U.S. v. Bustamante
| Decision Date | 02 April 1993 |
| Docket Number | No. 91-50302,91-50302 |
| Citation | 990 F.2d 1261 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. George Steven BUSTAMANTE, aka: George S. Bustamonte, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before D.W. NELSON, HALL and RYMER, Circuit Judges.
Appellant George Bustamante appeals his conviction for bank robbery in violation of 18 U.S.C. § 2133(a). He contends that the district court erred in denying his motions to suppress evidence and to disallow an impermissibly suggestive in-court identification. Bustamante also appeals his sentence under the Sentencing Guidelines on the ground that a prior 1973 conviction should not have been considered in deciding whether he was a career offender. For the reasons stated below, we affirm both Bustamante's conviction and his sentence.
On June 15, 1990, the Security Pacific Bank in Venice, California was robbed. Shortly after the robbery, a description of the suspect was broadcast over the police radio. Approximately three hours after the robbery, two Los Angeles police officers responded to a complaint about a man screaming in a room at the Vita Motel, located about one mile from the bank. The room was registered to Cynthia Baugh, her fourteen year-old son, and her sister Teri Baugh, all of whom were then living at the motel. The officers testified that when they arrived they could see several persons in the room including a man, later identified as Bustamante, who was kneeling on the floor, yelling, tossing his head, and occasionally striking his head against the wall. The officers instructed the people in the room to go outside. One of the officers then conducted a protective sweep. During the sweep, the officer saw a brown paper bag full of cash lying open in the shower stall in the bathroom. The officers seized the bag, inspected it further, and arrested Bustamante for the robbery.
Prior to his trial, Bustamante made a motion to suppress introduction of the brown paper bag and the money into evidence which was denied. Bustamante also filed a motion in limine to prevent his in-court identification by a witness who had previously been unable to identify him from a photographic lineup. This motion was also denied, but the district court did not articulate its reasons for doing so. Bustamante was tried and convicted by a jury, and subsequently sentenced as a career offender to 210 months imprisonment and three years supervised release.
Bustamante contends that the district court erred in denying his motion to suppress on the ground that the evidence was obtained as the result of a warrantless entry into and search of the motel room which was not justified by any recognized exception to the warrant requirement. The government responds that Bustamante has no standing to contest the entry into and search of the motel room, and that the seizure and subsequent search of the paper bag was justified by the plain view exception to the Fourth Amendment.
Initially, the government challenges Bustamante's standing to contest the officers' entry into and protective sweep of the motel room. Although it was raised below, the district court made no ruling on this issue.
Nonetheless, this court may affirm the district court's decision to deny the motion to suppress on any basis that is fairly supported by the record. United States v. Johnson, 820 F.2d 1065, 1072 n. 7 (9th Cir.1987).
In order to challenge the police officer's warrantless entry into the motel room and subsequent protective sweep, Bustamante must demonstrate that he had a "legitimate expectation of privacy in the area searched." United States v. Grandstaff, 813 F.2d 1353, 1357 (9th Cir.) (per curiam), cert. denied, 484 U.S. 837 (1987). Guests are assumed to have a reasonable expectation of privacy within a home to which they are invited since this is an expectation of privacy that the community is "prepared to recognize as 'reasonable.' " Minnesota v. Olson, 495 U.S. 91, 96 (1990); see also Grandstaff, 813 F.2d at 1357. A motel room may be defined as the home of registered guests, notwithstanding that it is probably only a temporary abode. United States v. Winsor, 846 F.2d 1569, 1572 (9th Cir.1988) (en banc). However, "mere presence" in someone's home does not confer upon a person the status of a guest. Grandstaff, 813 F.2d at 1357. Thus, Bustamante must establish more than the fact that he had permission to be in the Baughs' motel room; he must establish that he was present as their guest.
There is no evidence to indicate that Bustamante held the status of a guest. The fact that Bustamante was invited into the room by Teri Baugh's fourteen year-old nephew proves only that Bustamante was legitimately present in the motel room. There is no evidence, however, that he had slept in the motel room, that he had been given control over the premises by the Baugh sisters, or that he had in any way been invited to treat their "home" as his own. Indeed, Cynthia Baugh testified that she did not know Bustamante and Teri Baugh testified that she did not know him "very well." The only person Bustamante seemed to know well was Teri Baugh's boyfriend, who was registered in another room. Accordingly, we find that Bustamante is without standing to challenge the entry into the motel room or the protective sweep. 1
Next, Bustamante contends that if this court finds that he does not have standing, the case must be remanded to the district court to give him an opportunity to establish that he was a guest of the Baughs. This argument is without merit. The issue of Bustamante's standing was before the district court, and nothing prevented Bustamante from submitting such facts to the court at that time. He cannot argue now that his decision not to avail himself of the opportunity to brief fully the standing issue below constitutes a denial of due process.
We next turn to the issue of the seizure and subsequent inspection of the brown paper bag. The record supports a finding that the seizure and subsequent search of the bag was justified under the plain view doctrine. "The plain-view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activity." Illinois v. Andreas, 463 U.S. 765, 771 (1983) (emphasis supplied). Items found in plain view during a protective sweep may be seized. Maryland v. Buie, 494 U.S. 325, 330 (1990). The plain view doctrine presupposes that once an officer is lawfully in a position to observe an item, the owner's privacy interest in that item is lost. Andreas, 463 U.S. at 771.
The officer in this case had probable cause to seize the brown paper bag which he observed in plain view on the shower stall floor. Prior to observing the bag, the police had reason to believe that Bustamante was under the influence of PCP. The officer testified that when he entered the bathroom he observed money in an open paper bag lying on the shower stall floor: an odd place to keep legitimate funds. He also stated that "because the Vita Motel is a known spot to buy and sell drugs, at first I thought the money might be drug money." The officer had probable cause to believe that the bag and its contents were evidence of a crime (ironically, however, not evidence of the crime of bank robbery) based on his observation alone.
Given that the officer had probable cause to seize the bag based on his observation alone, he also had probable cause to search the bag further. Arizona v. Hicks, 480 U.S. 321, 325-26 (1987). As Hicks observed, "[i]t would be absurd to say that an object could lawfully be seized and taken from the premises, but could not be moved for closer examination." Id. at 326. In other words, probable cause will be inferred to search all areas of an object if prior to the search the object is in plain view and probable cause exists to seize it. See also United States v. Williams, 822 F.2d 1174, 1182 (D.C.Cir.1987) ().
Accordingly, the district court's denial of Bustamante's suppression motion is affirmed.
Second, Bustamante contends that the district court abused his right to due process by allowing an in-court identification that was impermissibly suggestive.
The first issue before us is the appropriate standard of review. Bustamante failed to make a contemporaneous objection to the in-court identification. The government argues that Bustamante's failure to object constituted a waiver which would permit reversal only for plain error. We disagree. We held in United States v. Wood, 943 F.2d 1048, 1054 (9th Cir.1991), that when the substance of the objection has completely been explored during the hearing on the motion in limine, and when the trial court's denial of the motion is "explicit and definitive," no further action is required to preserve the issue of admissibility of that evidence for appeal. Id. at 1054 (quoting Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir.1986)).
Here, the trial court's ruling on the in limine motion was definitive and explicit. The record indicates that the court was fully aware of the substance of the objection and that the matter had been fully briefed. Moreover,...
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