U.S. v. Freire

Decision Date01 August 1983
Docket NumberNo. 82-5314,82-5314
Citation710 F.2d 1515
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Raul FREIRE, Antonio Maria Rubio, Jorge Mastrapa, and Hector Guillermo Pupo, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Stanley Marcus, U.S. Atty., Miami, Fla., Richard H. Kamp, Michael B. Cohen, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant.

Paul Morris, Miami, Fla., for defendants-appellees.

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

Before KRAVITCH and JOHNSON, Circuit Judges, and LYNNE *, District Judge.

KRAVITCH, Circuit Judge:

This case presents the question whether the recent Supreme Court holding in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), applies retroactively. We determine that it does. Hence we reverse the district court's order suppressing the evidence seized from appellees' briefcases and remand the case for trial.

I

While performing a routine cargo inspection at Miami International Airport on December 15, 1981, customs inspectors discovered approximately four kilograms of cocaine secreted in a shipment of furniture from Santa Cruz, Bolivia. Customs officials and Drug Enforcement Administration (DEA) agents placed the furniture under continuous surveillance. They observed a moving van pick up the furniture and proceed to a warehouse, and a blue Mercedes, driven by defendant Rubio with defendant Pupo as a passenger, scouting the adjacent area. Pupo appeared to be talking into a mobile telephone.

Shortly thereafter, another van, driven by defendant Mastrapa with defendant Freire as a passenger, arrived at the opposite end of the warehouse. Agents watched as the furniture was unloaded from the first van, carried through the warehouse, and loaded into the second van. The Mercedes and the second van then left the warehouse, and the agents followed.

As the two vehicles under surveillance approached a toll booth on the Florida Turnpike, the Mercedes sped alongside the van, and the occupants engaged in conversation. After it became apparent to the agents that the vehicles were undertaking countersurveillance tactics, both were stopped.

A search of the van revealed the furniture containing the cocaine and a Browning .380mm semi-automatic handgun that was found in the glove compartment. Mastrapa and Freire were arrested and taken into custody.

Meanwhile, other agents had stopped the Mercedes. As defendant Pupo exited the passenger's side, the agents noticed a folded, dry dollar bill at Pupo's feet. This aroused their suspicion because it had been raining, and the ground was wet. The folded dollar bill contained cocaine. Presented with this contraband, the agents searched the passenger compartment of the car for other drugs. A second folded bill containing cocaine was found in the ashtray. The defendants were asked if they had any weapons, and Pupo responded they did not. The agents then opened and searched the trunk of the car where they found two closed, but unlocked briefcases. 1

These were not opened at the scene of the arrest, but were taken to DEA headquarters. While being driven to the Miami DEA District Office, Pupo recanted his earlier statement that he had no weapons, and told the agents there was a gun in his briefcase. Upon opening the two attaches at DEA headquarters, the agents discovered that Pupo's briefcase contained a handgun, a legal pad with handwritten notations, and other documents. The other briefcase, which belonged to Freire, contained Freire's identification papers.

The four appellees were indicted for intentionally importing cocaine, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), and 18 U.S.C. Sec. 2, conspiracy to import cocaine, in violation of 21 U.S.C. Sec. 963, conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. Sec. 846, possession with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, and use of a firearm during the commission of a felony, in violation of 18 U.S.C. Secs. 924(c)(1) and (2). Additionally, Pupo and Rubio were indicted for possession of less than one gram of cocaine, in violation of 21 U.S.C. Sec. 844(a) and 18 U.S.C. Sec. 2.

The defendants filed a joint motion to suppress the evidence garnered through the warrantless searches of the van, the Mercedes, and the two briefcases. The magistrate recommended that most of the evidence be admitted, but that the evidence seized from the briefcases be suppressed. Both parties sought review of the recommendations, and the district court, relying on the testimony presented during the suppression hearing, adopted the magistrate's oral recommendations. Pursuant to 18 U.S.C. Sec. 3731, the Government appeals that decision.

