United States v. Arthur Joseph Trickey

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UNITED STATES оf America, Plaintiff-Appellee, v. Arthur Joseph TRICKEY, Defendant-Appellant.

No. 82-1262.

United States Court of Appeals, Sixth Circuit.

June 30, 1983.

Argued March 30, 1983.

First, an order or judgment is certifiable under Rule 54(b)¹ only if it disposes of at least one claim with the degree of finality required to satisfy the appealability standards of 28 U.S.C. § 1291.

Acha v. Beame, 570 F.2d 57 (2d Cir. 1978). In other words, the order must terminate all issues presented in at least one claim so that nothing remains except enforcement by execution of the judgment. See

Donovan v. Hayden, Stone, Inc., 434 F.2d 619, 620 (6th Cir. 1970);

National Corn Growers Assn., Inc. v. Bergland, 611 F.2d 730, 732 (8th Cir. 1980). See also Moore‘s Federal Practice ¶ 54-30(1).

A partial summary judgment which resolves one aspect of the question of liability but leaves the issue of damages in dispute is neither “final” within the meaning of 28 U.S.C. § 1291 nor certifiable under Rule 54(b).

Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976);

Acha v. Beame, 570 F.2d at 62. The present case appears to fall within the rule of Liberty Mutual. The district court‘s order of May 24, 1982 did not establish either the fact or the amount of Home Insurance Company‘s liability to Rudd; it merely determined that any liability which might be imposed after trial on the merits would be prorated among the insurers. Under these circumstances, the conclusion that the district court erred in certifying the partial judgment is inescapable.

Second, even if the order were properly certifiable under Rule 54(b), this case does not qualify as the “infrequent harsh case” which justifies a Rule 54(b) certification. See

Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir. 1978). Nothing in the record before us remotely suggests that any party would suffer hardship if the right to appeal were deferred pending resolution of the entire controversy on the merits. See

Brunswick Corp. v. Sheridan, 582 F.2d 175, 183-185 (2d Cir. 1978).

Accordingly, the motion to dismiss is granted and ‍‌​​​​‌​​​​‌‌‌​​‌​‌‌‌​‌​‌​‌‌​​‌​‌‌​​​​​​​​​‌​‌‌​​‍the appeal and cross-appeаl are dismissed.

Richard L. Lee, Jr. (argued), Midland, Mich., for defendant-appellant.

Leonard R. Gilman, U.S. Atty., Elizabeth A. Wild, Marcia Cooke (argued), Detroit, Mich., for plaintiff-appellee.

Before KEITH, MERRITT and JONES, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

In August 1980, the appellant, Arthur Trickey, approached Silas DeKalita and requested a loan of $15,000 in order for appellant to produce counterfeit money. In return, DeKalita would receive $75,000 in real currency. DeKalita contacted the United States Secret Service and, on September 8, 1980, he met with agent Hall and related his conversation with the appellant.

Following the instructions of agent Hall, DeKalita arranged several meetings between the appellant and Kelemen, an undercover agent. Appellant and agent Kelemen met and outlined a plan for distributing the counterfeit money. At a second meeting, appellant and Kelemen discussed the possibility of Kelemen contributing $15,000 or purchasing necessary equipment of approximately the same value. Appellant would not agree to allow Kelemen to purchase the equipment rather than providing the money; therefore, they could not reach an agreement. However, Kelemen indicаted that he might participate in the distribution of the counterfeit money.

In early 1981, appellant discussed the possibility of producing counterfeit money with one Michael Beck, with the assistance of Beck‘s father. Beck agreed tо assist in photographing the bills and in making plates from the negatives. On or about May 16, 1981, appellant showed DeKalita the backs of four counterfeit bills and told him that they were from the first batch that they had printed.

