908 F.2d 1032 (1st Cir. 1990), 89-1568, United States v. Soule

Docket Nº:89-1568.
Citation:908 F.2d 1032
Party Name:UNITED STATES of America, Appellee, v. John Jeffrey SOULE, Defendant, Appellant.
Case Date:July 13, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1032

908 F.2d 1032 (1st Cir. 1990)

UNITED STATES of America, Appellee,

v.

John Jeffrey SOULE, Defendant, Appellant.

No. 89-1568.

United States Court of Appeals, First Circuit

July 13, 1990

Heard Jan. 8, 1990.

Brian J. McMenimen, with whom Richard A. Gargiulo and Gargiulo, Rudnick & Gargiulo, Boston, Mass., were on brief, for defendant, appellant.

R.J. Cinquegrana, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief, for U.S.

Before BOWNES, BREYER and CYR, Circuit Judges.

CYR, Circuit Judge.

John Jeffrey Soule tendered a conditional plea to several federal drug charges after reserving a right to appeal 1 the district court order rejecting his motion to suppress approximately one pound of cocaine, more than three-quarters of a ton of marijuana, and nearly one million dollars in cash discovered and seized pursuant to a search warrant issued by a Massachusetts court. All of defendant's contentions on appeal target the state court search warrant.

The first in a succession of events crucial to the validity of the state court warrant

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was the investigatory stop of a pick-up truck operated by co-defendant James Cline as it departed the residence of defendant's mother just after 9:30 p.m. on the evening of July 23, 1988. In the early morning hours of the following day, a clerk magistrate of the Hingham District Court issued three search warrants based in part on information obtained as a result of the investigatory stop. 2

Thus, our otherwise straightforward discussion on the sufficiency of the search warrant begins by setting the stage for the stop.

I

FACTS

Three days before the police stopped the pick-up truck as it left 255 Broadway, Special Agent Alan Lively of the Drug Enforcement Administration ("DEA") telephoned the Hanover Police Department with a tip from a confidential informant about an impending marijuana shipment in the approximate amount of 1500 pounds to Jeffrey Soule, a/k/a "Hanover Jeff." Agent Lively told Hanover Police Lieutenant Paul Hayes that the marijuana was to be delivered in a Ford F-250 pick-up truck, copper in color, with chrome "mag" wheels and a "cap" over its load bed. Lieutenant Hayes determined that John Jeffrey Soule had been arrested on a drug possession charge about a decade earlier in Hanover. The next day Agent Lively advised Lieutenant Hayes that the license plate on the pick-up truck was "Ohio N3872B." Detective Thomas Hayes, brother of Lieutenant Paul Hayes, began intermittent surveillance at 255 Broadway. 3

At about 5:30 p.m. on the following day, July 23, Detective Hayes saw the Ford F-250 pick-up truck, copper in color, bearing Ohio plate N3872B, at 255 Broadway, and began constant surveillance of the premises. At about 8:05 p.m. that evening Detective Hayes saw the defendant emerge from the house, and drive the pick-up truck off the driveway and across the lawn to the back of the house. Detective Hayes instructed Patrolman David Tyrie to maintain surveillance of the premises and to stop the pick-up if it left 255 Broadway. Detective Hayes then took up surveillance at a different vantage point, from which he was able to observe that the pick-up had been backed up to a pedestrian doorway at the rear of the two-story garage attached to the house. Detective Hayes observed movement inside the garage, then returned to the police station. At about 8:45 p.m. he called Lieutenant Hayes.

Patrolman Tyrie saw the pick-up leave 255 Broadway at 9:32 p.m. After following the pick-up for about a quarter of a mile, Tyrie stopped it and immediately notified Detective Hayes. Tyrie noticed that the driver appeared very nervous. Upon request, the driver produced an operator's license in the name of "Robert Terry," Lexington, Kentucky. Although neither Tyrie nor any other Hanover police officer knew it at the time, the driver was none other than co-defendant James Cline. See supra note 3.

