Petitioners were convicted of transporting and conspiring to
transport stolen goods in interstate commerce to their
coconspirator, whose retail store was searched under a defective
warrant while petitioners were in custody in another State. The
charges against petitioners were limited to acts committed before
the day of the search. At a pretrial hearing on petitioners' motion
to suppress evidence seized at the store, petitioners alleged no
proprietary or possessory interest in the store or the goods, and
the District Court denied their motion for lack of standing. At
petitioners' trial, the seized goods were introduced into evidence.
In addition, police testimony as to statements by petitioners
implicating each other were introduced into evidence in a manner
contrary to
Bruton v. United States, 391 U.
S. 123. The Court of Appeals concluded that the
Bruton error was harmless in view of overwhelming
independent proof of guilt, and affirmed the District Court's
ruling on standing.
Held:
1. Petitioners had no standing to contest the admission of the
evidence seized under the defective warrant, since they alleged no
legitimate expectation of privacy or interest of any kind in the
premises searched or the goods seized; they had no "automatic"
standing under
Jones v. United States, 362 U.
S. 257, as the case against them did not depend on
possession of the seized evidence at the time of the contested
search and seizure, and they could not vicariously assert the
personal Fourth Amendment right of the store owner in contesting
admission of the seized goods. Pp.
411 U. S.
227-230.
2. The testimony erroneously admitted was merely cumulative of
other overwhelming and largely uncontroverted evidence properly
before the jury, and the
Bruton error was harmless. Pp.
411 U. S.
230-232.
452 F.2d 868, affirmed.
BURGER, C.J., delivered the opinion for a unanimous Court.
Page 411 U. S. 224
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
Petitioners were convicted by a jury of transporting stolen
goods and of conspiracy to transport stolen goods in interstate
commerce, contrary to 18 U.S.C. § 2314 and 18 U.S.C. § 371. The
central issue now is whether petitioners have standing to challenge
the lawfulness of the seizure of merchandise stolen by them but
stored in the premises of one Knuckles, a coconspirator. At the
time of the seizure from Knuckles, petitioners were in police
custody in a different State. Knuckles successfully challenged the
introduction of the stolen goods seized from his store under a
faulty warrant, and his case was separately tried.
The evidence against petitioners is largely uncontroverted.
Petitioner Brown was the manager of a warehouse in Cincinnati,
Ohio, owned by a wholesale clothing and household goods company. He
was entrusted with the warehouse keys. Petitioner Smith was a truck
driver for the company. During 1968 and 1969, the company had
experienced losses attributed to pilferage amounting to
approximately $60,000 each year. One West, a buyer and supervisor
for the company, recovered a slip of paper he had seen drop from
Brown' pocket. On the slip, in Brown's handwriting, was a list of
warehouse merchandise, together with a price on each item that was
well below wholesale cost. West estimated that the lowest
legitimate wholesale price for these items would have been a total
of about $6,400, while the total as priced by Brown's list was
$2,200. The police were
Page 411 U. S. 225
promptly notified and set up a surveillance of the warehouse.
Ten days later, petitioners were observed wheeling carts containing
boxes of merchandise from the warehouse to a truck. From a
concealed point, the police took 20 photographs of petitioners
loading the merchandise onto the truck. Petitioners then locked the
warehouse, and drove off. They were followed and stopped by the
police, placed under arrest, advised of their constitutional
rights, and, with the loaded truck, taken into custody to police
headquarters. The goods in the truck had not been lawfully taken
from the warehouse, and had a total value of about $6,500.
Following their arrest, and after being fully informed of their
constitutional rights, both petitioners made separate confessions
to police indicating that they had conspired with Knuckles to steal
from the warehouse, that they had stolen goods from the warehouse
in the past, and that they had taken these goods, on two occasions
about two months before their arrest, to Knuckles' store in
Manchester, Kentucky. Petitioners also indicated that they had
"sold" the previously stolen goods on delivery to Knuckles for
various amounts of cash. Knuckles' store was then searched pursuant
to a warrant, and goods stolen from the company, worth over
$100,000 in retail value, were discovered. Knuckles was at the
store during the search, but petitioners were in custody in
Ohio.
