U.S. v. Rahme, 579

• Decision Date: 05 March 1987
• Docket Number: No. 579,D,579
• Citation: 813 F.2d 31
• Parties: 22 Fed. R. Evid. Serv. 942 UNITED STATES of America, Appellee, v. Riad Youssef RAHME, Defendant-Appellant. ocket 86-1355.
• Court: U.S. Court of Appeals — Second Circuit

Page 31

813 F.2d 31

22 Fed. R. Evid. Serv. 942

UNITED STATES of America, Appellee, v. Riad Youssef RAHME, Defendant-Appellant.

No. 579, Docket 86-1355.

United States Court of Appeals, Second Circuit.

Argued Dec. 18, 1986.

Decided March 5, 1987.

Nicholas M. De Feis, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. for E.D.N.Y., Emily Berger, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for appellee.

Stanley Neustadter, New York City, for defendant-appellant.

Before TIMBERS, MESKILL and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Riad Youssef Rahme appeals from a judgment of the United States District Court for the Eastern District of New York, entered after a jury trial before Joseph M. McLaughlin, Judge, convicting him

on one count each of conspiring to distribute heroin, in violation of 21 U.S.C. Secs. 841(b)(1)(A), 846 (1982 & Supp. II 1984); importing heroin, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1), 960(b)(1)(A) (1982 & Supp. II 1984); and possessing heroin with intent to distribute it, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A) (1982 & Supp. II 1984). Rahme was sentenced to three concurrent 10-year terms of imprisonment and a special assessment of $150. On appeal, he contends principally that the district court erred in denying his motion to suppress certain evidence seized in a warrantless search and in admitting at trial testimony concerning statements made by an alleged coconspirator. Finding no merit in his contentions, we affirm the judgment of conviction.

I. BACKGROUND

The facts as found by the district court in denying Rahme's motion to suppress do not appear to be in substantial dispute. On February 20, 1986, Rahme and two codefendants, George Issa and Youssef Boutros, went to a hotel at LaGuardia Airport where Issa negotiated a narcotics transaction with an undercover agent of the United States Drug Enforcement Agency ("DEA"). When Boutros removed a quantity of heroin from his shoes, he, Issa, and Rahme were arrested.

During a search incident to the arrests, a key to Room 418 at the Travel Inn Hotel in Manhattan was found in the possession of Rahme. Boutros and Rahme told DEA agents they had been sharing that room. The agents apparently made no effort to seek evidence at the hotel until several days later.

In the meantime, on February 21, 1986, when no one had reserved or paid for another night in Room 418 by the noon check-out time, the Travel Inn's security manager, Jack Grant, went to the room, knocked on the door, and, hearing no response, opened it with a passkey. Upon entering and seeing luggage, Grant left the room intact but plugged the lock so that no one, including the former occupants, could enter without going to the hotel desk first.

On February 22, the hotel having heard nothing further from Room 418's last occupants, Grant returned to the room with two maids. The luggage there included a blue suitcase with Rahme's name on it, lying open on the bed, and a black briefcase in a dresser drawer. All of the luggage was removed from the room and locked in the hotel's storage area.

On February 24, 1986, when DEA Special Agent Beatrice Leone contacted the hotel seeking records as to whether Rahme or Boutros had stayed there, she was informed that the hotel had taken possession of the luggage found in Room 418. Leone informed Grant that Rahme and Boutros had been arrested, and she was given permission to take the luggage. In a DEA inventory search, the black briefcase was found to contain a number of documents and a small amount of heroin; the blue suitcase bearing Rahme's name was found to contain documents of evidentiary value. At no time prior to the DEA's seizure of the luggage had Rahme, personally or through a representative, attempted to pay the overdue room rent or to retrieve the luggage left in Room 418.

The district court rejected Rahme's contention that the warrantless seizure and search of the two bags violated his rights under the Fourth Amendment, ruling that Rahme lacked standing to challenge the legality of the search and seizure. Relying on United States v. Cowan, 396 F.2d 83 (2d Cir.1968), the court held that Rahme had no privacy interest in the seized items because he had failed to pay the required rent on the room, and hence the bags were lawfully in the possession of the hotel pursuant to its lien for unpaid rent under N.Y. Lien Law Sec. 181 (McKinney 1966). The district court held, alternatively, that even if Rahme had a privacy interest in the seized items, it was one shared with the hotel and that the hotel had the power to consent to the search on behalf of both. Accordingly, the government was permitted to introduce into evidence against Rahme the two bags and certain of their contents.

