U.S. v. Issacs

• Citation: 708 F.2d 1365
• Decision Date: 20 June 1983
• Docket Number: No. 82-1534,82-1534
• Parties: 12 Fed. R. Evid. Serv. 1930 UNITED STATES of America, Plaintiff/Appellee, v. James L. ISSACS, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1365

708 F.2d 1365

12 Fed. R. Evid. Serv. 1930

UNITED STATES of America, Plaintiff/Appellee, v. James L. ISSACS, Defendant/Appellant.

No. 82-1534.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 1983.

Decided May 9, 1983.

As Amended on Denial of Rehearing June 20, 1983.

Rommel Bondoc, San Francisco, Cal., for defendant/appellant.

Sandra L. Teters, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before HUG and FARRIS, Circuit Judges, and GADBOIS, ^* District Judge.

FARRIS, Circuit Judge:

A jury convicted James Louis Issacs on two counts of possession with intent to distribute methaqualone and cocaine in violation of 21 U.S.C. Sec. 841(a)(1). He now challenges: 1) the denial in part of his pretrial motion to suppress certain journals seized during a search of his apartment pursuant to a warrant; 2) the trial court's ruling which permitted the government to impeach his testimony with illegally seized journals; and 3) the trial court's denial of his motion to suppress a gun and related items seized during the same search.

FACTS

Agents of the Secret Service obtained a warrant to search Issacs's residence for rent receipts and counterfeit Federal Reserve notes. While searching the apartment in Issacs's presence and pursuant to the warrant, the agents uncovered a gun, shoulder holster, and ammunition. The agents also discovered drug paraphernalia and considerable quantities of methaqualone and cocaine on a shelf in the bedroom closet. There is no dispute that the gun, drugs, and related items were in plain view.

In the same closet the agents noticed a safe, the combination to which Issacs gave them. Upon opening the safe, they found six journals bound together with a rubber band. An agent testified that he flipped through the journals in order to ensure that they contained no receipts or counterfeit notes. While leafing through one journal, the agent came across notations which appeared to record drug transactions. Although he noticed nothing similar in the remaining journals at the time, he seized all six.

On April 7, 1982, a grand jury indicted Issacs on six counts. The first and second counts charged him with passing counterfeit notes in violation of 18 U.S.C. Sec. 472. The third and fifth counts charged him with possession with intent to distribute methaqualone and cocaine in violation of 21 U.S.C. Sec. 841(a)(1). The fourth and sixth counts charged him with use of a gun to commit the crimes charged in the third and fifth counts in violation of 18 U.S.C. Sec. 924(c)(1).

After severance of the first two counts, Issacs moved to suppress the journals. The court denied the motion as to the first journal and granted it as to those remaining, reasoning that the agents were not entitled to seize objects when initial inspection revealed no incriminating features. During the course of the first trial, which ended in mistrial, the judge granted a motion for acquittal on the gun counts. At the second trial, a different judge admitted the suppressed journals for purposes of impeachment. The court also admitted evidence of possession of firearms. The jury at the second trial found Issacs guilty of both counts of possession with intent to distribute. On the government's motion the court subsequently dismissed the counterfeit note counts.

A. SEIZURE OF THE JOURNALS

Issacs argues that the evidence in the unsuppressed journal was beyond plain view because the agent needed to read its contents to uncover the incriminating notations. The government challenges Issacs's "standing" to object to the search, pointing to his disclaimer of ownership or possession of the journals at trial, and contends that in any case the journal was in plain view.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court "abandoned a separate inquiry into a defendant's 'standing' to contest an allegedly illegal search in favor of an inquiry that focused directly on the substance of the defendant's claim that he or she possessed a 'legitimate expectation of privacy' in the area searched." Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980) (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); accord United States v. Salvucci, 448 U.S. 83, 87 n. 4, 100 S.Ct. 2547, 2551 n. 4, 65 L.Ed.2d 619 (1980). The conversion of standing from a preliminary to a substantive question makes no practical difference, however. Rakas, 439 U.S. at 139, 99 S.Ct. at 428. Issacs must still demonstrate (1) that the agents found the journal in a place in which he had a legitimate expectation of privacy and (2) that the search exceeded fourth amendment constraints. Rawlings, 448 U.S. at 104, 100 S.Ct. at 2561.

