652 F.2d 1374 (10th Cir. 1981), 79-1642, United States v. Hansen

Docket Nº:79-1642 to 79-1644.
Citation:652 F.2d 1374
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Gary E. HANSEN, Daniel E. Means, aka Daniel E. Johnson, and Stephen R. Bryant, Defendants-Appellees.
Case Date:July 08, 1981
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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652 F.2d 1374 (10th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellant,


Gary E. HANSEN, Daniel E. Means, aka Daniel E. Johnson, and

Stephen R. Bryant, Defendants-Appellees.

Nos. 79-1642 to 79-1644.

United States Court of Appeals, Tenth Circuit

July 8, 1981

Supplemental Briefing Submitted Oct. 16, 1981.[*]

Rehearing Denied in No. 79-1643 Aug. 13, 1981.

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Katherine Winfree, Dept. of Justice, Washington, D. C. (Robert J. Erickson, Dept. of Justice, Washington, D. C., Joseph F. Dolan, U. S. Atty., and Charles L. Casteel, Asst. U. S. Atty., Denver, Colo., were with her on the brief), for plaintiff-appellant.

Kenneth A. Senn, Denver, Colo., on the brief for defendant-appellee Gary E. Hansen.

James M. Smith, Denver, Colo., for defendant-appellee Daniel E. Means.

Stanley J. Walter, Denver, Colo., for defendant-appellee Stephen R. Bryant.

Before HOLLOWAY, DOYLE and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

This case involves an appeal by the Government pursuant to 18 U.S.C. § 3731 from an order suppressing evidence as to the three named defendants, Gary E. Hansen, Daniel E. Means, and Stephen R. Bryant. Hansen, Means and Bryant, along with two other persons, 1 were charged with conspiracy to distribute and to possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 846.

Defendant Hansen was charged with an additional count of possession with intent to distribute cocaine in violation of 21 U.S.C.

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§ 841(a)(1) and 18 U.S.C. § 2 and Means was charged with two additional counts of possession with intent to distribute cocaine. Prior to trial, these three defendants moved to suppress all evidence seized during searches of their respective hotel rooms and persons. After an evidentiary hearing the district court granted all motions to suppress. (III R.400-404). This appeal followed.

On appeal, the Government does not contest the illegality of the search of defendant Hansen's motel room and the resultant suppression of evidence seized in that room with respect to its use against defendant Hansen. (Brief of Government, p. 24 n. 31). It does argue three main propositions: (1) that defendants do not have standing to contest the validity of any of the searches except those of their own motel rooms and persons; (2) that the court erred in suppressing the evidence seized from defendant Means's motel room; and (3) that the court erred in suppressing evidence seized during personal searches of defendants Means and Bryant. A brief recitation of the facts will furnish a convenient background.

After learning from John D. Thomas and Richard W. Klatt that a cocaine delivery would be made by a "source" arriving from Florida at a motel near the Denver airport on March 16, 1979, Drug Enforcement Administration (DEA) agents followed Thomas and Klatt to the Skyways Inn Motel in Denver. There they observed Thomas enter a room within a block of rooms numbered 240 through 244. He left the room carrying a small green bag, returned to the car, and drove with Klatt to a nearby restaurant where a cocaine sale was made to an undercover agent. Klatt and Thomas were immediately arrested.

Four agents then returned to the motel and determined that although no one from Florida had checked into the motel, three men from Montana, Thomas's home state, had checked into rooms 241, 242 and 243. The agents then went to these rooms and received no response after knocking on the doors of rooms 242 and 243. The door of room 241 was opened by defendant Hansen. The agents entered the room and seized plastic bags containing rice, a piece of paper with the undercover agent's telephone number on it, a small quantity of hashish found inside Hansen's coat pocket, an airline ticket, and a key to room 242.

The agents also noticed that Hansen, who was not wearing a shirt, had tape marks across his back which, according to the agents, indicated that he may have taped bags of drugs to his body. The agents maintained that Hansen consented to their entry into his room and consented to a search of the room although he refused to sign written consent forms. Hansen denied that he consented either to their entry or to their search.

