U.S. v. Hicks

• Decision Date: 12 January 1993
• Docket Number: No. 91-3195,91-3195
• Citation: 978 F.2d 722
• Parties: UNITED STATES of America v. Henry Jerome HICKS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 722

978 F.2d 722

298 U.S.App.D.C. 225

UNITED STATES of America v. Henry Jerome HICKS, Appellant.

No. 91-3195.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 24, 1992.

Decided Nov. 3, 1992.

As Amended Jan. 12, 1993.

Appeal from the United States District Court for the District of Columbia (Crim.No. 92-0088).

W. Gregory Spencer, Asst. Federal Public Defender, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.

Peter R. Zeidenberg, Asst. U.S. Atty., argued the cause for U.S. With him on the brief were Jay B. Stephens, U.S. Atty., John R. Fisher, Thomas J. Tourish, Jr., CeLillianne Green, and Erik Christian, Asst. U.S. Attys.

Before WALD, SILBERMAN, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

The first question in this appeal is whether the defendant had standing to challenge a warrantless search and seizure in another's apartment in which the defendant, present as a "guest," was selling crack cocaine to outsiders. The second issue, which we find unnecessary to decide for the reasons given later, concerns the proper application of the Sentencing Guidelines with respect to acceptance of responsibility for conduct other than that involved in the offense of conviction.

The facts are these. An undercover officer, seeking to buy cocaine, was taken by a female he encountered on the street to the apartment of one Robert Cole. The officer there engaged in a transaction with Henry Jerome Hicks. Hicks emptied a bottle containing pieces of crack cocaine on a table. The officer made a selection and handed Hicks a pre-marked $20 bill. Shortly thereafter, as other officers were arresting Hicks--outside the apartment according to the officers or inside according to Hicks--he dropped a ziplock bag containing 0.11 grams of crack cocaine. A search of Hicks' person incident to his arrest produced the pre-marked $20 bill. Robert Cole, who was present during these events, then consented to a search of his apartment. (Hicks claimed the police had already searched the apartment.) Inside, on a window sill, officers discovered a medicine bottle holding 8.48 grams of a substance containing cocaine base.

Hicks was charged in count one of an indictment with distributing cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2, and in count two with possession with intent to distribute five or more grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). After an evidentiary hearing, the district court denied Hicks' motion to suppress the evidence seized during his arrest and cocaine seized in the apartment on the ground that he lacked standing under the Fourth Amendment. The case then proceeded to trial. When Hicks took the stand, he admitted committing the offense charged in the distribution count, but protested his innocence of the count charging possession with intent to distribute. He denied having any knowledge of the medicine bottle seized on the window ledge and testified that he had left the vial containing the crack he showed to the undercover officer in a wastebasket in the bathroom. The jury convicted Hicks on count one, but was unable to reach a verdict on count two. In calculating Hicks' sentence (63 months' imprisonment) the district court considered the eight grams of cocaine base found in the medicine bottle to be part of Hicks' "relevant conduct" ¹ and denied him a two-point reduction in his offense level for acceptance of responsibility.

I

In light of the evidence developed during the pre-trial suppression hearing, the district court properly held that Hicks had failed to sustain his burden of showing that his Fourth Amendment rights had been violated. See Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978). Hicks had moved to suppress the pre-marked currency and the cocaine base from the ziplock bag as the fruits of an illegal warrantless arrest inside a private dwelling and the medicine bottle as the result of an unlawful search. In order to go forward on these claims, it was incumbent upon him to establish that he had a "legitimate expectation of privacy in the invaded place," here Cole's apartment. Rakas v. Illinois, 439 U.S. at 143, 99 S.Ct. at 430. An expectation of privacy, the Supreme Court has told us, is "legitimate" only if it is one "society is prepared to recognize as reasonable." Minnesota v Olson, 495 U.S. 91, 97, 110 S.Ct. 1684, 1688, 109 L.Ed.2d 85 (1990).

