Ganey, Adams, and Max Rosenn, Circuit Judges.
We are here confronted with the novel and intriguing question whether, when an owner of an automobile, at the behest of the police, searches that automobile for a gun alleged to belong to another, the Fourth Amendment has been violated.
The matter arises as the result of an appeal by the Government from an order of the district court, 328 F. Supp. 545, suppressing the introduction into evidence of a shotgun on the ground it is the product of an illegal search. The precise issue is whether it was proper to suppress the shotgun the defendant was charged with possessing, where the search, which followed a statement by the police that "if [Trott and Cannon] couldn't find the shotgun, that [they] could or would be arrested," was conducted by a third-party, Trott, who found the gun in his automobile. At the time of the search, the defendant was incarcerated.
The defendant, Charles W. West, was arrested by the local police on June 5, 1970, and imprisoned for a parole violation. The next day, the Chief of Police, Todd, interrogated West with regard to the possession of a shotgun. West admitted possessing the gun and took the police to his home to find it.*fn1 They discovered that the house had been burglarized and that the gun was missing. Later that month, Chief Todd and two Treasury Agents questioned Wilson Trott and his friend, Douglas Cannon. The district court found as a fact that Chief Todd threatened Trott and Cannon with imprisonment if they did not locate the shotgun within one week. Three days later, on June 26, 1970, Trott found the gun jammed into the springs of the seat of his own car, where it had been hidden by someone, probably Cannon. In July, 1970, West signed a statement admitting ownership of a shotgun, describing its purchase, and verifying its loss.
On October 27, 1970, West was indicted for possession of an unregistered weapon, namely a "sawed off" shotgun, on or about June 26, 1970. Thereafter, West moved to suppress the shotgun and the statement of July, 1970. After a hearing, West was reindicted and charged with possession of the same weapon on or about June 5, 1970.*fn2
The district court issued a memorandum tentatively suppressing the shotgun, but reserving decision until after a further hearing. At the second hearing, West testified that he did not own the shotgun referred to in the indictment and that he had not transferred any such weapon during June or July of 1970. A supplemental memorandum was then issued by the district court suppressing the shotgun and holding that the statement given in July was not the product of illegal police conduct.*fn3 An order to this effect was entered on June 14, 1971. The Government has appealed.
To resolve the ultimate issue in this case -- the correctness of the district court's order directing that the shotgun be suppressed -- it is helpful to examine several subsidiary issues raised by the Government. These issues are (1) the standing of the defendant to object to evidence obtained by transgressing another's Fourth Amendment rights, (2) the scope of the Fourth Amendment with regard to property interests, (3) the extent of the exclusionary rule as applied to searches by private citizens, and (4) the parameters of the Fourth Amendment with regard to searches.*fn4
The first matter to be resolved is West's standing to move for suppression of the evidence allegedly seized illegally from another. The problem of standing in Fourth Amendment cases has for a considerable period of years been troublesome to courts and commentators.*fn5 There are two cases, however, Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), and Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), which are controlling as to this issue.
In Jones, the Supreme Court held that where possession of illegal material is an ingredient of the offense, the indictment charging possession provides a sufficient interest in the material to establish standing. 362 U.S. at 261-265, 80 S. Ct. 725.*fn6 The principal question in Simmons was whether testimony by the defendant at a preliminary hearing to establish standing that the seized items were his could be introduced at trial on the issue of guilt. There, the police had seized from the home of the mother of a co-defendant suitcases containing evidence linking a defendant, Garrett, to the crime of armed robbery of a federally insured savings and loan association. Garrett was not on the premises at the time of the seizure. However, in resolving the issue, the Supreme Court made clear that the rule in Jones, that a defendant charged with a crime in which possession of the item in question is an essential element has standing to move to suppress, is still viable:
". . . First, we held that when, as in Jones, possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence. . . . Throughout this case, petitioner Garrett, has justifiably . . . proceeded on the assumption that the standing requirements must be satisfied.
". . . Garrett evidently was not in Mrs. Mahon's house at the time his suitcase was seized from her basement. The only, or at least the most natural, way in which he could found standing to object to the admission of the suitcase was to testify ...