U.S. v. Aguirre

• Citation: 839 F.2d 854
• Decision Date: 04 January 1988
• Docket Number: No. 87-1483,87-1483
• Parties: UNITED STATES of America, Appellee, v. Luis A. AGUIRRE, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 854

839 F.2d 854

UNITED STATES of America, Appellee, v. Luis A. AGUIRRE, Defendant, Appellant.

No. 87-1483.

United States Court of Appeals, First Circuit.

Heard Jan. 4, 1988.

Decided Feb. 16, 1988.

Joseph A. Bevilacqua, Jr., Providence, R.I., for defendant, appellant.

Kenneth P. Madden, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Luis Aguirre, along with one Azevedo, was indicted by a federal grand jury for distribution of 500 or more grams of cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B), and for conspiracy to distribute the same. 21 U.S.C. Sec. 846. Following a jury trial in the United States District Court for the District of Rhode Island, Aguirre was found guilty on the conspiracy count. He was sentenced on June 2, 1987 and now appeals.

To his credit, Aguirre eschews a shotgun approach to his predicament. He does not challenge the conduct of the trial proper, the sufficiency of the government's proof, or what transpired at sentencing. Instead, he trains his fire exclusively on the pretrial suppression hearing, sniping at the district court's failure to exclude evidence obtained during three separate searches. He claims that, because the fruits of these searches were used against him, the prosecution's case was shot full of taint and that his conviction should therefore be overturned. We are not convinced.

I. OVERVIEW

It is unnecessary to recite the facts of this matter in exegetic detail. Rather, we offer an overview which we deem adequate to place matters into perspective. We will then refer to such other desiderata as may be pertinent as we discuss the district court's rulings.

Appellant's arrest was the culmination of an investigation which lasted for half a year. It occurred shortly after a government informant purchased a substantial quantity of cocaine from Azevedo on January 8, 1987. The purveyor was taken into custody late that afternoon, and identified "Luis" as his supplier. ¹ Police surveillance was established at an apartment complex on New Road in East Providence, Rhode Island. Appellant and others thought to be members of the ring were arrested in one fell swoop a few hours after nightfall. Subsequently, the lawmen conducted several searches. Three are of interest to us.

1. The automobile search. On the night of the arrest, federal agents undertook a warrantless search of a Mazda sedan which was parked in the apartment complex's lot and to which attention had been drawn during the January 8 surveillance at New Road. The authorities entered the automobile with keys seized from Juan Gonzalez, one of those arrested earlier that evening in Aguirre's company. On the car floor, the agents found a paper bag within a plastic bag; inside the paper bag was a large amount of currency, appellant's Colombian passport, and a manila envelope containing papers and memorabilia belonging to Aguirre.

2. The Apartment # 53 search. That same night (January 8, 1987), a warrant was issued by a federal magistrate, pursuant to which the agents searched Apartment # 53 at 65A New Road. Cash, a variety of keys, and an assortment of documentation (virtually all of which was linked, in one way or another, with defendant) were sequestered.

3. The Apartment # 3 search. When arrested, appellant had numerous (unidentified) keys on his person. Piecing together the location of a possible "stash house" from an anonymous call and clues developed after the arrests, one of the agents--without a warrant--ascertained on January 16 that certain of these keys fit the locks at Apartment # 3, 22 Margaret Street, Pawtucket, Rhode Island. ² A warrant was obtained from the magistrate and a search ensued. Once again, incriminating evidence was found (including an advertising circular which corresponded with the casing in which a seized kilogram of cocaine had been wrapped).

After he was indicted, Aguirre moved to suppress the fruits of these three searches. The motions were uniformly denied. Subsequently, the government used the evidence at trial with apparently damning effect. In consequence of the appeal, we examine each of the suppression rulings for any hint of the manifold errors which appellant tells us abound.

II. THE AUTOMOBILE SEARCH

We need not loiter long over this aspect of the matter. The district court decided that appellant had no expectation of privacy in the Mazda or its contents, and thus lacked "standing" to pursue the matter. We agree.

