925 F.2d 1242 (10th Cir. 1991), 90-8028, United States v. Jefferson

Docket Nº:90-8028, 90-8030.
Citation:925 F.2d 1242
Party Name:UNITED STATES of America Plaintiff/Appellee, v. Anthony Ray JEFFERSON and Roosevelt Jefferson, Jr., Defendants/Appellants.
Case Date:January 29, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1242

925 F.2d 1242 (10th Cir. 1991)

UNITED STATES of America Plaintiff/Appellee,

v.

Anthony Ray JEFFERSON and Roosevelt Jefferson, Jr.,

Defendants/Appellants.

Nos. 90-8028, 90-8030.

United States Court of Appeals, Tenth Circuit

January 29, 1991

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Daniel G. Blythe and Robert W. Schrader, Cheyenne, Wyo., for defendants/appellants.

Richard A. Stacy, U.S. Atty., for plaintiff/appellee.

Before LOGAN and EBEL, Circuit Judges, and BROWN, Senior District Judge. [*]

EBEL, Circuit Judge.

Appellants Anthony Ray Jefferson and Roosevelt Jefferson, Jr., were arrested in Wyoming after officers discovered eight ounces of cocaine base (more commonly known as crack) in the trunk of a car they were occupying. They were charged and convicted in federal court of possession with the intent to distribute a controlled substance under 21 U.S.C. Sec. 841(a). The appellants have presented a number of important issues for this court to consider, impacting the sentencing phase as well as the guilt phase of their trial. Among these are: (1) whether a non-owner driver of a car has a Fourth Amendment right to privacy in the car when the owner is present as a passenger; (2) whether a telephone pager bill introduced into evidence by the government to show that the accused owned a telephone pager constitutes inadmissible hearsay; and (3) whether the district court committed reversible error during the sentencing phase of the trial when it stated that it did not have the discretion to depart from the United States Sentencing Guidelines. For reasons discussed below, we affirm the guilt phase of the trial and remand for reconsideration of the sentences.

FACTS

During the early morning hours of April 9, 1989, Anthony Ray Jefferson and his brother Roosevelt Lee Jefferson (the appellants), and their friend, Ernest Lee Tillis, were traveling east on Interstate 80 near Evanston, Wyoming, in Tillis' car. Officer Matoon of the Evanston police department, observing that the car had only one headlight and was weaving within its lane of travel, proceeded to pull the car over. Matoon discovered that Roosevelt Jefferson, who was driving the car at the time of the stop, had a suspended Colorado license. Roosevelt told Matoon that they were returning from a trip to California. According to Roosevelt, they had gone to California to deliver a trailer. Matoon asked Roosevelt if they had any luggage in the trunk. Roosevelt said they did not have any luggage and that the trunk did not work. While Matoon was identifying the other occupants of the car as Anthony Jefferson and Earnest Tillis, officer Cole arrived as backup.

Matoon asked the other two whether they possessed a valid driver's license. Anthony produced his two day-old valid Colorado driver's license. When Matoon asked Anthony about the trip, Anthony told Matoon that he had gone to California to visit his sick girlfriend.

At this point, Matoon became suspicious and asked Roosevelt for his permission to search the car. Roosevelt told Matoon that because he was not the owner of the car, he was not sure he could consent to the search. When Matoon asked him the identity of the car's owner, Roosevelt responded that an individual by the name of "Shorty" owned the car. When asked who is Shorty, Roosevelt pointed to the car. There is no evidence, however, that Tillis identified himself to the officers as the owner of the car, nor did Tillis ever object to the search. After Matoon told Roosevelt that he could consent to the search, Roosevelt signed a consent form.

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Matoon immediately found the butt of a marijuana cigarette on the floor of the passenger seat near where Anthony was sitting. Soon thereafter, Matoon found a plastic baggie containing marijuana cigarettes in a pouch located in the back of the driver's seat. At this point, the officers called for further backup. Next, Matoon removed the keys from the ignition and opened the trunk. The only response from the three defendants, who all observed Matoon approach the trunk, was their statements that the trunk did not work. Matoon searched the trunk and found nothing. A few minutes later, Officer Cole searched the trunk and discovered 198.11 grams of crack hidden inside a McDonald's bag that was wrapped up inside a pair of Levi jeans. Roosevelt, Anthony, and Tillis were taken into custody.

