U.S. v. Lochan, 81-1170

• Decision Date: 01 April 1982
• Docket Number: No. 81-1170,81-1170
• Citation: 674 F.2d 960
• Parties: UNITED STATES of America, Appellee, v. Charles LOCHAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 960

674 F.2d 960

UNITED STATES of America, Appellee, v. Charles LOCHAN, Defendant-Appellant.

No. 81-1170.

United States Court of Appeals,

First Circuit.

Argued Jan. 4, 1982.

Decided April 1, 1982.

Dennis Levandoski, Portland, Maine, by appointment of the Court, for appellant.

Margaret D. McGaughey, Asst. U. S. Atty., Portland, Maine, with whom Richard S. Cohen, U. S. Atty., Portland, Maine, was on brief, for appellee.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Charles Lochan appeals his conviction for possession of 1468 grams of hashish with intent to distribute in violation of 21 U.S.C. § 841(a)(1) ¹ and 18 U.S.C. § 2. ² Lochan was tried together with Juniour Fraser for the offense. Lochan raises four arguments on appeal: first, that the hashish on which his conviction was based was obtained in violation of his fourth amendment rights and should have been excluded; second, that evidence adduced at trial was insufficient to prove his knowing possession of the hashish; third, that it was error not to sever his trial from that of Fraser; fourth, that the district court improperly instructed the jury as to the illegal nature of the hashish.

The chain of events leading up to the instant appeal began on January 20, 1980, when Maine State Trooper Herbert Cram stopped an automobile, a 1973 Camaro, for speeding on Interstate 95 near Brunswick, Maine. Cram arrested the driver, Lochan, for travelling in excess of thirty miles per hour over the posted speed limit. Lochan was handcuffed, placed in Cram's cruiser, and driven to Brunswick Police Station. Fraser, the only passenger in the Camaro and its owner, followed Cram to the station.

En route to the station, Cram learned, during a routine radio conversation with state police barracks in Scarboro, Maine, that Lochan was wanted in Florida on drug charges and that Fraser was sought in New Jersey for similar reasons. On arrival at the station, Cram arrested Fraser on the New Jersey fugitive warrant.

While awaiting a bail commissioner, Lochan and Fraser were booked and an inventory of their personal belongings was taken. Lochan had in his possession Fraser's registration for the Camaro and approximately $1,200 in cash stuffed in various pockets. Fraser had $800 in cash and two driver's licenses in his name, one from New York and the other from Virginia.

The Camaro was impounded pursuant to standard procedure because it would be some time before bail could be set. The Brunswick Police Station lacked storage space, so the car was towed to a nearby service station. Before the car was towed, Cram asked for and received Fraser's permission to search it. Cram and a Brunswick police officer performed what Cram described as a "cursory" inspection of the interior of the Camaro. Cram discovered a partially smoked marijuana cigarette on the floor in front of the driver's seat and seized it.

At about this time, and before the booking process had been completed, Cram learned that New Jersey no longer sought Fraser because of the age of the drug charge. Cram then issued a summons to Fraser for allowing a motor vehicle to be operated in violation of a Maine law, a misdemeanor.

Cram contacted Sergeant Bailey of the Maine State Police Division of Special Investigations, who in turn contacted Special Agent Michael Cunniff of the Drug Enforcement Administration. Cunniff came to the Brunswick station, and Cram discussed the case briefly with him but did not mention the marijuana cigarette. By this time, Fraser's release on bail on the misdemeanor was imminent, so Cunniff questioned him in Cram's presence. After his rights were read to him, ³ Fraser explained that he had accompanied Lochan to visit a friend in Madawaska, Maine, whose surname and address he did not know. Fraser stated that the $800 in his possession were savings and borrowings he had made for the trip. Fraser refused Cunniff permission to search the Camaro.

Cunniff and Cram then questioned Lochan. Lochan had come to Maine to visit a friend for the weekend, he said, to discuss potential employment with him. Lochan said that he had saved up $1,200 for the trip.

After these interviews, Cram told Cunniff about the marijuana cigarette discovered in the Camaro. Cunniff decided that he had probable cause to believe that the Camaro had been used to facilitate a drug transaction, and, believing Fraser's release to be imminent, he seized the automobile pursuant to 21 U.S.C. § 881(a)(4) and 19 C.F.R. §§ 162.22(a), 162.63 (1981). According to Cunniff, DEA regulations require inventories of seized vehicles, so he requested the owner of the service station where the Camaro had been towed to make the car available for his inspection. Cunniff, Cram, and another state trooper then searched the car. They discovered several hollow spaces behind the spare tire in the trunk and behind the plastic panels on the doors and on the back of the front seats. The screws holding the panels had been scratched, suggesting that they had been removed and replaced several times. The three men also removed the rear seat on the driver's side and found, wrapped in newspaper and plastic, several packages that contained a little more than three pounds of hashish. Lochan and Fraser were then charged with possession of hashish with intent to distribute it.

Lochan and Fraser sought to suppress the hashish at a hearing the day before the presentation of evidence began, but the district court denied their motion. The next day Lochan failed to appear for trial. The proceedings were postponed for a few hours while fruitless attempts were made to locate him. Determining that Lochan had absented himself voluntarily after the trial had begun, the district court found that circumstances weighed in favor of going ahead with the trial in Lochan's absence under Fed.R.Crim.P. 43(a), (b). Lochan and Fraser were both convicted after a two-day trial. Lochan only appeals.

The first issue is whether the district court erred when it denied Lochan's motion to suppress the hashish found by Cunniff. Lochan argues that Cunniff possessed neither a warrant nor probable cause to seize the Camaro and that the seizure therefore violated his fourth amendment rights. Consequently, he urges, discovery of the hashish was the fruit of an illegal search, and should have been excluded at the suppression hearing.

The first inquiry in examining a fourth amendment claim is whether the defendant had a reasonable expectation of privacy in the area searched or the item seized. ⁴ Rakas v. Illinois, 439 U.S. 128, 140-50, 99 S.Ct. 421, 428-434, 58 L.Ed.2d 387 (1978). If the defendant does have such an expectation, then the court must determine the reasonableness of the search and seizure. Lochan did not address the issue of his reasonable expectation of privacy in his brief, but did discuss it briefly at the suppression hearing and in oral argument before this court. The district court did not rule on appellant's privacy expectation because it was reluctant to "rule definitively" in an area of law that was in a "fluid state." It proceeded directly to the constitutional issue and found that neither the seizure nor the subsequent search of the Camaro was unconstitutional.

We appreciate the district court's reluctance to probe the expectation of privacy question, but feel we must inquire into it. We conclude that appellant had no reasonable expectation of privacy in the automobile. This result is not arrived at easily. It is now settled that a defendant charged with a crime of possession may only claim the benefits of the exclusionary rule if his own fourth amendment rights have been violated, that is, if he had a reasonable expectation of privacy in the area searched or in the object that he is charged with possessing. There is no longer automatic standing in such cases. United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980). But, as the district court pointed out, the standards for determining how far a defendant's personal fourth amendment rights extend, the limits of what constitute a reasonable expectation of privacy, are not yet settled.

Three recent Supreme Court opinions offer some guidance. The first, Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 involved a police search of a suspected getaway car in which the owner was driving and the petitioners were passengers. The police found a box of rifle shells in the glove compartment and a sawed-off rifle under the front passenger's seat. Petitioners were subsequently convicted of armed robbery. At their trial, petitioners sought to have the rifle and shells suppressed on fourth amendment grounds, but the trial court held that they lacked standing to object to the lawfulness of the search. Id. at 131, 99 S.Ct. at 424. The Supreme Court affirmed (although it rejected the "standing" label), stating that fourth amendment rights are personal rights that may not be asserted vicariously. Id. at 133, 99 S.Ct. at 424. The purpose of the exclusionary rule, the Court said, is to effectuate the guarantees of the fourth amendment, and therefore only defendants who have had those rights violated may benefit from the rule's protection. Id. at 134, 99 S.Ct. at 425. The touchstone for personal fourth amendment rights is a reasonable expectation of privacy in the premises searched or the item seized. Id. at 143, 99 S.Ct. at 430. See also Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). The Rakas Court did not, however, specifically set out the factors that bear on the existence of a reasonable expectation of privacy, but it did make several points. Legitimate presence on the premises at the time of the search, earlier considered a basis for claiming a fourth amendment right, Jones v. United States, 362 U.S. 257, 265-67, 80 S.Ct. 725, 733-734, 4 L.Ed.2d 697 (1960), no longer provided an automatic fourth amendment right but was still...