Kiley, Cummings and Kerner, Circuit Judges.
Defendant-appellant James Allsenberrie was found guilty by a jury under a two-count indictment charging violations of 18 U.S.C. § 659. Count I of the indictment charged the defendant with stealing 17 cartons of merchandise from the Terminal Transport Company on or about November 7, 1966, while the goods were traveling in Interstate Commerce. Count II charged the defendant with possession of 12 of the stolen cartons on November 10, 1966. Defendant Allsenberrie was sentenced to ten years imprisonment on each count; the sentences originally set to run consecutively for a total of twenty years. On motion for a reduction of the sentence, the sentence was reduced to provide that the sentence on each count would run concurrently. From the jury finding of guilty and the sentence of 10 years, defendant appeals. We affirm.
Defendant Allsenberrie was employed as a dockman for Terminal Transport Company and reported a shortage of 17 cartons of garments. Three days later on November 10, 1966, an F.B.I. agent appeared before a judge of the district court and executed an affidavit for a search warrant alleging that the stolen property was located at an establishment known as Bob's Bargain Nook and owned by Robert T. Chveja.*fn1 That affidavit provided in relevant part as follows:
And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: that on 11/9/66, a confidential informant, who has furnished reliable information in the past, advised your affiant that James Allsenberrie, who is employed as a dockman by the Terminal Transport Company, Inc., on 11/7/66 stole 17 cartons of garments from the Terminal Transport Company, Inc., and took them to the Bargain Nook at 6020 S. Archer, part of which were stored in the one and one-half story frame building, part in the garage and part in a trailer without wheels on the same property west of the buildings; further, that on 11/10/66, Ray Hunter, Northern Regional Manager, Terminal Transport Company, Inc., Forestview, Illinois, advised that their records reflect a shortage of 17 cartons of garments being shipped under Terminal Transport Company, Inc., Pro Number 5775025, from Wernar Brothers, Dothan, Alabama, to Wernar Brothers, Geneva, Illinois, and that these garments are valued in excess of $100. He further advised that Terminal Transport Company, Inc., dockman James Allsenberrie in performing his duties was responsible for the handling of this shipment. Later, on this same date, Hunter advised that an employee of the dock, who had furnished him reliable information in the past and whose identity he declined to furnish, told him, Hunter, that Allsenberrie had taken the aforementioned 17 cartons of garments on 11/7/66 and had taken them to the Bargain Nook located at 6020 South Archer, Chicago, Illinois. This employee also told him that the goods had not been disposed of as yet and that they were still located at the above-mentioned address.
Your affiant physically observed this location on 11/10/66 and did note that the buildings matched the description as furnished by the above sources and that there is a forty foot aluminum trailer without wheels parked west of the buildings.
A warrant was issued on the affidavit and executed by agents of the F.B.I. on the same day resulting in the seizure by agents of the 12 cartons of garments -- the knowing possession of which defendant Allsenberrie was charged in Count II of the indictment.
Defendant filed, prior to trial, a motion to suppress the evidence obtained via the November 10 search. The trial judge refused to hold a hearing on the motion to suppress finding that the defendant Allsenberrie was without standing to raise the constitutional issue presented under the Fourth Amendment.
The finding of the trial judge that defendant lacked standing to challenge the reasonableness of the search is the first allegation of error raised on appeal. Defendant Allsenberrie contends that since Count II of the indictment charges him with possession of the stolen goods on November 10, the day of the search, such finding of constructive possession should be sufficient to give the defendant the requisite standing.
We agree that the defendant should have been held to have the proper standing to challenge the reasonableness of the search. Rule 41(e) of the Federal Rules of Criminal Procedure provides in relevant part that:
A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant, or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. * * *
The United States Supreme Court in Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), interpreted the meaning of "aggrieved party" and thus established who had standing to question the validity of a government search. In Jones the defendant sought to suppress a quantity of narcotics seized under an allegedly invalid warrant. The district court and court of appeals held that since the defendant had neither established that he had more than a licensee's interest in the premises nor that he was in possession of the narcotics, he lacked standing to raise the motion. The Supreme Court rejected the first reason for a denial of standing stating, "Anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him." (362 U.S. at 267, 80 S. Ct. at 734.) As to the second ground -- lack of possession -- which directly relates to the facts of the instant case, the Supreme Court found that since the basis of the charge against defendant was possession of narcotics, it would be a "squarely contradictory assertion of power by the Government" (362 U.S. at 264, 80 S. Ct. at 732) to indict defendant for possession of narcotics but oppose defendant's motion to suppress because he did not have the requisite possession for standing:
To hold that petitioner's failure to acknowledge interest in the narcotics or the premises prevented his attack upon the search, would be to permit the Government to have the advantage of contradictory positions as a basis for conviction. Petitioner's conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory ...