U.S. v. Clifford, 81-1281

• Decision Date: 30 November 1981
• Docket Number: No. 81-1281,81-1281
• Citation: 664 F.2d 1090
• Parties: UNITED STATES of America, Appellee, v. David Collins CLIFFORD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1090

664 F.2d 1090

UNITED STATES of America, Appellee, v. David Collins CLIFFORD, Appellant.

No. 81-1281.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 13, 1981.

Decided Nov. 30, 1981.

James D. Leach (argued), Rapid City, S. D., for Mr. Clifford.

Terry L. Pechota, U. S. Atty., Sioux Falls, S. D., Jeffrey L. Viken (argued), First Asst. U. S. Atty., Rapid City, S. D., for United States.

Before HEANEY, BRIGHT and ROSS, Circuit Judges.

BRIGHT, Circuit Judge.

David Collins Clifford appeals his conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C.App. § 1202(a) (1976). He asserts that the district court ¹ erred in denying his motion to suppress the gun seized incident to his arrest in the home of a friend, Florence LeDeaux, and in denying his motion to dismiss the indictment with prejudice for violation of the Speedy Trial Act. For the reasons set forth below, we affirm. ²

I. Search and Seizure. ³

On July 22, 1980, tribal police officers of the Oglala Sioux Tribe, in response to reports of disturbances, went to the home of Florence LeDeaux on the Pine Ridge Indian Reservation in South Dakota. A tribal policeman, looking through the window, observed Clifford inside the house. At that time, one of the policemen knew of an outstanding federal warrant for Clifford's arrest. Upon entering the LeDeaux home, one of the policemen approached Clifford and informed him that he was under arrest. Clifford resisted, but the policemen subdued him, searched him, and seized a loaded pistol from his back pocket.

The trial court denied Clifford's motion to suppress the pistol on the basis that Clifford, as a guest in LeDeaux's home, had not established an expectation of privacy that would entitle him to challenge the entry and arrest.

On appeal, Clifford asserts that he had been at Florence LeDeaux's home between two and six hours before his arrest. As a guest, Clifford maintains that he possessed a legitimate expectation of privacy in the LeDeaux home. Relying on Steagald v. United States, --- U.S. ----, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), Clifford contends that the police entry without a search warrant rendered invalid his arrest and the seizure of the gun incident to that arrest.

The Government argues that Steagald does not apply retroactively, and that, as a mere guest in the home, Clifford has no standing to challenge the search and seizure.

Steagald does not control this case. In Steagald, police entered Steagald's home without a search warrant to arrest Ricky Lyons, the subject of an arrest warrant. While there, police seized drugs that were in Steagald's possession. The Court held that in the absence of exigent circumstances or consent, police may not legally enter a third person's home to search for the subject to an arrest warrant. 101 S.Ct. at 1652-53. To make a valid entry, police must have a search warrant based on a probable cause belief that the subject of the arrest warrant is inside the third person's home. Id.

In the present case, unlike Steagald, the Government has prosecuted Clifford, the subject of the arrest warrant. Steagald, as the occupant, could object to the entry because he had a legitimate expectation of privacy in the premises. Unless Clifford can establish that he, like Steagald, had a legitimate expectation of privacy in the premises at the time of the arrest, Steagald provides no basis for his challenge to the police entry.

Even assuming, however, that Clifford had the requisite privacy interest, he still could not successfully challenge the police entry in this case. In Payton v. New York, ⁴ the Supreme Court indicated that an arrest warrant will authorize police entry into the arrestee's dwelling:

If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. (Payton v. New York supra, 445 U.S. at 602-03, 100 S.Ct. at 1388.) ⁵

If police had possessed an arrest warrant for Ms. LeDeaux and reasonably believed that she was within the premises, those officers could have legally entered her home to arrest her. No additional search warrant would have been required. Clifford hardly can claim greater rights in LeDeaux's home than Ms. LeDeaux herself possessed. Therefore, assuming Clifford could assert a legitimate privacy interest in LeDeaux's home, the arrest warrant ⁶ for Clifford and the officers' knowledge of his presence in the home ⁷ justified their entry and subsequent search of Clifford incident to the arrest.

