410 F2d 379 Cassady v. United States

410 F.2d 379

Ronald CASSADY, Appellant,
UNITED STATES of America, Appellee.

No. 25652.

United States Court of Appeals Fifth Circuit.

April 24, 1969.

Richard H. Ramsey, III, Dothan, Ala., for appellant.

Ben Hardeman, U. S. Atty., Don Conway, Asst. U. S. Atty., Montgomery, Ala., for appellee.

Before WISDOM and DYER, Circuit Judges, and KRENTZMAN, District Judge.


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Cassady appeals his conviction by a jury of post office burglary, in violation of 18 U.S.C.A. § 2115.


On October 26, 1966, it was discovered that the post office at Jacks, Alabama, had been burglarized. Several money orders and a money order machine were stolen. On the same day a merchant cashed one of the stolen money orders and at the trial identified Cassady as the person who presented and signed it.


On October 27, 1966, officer Shelton of the Atlanta Police Department observed two cars going the wrong way on a one way street. Cassady was driving the first car. Shelton stopped the cars. Cassady and his passenger got out and the passenger walked back and got into the second car, a Falcon, driven by one Clements. The Falcon then started up and was driven menacingly toward Shelton in an attempt to run him down. Shelton drew his revolver and ordered Clements to stop. Shelton searched the trunk of the Falcon and found some of the stolen money orders and the money order machine.


While Cassady was in custody, without Miranda warnings,1 he was asked to and did turn over his shoes to the authorities. The shoes were used by the Government to connect Cassady with footprints found at the post office after the burglary.


Cassady assigns as error the admission in evidence of the money orders and the money order machine contending that they were obtained by an illegal search and seizure. He further urges reversal on the ground that the in-custody seizure of his shoes violated his right against self-incrimination.


The record is devoid of evidence indicating any interest, ownership or otherwise, of Cassady in the Falcon such as to afford him standing to complain of its search. Only one whose Fourth Amendment right of privacy has been violated may object to the introduction of the fruits of an illegal search. Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. See also Simmons v. United States, 1968, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. Cassady simply was not an aggrieved person. United States v. Beigel, 2 Cir. 1967, 370 F.2d 751, cert. denied, 387 U.S. 930, 87 S.Ct. 2049, 18 L.Ed.2d 989; Diaz-Rosendo v. United States, 9 Cir. 1966, 357 F.2d 124; cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83.


We are also unimpressed with Cassady's argument that his Fifth Amendment right was violated in the surrender of his shoes. Evidence of a non-communicative nature may be taken from a defendant without violating his right against self-incrimination. Schmerber v. California, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Gilbert v. California, 1967, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Brent v. White, 5 Cir. 1968, 398 F.2d 503, cert. denied, 1969, 393 U.S. 1123, 89 S.Ct. 998, 22 L.Ed.2d 130; United States v. Guido, 7 Cir. 1958, 251 F.2d 1.

The judgment of the District Court is

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Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694