectation of privacy). There is no question that Roy would not have had a legitimate expectation of privacy in a motor vehicle operated on prison grounds. See Bell v. Wolfish, 441 U.S. at 555-57, 99 S.Ct. at 1882-83 (unannounced search of prison cell does not violate Fourth Amendment); Palmer v. Hudson, 697 F.2d at 1224 (“Because of the legitimate demands of prison security, and to a lesser extent a prisoner’s diminished expectation of privacy, neither a warrant nor probable cause is a prerequisite to-a search or seizure in prison.... Irregular, unannounced shakedown searches of prison property are permissible, for they are an effective means of ensuring that prisoners do not possess contraband.”) (citations and footnote omitted). Roy could have been stopped, the interior of the ear searched and the trunk opened without probable cause if the search occurred within prison walls. Therefore, because Roy would not have a legitimate expectation of privacy against the government’s intrusion while incarcerated, we should not recognize such an expectation of privacy after he escapes.

Roy argues that his limited expectation of privacy while in prison is based solely on the nature of incarceration and the need to maintain security. See, e.g., Bell v. Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884; Wolff v. McDonnell, 418 U.S. at 555, 94 S.Ct. at 2974. Assuming this to be true, a proposition we do not address, it does not follow that Roy could expand his legitimate expectations of privacy by escaping.⁴ A contrary determination would offer judicial encouragement to the act of escape and would reward an escapee for his illegal conduct. Moreover, the rationale for granting an incarcerated individual a limited expectation of privacy, i.e., the prison community’s need for security, does not suggest different treatment for an escapee. While incarcerated, the prison population was protected by the severe limitations on Roy’s constitutional rights and the public was protected from Roy by the prison walls. After the escape, the prison walls no longer protected the public from Roy. The public’s need for protection from Roy argues against according him any greater Fourth Amendment rights because of his criminal act of escape.⁵

Lacking a legitimate expectation of privacy under the circumstances, Roy cannot assert the unreasonableness of the search and seizure under the Fourth Amendment. United States v. Jacobsen, — U.S. at -, 104 S.Ct. at 1660; Smith v. Maryland, 442 U.S. at 740, 99 S.Ct. at 2580 (citations omitted). See United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977) (Fourth Amendment protections extend only to “unreasonable government intrusions into ... legitimate expectations of privacy”). Therefore, we vacate the suppression order and remand the case to the district court for further proceedings.

1 . The hearing on Roy’s motion to suppress was held before Chief Judge Daly on April 4, 1983. On April 14, 1983, prior to a ruling on the motion, Chief Judge Daly transferred the matter to Judge Zampano "in the interest of justice.” The parties voiced no objection to the transfer and agreed that Judge Zampano should decide the motion on the basis of the submitted briefs and moving papers, a transcript of the April 4 hearing and various pieces of documentary and physical evidence.

The government now urges us to conduct a de novo review of Judge Zampano’s findings of fact because they were made without the benefit of live testimony before the judge. We decline this opportunity. We will not ordinarily disturb the district court's findings of fact unless they are "clearly erroneous.” See 8B J. Moore, Moore's Federal Practice ¶ 41.25, at 41-310 (2d ed. 1983). We see no reason to change this practice merely because the findings of fact were made following a hearing before a different judge. Cf. Preliminary Draft of Proposed Amendment to Fed. R.Civ.P. 52(a), 98 F.R.D. 337, 359-61 (1983) (“[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous”).

The findings of fact below were amply supported by the record and thus are not “clearly erroneous.” We accept these facts for the purposes of this appeal.

2 . At the time of Roy’s arrest, state warrants were outstanding against him on charges of homicide in California and bank robbery in Massachusetts.

3 . Roy argues that he should not be considered an escaped sentenced prisoner since his Illinois sentence had been stayed while he was awaiting trial in federal custody. We are unpersuaded. Roy would have been incarcerated in state prison had he not been held in federal custody. He was not a free man; his imprisonment was a direct result of his state convictions. Moreover, we see no difference between considering Roy as an escaped convict or an escaped pretrial detainee. In either case, Roy's presence at the scene of' the search was wrongful since he was supposed to be incarcerated and would have been but for his illegal escape.

4 . The focus here is not on the legality of the arrest but rather on the propriety of the search and seizure. There is no reason to determine if sufficient grounds existed to seize Roy since that would be an inquiry irrelevant to the consideration of Roy’s reasonable expectations of privacy in the automobile.

5 . This is especially true for a dangerous person like Roy, who was convicted of armed robbery. Unlike the pretrial detainee, Roy lost his presumption of innocence when he was convicted and incarcerated. See United States v. Grant, 433 F.Supp. 1113, 1114 (S.D.N.Y.1977).