It is well settled--and Aguirre acknowledges--that the fourth amendment primarily protects legitimate privacy expectations. E.g., Rakas v. Illinois, 439 U.S. 128, 140-50, 99 S.Ct. 421, 428-34, 58 L.Ed.2d 387 (1978). What courts have come to refer to as "standing"--the purchase necessary to come to grips with an allegedly illegal search or seizure--is unlike, say, the presumption of innocence: it does not automatically devolve upon every accused. United States v. Salvucci, 448 U.S. 83, 90-91, 100 S.Ct. 2547, 2552, 65 L.Ed.2d 619 (1980). Before embarking upon the merits of a suppression challenge, a criminal defendant must show that he had a reasonable expectation of privacy in the area searched and in relation to the items seized. Id. at 90-92, 100 S.Ct. at 2552-53. This burden must be carried at the time of the pretrial hearing and on the record compiled at that hearing. United States v. Gomez, 770 F.2d 251, 253 (1st Cir.1985). See Fed.R.Crim.P. 12(b)(3). Unless and until the "standing" threshold is crossed, the bona fides of the search and seizure are not put legitimately into issue.

We have often catalogued the sort of factors which are pertinent to this threshold inquiry: ownership, possession, and/or control; historical use of the property searched or the thing seized; ability to regulate access; the totality of the surrounding circumstances; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of such an expectancy under the facts of a given case. See, e.g., Gomez, 770 F.2d at 254; United States v. Lochan, 674 F.2d 960, 965 (1st Cir.1982). We look, in short, to whether or not the individual thought of the place (or the article) as a private one, and treated it as such. If the movant satisfies us on this score, we then look to whether or not the individual's expectation of confidentiality was justifiable under the attendant circumstances. Whatever facts may shed light upon either step of this two-tier inquiry may be weighed in the balance.

In this case, the district judge gave appellant ample opportunity to demonstrate in these terms that he enjoyed the requisite standing to savage the search of the car--but nothing materialized. There was no evidence that Aguirre owned or leased the Mazda, or that it was registered to him. There was no evidence that he even possessed keys to the vehicle or had used it on prior occasions. ³ The litany of negatives could go on, but to no useful end. The record of the suppression hearing is barren of any proof tending to show that appellant had exhibited the slightest subjective expectation of privacy vis-a-vis the vehicle. And in all events, given the paucity of the proffer, no such subjective expectation, viewed objectively, could conceivably have been justified.

Before leaving the point, we add but a few words as to a subsidiary argument voiced by Aguirre. He contends that, since the bag-within-a-bag contained effects personal to him--for example, his passport, letters, and photographs--he had standing to challenge that seizure, even if not the search of the vehicle as a whole. But this argument misperceives the prophylaxis which the fourth amendment affords. The most intimate of documents, if left strewn about the most public of places, would surely not be shielded. That the items seized were appellant's personal effects was a mark in his favor--but without competent evidence to show that they were left in a place and under circumstances which could (and did) justifiably give rise to an expectation of privacy, ⁴ the mark fell far short.

III. THE APARTMENT # 53 SEARCH

The search of Apartment # 53, located at 65A New Road, was conducted pursuant to a warrant. The district court found the warrant for the search of this dwelling--apparently Aguirre's place of residence, or one of them--to have issued upon probable cause. We review such findings only for clear error. United States v. Hoffman, 832 F.2d 1299, 1306 (1st Cir.1987); United States v. Figueroa, 818 F.2d 1020, 1024 (1st Cir.1987). We spy none here.

We have lately remarked that " '[p]robable cause' need not be tantamount to 'proof beyond a reasonable doubt.' " Hoffman, 832 F.2d at 1305-06. It is enough if the affidavit upon which a warrant is founded demonstrates in some trustworthy fashion the likelihood that an offense has been committed and that there is sound reason to believe that a particular search will turn up evidence of it. See Illinois v. Gates, 462 U.S. 213, 230-35, 238, 103 S.Ct. 2317, 2328-31, 2332, 76 L.Ed.2d 527 (1983); Brinegar v. United States, 338 U.S. 160, 169-71, 69 S.Ct. 1302, 1307-08, 93 L.Ed. 1879 (1949). "Probability is the touchstone...." Figueroa, 818 F.2d at 1023.

In this case, the totality of the circumstances filled the government's probable cause cup to the brim. In brief, the affidavit which underbraced the warrant showed among other things that the federal agents had a reliable and confidential informant who transacted a major drug purchase with Azevedo on the very day the warrant was sought (January 8, 1987); Azevedo's Ford pickup truck, which had been used to facilitate this buy, was parked later that day at the New Road address; and a second confidential informant, also thought dependable, purchased cocaine from appellant in Apartment # 53 shortly before January 8. Although the sworn statement...