Before addressing the retroactivity of Ross, we first must resolve whether Freire's fourth amendment rights were implicated by the search of the briefcase.

II

Freire was a passenger in the van, and consequently, had neither actual nor constructive possession of his briefcase at the time it was seized. He did not testify at the suppression hearing, but Pupo, the passenger in the Mercedes, testified that on the morning of their arrest, Freire had given him his briefcase for safekeeping during the day. Although no specific instructions were given, Pupo stated that he was expected to respect Freire's privacy. The Government did not seriously dispute that Freire was the owner of the briefcase. Based upon Pupo's testimony, the magistrate found that Freire's fourth amendment interests were implicated. The district judge, upon a review of the record, agreed.

A criminal defendant's right to challenge a search and/or seizure as being violative of the fourth amendment 2 is premised upon the existence of a legitimate expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 142-43, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 400-02 (1978). The burden of persuasion on this issue is placed squarely on the movant. Id at 130 n. 1, 99 S.Ct. at 424 n. 1, 58 L.Ed.2d at 393 n. 1; United States v. Torres, 703 F.2d 1267, 1271 (11th Cir.1983).

The Government argues that Freire failed to shoulder his burden: he did not testify; no evidence was presented regarding his intent to exercise control over the briefcase; Pupo was given no instructions concerning Freire's privacy; and the briefcase was out of Freire's possession and control for over eight hours. The magistrate and district judge were unimpressed by these arguments, and so are we.

A briefcase is often the repository for more than business documents. Rather, it is the extension of one's own clothing because it serves as a larger "pocket" in which such items as wallets and credit cards, address books, personal calendar/diaries, correspondence, and reading glasses often are carried. Few places outside one's home justify a greater expectation of privacy than does the briefcase. See generally United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977).

The Government does not contend on appeal that this is not so. Instead, it focuses on Freire's alleged failure to demonstrate his expectation of privacy in the briefcase.

Mere ownership is not the talisman for fourth amendment jurisprudence. So teaches Rakas. It is, nevertheless, a bright star by which courts are guided when the place invaded enjoys universal acceptance as a haven of privacy, such as one's home. That Freire did not take the stand himself is not fatal to his privacy claim. Pupo's testimony that the briefcase was Freire's and that Freire had entrusted it to Pupo for safekeeping was uncontroverted. Thus, Freire shouldered his burden of establishing his continuing privacy interest in the briefcase. Moreover, the Government did not show that Freire had abandoned it either purposely or through neglect or had otherwise abrogated his expectation of privacy. Hence, Freire's privacy interest remained intact. The district court correctly determined that Freire could challenge the search and seizure of his briefcase.

III

The Government contends that Pupo's voluntary statement that his briefcase contained a small handgun vitiated his legitimate expectation of privacy in either one of two ways: first, the statement constituted consent to search; alternatively, Pupo's admission brought the gun into plain view. Because we conclude that the Supreme Court's decision in Ross controls the outcome of this case, we need not address these contentions. Having determined that appellees' legitimate expectations of privacy were implicated, we now consider the applicability of Ross to the search of the briefcases.

Upon a motion to suppress evidence garnered through a warrantless search and seizure, the burden of proof as to the reasonableness of the search rests with the prosecution. See, e.g., United States v. Impson, 482 F.2d 197 (5th Cir.1973). The Government must demonstrate that the challenged action falls within one of the recognized exceptions to the warrant requirement, thereby rendering it reasonable within the meaning of the fourth amendment.

Upon appeal the Government urges that the automobile exception to the fourth amendment warrant requirement is applicable to this case because of the intervening decision in Ross. First considered in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the automobile exception allows officers to search vehicles in certain instances even if a search warrant has not been obtained beforehand. In cases following Carroll the Court has proffered two rationalizations for the exception: (1) the exigency of the vehicle's mobility, see, e.g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and (2) the diminished expectation of privacy in the automobile, see, e.g., United States v. Chadwick 33 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (19...

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