Prior to trial, petitioners and Knuckles [
Footnote 1] moved to suppress the stolen
merchandise found at Knuckles' store. The prosecution conceded that
the warrant for the search of Knuckles' store was defective. The
District Court held a hearing on petitioners' motion to suppress
the evidence. Petitioners, however, alleged no proprietary or
possessory interest in Knuckles' premises or in
Page 411 U. S. 226
the goods seized there, nor was any evidence of such an interest
presented to the District Court. After the hearing, the District
Court granted Knuckles' motion to suppress the goods seized, but
denied petitioners' motion for lack of standing. The charges
against Knuckles were severed for separate trial.
At petitioners' trial, stolen merchandise seized from Knuckles'
store was received in evidence. The events leading to petitioners'
arrests upon leaving the warehouse and while they were in
possession of stolen goods were fully described by police officers
who were eyewitnesses. The 20 photographs taken of the crime in
progress were admitted into evidence. There was additional
incriminating testimony by the owner of the service station from
whom petitioners rented trucks used in the thefts, and by five
witnesses who saw petitioners unloading boxes from a truck late at
night and carrying the boxes into Knuckles' store. The prosecutor
also introduced into evidence, over petitioners' objections,
portions of each petitioner's confession which implicated the other
in a manner now conceded to be contrary to
Bruton v. United
States, 391 U. S. 123
(1968). Those considerable parts of each petitioner's confession
which did not implicate the other were admitted without objection.
The jury returned verdicts of guilty on all counts.
On appeal, the Court of Appeals for the Sixth Circuit recognized
that a
Bruton error had occurred, but went on to conclude
that the independent proof of petitioners' guilt was "so
overwhelming that the error was harmless," citing
Harrington v.
California, 395 U. S. 250
(1969). The Court of Appeals also held that the stolen merchandise
seized pursuant to the defective warrant was properly admitted
against petitioners, stating:
"This ruling [of the District Court] was correct because
appellants claimed no possessory or proprietary
Page 411 U. S. 227
rights in the goods or in Knuckles' store, and it is clear that
they cannot assert the Fourth Amendment right of another."
452 F.2d 868, 870 (1971).
(1)
Petitioners contend that they have "automatic" standing to
challenge the search and seizure at Knuckles' store. They rely on
the decision of this Court in
Jones v. United States,
362 U. S. 257
(1960), establishing a rule of "automatic" standing to contest an
allegedly illegal search where the same possession needed to
establish standing is "an essential element of the offense . . .
charged."
Simmons v. United States, 390 U.
S. 377,
390 U. S. 390
(1968). That case involved(a) a seizure of contraband narcotics,
(b) a defendant who was present at the seizure, [
Footnote 2] and (c) an offense in which the
defendant's possession of the seized narcotics at the time of the
contested search and seizure was a critical part of the
Government's case.
Jones, supra, at
362 U. S. 263.
Mr. Justice Frankfurter, writing for the Court in Jones, emphasized
the "dilemma" inherent in a defendant's need to allege "possession"
to contest a seizure when such admission of possession could later
be used against him.
Id. at
362 U. S.
262-264. Mr. Justice Frankfurter quoted the words of
Judge Learned Hand:
"Men may wince at admitting that they were the owners, or in
possession, of contraband property; may wish at once to secure the
remedies of a possessor, and avoid the perils of the part; but
equivocation will not serve. If they come as victims, they
Page 411 U. S. 228
must take on that role with enough detail to cast them without
question. The petitioners at bar shrank from that predicament, but
they were obliged to choose one horn of the dilemma."
Connolly v. Medalie, 58 F.2d 629, 630 (CA2 1932).
