U.S. v. Hawkins

• Citation: 681 F.2d 1343
• Decision Date: 02 August 1982
• Docket Number: No. 81-5136,81-5136
• Parties: 11 Fed. R. Evid. Serv. 407 UNITED STATES of America, Plaintiff-Appellee, v. Robert HAWKINS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1343

681 F.2d 1343

11 Fed. R. Evid. Serv. 407

UNITED STATES of America, Plaintiff-Appellee, v. Robert HAWKINS, Defendant-Appellant.

No. 81-5136.

United States Court of Appeals Eleventh Circuit.

Aug. 2, 1982.

Richard Hersch, Miami, Fla., for defendant-appellant.

John M. Owens, Dept. of Justice, Juan C. Marrero, Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM ^*, RONEY and HATCHETT, Circuit Judges.

RONEY, Circuit Judge:

Alleging trial errors and failure to suppress evidence, Defendant Robert Hawkins appeals from his conviction for conspiring to participate in racketeering activity in violation of 18 U.S.C.A. § 1962(d), participation in racketeering activity in violation of 18 U.S.C.A. § 1962(c), and possession of heroin with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1). Tried with eight other defendants charged in this RICO conspiracy involving robbery and narcotics trafficking, only Hawkins was convicted. We affirm.

Defendant contends the district court erred in denying his motion to suppress heroin seized from a suitcase by the Dade County Public Safety Department. The following events set the stage for the search of the suitcase. While standing in a parking area outside the Miami airport baggage claim, Hawkins was questioned by a law enforcement officer. As a woman accompanied by a porter carrying a suitcase approached, Hawkins made hand signals in her direction. She picked up the suitcase and began to walk away but stopped and dropped the suitcase when a second law enforcement officer identified himself to her. Meanwhile Hawkins had become disruptive to the point of disorderly conduct and yelled that it was not his suitcase and to get that woman away from him. Both Hawkins and the woman were taken into custody. While in custody, Hawkins continued to disclaim any knowledge of the woman or the suitcase. A warrantless search of the suitcase revealed the heroin sought to be suppressed. At the suppression hearing held at trial, however, Hawkins testified out of the jury's presence that he owned the suitcase and the heroin, contrary to his assertion at the time of the search, and that he expected the suitcase to be a private repository for the drugs.

This case is a bit unusual in that at the time of the search defendant denied an interest in either the suitcase or its contents while at the suppression hearing he testified he owned both and asserted a privacy interest in both. The question has been raised as to when the defendant must demonstrate "standing" to question the search, although a correct analysis will show that a focus on "standing" is not now the proper approach to the ultimate question. After Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the proper analysis proceeds directly to the substance of a defendant's Fourth Amendment claim to determine whether the defendant had a reasonable and legitimate expectation of privacy in the article at the time of the search and consequently, whether the Fourth Amendment has been violated. To make this determination, we must view in totality the circumstances surrounding the event, including the preliminary statements of ownership asserted by Hawkins at the motion to suppress hearing. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Rakas, 439 U.S. 128, 150-52, 99 S.Ct. at 434-35 (Powell, J., concurring). In this regard, an analysis of the Fourth Amendment case law may be helpful.

The law has developed through a number of recent decisions. At one time the mere criminal charge of possession against Hawkins would have given him automatic standing to suppress the fruits of an illegal search. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). That automatic standing doctrine has now been abolished. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). A claim of ownership alone is no longer sufficient to gain suppression. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). The recent Supreme Court decisions have recast the requirements for successfully asserting a Fourth Amendment claim. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Court described the standing analysis as artificial and concluded "the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing." Id. at 139, 99 S.Ct. at 428. Because Fourth Amendment rights are personal and may not be vicariously asserted, Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), the Court then phrased the question as "whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it." 439 U.S. at 140, 99 S.Ct. at 428. The relevant inquiry has thus become the defendant's legitimate expectation of privacy, a phrase derived from the language of Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967).

For example, in United States v. Arce, 633 F.2d 689 (5th Cir. 1980), cert. denied, 451 U.S. 972, 101 S.Ct. 2051, 68 L.Ed.2d 351 (1981), ¹ the defendants were convicted of charges stemming from the possession of stolen mail found in the glove compartment of a car. The defendant driver of the car was found to have "standing but another defendant was denied 'standing' to contest the search since he had no legitimate expectation of privacy in a car registered to someone else when he was not even a passenger in it when arrested." Id. at 694.

This Court has ruled that disclaiming ownership or knowledge of an item ends a legitimate expectation of privacy in that item. In United States v. Colbert, 474 F.2d 174 (5th Cir. 1973) (en banc), defendants were found to have no reasonable expectation of privacy in briefcases they had been carrying when they disclaimed any interest in the briefcases and began to walk away from them. Id. at 177. Similarly, in United States v. Canady, 615 F.2d 694 (5th Cir.), cert. denied, 449 U.S. 862, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980), repeated disclaimers of ownership of a suitcase were held to preclude any legitimate expectation of privacy in the suitcase or its contents. Id. at 697. Suppression was denied in United States v. Pirolli, 673 F.2d 1200 (11th Cir. 1982) when defendant disavowed any knowledge of bags later found to contain cocaine. A like result was reached in United States v. Bush, 623 F.2d 388 (5th Cir. 1980). In that case the defendant threw a bag of cocaine on the ground and ran when addressed by a DEA agent. These cases support a denial of the suppression motion because Hawkins had disclaimed an interest on which to base a claim that he had an expectation of privacy at the time of the search.

Defendant relies on Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), in arguing that a failure to acknowledge ownership of the suitcase at an airport does not constitute voluntary abandonment where criminal prosecution is likely. In that case, defendants were indicted on federal obscenity charges after a shipment of sealed packages of film was mistakenly delivered to a third party. Walter does not go as far as defendant would have it. The footnote relied on by defendant concerned the failure to claim boxes after they had come into possession of the Government. 447 U.S. at 658 n.11, 100 S.Ct. at 2402 n.11. The...