On the next day, the Secret Serviсe agents began a surveillance of a building located at 2561 Swagger Road in Millington, Michigan. The building was apparently an outer building located on property where Richard Trickey, the appellant‘s nephew, resided. Appellant rented the smaller building from Richard Trickey. Upon obtaining a telephonic search warrant from Magistrate Walker, the agents proceeded to the building which was owned by appellant‘s nephew and executed the search warrant. This small building had no working plumbing facilities, no furniture, and the windows were boarded up. The kitchen had been converted into a dark room and upon conducting a search, the agents found and seized a printing press, a camera, paрer, ink and various other printing materials. No counterfeit bills or direct evidence that counterfeit money had been produced on the premises were found, however.

Appellant and Richard Trickey were arrested at the scene on May 17, 1981 and arraigned on a complaint the following day. This complaint was subsequently dismissed and, thereafter, appellant was indicted on July 23, 1981 and arraigned a week later, on July 30, on a charge of conspiracy to cоunterfeit. Appellant filed a motion to quash the indictment due to the government‘s failure to indict him within sixty days of his arrest. The motion to quash was denied.

Prior to trial, appellant filed a motion to suppress the evidence seized from the prеmises on the ground that the search warrant was invalid. He argued that the magistrate failed ‍‌​​​​‌​​​​‌‌‌​​‌​‌‌‌​‌​‌​‌‌​​‌​‌‌​​​​​​​​​‌​‌‌​​‍to place each person whose testimony formed a basis of the application for the warrant under oath. As such, the agents had failеd to fully comply with the requirements of Federal Rule of Criminal Procedure 41(c)(2)(D) in obtaining the telephonic search warrant. The district court determined that the warrant was invalid on this basis. Accord

United States v. Shorter, 600 F.2d 585 (6th Cir. 1979). However, the court concluded that the appellant lacked standing to challenge the validity of the search because he had no legitimate expectation of privacy in the premises as required by

United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) and

Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

In

United States v. Salvucci, supra, the Supreme Court abolished the notion that an individual charged with crimes of possession has “automаtic standing” to challenge the validity of a search under the Fourth Amendment. The Court noted that mere legal possession of a seized good does not subject the possessor to Fourth Amendment deprivation. Rather, an illegal search only violates the rights of those who have “a legitimate expectation of privacy in the invaded place.”

448 U.S. at 91-92, quoting

Rakas v. Illinois, 439 U.S. at 140.

The government submits that the appellant had no legitimate expectation of privacy in the outbuilding becausе it was not maintained like a home or dwelling. Rather, it was maintained in a manner that was more akin to a business. In support of this position, they rely on

United States v. Bailey, 628 F.2d 938 (6th Cir. 1980), and

United States v. Clayborne, 584 F.2d 346 (10th Cir. 1978). While this Court recognizes that Bailey has some application in this context, we do not construe those cases involving beepers to have general applicability to a determination of whether the premises in the instant case are entitled to Fourth Amendment protections.

In

United States v. Bailey, supra, this Court developed a two-tier analysis for purposes of determining whеn an individual may raise a Fourth Amendment challenge. The Court explained:

First, where he knowingly has exposed information to public scrutiny, the Fourth Amendment does not apply. Second, even where an individual has exhibited a subjective expеctation that certain information will remain private, the Fourth Amendment will not apply unless society is prepared to recognize that expectation as legitimate. . . . A defendant who asserts a Fourth Amendment challenge must meet both the subjective expectation and the legitimacy criteria.

628 F.2d at 941.

In the instant case, the appellant maintained his printing activity in an outbuilding that was located on residential property. He had boarded up the windows such that it was clear that he did not intend to expose this activity to the public. Rather, he exhibited both a subjective and an objective expectation that the information and activities conducted therein would remain private. Moreovеr, since appellant was the lessee of the premises, the activity which he exhibited an expectation of privacy for would certainly be recognized by society as legally justified. Clearly, both the owner and the lessee of the premises would be recognized by society as having a legitimate expectation of privacy as to the outbuilding.