The self-incrimination dilemma, so central to the
Jones
decision, can no longer occur under the prevailing interpretation
of the Constitution. Subsequent to
Jones, in
Simmons
v. United States, supra, we held that a prosecutor may not use
against a defendant at trial any testimony given by that defendant
at a pretrial hearing to establish standing to move to suppress
evidence. 390 U.S. at
390 U. S.
389-394. For example, under the
Simmons
doctrine, the defendant is permitted to establish the requisite
standing by claiming "possession" of incriminating evidence. If he
is granted standing on the basis of such evidence, he may then
nonetheless press for its exclusion; but, whether he succeeds or
fails to suppress the evidence, his testimony on that score is not
directly admissible against him in the trial. Thus, petitioner in
this case could have asserted, at the pretrial suppression hearing,
a possessory interest in the goods at Knuckles' store without any
danger of incriminating themselves. They did not do so.
But it is not necessary for us now to determine whether our
decision in
Simmons, supra, makes
Jones'
"automatic" standing unnecessary. We reserve that question for a
case where possession at the time of the contested search and
seizure is "an essential element of the offense . . . charged."
Simmons, 390 U.S. at
390 U. S. 390.
Here, unlike
Jones, the Government's case against
petitioners does not depend on petitioners' possession of the
seized evidence at the time of the contested search and seizure.
[
Footnote 3]
Page 411 U. S. 229
The stolen goods seized had been transported and "sold" by
petitioners to Knuckles approximately two months before the
challenged search. The conspiracy and transportation alleged by the
indictment were carefully limited to the period before the day of
the search.
In deciding this case, therefore, it is sufficient to hold that
there is no standing to contest a search and seizure where, as
here, the defendants: (a) were not on the premises at the time of
the contested search and seizure; (b) alleged no proprietary or
possessory interest in the premises; and (c) were not charged with
an offense that includes, as an essential element of the offense
charged, possession of the seized evidence at the time of the
contested search and seizure. The vice of allowing the Government
to allege possession as part of the crime charged, and yet deny
that there was possession sufficient for standing purposes, is not
present. The Government cannot be accused of taking "advantage of
contradictory positions."
Jones v. United States, supra,
at
362 U. S. 263.
See United States v. Allenberrie, 424 F.2d 1209, 1212-1214
(CA7 1970);
United States v. Cowan, 396 F.2d 83, 86 (CA2
1968);
Niro v. United, States, 388 F.2d 535, 537 (CA1
1968);
United States v. Bozza, 365 F.2d 206, 223 (CA2
1966).
But cf.. United States v. Price, 447 F.2d 23, 29
(CA2),
cert. denied, 44 U.S. 912 (1971).
Again, we do not decide that this vice of prosecutorial
self-contradiction warrants the continued survival of Jones'
"automatic" standing now that our decision in
Simmons has
removed the danger of coerced self-incrimination. We simply see no
reason to afford such "automatic" standing where, as here, there
was no risk to a defendant of either self-incrimination or
prosecutorial self-contradiction. Petitioners were afforded a full
hearing on standing, and failed to allege any legitimate interest
of any kind in the premises searched or the merchandise seized.
Page 411 U. S. 230
Nor, incidentally, does the record reveal any such interest.
[
Footnote 4] As the Court of
Appeals correctly concluded, petitioners had no standing to contest
the defective warrant used to search Knuckles' store; they could
not then, and cannot now, rely on the Fourth Amendment rights of
another.
"Fourth Amendment rights are personal rights which, like some
other constitutional rights, may not be vicariously asserted.
Simmons v. United States, 390 U. S.
377 (1968);
Jones v. United States,
362 U. S.
257 (1960)."
Alderman v. United States, 394 U.
S. 165,
394 U. S. 174
(1969).
See Wong Sun v. United States, 371 U.
S. 471,
371 U. S. 492
(1963).
(2)
The Solicitor General concedes that, under
Bruton,
supra, statements made by petitioners were improperly admitted
into evidence. Neither petitioner testified at the trial. The
prosecution tendered police testimony as to statements made by
Smith implicating Brown in the crimes charged, even though these
statements were made out of Brown's presence. [
Footnote 5] This testimony was
Page 411 U. S. 231
admitted into evidence. Similar statements, made by Brown
relating to Smith, were also admitted. Petitioners' counsel made
timely objections.
