U.S. v. Paopao

• Decision Date: 10 October 2006
• Docket Number: No. 05-10653.,05-10653.
• Citation: 465 F.3d 404
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eteuati PAOPAO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

465 F.3d 404

UNITED STATES of America, Plaintiff-Appellee, v. Eteuati PAOPAO, Defendant-Appellant.

No. 05-10653.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 12, 2006.

Filed October 10, 2006.

COPYRIGHT MATERIAL OMITTED

Pamela J. Byrne, Assistant Federal Defender, Honolulu, HI, for the defendant-appellant.

Marshall H. Silverberg, Assistant United States Attorney, Honolulu, HI, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii; Susan Oki Mollway, District Judge, Presiding. D.C. No. CR-04-00326-SOM.

Before B. FLETCHER and BERZON, Circuit Judges, and DAVID G. TRAGER,^* District Judge.

TRAGER, District Judge.

Eteuati Paopao ("Paopao") pled guilty to a violation of 18 U.S.C. § 922(g), possession of a firearm by a felon. Under a reservation of rights, he now appeals two of the District Court's rulings. Specifically, Paopao alleges that the District Court erred in not suppressing the Honolulu Police Department's seizure of his handgun during a protective sweep of an illegal gambling room. Paopao also claims that the District Court should have granted his motion to dismiss the charges because they were unconstitutional as applied to him. This court has jurisdiction pursuant to 18 U.S.C. § 3231 and 28 U.S.C. § 1291 and affirms.

Background

In late summer 2004, two perpetrators committed a series of robberies of illegal gambling rooms. The robbers posed as police officers and were armed. Based on descriptions provided by victims and information provided by unidentified sources, Honolulu Police Officer Joseph Lum ("Officer Lum") believed that the two robbers were Sam Matamua ("Matamua") and Paopao.

On the morning of August 20, 2004, Honolulu Police Detective Brian Lee ("Detective Lee") received a call from a confidential informant who stated that the men responsible for the earlier gambling room robberies were currently at "Charley's Game Room," (the "Game Room") another illegal gambling establishment. When Detective Lee arrived at the intersection near the Game Room, he radioed for assistance. While doing so, he spotted Officer Lum, who was off-duty and happened to be traveling through that area. Officer Lum knew of the Game Room and had been there before; he agreed to assist Detective Lee. When the other officers arrived, Officer Lum told them about the layout of the apartment the Game Room was located in, that it had only one entrance, and that a robbery might be in progress.¹

As Officer Lum, Detective Lee and the other officers approached the Game Room, approximately seven individuals exited through the front door. The officers instructed those individuals to lie prone on a walkway a few feet from the door. After giving this direction, Officer Lum saw Paopao, whom he recognized from his mug shot, exit the Game Room. Paopao was carrying a tan bag over his shoulder. Upon seeing the police, Paopao turned about and went back into the Game Room. Officer Lum followed Paopao to the Game Room doorway and peered into the apartment with one eye. He observed Paopao take the bag off of his shoulder, pause for "a brief period," and then place the bag on the floor. Paopao then exited the Game Room and was arrested on an outstanding warrant.

After arresting Paopao, Officer Lum called into the Game Room, announcing his presence and telling anyone inside to come out. Two women exited. Officer Lum testified that he and the other officers then entered the Game Room to conduct a protective sweep. Specifically, based on the tip Detective Lee received, Officer Lum was concerned that the other suspect, Matamua, might still be in the apartment. The Game Room consisted of only three rooms and the protective sweep took less than a minute. As the officers were leaving the apartment, Officer Lum noticed that a gap existed between a sofa and the wall behind it. Concerned that someone could be hiding behind the sofa, Officer Lum went over to look in the gap. Officer Lum did not find anyone hiding in the gap, but as he walked over to the sofa, he noticed that the tan bag Paopao had put on the floor was unzipped. Looking into the bag, Officer Lum saw what he thought to be the handle of a handgun and an ammunition magazine. He seized the bag and its contents, which were later determined to be, in addition to the gun and ammunition magazine, a knife and a black pouch that contained jewels.

