U.S. v. Donnes

• Decision Date: 16 October 1991
• Docket Number: No. 91-8003,91-8003
• Citation: 947 F.2d 1430
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee DONNES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1430

947 F.2d 1430

UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee DONNES, Defendant-Appellant.

No. 91-8003.

United States Court of Appeals, Tenth Circuit.

Oct. 16, 1991.

Douglas G. Madison of Dray, Madison & Thompson, Cheyenne, Wyo., for defendant-appellant.

Richard A. Stacy, U.S. Atty., John R. Barksdale, Asst. U.S. Atty., Casper, Wyo., for plaintiff-appellee.

Before LOGAN, MOORE and BALDOCK, Circuit Judges. ^*

BALDOCK, Circuit Judge.

Defendant-appellant, Edward Lee Donnes, entered a conditional guilty plea, Fed.R.Crim.P. 11(a)(2), to a charge of possession with intent to distribute methamphetamine. 21 U.S.C. § 841(a)(1). Pursuant to a written plea agreement, defendant reserved his right to appeal the order of the district court denying his motion to suppress. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

On appeal from the denial of a motion to suppress, "our standard of review is to accept the trial court's findings of fact, unless clearly erroneous, and to consider the evidence in the light most favorable to the government." United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990). See also United States v. Morgan, 936 F.2d 1561, 1565 (10th Cir.1991). In the absence of findings by the district court, we must uphold the ruling " 'if there is any reasonable view of the evidence to support it.' " Morgan, 936 F.2d at 1565 (quoting United States v. Neu, 879 F.2d 805, 807 (10th Cir.1989) (citation omitted)). Questions of law, including ultimate determinations of reasonableness concerning fourth amendment issues, are reviewed de novo. Id. at 1565-66 (citing United States v. Butler, 904 F.2d 1482, 1484 (10th Cir.1990)).

The district court held an evidentiary hearing on the fourth amendment issues raised in defendant's motion, and the factual background set forth below is taken substantially from the memorandum opinion of the district court. ¹ On March 28, 1989, defendant traveled from Billings, Montana to Sheridan, Wyoming, along with two companions, in order to retrieve his belongings from a rental house in Sheridan. The house was rented to defendant's then-girlfriend, Cheryl Flippin, with whom defendant had lived for "quite a while." Defendant had lived continuously in the rental house until February 1989. Defendant and Flippin had previously padlocked the front door of the house to secure the premises.

On March 23, 1989, five days prior to defendant's return to Sheridan, state law enforcement officers executed a search warrant at the house. An arrest warrant had also been issued for Flippin. Law enforcement officers informed the owner of the house, Richard Marousak, of the search warrant, and he attempted to assist them in gaining entry. However, Marousak's key would not open the padlock, and the law enforcement officers subsequently used a bolt cutter to obtain entry. Following the search, which yielded contraband weapons, Marousak, with the permission of the law enforcement officers, resecured the house by placing a new padlock on the door.

When defendant arrived at the house on March 28th, in possession of both a key to the front door and a key to the padlock, he discovered that his key to the padlock did not work. Defendant forced the door open to gain entry. A neighbor observed defendant and his two companions forcing their way into the house and called the Sheridan Police Department. When police officers arrived, they ordered defendant and his two companions out of the house and proceeded to check their identification. Defendant told the officers that Flippin, who had paid rent on the house through April 13th, gave him permission to be on the premises. The officers transported defendant and his two companions to the police station in order to verify that defendant had permission to be on the premises. After further questioning at the police station, defendant and his two companions were placed under arrest for burglary, and for being accessories after the fact in aiding and abetting a fugitive.

At some time during the questioning of defendant and his two companions at the house, Marousak arrived with a friend, Bill Bertrand. They remained in their vehicle until the defendant and his companions had been taken to the police station, and then approached a law enforcement officer who remained at the house. Marousak expressed his concern to the officer about some of his belongings in the house and wanted to check to see if anything was missing. The officer entered the house, without a warrant, ² ostensibly to further investigate the suspected burglary, look for other suspects, and retrieve the search warrant that had been left in the house five days earlier. Bertrand and Marousak followed the officer inside the house. While looking around the living room, Bertrand noticed a glove lying on the floor. The glove was "bulging way out" and Bertrand, being suspicious, picked it up and looked inside where he saw a syringe. Bertrand immediately gave the glove to the officer.