Upon an independent examination of the record, we agree with the
Court of Appeals that the
Bruton errors were harmless. The
testimony erroneously admitted was merely cumulative of other
overwhelming and largely uncontroverted evidence properly before
the jury. In this case, as in
Harrington v. California,
395 U. S. 250
(1969), the independent evidence "is so overwhelming that, unless
we say that no violation of
Bruton can constitute harmless
error, we must leave this . . . conviction undisturbed,"
id. at
395 U. S. 254.
We reject the notion that a
Bruton error can never be
harmless. "[A] defendant is entitled to a fair trial, but not a
perfect one,"
Page 411 U. S. 232
for there are no perfect trials.
Bruton v. United
States, 391 U.S. at
391 U. S. 135,
quoting
Lutwak v. United States, 344 U.
S. 604,
344 U. S. 619
(1953).
See Schneble v. Florida, 405 U.
S. 427,
405 U. S. 432
(1972);
Chapman v. California, 386 U. S.
18,
386 U. S. 23-24
(1967).
Affirmed.
[
Footnote 1]
Knuckles was joined in the conspiracy count, and was also
charged with having received stolen merchandise, contrary to 18
U.S.C. § 2315.
[
Footnote 2]
Presence of the defendant at the search and seizure was held, in
Jones, to be a sufficient source of standing in itself.
Jones v. United States, 362 U. S. 257,
362 U. S. 267
(1960). Here, of course, petitioners were not present at the
contested search and seizure, but were in police custody in a
different State.
See Wong Sun v. United States,
371 U. S. 471,
371 U. S. 492
n. 18 (1963).
[
Footnote 3]
"Petitioner' conviction flow from his possession of the
narcotics
at the time of the search."
Jones,
supra, at
362 U. S. 263
(emphasis added).
[
Footnote 4]
Petitioners now contend that they had a partnership "property
interest" in or "constructive possession" of the stolen goods found
at Knuckles' store, as a conspiracy is a "partnership in crime."
Even if the petitioners had not already "sold" the merchandise to
Knuckles, their "property interest" in the merchandise was totally
illegitimate. The "constructive possession" argument is equally
ingenious, but equally unavailing. Even on the doubtful assumption
that the alleged conspiracy between petitioners and Knuckles could
support a "constructive possession" of the merchandise at Knuckles'
store, the conspiracy was alleged to have continued only "to and
including the 28th day of August, 1970." The seizure was made on
August 29, 1970. Finally, these contentions were not made in the
courts below or in the petition for certiorari. They are,
therefore, not properly before this Court.
Lawn v. United
States, 355 U. S. 339,
355 U. S.
362-363, n. 16 (1958).
[
Footnote 5]
An FBI agent, Whitley, testified as follows:
"[Smith stated that,] during June, 1970, another individual who
was also employed at Central Jobbing Company, one Joe Brown, had
approached him and asked him to help steal merchandise from Central
Jobbing Company and help him transport this merchandise to
Manchester, Kentucky. He advised me that, during June of 1970, he
and Joe Brown made two trips to Manchester, Kentucky, with
merchandise consisting of household goods and clothing which they
had stolen from Central Jobbing Company. He recalled that, to the
best of his knowledge . . . , these dates were June 5th and 29th,
1970. He said that he and Mr. Brown had received approximately
one-half the value of the stolen merchandise from the owners of the
Knuckles Discount Store in Manchester, Kentucky, and that the
owners of the Discount Store knew that the merchandise was stolen.
Mr. Smith stated further that he had received approximately
$2,500.00 as his share of the money which they had received from
the stolen merchandise."
Another witness, a Detective Hulgin from the County Sheriff's
Patrol, had also testified to similar statements by Smith, adding
that Smith had stated that the list, which was found by West at the
warehouse, had been prepared and shown to him by Brown, and that
the total price of $2,200 shown on the list was the amount of money
that petitioners were to receive for that particular shipment to
Knuckles. Hulgin also testified that he was told by Brown that
Smith had accompanied Brown on two previous occasions when Brown
delivered stolen goods to Knuckles.