1. Legitimate expectation of privacy.

At first glance the government's contention that Issacs had no legitimate expectation of privacy in a locked safe hidden in a closet in his own apartment appears ludicrous. The government argues, however, that Issacs's disclaimer at trial of ownership or awareness of the journals negates any expectation of privacy. The government reasons that "it is logically impossible to have an expectation of privacy in items one does not know exist." Appellee's Brief at 8.

Of course, it is also "logically impossible" for the government to contest Issacs's knowledge or possession for purposes of the suppression motion but to take the opposite position for purposes of proving guilt at trial. Until recently, the rule of automatic standing established in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), which was expressly intended to deny the government "the advantage of contradictory positions as a basis for conviction" in possession cases, would have precluded such inconsistency. Id. at 263, 80 S.Ct. at 732. However, the Court abandoned that rule in Salvucci. ¹ The Court there recognized that "a prosecutor may simultaneously maintain that a defendant criminally possessed the seized good, but was not subject to a Fourth Amendment deprivation, without legal contradiction." 448 U.S. at 90, 100 S.Ct. at 2552.

Nevertheless, the government's argument fails here. Its position assumes that Salvucci permits the prosecution to charge possession but dispute expectation of privacy regardless of the underlying facts. The rationale of Salvucci does not support so unbounded a reading. The Court there refused any longer to recognize a necessary connection between possession and expectation of privacy which "afford[ed] a windfall to defendants whose Fourth Amendment rights [had] not been violated." Id. at 95, 100 S.Ct. at 2554 (emphasis in original). The Court simply rejected conferral of automatic standing; it did not condone prosecutorial self-contradiction. ²

2] Salvucci does not permit the government to argue possession but deny expectation of privacy where the circumstances of the case make such positions necessarily inconsistent.

The government may properly contend that a defendant owned drugs which, moments before the challenged search, he had placed in his girlfriend's purse, in which he had no legitimate expectation of privacy. See Rawlings, 448 U.S. at 104-06, 100 S.Ct. at 2561-62. It may argue that checks found in the apartment of another in which a defendant had no legitimate expectation of privacy belonged to the defendant. See Salvucci, 448 U.S. at 85, 95, 100 S.Ct. at 2549, 2554. It may properly seek to introduce evidence seized from a room with which a defendant had no connection beyond mere presence and thus no legitimate expectation of privacy. See United States v. Irizarry, 673 F.2d 554, 556 (1st Cir.1982). And it may argue that a defendant once possessed an item but, by abandoning it, subsequently renounced any expectation of privacy in it. See United States v. Veatch, 674 F.2d 1217, 1220-22 (9th Cir.1981); United States v. Anderson, 663 F.2d 934, 937-39 (9th Cir.1981).

Here, however, the government wants it both ways: It seeks to rely on Issacs's disavowal of ownership to defeat his right to contest the lawfulness of the search at the same time it introduces the journal as evidence of his guilt. Yet the government cannot and does not dispute that Issacs had a legitimate expectation of privacy in the safe itself, and there can be no question of abandonment of items found in the putative abandoner's personal safe. Issacs's denial of ownership should not defeat his legitimate expectation of privacy in the space invaded and thus his right to contest the lawfulness of the search when the government at trial calls upon the jury to reject that denial. See United States v. Ross, 655 F.2d 1159, 1165 (D.C.Cir.1981) (en banc) (rejecting "Government's position that [defendant's] trial tactic, denying knowledge of the [contraband-filled] bag, strips him of Fourth Amendment protection"), rev'd on other grounds, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Moreover, the distinction the government seeks to draw between an expectation of privacy in the space invaded and the items seized is untenable. The cases upon which it relies all involve seizures from places arguably outside the defendant's control. See, e.g., Salvucci, 448 U.S. at 85-86, 95, 100 S.Ct. at 2549-50, 2554-55. Rawlings, 448 U.S. at 100-06, 100 S.Ct. at 2559-62. The government's concession that Issacs had "a legitimate expectation of privacy in the invaded place," Rakas, 439 U.S. at 143, 99 S.Ct. at 430, precludes its contention that he had none in the items found there.

Issacs had a legitimate expectation of privacy in the safe in which the journals were found and thus may contest the lawfulness of their seizure.

2. Plain view.

At the time of Issacs's suppression hearing, the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), governed the reach of the plain view...