Ponce v. Craven

Decision Date14 May 1969
Docket NumberNo. 22551.,22551.
Citation409 F.2d 621
PartiesLouis D. PONCE, Appellant, v. Walter E. CRAVEN, Warden, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Louis D. Ponce, for appellant.

Thomas C. Lynch, Atty. Gen., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES and CARTER, Circuit Judges.

JAMES M. CARTER, Circuit Judge.

This is an appeal from an order of the district court dismissing a petition for a writ of habeas corpus by a State prisoner. No evidentiary hearing was held. We affirm.

Louis Ponce was tried and convicted by a judge without a jury in a California state court for the illegal possession of heroin. Cal.Health & Safety Code, § 11500.5. On November 24, 1964, Ponce was sentenced to the term prescribed by law.1

Ponce exhausted his State remedies. His conviction was affirmed by the State Court of Appeal on June 20, 1966, in an unpublished opinion. Petition for hearing by the State Supreme Court was denied and petition for certiorari to the U. S. Supreme Court was denied. 386 U.S. 1026, 87 S.Ct. 1377, 18 L.Ed.2d 470 (1967).

THE FACTS

Late in the evening of July 30, 1964, Officers Reed and Lockhart of the Southgate Police Department Narcotic Detail, responded to a telephone call from the woman manager of the Fulton Motel. When they arrived they were told by the manager of the suspicious activities of a guest Ponce: (1) he changed $2 or $3 into dimes every day from her for use in making telephone calls; (2) he rarely slept; (3) he left the motel at all hours; (4) he kept his blinds pulled at all times; (5) he refused to allow the maid to enter his room to change the linen and insisted upon doing it himself; (6) on one occasion the manager was called to his room by his woman companion to check the television set and that while there the manager saw several uninflated balloons on the set; the manager told the police that no children were in the room at the time; (7) a beautician, living in the same motel had refused to enter the guest's room after being invited and later told the manager that "Those people are loaded;" (8) she observed that the tenant made frequent trips to Ensenada and Tijuana; and (9) on more than one occasion she had seen a car park across the street from the motel and one of its occupants run from the car to the window of unit 12, where the suspicious man was staying, and receive a package passed out through the window. The officers had never previously used the manager as an informant.

The manager then took the officers to the rear of unit 12; the bathroom window was open sufficiently to allow the officers to look inside and to overhear conversations taking place within the motel room. The area directly behind the motel unit 12 was used for parking by guests and persons having business at the Fulton Motel.

While standing in this parking area for three to five minutes, Officer Reed overheard a conversation from within, between a man and a woman. The exchange was partly in English and partly in Spanish. Although he could not understand Spanish, Officer Reed did recognize the word carga — a Spanish slang expression for heroin. He also overheard the male voice say, "How many quarters is that?" Officer Reed testified that in narcotics jargon quarters refers to quarter ounces. Officer Reed also heard the sound of snapping rubber. He testified that this was significant since "balloons, finger stubs and condoms are a common method of packing * * * heroin and the snapping of the rubber indicates narcotics are being packaged in the room."

Since he did not speak Spanish and wished to determine the exact nature of the conversation within unit 12, Officer Reed called Police Sergeant Salisbury to the scene. Although Salisbury was not a narcotics specialist, he understood Spanish. Officer Salisbury was directed to the bathroom window in the rear of unit 12. He went there and returned to Officer Reed. Salisbury reported that he had observed a man in the bathroom washing out a hypodermic needle.

Salisbury's observations, in addition to the motel manager's statements and his own observations, led Reed to conclude that he had at least probable cause to make an arrest for possession of narcotic paraphernalia. He testified that at the time he also "felt" that illegal narcotics were to be found in the room.

Officer Reed then directed police headquarters to telephone the Fulton Motel. In addition to ringing in the manager's quarters, a bell outside also rings when a telephone call is made to the motel. The manager answered the ring and then walked to the door of unit 12. According to a plan agreed upon with Officer Reed and the other police then present, the manager announced that the telephone call was for the woman, Connie Godoy, who was occupying the room with Ponce. When Miss Godoy opened the door, the police immediately entered the room and arrested her and Ponce. The arresting officers did not announce their identity as policemen nor their purpose before entering the room.

After handcuffing Ponce, Officer Reed told him that he was going to be advised of his constitutional rights. Ponce answered, "I know my rights; I know I am entitled to an attorney, and anything I say can be used against me."

The officers then searched the room and found eleven rubber contraceptives, each containing approximately one-quarter ounce of powdered heroin mixed with milk sugar. Two needles and other narcotic paraphernalia were also found. After the search Reed asked Ponce whether there was "any more stuff" to be found. Ponce answered "No, there is no more stuff; you got it all * * * What are you going to do with the broad?" Officer Reed answered that he was going to charge Miss Godoy with possession and possession for sale. Ponce said, "Why don't you cut her loose? That stuff is mine."

QUESTIONS PRESENTED

Ponce contends in his habeas corpus petition, and in his appeal to this court, that he was denied due process of law by the State of California. He specifically attacks: (1) the bath room window surveillance carried on by the police; (2) the manner in which the police gained entry to his motel room; (3) his warrant-less arrest; (4) the use of his admissions to Office Reed; and (5) the admission of evidence seized during the search of his room.

(1) Police observation of appellant's bathroom window.

The Fourth Amendment's protections against unreasonable searches and seizures are applicable against state law enforcement officers through the Fourteenth Amendment in the same measure as against federal officers. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The occupant of a motel room is entitled to the same protections as the owner of a house against unreasonable searches and seizures. See, Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). However, the very nature of motel residency distinguishes the scope of that protection from that possessed by a person in his own house. As the court stated in Marullo v. United States, 328 F.2d 361, 363 (5 Cir. 1964):

"A private home is quite different from a place of business or from a motel cabin. A home owner or tenant has the exclusive enjoyment of his home, his garage, his barn or other buildings, and also the area under his home. But a transient occupant of a motel must share corridors, sidewalks, yards, and trees with the other occupants. Granted that a tenant has standing to protect the room he occupies, there is nevertheless an element of public or shared property in motel surroundings that is entirely lacking in the enjoyment of one\'s home."

In this case police officers made their observations of Ponce's bathroom window from the motel parking lot, which was for the use of guests and persons having business at the motel. The parking lot was an area to which many people had access; it was an area to which the appellant, as an occupant of the motel, had only shared property.

The Supreme Court has recently held in Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968):

"It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." (emphasis added).

This court has previously applied this same rule to a case where police officers made observations of a suspect in his dwelling place, which gave rise to probable cause for his arrest. Polk v. United States, 291 F.2d 230, 232 (9 Cir. 1961), and following a hearing on remand, 314 F.2d 837, 838 (9 Cir. 1963). See also, Safarik v. United States, 62 F.2d 892, 895 (8 Cir. 1933).2

In this case the police officers were lawfully in the parking lot of the motel, and merely observed what was within their plain view while standing there. However, this court must also determine whether the looking and listening carried on was "an intrusion upon what the resident seeks to preserve as private." Wattenburg v. United States, 388 F.2d 853, 857 (9 Cir. 1968); Cf., Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); and Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

If a person knowingly exposes his activities to public view and hearing, he is not entitled to have these activities protected against searches and seizures. Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507. Further, if a person relies upon privacy in a given situation, that reliance must be reasonable and justified under the particular circumstances. Katz v. United States, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J.) (concurring opinion).

Ponce's reliance on privacy in his motel room was not reasonable under the circumstances. If he did not wish to be observed, he could have drawn his blinds. The officers did not intrude upon any reasonable expectation of privacy in this...

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