U.S. v. Gordon, 98-3122

• Citation: 168 F.3d 1222
• Decision Date: 23 February 1999
• Docket Number: No. 98-3122,98-3122
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael O. GORDON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1222

168 F.3d 1222

UNITED STATES of America, Plaintiff-Appellee, v. Michael O. GORDON, Defendant-Appellant.

No. 98-3122.

United States Court of Appeals, Tenth Circuit.

Feb. 23, 1999.

David M. Lind, Assistant United States Attorney, (Jackie N. Williams, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.

David H. Moses, of Curfman, Harris, Rose & Smith, L.L.P., Wichita, Kansas, for Defendant-Appellant.

Before PORFILIO, McWILLIAMS, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

On January 11, 1997, police officers found drugs and ammunition during a warrantless search of a motel room in Wichita, Kansas. Defendant Michael O. Gordon and Tiffany Myers were subsequently charged in a three-count indictment with possession with intent to distribute crack cocaine and cocaine, and possession of rifle ammunition.

Defendant filed a motion to suppress evidence, arguing that the officers obtained the evidence in violation of the Fourth Amendment to the United States Constitution. The district court denied Defendant's motion to suppress and Defendant's subsequent motion to reconsider. On appeal, Defendant argues that the district court erred by denying the motions. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

I. Background

On January 11, 1997, at approximately 9:00 p.m., the Wichita, Kansas police department received an anonymous tip that two individuals, Tiffany Myers and Preston Espinoza, were engaged in drug activity in the Motel 6 on West Kellogg and had drawn a gun on the caller from a black Saturn. Officers Arnaldo Martinez and Bret Benjamin were dispatched in response to the tip.

Officers Martinez and Benjamin arrived at the Motel 6 and located a black Saturn in the motel parking lot. The vehicle was registered to Tiffany Myers. Upon further investigation, the motel clerk confirmed that a Tiffany Myers had rented room 209. Officer Martinez also learned through a check of police records that Preston Espinoza had an outstanding felony arrest warrant. Officer Martinez asked the motel clerk to call room 209 to determine if anyone was present. She did so and a male voice answered. The officers, believing Espinoza was in the room, called for back-up. As the two officers were approaching room 209, they noticed an individual who fit Espinoza's description walking toward the black Saturn. When asked, Espinoza identified himself, and the officers arrested him on the outstanding warrant. After a pat-down search revealed that Espinoza was unarmed, Officer Benjamin escorted him to his police car.

Having found no gun on Espinoza, Officer Martinez became concerned that Myers, the remaining occupant of the room, might be armed. Therefore, Officer Martinez waited for back-up to arrive before approaching room 209. After two additional officers arrived, they approached room 209 with their guns drawn. Martinez knocked on the door and said "police officers." A male voice responded "who?" Martinez repeated "police officers, open the door." Defendant opened the door about six inches. Defendant's hands were in his pocket, so Officer Martinez told him to remove them so he could see them. Defendant removed his hands and turned to his left, making a throwing motion toward the bed. As he did so, Defendant moved away from the door. Because Officer Martinez had placed his hand on the door to keep Defendant from shutting it, the door swung open as Defendant spun around, allowing Officer Martinez to see into the motel room. Officer Martinez observed several other people, a set of scales and sandwich bags. At that point, he noticed one of the individuals in the room, Connie Ramsey, moving toward the bathroom. Concerned that she was attempting to destroy evidence or reaching for a weapon, Officer Martinez entered the room and stopped her. After securing the room and its occupants, the officers obtained a search warrant for room 209. Officers executed the warrant early the next morning and seized cocaine, scales, sandwich bags, ammunition, film, a cellular phone and various documents.

After Defendant was taken to the police station, Detective Beverly Brimer advised Defendant of his Miranda rights using a standard form. Defendant said he wanted to waive his rights and signed the form. When Detective Brimer asked Defendant about the room key found on his person, he said he was only using it so he could get back into the room quickly after he went to the parking lot to talk with someone. He did not tell Detective Brimer that the room key was his or that room 209 was his room. Detective Brimer also asked Defendant how long he had been in the room and he told her three minutes. Defendant explained that he was there to conduct some business with Preston Espinoza. When asked what kind of business, he stated: "Well, that's pretty obvious, isn't it." From this statement, Detective Brimer believed Defendant was referring to the narcotics business.