Thus, whether or not Clifford enjoyed a legitimate expectation of privacy in LeDeaux's home is not crucial here. If Clifford did not have a legitimate expectation of privacy, his rights were not violated. If, on the other hand, Clifford had a legitimate expectation of privacy in the premises, Payton authorizes entry on the basis of the existing arrest warrant for the defendant and probable cause to believe that the defendant was within the premises. ⁸

II. Speedy Trial Act.

On June 30, 1980, prior to Clifford's firearm conviction, the United States District Court for the District of South Dakota, The Honorable Donald J. Porter presiding, had sentenced Clifford to forty months' imprisonment on two assault charges. At the time of Clifford's sentencing on the assault convictions, Judge Porter ordered the federal assault sentence to begin immediately after Clifford had served the remainder of an uncompleted Nebraska jail sentence. Judge Porter accordingly authorized Clifford's release from federal custody so that Clifford could return to Nebraska to complete his jail sentence there. Clifford, however, failed to report to Nebraska authorities, prompting the issuance of the federal arrest warrant upon which the tribal police relied in arresting Clifford in LeDeaux's home.

On August 6, 1980, the Government indicted Clifford for the firearms violation, the subject of the present conviction and appeal. Following his arrest and this indictment, Clifford remained in jail in South Dakota awaiting trial on the firearms charge. On August 25, 1980, defense counsel and the Government, with court approval, entered into a stipulation permitting Clifford to return to Nebraska to complete his Nebraska jail sentence pending trial on the firearms charge. ⁹ As a result of the stipulation, Clifford remained in the custody of Nebraska authorities from August 27, 1980, until completion of his Nebraska sentence on December 23, 1980, when he returned to South Dakota. On December 22, 1980, Clifford filed a motion to dismiss asserting that the Government's delay in prosecuting him on the firearms charge violated the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. ¹⁰

Both parties agree that the seventy-day period within which Clifford must be tried pursuant to the Speedy Trial Act began on August 6, 1980, the filing date of the indictment. They also agree that 211 days elapsed before Clifford's trial began on March 5, 1981. In addition, Clifford concedes that thirty-one days, during which the court considered his suppression motion, constituted excludable delay. ¹¹ Clifford, however, disputes the district court's determination that the 118 days he spent serving the remainder of his Nebraska sentence, should be excluded from computation for speedy trial purposes. ¹²

The district court excluded the 118 days Clifford spent in the Nebraska jail on the basis of 18 U.S.C. § 3161(h)(8), ¹³ the "ends of justice" exclusion of the Speedy Trial Act, and 18 U.S.C. § 3161(h)(1), the "other proceedings" exclusion. Judge Porter's ruling denying Clifford's motion to dismiss states:

The period of time Defendant spent in Nebraska state custody at Sheridan County Jail, August 27, 1980, to December 23, 1980, is excludable delay pursuant to 18 U.S.C. § 3161(h)(8) as resulting at the request of defense counsel and government counsel as set forth in the stipulation filed with the Court on or about August 19, 1980. The Court ordered Defendant placed in Nebraska state custody during the pendency of the firearms case at the request of defense counsel and for Defendant's benefit. The procedure employed assured that Defendant's time in custody would be credited on Defendant's Nebraska state sentence. A miscarriage of justice would result if Defendant remained incarcerated but received no credit for time served against the Nebraska state sentence. The period of delay caused by this procedure was not of undue length. The procedure employed was requested by defense counsel and was, therefore, consented to by Defendant through counsel. The ends of justice served by this procedure outweigh the best interests of the public and Defendant in a speedy trial.

In effect, Judge Porter treated the stipulation as a continuance enabling Clifford to complete his Nebraska sentence. The stipulation stated that the Government and Clifford "both desire that defendant be returned to Sheridan County (Nebraska) to complete his Sheridan County jail sentence pending the resolution of (the firearms charge) and the appeal of the (assault convictions)." (emphasis added). By the terms of the stipulation, the parties contemplated the completion of the remainder of the Nebraska sentence before Clifford's trial on the firearms charge.

While a court generally should make the findings required by section 3161(h) (8)(A) at the time it grants the continuance, the Speedy Trial Act does not require the court to make a contemporaneous record. See United States v. Edwards, 627 F.2d 460, 461 (D.C.Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980). In the circumstances of this case, we hold that the...