782 F.2d 146 (10th Cir. 1986), 84-1085, United States v. Owens

Docket Nº:84-1085.
Citation:782 F.2d 146
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Merle Ellis OWENS, Defendant-Appellant.
Case Date:January 22, 1986
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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782 F.2d 146 (10th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Merle Ellis OWENS, Defendant-Appellant.

No. 84-1085.

United States Court of Appeals, Tenth Circuit

January 22, 1986

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Fred L. Staggs (Frank R. Courbois with him on the brief), Oklahoma City, Okl., for defendant-appellant.

James F. Robinson, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before BARRETT, Circuit Judge, McKAY, Circuit Judge, and CARRIGAN, District Judge [*].

CARRIGAN, District Judge.

Appellant, Merle Ellis Owens, appeals his conviction of possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982). Contending that his conviction was based on erroneous admission of evidence obtained in an unlawful search of his motel room that violated his Fourth Amendment rights, he asserts that his conviction must be reversed.

BACKGROUND

A detailed recitation of the facts is essential to understand Owens' contentions because they turn on whether at the time his motel room was searched he still had a protected status in that room. On September 8, 1983, Owens checked into the Pebbletree Inn in Oklahoma City, Oklahoma, paying $28.45 for a one night single occupancy. He failed to check out by the regular checkout time, noon the next day, and some time after noon, Pebbletree personnel telephoned his room to determine whether he

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wished to extend his stay. Apparently in response to that call, at about 3:00 p.m. Owens' companion Cheryl Jones deposited $100 with the front desk clerk as advance rental payment on Owens' account.

The parties dispute the effect of this deposit. Owens testified that the desk clerk had assured him that a $100 deposit, together with his initial $28.45 payment, would secure for him the $106.00 per week rental rate in lieu of the higher daily rate. Cheryl Jones corroborated this testimony. But Beverly Martin, Pebbletree's night manager, testified that all weekly rate rentals required the approval of the general manager, Jack Henry, and that weekly rate tenants were assigned to rooms in a separate part of the motel. Owens did not move to the weekly rental section of the Inn, and Jack Henry testified that to his knowledge Owens was a day-to-day tenant. The desk clerk with whom Owens allegedly struck the weekly rental deal did not testify at the trial.

If Owens was a weekly rate guest, he had paid for his room through noon of September 13, 1983. On the other hand, if he was a day-to-day occupant, his $128.45 payment would have covered his room charges only through noon of September 12, 1983. But $4.30 more would have paid for an additional night, through September 13. The motel room search at issue occurred after noon on September 12.

During his stay, Owens had incurred approximately $16.00 in long distance telephone charges. Henry testified that a weekly renter would pay such phone charges at checkout. The night manager, however, testified that telephone charges would have been deducted daily from a cash-paying day-to-day tenant's account.

Even assuming that the $16.00 in telephone charges had been deducted daily, the account, if it was a weekly rate account, would have been fully paid through noon on September 12, with a $7.86 balance remaining.

On September 11, 1983, an unusually high volume of calls to Owens' room aroused the motel staff's suspicion. Charles Epperly, a police officer who worked part-time as a motel security guard, watched the room from 10:30 that night until 7:00 the next morning. He observed several people visit the room for five or ten minutes each. Owens returned to his room at 2:45 a.m. on September 12. Epperly checked the license plate on Owens' car with the police, but was informed that the car was not stolen. At 7:00 a.m. Epperly left the Inn to report to work on his regular full-time job as an Oklahoma City police officer.

Epperly, with his police partner John Matthews, returned to the Pebbletree shortly before 7:30 a.m. He then ran a second check on Owens' license plates and this time turned up a report that they were stolen. On the advice of their supervisor, Sergeant Campbell, Officers Epperly and Matthews decided not to arrest Owens immediately, but rather to wait until he returned to his car. The two officers watched Owens' room from another room diagonally across the Inn's parking lot until shortly after 12:00 noon. During that time they observed a blonde woman, later identified as Cheryl Jones, looking out of Owens' window.

Shortly after noon on September 12, Epperly enlisted James Digby, a plain-clothes policeman, to assist them. Posing as a Pebbletree employee, Digby knocked on Owens' door and asked Owens to move his car so that the parking lot could be cleaned. Owens' car was parked several spaces away from his room's window. When Owens got into the car, Epperly arrested him for receiving stolen property. Owens was taken around a corner of the Inn and handcuffed to an iron staircase. The officers returned to the room from which they had been watching Owens' room and called the front desk to apprise the motel of the arrest and that one occupant still remained in Owens' room.

Jack Henry told the officers that the room had been rented for one person only,

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and that Owens' term of paid occupancy had expired. Henry further told the police that he would file a complaint for...

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