The evidence at the hearing showed that at the time of his arrest (12:55 a.m.), Hicks was using Cole's apartment to conduct an illegal business. He had a supply of crack cocaine. He welcomed those who came to purchase drugs. He engaged in a drug transaction there late at night with an undercover officer, apparently a complete stranger off the street. Cf. Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966). Hicks was not engaging in any "longstanding social custom that serves functions recognized as valuable by society." Minnesota v. Olson, 495 U.S. at 98, 110 S.Ct. at 1688. Quite the opposite. Much of the evidence relating to Hicks' activities in the apartment was derived from the observations of the undercover officer. It was not challenged and, in light of Lewis, could not successfully have been excluded on the basis of any Fourth Amendment claim. In evaluating Hicks' legitimate expectation of privacy, we therefore find it material that Hicks treated the apartment as a base for his business operations, not as a sanctuary from outsiders. Apart from this, the other evidence relating to Hicks' standing came from Cole, who was Hicks' only witness at the hearing. Cole said that Hicks had arrived several hours before the undercover officer appeared and that he had brought some liquid refreshments and ice. But that evidence does not distinguish Hicks from any other invited guest who might have been on the premises when the police showed up. It shows at most that Hicks planned to stay awhile and that Cole assented, facts one might have inferred even without Cole's testimony.

The Court in Olson concluded that an overnight house guest had a legitimate expectation of privacy in his host's home and thus could challenge the police's warrantless entry into the home to arrest him. See 495 U.S. at 96-98, 110 S.Ct. at 1687-1688. At the same time, the Court reaffirmed the principle that one must be more than simply " 'legitimately on [the] premises' " in order to assert Fourth Amendment claims. Id. at 97, 110 S.Ct. at 1688 ( quoting Rakas, 439 U.S. at 142, 99 S.Ct. at 429). Hicks may have been "legitimately" in the apartment, in the respect that Cole permitted his presence, but Hicks established nothing more at the hearing. See generally 4 W. LAFAVE, SEARCH AND SEIZURE § 11.3, at 45-47 (Supp.1991). The district court therefore correctly declined to consider further Hicks' Fourth Amendment claims. See United States v. Sweeting, 933 F.2d 962, 964 (11th Cir.1991); Lewis v. United States, 594 A.2d 542, 544-46 (D.C.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1225, 117 L.Ed.2d 460 (1992).

If we evaluated Hicks' standing in light of the testimony that came out during the trial, as Hicks urges on appeal, the result might be different. Undisputed evidence at trial indicated that Hicks initially meant to spend only a few hours in Cole's apartment on the night of the arrest, but changed his mind when a female acquaintance with whom he had made plans failed to appear. Cole testified that Hicks then "asked me could he lay down [on the couch] and get a little rest. I told him yeah." Hicks was asleep on the couch when the undercover officer arrived. Hicks testified that he was a regular visitor to Cole's apartment, frequently stopping by on his way home from work to "sit down, drink beer, watch TV, and drink a little liquor." This evidence would make the standing question closer, if only because Hicks may have approached the status of an overnight guest. Cf. United States v. Osorio, 949 F.2d 38, 41 (2d Cir.1991).

The problem for Hicks is that he did not again move to suppress when this evidence came to light at trial. An appellate court should not rely on evidence first produced at trial to reverse a pre-trial denial of a suppression motion not renewed at trial. See 4 W. LAFAVE, SEARCH AND SEIZURE § 11.1(b), at 197 (2d ed. 1987). Cf. United States v. Quiroz-Carrasco, 565 F.2d 1328, 1330 (5th Cir.1978); Rouse v. United States, 359 F.2d 1014, 1016 (D.C.Cir.1966). It is true that reviewing courts routinely consider trial evidence in affirming pre-trial suppression rulings. See, e.g., Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); United States v. Snyder, 872 F.2d 1351, 1356-57 (7th Cir.1989); United States v. Basey, 816 F.2d 980, 983 n. 1 (5th Cir.1987). Cf. United States v. Foster, 783 F.2d 1082 (D.C.Cir.1986) (en banc). There is no incongruity in this. It would be wasteful to remand so that the district court could reconsider its denial of a suppression motion in light of trial evidence the reviewing court believes supports the denial. ² See SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943). The situation is different when evidence presented only at trial casts doubt on what would otherwise be a correct pre-trial denial of a suppression motion. ³ It is no great burden on defense counsel to renew a suppression motion at trial. See United States v. Raddatz, 447 U.S. 667, 678 n. 6, 100 S.Ct. 2406, 2413 n. 6, 65 L.Ed.2d 424 (1980); Gouled v. United States, 255 U.S. 298, 312-13, 41 S.Ct. 261, 266, 65 L.Ed. 647 (1921). Defense counsel, as well as prosecutors, are required to bring alleged errors to the trial court's attention by making a proper objection or filing a motion. Trial courts are not generally bound to act sua sponte. The...