On September 2, 2004, the government indicted Paopao on the charge, inter alia, that he was a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Paopao moved to dismiss this claim on the grounds that it was unconstitutional under the Commerce Clause, as applied to him. That motion was denied. He also filed a motion to suppress the firearm and ammunition, arguing that the search that resulted in their discovery violated his Fourth Amendment rights. After an evidentiary hearing, the District Court denied the motion to suppress on grounds that the search was justified under the protective sweep and plain view exceptions to the Fourth Amendment. Paopao then pled guilty to violating § 922(g)(1), reserving the right to appeal the denial of both the motion to dismiss and the suppression motion.

Discussion

I. Standing

On appeal of the denial of his suppression motion, Paopao claims that the District Court erred in upholding the protective sweep of the Game Room. The government argues that Paopao did not have Fourth Amendment standing to challenge the protective sweep because he lacked an expectation of privacy in the Game Room. The government did not raise this argument below. However, "[t]he fact that the [g]overnment did not specifically raise the expectation of privacy issue during the course of the hearing on the motion[ ] to suppress is of no consequence." United States v. Nadler, 698 F.2d 995, 998 (9th Cir.1983). In this case, Paopao has appealed the denial of his suppression motion; as such, he carries the burden to show that the District Court was in error. The District Court never ruled on whether Paopao had a privacy interest in the Game Room; nonetheless, the government may argue for the first time on appeal that Paopao lacks standing to challenge the protective sweep. United States v. Taketa, 923 F.2d 665, 670 (9th Cir.1991) (holding that, where reliance was not an issue, and the government was not the party with the burden, the issue of standing could be raised for the first time on appeal).

"[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable[.]" Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). A person's reasonable expectation of privacy may differ based upon the location of the search. See United States v. Gonzalez, 328 F.3d 543, 547 (9th Cir.2003). A lesser expectation of privacy exists in a commercial area than in a residential area. Id. (citing Carter, 525 U.S. at 90, 119 S.Ct. 469). "Indeed, `[a]n individual whose presence on another's premises is purely commercial in nature . . . has no legitimate expectation of privacy in that location.'" Id. (quoting United States v. Gamez-Orduno, 235 F.3d 453, 458 (9th Cir.2000)).

In response to a question posed by Paopao's attorney during the suppression hearing, Officer Lum stated that nobody lived in the apartment in question; it was just used as an illegal gambling room. From this testimony it is clear that the Game Room was a commercial establishment; Paopao does not challenge this determination. There is no evidence to suggest that Paopao worked in the Game Room, that he had any possessory interest in the Game Room or that he was there for anything other than a commercial or possibly criminal purpose. Therefore, Paopao had no reasonable expectation of privacy in the Game Room. See Carter, 525 U.S. at 90-91, 119 S.Ct. 469 (holding that the defendant, who was in a friend's apartment solely for a drug transaction, did not have an expectation of privacy in the apartment); Gonzalez, 328 F.3d at 547 (holding that a defendant did not have a reasonable expectation of privacy in a hospital mailroom). Since Paopao had no reasonable expectation of privacy in the Game Room, he cannot challenge the officer's entry or protective sweep. See United States v. Nohara, 3 F.3d 1239, 1243 (9th Cir.1993) (holding that the defendant did not have a reasonable expectation of privacy in the hallway outside his apartment and, therefore could not challenge the officer's plain view search into his open doorway).

The only argument offered by Paopao is that standing should not matter in this case. He argues that if Officer Lum did not have a legal right to be in the Game Room, then the plain view exception is inapplicable, regardless of who has privacy rights in the room. This claim is contrary to the long-established Supreme Court and Circuit precedent that a privacy interest in the place or thing searched is always required in order for a defendant to challenge the search. See United States v. Pulliam, 405 F.3d 782, 785-86 (9th Cir. 2005) (stating that an aggrieved person cannot challenge the search of a premises in which the aggrieved person has no privacy interests because the search did not infringe upon his Fourth Amendment rights); see also California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) ("The touchstone of Fourth Amendment analysis is whether a person has a `constitutionally protected reasonable expectation of privacy.'" (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring))). As a result, without a privacy interest in the Game Room, Paopao cannot challenge the protective sweep.

II. Legality of the Search

Even if Paopao did have standing to challenge the protective sweep, his claims are meritless. Paopao argues that where the...