Suspecting that the syringe was narcotics paraphernalia, the officer removed the syringe and a camera lens case which was also inside the glove. The officer opened the case and discovered a plastic bag containing two smaller bags and some "bindles" which were subsequently determined to hold methamphetamine. ³

In his motion to suppress evidence seized from the search of the house, defendant argued that the discovery of the narcotics resulted from a warrantless search of the house. The district court disagreed, ⁴ finding that Bertrand, rather than the officer, discovered the glove, and that the defendant had failed to meet his burden of showing that Bertrand was acting as a government agent at the time of the discovery. ⁵ See United States v. Smith, 810 F.2d 996, 997 (10th Cir.1987) (fourth amendment does not prohibit search or seizure conducted by private person not acting as government agent or in concert with government official), cert. denied, 488 U.S. 888, 109 S.Ct. 218, 102 L.Ed.2d 210 (1988). The district court found that the officer's actions of taking the glove and looking inside did not exceed the scope of the private search. See United States v. Walsh, 791 F.2d 811, 815 (10th Cir.1986) (where state actor does no more than repeat the private search and inspect what is in plain view, search does not infringe on any legitimate expectation of privacy). The district court then reasoned that the syringe, being in plain view, justified the warrantless seizure of the glove and its contents. On appeal, defendant does not challenge any of this reasoning. Rather, the thrust of defendant's argument is that by opening the camera lens case, found inside the glove, the officer conducted an additional warrantless search, separate and distinct from the plain view search of the glove. ⁶

In United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Supreme Court recognized a standard for evaluating the actions of law enforcement officials when presented with evidence uncovered during a private search. The Court stated that "[t]he additional invasions of [defendant's] privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search." Id. at 115, 104 S.Ct. at 1657. The district court found that Bertrand gave the glove and its contents to the officer immediately after seeing the syringe inside the glove. Bertrand did not himself open the camera lens case which was also inside the glove. This fact distinguishes the present case from United States v. Walsh, 791 F.2d 811 (10th Cir.1986), on which the district court relied. In Walsh, we held that a law enforcement official did not need a warrant to view items inside a suitcase, notably suppressors (silencers) lacking serial numbers, after airline employees had already opened the suitcase and examined the suppressors. Id. at 813-14. Here, by contrast, Bertrand never opened the camera lens case or viewed its contents prior to turning it over to the officer. This is not the case in which the conduct of the law enforcement official enabled him "to learn nothing that had not previously been learned during the private search." Jacobsen, 466 U.S. at 120, 104 S.Ct. at 1660 (footnote omitted). The officer's warrantless search of the camera lens case exceeded the scope of the private search.

The Supreme Court has long recognized that containers are subject to protection under the fourth amendment. ⁷ See Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288, 1289, 108 L.Ed.2d 464 (1990) (per curiam) (brown paper grocery bag); United States v. Place, 462 U.S. 696, 705-06, 103 S.Ct. 2637, 2643-44, 77 L.Ed.2d 110 (1983) (luggage); Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1877) (letters and packages). "It is fundamental that, absent some special exception, all containers and packages will receive the full protection of the fourth amendment during a police search." United States v. Bonitz, 826 F.2d 954, 957 (10th Cir.1987) (citation omitted). In order to receive protection under the fourth amendment, a defendant must have a reasonable expectation of privacy in the contents of the container. Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983).

While neither the district court's memorandum opinion nor the government's brief addresses whether the defendant exhibited a reasonable expectation of privacy in the contents of the camera lens case, the record developed at the evidentiary hearing before the district court as well as the specific factual findings of the district court support defendant's position. The container at issue was a closed camera lens case made of black leather and therefore opaque. III R. 281, 312, 362. The case was placed inside a glove. The glove was found on the living room floor of the house. The district court found that the defendant had a reasonable expectation of privacy in the surrounding area when it ruled that defendant had standing...