The opinion of the court was delivered by: NEALON
Nealon, United States District Judge.
Defendant has filed a motion to suppress the Government's search and seizure, without a warrant, of a metal box containing currency allegedly taken in a bank robbery in Harrisburg on January 14, 1975. A hearing on the motion was held April 23, 1975, and evidence received from which the following findings are made.
On Thursday night, January 23, 1975, at approximately 11:30 P.M., Robert M. Fanning, a Special Agent for the FBI stationed at New Bern, North Carolina, received a telephone call from B. H. Baxter, Esq., an attorney in New Bern, who advised Fanning that he had been consulted by Rev. Andrew T. Bradley who had expressed great upset concerning a metal box which had been placed in his custody the prior weekend by his niece and her boyfriend and which might be connected with a recent bank robbery in Harrisburg, Pennsylvania. Baxter related that Bradley had called relatives in Harrisburg after his visitors had left and was told that defendant had been arrested for bank robbery. Mr. Baxter asked the Agent if he would call Rev. Bradley immediately because he was excited and concerned about the box. Agent Fanning placed a call to Rev. Bradley who told him that he and his wife were originally from Harrisburg; that many members of their families still lived there; that his niece and defendant visited them on Saturday, January 18, 1975, and had remained until Monday, January 20th; that they had given him a metal box for safekeeping "so they wouldn't be tempted to spend it" and represented that it contained silver notes and bonds for their children;
that he called his sister in Harrisburg to inquire about his niece's safe return and learned that defendant had been arrested in connection with a bank robbery in Harrisburg; that he had not looked in the box but was concerned that the contents may be related to the bank robbery, and that he wanted someone from the FBI to be there when he opened the box. When Agent Fanning suggested that he wait until the following morning because it wasn't "a pressing matter", Rev. Bradley insisted that the Agent come to his home that night and Fanning agreed.
In approximately one hour, Agent Fanning and Special Agent Robert S. Shields arrived at the Bradley home and were seated in the living room with Rev. and Mrs. Bradley. Once again Rev. Bradley related the background information and, in addition, mentioned that he had called his niece after learning of defendant's arrest and found her to be evasive inasmuch as she didn't disclose the fact that defendant had been arrested until specifically asked and then described it as "some silly mess". Moreover, she told Rev. Bradley that she had been interrogated by the FBI in Harrisburg and told them of her visit to North Carolina and, in response to a specific question, denied that she left anything at the Bradleys' home. She stated further that the FBI would probably come to question him and that he should deny that they left anything with the Bradleys. Rev. Bradley told the Agents that he remembered after the phone conversation that the metal box had been left with them and realized that his niece had lied to the authorities. He said he felt from her conversation that "something was very much wrong" and that he was "pretty well convinced that Bennie (defendant) and Chrissie knew something or were involved in the bank robbery." To verify the bank robbery, Agent Fanning placed a call from the Bradley home and talked to Special Agent James Stewart in Harrisburg. Agent Stewart advised Fanning that the National Central Bank in Harrisburg had been robbed on January 14, 1975, by three armed black males;
that $75,000 had been taken including bait money in denominations of $20; that defendant had been arrested as a result of eyewitness identification and charged with the robbery; that a pistol used in the robbery had not been recovered; and that Christine Mahone had told him that she and the defendant just returned from a trip to North Carolina to visit the Bradleys, although she didn't disclose that a metal box had been left in their custody.
After receiving this information, Agent Shields asked Rev. Bradley, "Would you get the box for us?" Rev. Bradley retrieved the box from his closet and placed it on a coffee table. Shields attempted to lift the lid and, after shaking the box, determined that it was locked. Rev. Bradley informed the Agents that no key had been left with them. Rev. Bradley stated that he wanted the box opened and if the contents were "innocent", he would call his niece and apologize. A discussion ensued about the availability of a locksmith
and while Agent Fanning was on the telephone attempting to reach a locksmith in New Bern, Agent Shields tried to unlock the box with several keys from his key ring and discovered that his desk key unlocked the box. He informed Fanning of this, unlocked the box, removed the key and said to Rev. Bradley, "I'll give you the pleasure of opening up the box". Rev. Bradley lifted the lid on the box, revealing the presence of a large amount of money in various denominations. The Agents removed the money, counted it, separated it according to denominations, and wrapped it into smaller bundles. The total amount was $17,080.00.
Rounding out the picture, it should be noted that Rev. Bradley was very insistent that the box be opened while the Agents were present; that the Agents felt that Rev. Bradley was honest, truthful, trying to do the right thing, and genuinely concerned about the box, its contents, and his niece's possible involvement; that the Agents suspected that the box contained bank money or guns; that the Bradleys did not give the Agents the impression that they had authority to open the box; that the Agents did not believe that Rev. Bradley would open the box, conceal it, or otherwise interfere if they decided to leave his home and obtain a search warrant; that there was a United States Magistrate domiciled in New Bern and that it would take approximately two hours to obtain a search warrant and return to the Bradley home; and that Rev. Bradley, despite his distress, would have been satisfied if the Agents left for two hours to procure a search warrant.
Our analysis of this case starts with Coolidge v. New Hampshire, 403 U.S. 443, 454, 455, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971) wherein the Supreme Court reiterated that
'[The] burden is on those seeking the exemption to show the need for it.'"
In the instant case, Agent Fanning received sufficient information in his phone conversation with Rev. Bradley to allow him to seek to procure a search warrant based on probable cause before proceeding to the Bradley home. He knew, also, that Rev. Bradley wanted him immediately for the purpose of determining the contents of a metal box left in his company by one who had been arrested for bank robbery. It was not a routine investigative visit as existed in Coolidge v. New Hampshire, supra. Assuming arguendo that probable cause did not exist at that time, it most certainly did after his arrival when Rev. Bradley related the evasions and untruths of Christine Mahone, and Agent Stewart, by telephone, confirmed defendant's arrest based upon eyewitness identification, the details of the crime, the large amount of money involved, the bait bills in $20 denominations, the missing pistol, and the visit of defendant to the Bradleys after the robbery. All of this occurred before the Agents even saw the metal box. Moreover, there was no reason to believe, and the Agents did not believe, that Rev. Bradley would open, secrete, or otherwise interfere with the box if the Agents decided to obtain a search warrant, a matter that would involve only two hours. Rev. Bradley impressed the Agents, as he did the Court, as an honest, law-abiding citizen who was anxious to cooperate in the investigation. While he may have been extremely anxious to open the box, this did not relieve the officers of their obligation to adopt constitutional means. They knew that the box was not his and, by their own admissions, he had not indicated to them that he had the owners' permission to open the box. As a matter of fact, he promised that he would call and apologize if the contents were nonincriminating. However, the Agents testified that they strongly suspected that the box contained money or material related to the bank robbery. Under the circumstances, unless the warrant requirement of the Fourth Amendment is to be reduced to a nullity, the Agents should have presented this matter to a magistrate. The inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate are never very convincing reasons to bypass the Constitutional requirement. Johnson v. United States, 333 U.S. 10, 14, 92 L. Ed. 436, 68 S. Ct. 367 (1948).
The Government attempts to remove this case from the strictures of the Fourth Amendment by arguing that (a) this was a private search and seizure without governmental participation and (b) Rev. Bradley was authorized to give consent to the search and seizure.
"(A) search is a search by a federal official if he had a hand in it . . . The decisive factor . . . is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have ...