Two of the agents then left room 241 and purportedly looked through partially opened drapes into room 242 where they observed plastic bags containing a white powder. The agents then decided to detain Hansen and to seek a search warrant for room 242. Hansen was taken to the motel lobby where defendants Means and Bryant were encountered. A motel employee verified that Means was registered in room 242 and Bryant was registered in room 243. Hansen, Means and Bryant were then detained for approximately four hours until the search warrant was obtained.

After the warrant was obtained, Hansen and Bryant were taken to room 241 and Means to room 242. Room 242 was searched and bags containing cocaine were found. All three men were then formally arrested. The agents then announced their intention to search Means and he responded by removing several plastic bags of cocaine from his boots. Bryant was thereafter searched in room 241 and more than $30,000 was found inside his socks and under his trousers.

In addition to Hansen's denial that he consented to any searches, testimony presented by various defense witnesses indicated that the curtains in room 242 were closed, and that Means and Bryant were detained several hours before being advised of their rights. A motel employee also testified that when he was going to room 243

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in response to a complaint from a nearby room that the television in that room was too loud, one of the DEA agents asked him to look for a black briefcase while he was in the room. He reported back to the agent that no briefcase was seen. 1a This search was subsequent to the search of room 241 and prior to the search of room 242, but it was not established that the search of room 243 was prior to the alleged observation of the drugs in room 242.



(a) The contentions of the parties and the district court's ruling

One seriously contested issue on appeal is that of defendants' "standing" 2 to claim Fourth Amendment violations. Although the Government did not raise the issue of standing in the district court, both sides argued the issue on appeal. As suggested to us, we awaited the decisions by the Supreme Court in Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633, and United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619. Supplemental briefs discussing Rawlings and Salvucci have subsequently been filed.

The Government contends that any claim by the defendants of "automatic standing" is no longer tenable in light of Salvucci and that the "automatic standing" rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, has been abandoned. (Supplemental Brief of the Government at 6). We agree that Salvucci abandoned the "automatic standing" rule of Jones and need not treat defendants' arguments on the applicability of the rule to this case.

The Government further says that the district court erroneously suppressed as to all defendants all evidence seized in the searches of motel rooms 241 and 242 and in the personal searches of Hansen, Means and Bryant. It argues that this ruling was contrary to accepted principles regarding standing to contest alleged Fourth Amendment violations. According to the Government, a party seeking to suppress evidence on Fourth Amendment grounds must affirmatively demonstrate that he had a legitimate expectation of privacy in the area searched or a possessory or proprietary interest in the evidence seized. (Brief of the Government 13-15). It says that none of the defendants claimed any possessory or proprietary interest in any of the items seized, nor did they demonstrate a legitimate expectation of privacy in the motel rooms in which the other defendants were registered. Because the burden of establishing such interests is on the defendants, the Government says that their failure to do so precludes the remedy of suppression. (Supplemental Brief of the Government 3-4).

The Government also contends that it is entitled to raise this issue on appeal in spite of this court's decision in United States v. Ford, 525 F.2d 1308 (10th Cir.), in which we declined to consider the issue of standing because the Government had not raised the issue in the district court. It argues that subsequent to Ford the Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, made clear that standing is not a separate issue distinct from the substantive Fourth Amendment claim. Consequently, the defendants' failure to establish standing constitutes a failure to meet their

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burden of showing that their Fourth Amendment rights were violated. (Supplemental Brief of the Government 4-5). The Government adds that in any case, standing is a question of law that may be raised for the first time on appeal. (Brief of Government, 13 n. 1 and Supplemental Brief 5).

Defendant Hansen responds that under Salvucci and Rawlings he is entitled to claim the benefits of the exclusionary rule if his own Fourth Amendment rights, as demonstrated by a possessory interest in the item seized and a reasonable expectation of privacy in the area searched, were violated. Hansen says that even the Government does not contest the finding that his Fourth Amendment rights were violated. Therefore, Hansen says that because the search of his motel room (room 241) and of his person were illegal, the court correctly applied the principles of Wong Sun v...

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