Furthermore, the assertion that the premises were maintained in a manner similar to a business does not ‍‌​​​​‌​​​​‌‌‌​​‌​‌‌‌​‌​‌​‌‌​​‌​‌‌​​​​​​​​​‌​‌‌​​‍abolish the рroprietor‘s Fourth Amendment protections. It merely makes such protections less significant than they would be in the context of a home. The controlling factor in this inquiry is that the individual have a legitimate expectation of privacy in thе premises. Accord

Rakas v. Illinois, 439 U.S. 128, 143-48, 99 S.Ct. 421, 430-33, 58 L.Ed.2d 387 (1978). The appellant clearly has such a legitimate expectation in regard to the outbuilding and, therefore, he has standing to challenge the validity of the search warrant and to have the evidence suppressed during the trial. Accordingly, the judgment of the district court is REVERSED and REMANDED for a new trial.

KEITH, Circuit Judge, dissenting.

If this court were writing on a clean slate, I would agree that the defendant had standing to challenge a fourth amendment violation by authorities. However, the Supreme Court in

United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), held that only a person who has “a legitimate expectation of privacy in the invaded place” is entitled to challenge allegedly illegal searches (quoting

Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 429, 58 L.Ed.2d 387 (1978)). Because defendant had no legitimate expectation of privacy in the outbuilding, I dissent from the majority‘s holding that the evidence seized should be suppressed.

The test to be applied calls for a searching review of the underlying facts. The trial court must ask two questions:

(1) Is there a legitimate expectation of privacy?

(2) Was the procedure used by the police illegal?

Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, ‍‌​​​​‌​​​​‌‌‌​​‌​‌‌‌​‌​‌​‌‌​​‌​‌‌​​​​​​​​​‌​‌‌​​‍2564, 65 L.Ed.2d 633 (1980) (Blackmun, J., concurring). These are two analytically distinct questions, and a defendant can meet one prong of this test without necessarily fulfilling the other. Only when both prongs are met should the evidence be suppressed.¹

The majority‘s attempt to analogize this case to other fourth amendment contexts is no substitute for the searching factual review called for by Salvucci and its progeny. See

United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Blackmun, J., concurring) (case involving electronic surveillance device not analogous to case involving “open fields” doctrine). The facts reveal that this was neither a residence nor a business building. It was an outbuilding which was allegedly being rented from a relative. The building had been boarded up, but there was testimony to the effect that the defendant had opened up the doors to the building because he wanted people to come in. The windows were not covered during the day the building was searched. There were no indicia of residence since there was no running water, no bathroom facilities, no lighting, nor was there furniture of any kind. The only indication that a business enterprise was being maintained in the building was the printing paraphernalia set up in the kitchen. Nor is this a case in which the outbuilding adjoined the main house or facilities of the owner of the property. It appears to have been no more than an abandoned building next to a public thoroughfare which was being used for allegedly clandestine purposes.

Since the defendant did not treat the building in а way that demonstrated that he expected it to be private, I cannot agree that he had a legitimate expectation of privacy.

United States v. Bailey, 628 F.2d 938 (6th Cir. 1980). Nor is it clear that this is the type of building which society is willing to invest with privacy interests. Id. The fact that the defendant might have been renting the building from someone who owned it is not conclusive, since “no one circumstance is talismanic to the Rakas inquiry.”

United States v. Haydel, 649 F.2d 1152, 1154 (5th Cir. 1981), cert. denied,

455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 140 (1982). In sum, I agree with the district court that the defendant fails to meet the first prong of the test fоr standing under the fourth amendment. I, therefore, dissent from the majority‘s opinion reversing the judgment in this case.

NATHANIEL R. JONES

UNITED STATES CIRCUIT JUDGE

Notes

1

Rule 54(b) provides:

(b) Judgment Upon Multiple Claims ‍‌​​​​‌​​​​‌‌‌​​‌​‌‌‌​‌​‌​‌‌​​‌​‌‌​​​​​​​​​‌​‌‌​​‍or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, сounterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment, in the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

I agree with the majority that the search was illegal under this court‘s holding in

United States v. Shorter, 600 F.2d 585 (6th Cir. 1979).

Case Details

Case Name: United States v. Arthur Joseph Trickey

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 30, 1983

Citation: 711 F.2d 56

Docket Number: 82-1262

Court Abbreviation: 6th Cir.