After the arrests, Boutros and Issa had pleaded guilty to charges against them The jury found Rahme guilty on the possession, importing, and conspiracy counts and he was sentenced as indicated above.

                only Rahme went to trial.  The evidence at trial included the testimony of Issa that Boutros had stated to him on February 17, 1986, and on February 20, 1986, that the source for the heroin Boutros would supply to Issa was "Rahme's family" or "the Rahme people."    Issa testified that on the latter occasion Boutros also told Issa not to tell Rahme that Issa knew Rahme was the source
                

On appeal, Rahme challenges the correctness of the district court's denial of the suppression motion and contends that Issa's testimony as to Boutros's statements should have been excluded. We find no merit in either argument.

II. DISCUSSION

A. The Search and Seizure Claim

In order to prevail on a contention that a search violated the Fourth Amendment, an accused must show that he had a legitimate expectation of privacy in a searched place or item. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). Ownership of the searched item, though a fact to be considered, is neither in itself sufficient to establish a legitimate expectation of privacy nor a substitute if the requisite legitimate expectation of privacy is lacking. Id. at 105-06, 100 S.Ct. at 2561-62; United States v. Salvucci, 448 U.S. 83, 90 n. 5, 91, 100 S.Ct. 2547, 2552 n. 5, 2553, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978). Even possession does not itself establish a legitimate expectation of privacy. See United States v. Salvucci, 448 U.S. at 91-93, 100 S.Ct. at 2552-54. The absence of possession, however, may often result in a finding that an accused had no legitimate expectation of privacy because the absence of a right to exclude others from access is an important factor militating against a legitimate expectation of privacy. See Rawlings v. Kentucky, 448 U.S. at 105, 100 S.Ct. at 2561; Rakas v. Illinois, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12.

Applying these principles, we have held that when a hotel guest's rental period has expired or been lawfully terminated, the guest does not have a legitimate expectation of privacy in the hotel room or in any articles therein of which the hotel lawfully takes possession. United States v. Parizo, 514 F.2d 52, 54-55 (2d Cir.1975); United States v. Cowan, 396 F.2d 83, 86-87 (2d Cir.1968); accord United States v. Rambo, 789 F.2d 1289, 1295-96 (8th Cir.1986); United States v. Akin, 562 F.2d 459, 464 (7th Cir.1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978); United States v. Haddad, 558 F.2d 968, 975 (9th Cir.1977); United States v. Croft, 429 F.2d 884, 887 (10th Cir.1970); cf. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960) (when defendant vacated room and hotel took exclusive possession, government agent's search of items left behind, with the consent of the hotel, was not wrongful). This rule applies even when the accused retains significant property interests in the seized item or place. For example, we have held that once the guest's access to the room is no longer his "exclusive right," he has no legitimate expectation of privacy in the room even though he himself still has access. United States v. Parizo, 514 F.2d at 55; cf. United States v. Rambo, 789 F.2d at 1295-96 (rule applied when rental period had expired even though defendant remained in possession of the room).

United States v. Cowan is virtually on all fours with the present case. There Cowan failed to pay for his hotel room for five days, and the hotel plugged the lock on the room and later removed his luggage to the hotel office. When a law enforcement agent went to the hotel looking for Cowan as a suspect in an investigation, the hotel told the agent about the luggage and gave the luggage to him. We affirmed the district court's denial of Cowan's motion to suppress the evidence found in the luggage on the ground that Cowan had lost his right to privacy in the luggage by leaving it in his room and failing to pay the room bill. Noting that N.Y. Lien Law Sec. 181 gave the hotel the right, in the circumstances Rahme argues that Cowan, a 1968 decision, is no longer good law because in Blye v. Globe-Wernicke Realty Co., 33 N.Y.2d 15, 347 N.Y.S.2d 170, 300 N.E.2d 710 (1973), Sec. 181 was held, in part, unconstitutional, thereby curtailing the rights of the hotel. This argument has no merit. In Blye, the New York Court of Appeals held that Sec. 181 violated the state constitution insofar as it permitted the hotel to sell the guest's property without notice and an opportunity to be heard. This decision established prerequisites prior to which a hotel guest could not be permanently deprived of his property; it did not purport to deal with his expectations of privacy. Thus, the New York cases decided after Blye reveal that the right of the hotel to retain the defaulting guest's luggage prior to any notice, hearing, or sale, remains intact. See People v. Lerhinan, 90 A.D.2d 74, 77 & n. 4, 455 N.Y.S.2d...