Tyrie detected a slight odor of alcohol on Cline's breath. Cline admitted to having had a few drinks. Detective Hayes soon arrived and asked Cline to perform two sobriety tests. The officers observed that Cline was somewhat unsteady on his feet and that his eyes were slightly glassy. The door on the driver's side of the pick-up was left open as Cline stepped out to perform the sobriety tests, and both officers saw a hand-rolled marijuana "roach" in open view on the floor below the driver's

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seat. When asked about the marijuana roach, Cline denied having known that it was there, explaining that the pick-up belonged to a friend. At this point Detective Hayes walked alongside the cab of the pick-up and observed through a window that the load bed was empty. Hayes then opened the door at the back of the pick-up and immediately detected a strong odor of marijuana. After directing Cline to remain in the pick-up, the officers called the station to let Lieutenant Hayes know what had transpired. Lieutenant Hayes was on the telephone with Agent Lively, who requested that the driver of the pick-up be detained while Lively attempted to obtain information concerning the identity of "Robert Terry."

Agent Lively's telephone records reflect that he first called the Hanover Police Department at 9:45 p.m. (eight minutes). At 10:10 p.m. he again called Hanover (three minutes), with the information that "Robert Terry" was an alias used by James Cline, a fugitive from Florida wanted on a federal warrant for conspiracy to possess, with intent to distribute, marijuana. Agent Lively knew that James Cline was under indictment in Louisiana in connection with an importation of 200,000 pounds of marijuana. Cline was arrested. At 10:14 p.m. a tow truck was called to haul the pick-up. The arrest was called in to the police station at 10:17 p.m. At 10:30 p.m. Cline was booked at the police station on state charges for possession of marijuana and as a fugitive from justice. Cline is not a party to the present appeal.

II

DISCUSSION

Defendant Soule successively asserts on appeal that the police illegally initiated and extended the investigatory stop of the pick-up truck; all evidence obtained during the stop was unconstitutionally acquired; the untainted evidential content of the affidavit would not support probable cause to search the premises at 255 Broadway; the search warrant was invalid; the premises search violated appellant's fourth amendment rights; ergo, the evidence seized under the search warrant must be suppressed. Reasoning to the same conclusion on alternate premises, defendant contends that the state court search warrant was obtained in violation of Federal Rule of Criminal Procedure 41(a) because it was issued (i) by a clerk magistrate, rather than a state court judge; (ii) in connection with a federal prosecution. Finally, from the third quiver defendant urges us to draw upon the comparatively rigorous probable cause requirements of Massachusetts law to test the state court warrant issued on the strength of the affidavit of a state law enforcement officer in a joint federal-state criminal investigation. The district court either rejected or mooted each of these contentions by determining the investigatory stop and detention lawful and the search warrant valid under both federal and state law.

  1. Defendant's Expectation of Privacy in Pick-up

    Soule insists that the investigatory stop of the pick-up truck was unconstitutional because it was initiated without reasonable suspicion and lasted longer than any stop ever countenanced by the courts. Nevertheless, under the recognized rule that the proponent of a motion to suppress must establish not only the unlawfulness of the challenged governmental action, but that it intruded upon some legitimate expectation of privacy of the proponent, see, e.g., Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978), we must note at the outset the utter absence of any evidence, inference or suggestion that the Terry stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), infringed any legitimate expectation of privacy on the part of the defendant. 4

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    Rakas v. Illinois, 439 U.S. at 131 n. 1, 99 S.Ct. at 424 n. 1, makes clear beyond question that "[t]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." 5 Rakas reaffirmed the rule in Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969): "Fourth Amendment rights are personal rights which ... may not be vicariously asserted." 439 U.S. at 133-34, 99 S.Ct. at 425. The Rakas defendants had urged adoption of the so-called "target" theory of "standing," on the strength of the language, taken out of context from Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), that any "one against whom the search was directed" should be accorded "standing," id. at 261, 80 S.Ct. at 731. Rakas rejected the "target" theory, Rakas, 439 U.S. at 132-38, 99 S.Ct. at 424-28, and it did much more.

    Rakas discarded the Jones formula for "standing" as well, which turned on whether the defendant was "legitimately on the premises," Jones, 362 U.S. at 267, 80 S.Ct. at 734, because the Court concluded that the Jones formula did "not answer the question whether the search violated a defendant's 'reasonable expectation of freedom from governmental intrusion,' " Rakas, 439 U.S. at 147, n. 14, 99 S.Ct. at 432, n. 14 (quoting Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968)). Finally, Rakas reformulated the "standing" inquiry as a matter of substantive fourth amendment law.

    [T]he question is...

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