When the baggie containing the crack was dusted for fingerprints, only Tillis' fingerprints could be identified. Anthony and Roosevelt maintained throughout the trial that they did not know the crack was in the trunk of Tillis' car. Tillis elected to cooperate with the government and testified that he and the Jefferson brothers had purchased the crack from sources in California intending to distribute it in the Denver area. In exchange for his cooperation, Tillis received a six level sentence reduction and was sentenced to a term of seventy-eight months. Roosevelt received a sentence of 151 months, and Anthony received a sentence of 360 months. Anthony and Jefferson have appealed their convictions and sentences. 1

DISCUSSION

Part I of this opinion will address the issue of whether the Jefferson brothers' Fourth Amendment privacy rights were violated when officers Matoon and Cole searched the car. Part II will address whether the district court erred when it admitted into evidence a U.S. West pager bill that was used by the government to prove that Anthony was a drug distributor. In Part III we will review the remaining guilt phase issues raised by the appellants. Finally, in Part IV we will address the Appellants' sentencing phase issues.

I

The first issue we address is whether the district court erred when it ruled in a pretrial hearing that Anthony and Roosevelt did not possess protectable Fourth Amendment privacy rights in Tillis' car. Anthony and Roosevelt moved to suppress the seized drugs, and the government advanced two arguments in response: first, that the brothers did not have a reasonable expectation of privacy in Tillis' car and, second, that even if they did, Roosevelt waived those rights for both of them when he voluntarily consented to the search. The district court did not address the question of whether Roosevelt's waiver was valid because it ruled that the brothers did not possess any protectable privacy rights in Tillis' car under the Fourth Amendment.

In order to determine whether an accused possesses protectable privacy rights under the Fourth Amendment, we must make a two-step subjective/objective inquiry: "first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986). The district court focused on the objective part of the inquiry--namely whether under the facts of this case society is willing to recognize Roosevelt's and Anthony's expectation of privacy. Because we believe this is the critical issue, we will likewise focus on the objective step of this Fourth Amendment inquiry. 2 Although the district court's antecedent factual findings will be reviewed under the clearly erroneous standard, we will review the district court's

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final objective determination de novo. See United States v. Rubio-Rivera, 917 F.2d 1271, 1274-75 (10th Cir.1990); United States v. Monie, 907 F.2d 793, 794 (8th Cir.1990); United States v. McKennon, 814 F.2d 1539, 1543 (11th Cir.1987). See also Ciraolo, 476 U.S. at 207, 106 S.Ct. at 1809 (reviewing de novo the district court's reasonable expectation of privacy finding without expressly addressing the appropriate standard of review). 3

There are only a few facts we deem critical to our analysis: (1) Roosevelt, the driver, was not the owner of the car; (2) Tillis, the owner, was present in, or in view of, the car when the purported Fourth Amendment violation occurred and did not object to the search; (3) Anthony, who had shared the driving with Roosevelt, was a passenger when the search occurred; (4) Roosevelt claimed that he had not placed any of his luggage in the trunk and that the trunk was in fact broken; (5) Roosevelt did not introduce any evidence that he had borrowed Tillis' car on previous occasions or that he had any interest in the car other than serving as one of the designated drivers during this particular trip; and (6) Roosevelt and Anthony denied any knowledge regarding the presence of the crack in the trunk.

Anthony's Fourth Amendment claim may readily be rejected under Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In Rakas, the Court held that defendants who were passengers in a car driven by the owner at the time of the search did not have a legitimate expectation of privacy in the car such that they could raise a Fourth Amendment challenge to the search of the car. Id. at 148-49, 99 S.Ct. at 433. The Court held that a "passenger qua passenger" has no reasonable expectation of privacy in a car in which he asserts neither a property interest nor a possessory interest and where he disclaims any interest in the seized object. Id. Anthony, a "passenger qua passenger" claiming no interest in the crack, did not possess a protectable Fourth Amendment privacy right in Tillis' car; 4 therefore, we reject Anthony's claim that the officers violated his Fourth Amendment privacy rights.

Similarly, we dispose of Roosevelt's claim based upon our reading of Rakas. The only additional fact that Roosevelt brings to the analysis is that he was driving the car, whereas in Rakas, the non-owner...

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