A few weeks prior to Defendant's arrest, Lieutenant M. Keith Barnes, chief investigator at the Kansas El Dorado Correctional Facility, received from the prison mail room a letter and photographs sent to an inmate by Defendant. Two of the photographs contained large sums of currency. Upon inspection, Barnes determined that the photographs were indicative of drug or gang activity. Therefore, he read the accompanying letter. Concerned that the photographs depicted illegal activity, he copied the letter and photographs and sent the originals to the inmate. Barnes then sent copies to Agent Rick Husselman with the Department of Corrections in Wichita, because the letter indicated that the writer was a parolee. Barnes handled a second letter and set of photographs sent by Defendant to another inmate in the same manner. After Defendant's arrest, Agent Husselman took the letters and photographs to the Wichita police department and was present when Detective Brimer questioned Defendant about them. Detective Brimer advised Defendant that the letters would be used as evidence against him.

Defendant filed a motion to suppress the evidence seized from the motel room and the photocopies of the letters and photographs. On September 12 and 15, 1997, the district court conducted an evidentiary hearing and denied the motion. On October 10, 1997, Defendant filed a motion to reconsider. The district court conducted another evidentiary hearing on October 17 and 27, 1997, and denied the motion to reconsider. Defendant subsequently entered a conditional guilty plea to possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and the district court sentenced him to 84-months imprisonment. Defendant reserved the right to appeal the denial of his motion to suppress evidence. See Fed.R.Crim.P. 11(a)(2).

II. Analysis

When reviewing a district court's denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in a light most favorable to the government. United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.1998). We accept the district court's factual findings unless those findings are clearly erroneous. United States v. Villa-Chaparro, 115 F.3d 797, 801 (10th Cir.1997). The credibility of witnesses, the weight to be given evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court. Id. Keeping in mind that the burden is on the defendant to prove that the challenged search was illegal under the Fourth Amendment, United States v. Ludwig, 10 F.3d 1523, 1526 (10th Cir.1993), the ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo. Hunnicutt, 135 F.3d at 1348.

A. Reasonable Expectation of Privacy

Initially, we must determine whether Defendant can claim that his Fourth Amendment rights were violated when officers entered the motel room in Wichita, Kansas. ¹ To do so, we must decide whether Defendant had an "expectation of privacy in the place searched, and that his expectation is reasonable." Minnesota v. Carter, --- U.S. ----, ----, 119 S.Ct. 469, 472, 142 L.Ed.2d 373 (1998). ² An expectation of privacy is reasonable if it arises from a source "outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Rakas v. Illinois, 439 U.S. 128, 143-44, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The Fourth Amendment protects people from unreasonable searches of their "persons, houses, papers, and effects." U.S. Const. amend. IV. Fourth Amendment protection is "a personal right that must be invoked by an individual." Carter, --- U.S. at ----, 119 S.Ct. at 473. The extent of this protection sometimes depends upon the location of the person claiming the protection. See id. Thus, we must determine whether Defendant had a reasonable expectation of privacy in the motel room. The burden is on Defendant to show that he had such an expectation. See United States v. Conway, 73 F.3d 975, 979 (10th Cir.1995).

We have recognized that an individual may have a reasonable expectation of privacy in a motel room. See United States v. Carr, 939 F.2d 1442, 1446 (10th Cir.1991). In making this determination, we have traditionally considered whether the individual had lawful ownership or control of the premises searched. See id. Of importance is the status of the defendant as an overnight guest. See Carter, --- U.S. at ----, 119 S.Ct. at 473 ("an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not"). Thus, we have required a defendant to demonstrate that he was the registered occupant of the room or that he was sharing it with the person to whom the room was registered. See Carr, 939 F.2d at 1446; see also Conway, 73 F.3d at 979 (defendant must at least demonstrate that, in the case of a motel room, that he was the invited...