U.S. v. Burns

• Citation: 624 F.2d 95
• Decision Date: 14 July 1980
• Docket Number: Nos. 78-1945,s. 78-1945
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Henry BURNS, Vincent M. Andrade, Britt Lance Reynolds, Defendant- Appellants. to 78-1947.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 95

624 F.2d 95

UNITED STATES of America, Plaintiff-Appellee, v. Michael Henry BURNS, Vincent M. Andrade, Britt Lance Reynolds, Defendant- Appellants.

Nos. 78-1945 to 78-1947.

United States Court of Appeals Tenth Circuit.

Argued Sept. 10, 1979.

Decided March 31, 1980.

Rehearing Denied July 14, 1980.

Nancy E. Rice, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Joseph Saint-Veltri, Denver, Colo. (Robert S. Berger of Davies & Saint-Veltri, Denver, Colo., on the brief), for defendant-appellant Michael Henry Burns.

Harley W. Shaver, Denver, Colo. (E. Michael Canges of Canges & Shaver, Denver, Colo., on the brief), for defendant-appellant Vincent M. Andrade.

Victor L. Abbo of Abbo & Lass, Boulder, Colo., for defendant-appellant Britt Lance Reynolds.

Before SETH, Chief Judge, HOLLOWAY, Circuit Judge, and BOHANON, District Judge ^*.

BOHANON, District Judge.

Michael Burns, Vincent Andrade and Britt Reynolds appeal convictions of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1).

Subsequent to an informer's tip by the San Diego office of the Drug Enforcement Administration to Denver agents, on July 28, 1978, Burns and Andrade were observed departing a San Diego to Denver flight, with Burns carrying a briefcase and Andrade carrying a small flight bag. Under surveillance, they proceeded to a Denver motel and checked in, changing rooms later that afternoon. Still later they began entering and leaving room 1014 of the motel and observing the parking lot through that room's curtains. About 8:00 that evening a white Ford Pinto arrived and Britt Reynolds emerged and entered room 1014.

In addition to its outside entrance, room 1014 contained a door leading into the motel's hallway. While Reynolds met with Burns and Andrade, Special Agent Ralph Lockridge was positioned outside the hallway door. Agent Lockridge heard the outside door open and someone say, "Hey, Britt, what's happening?" Subsequently, he heard "unwrapping of plastic," then "sniffing, snorting-type sounds," and references to "it" as being "really good" and "the third eye." He also heard remarks about money.

Reynolds left with a brown paper sack, drove off in the Pinto and promptly was arrested. Burns and Andrade were arrested emerging into the motel hallway. Andrade was carrying a flight bag and the same style of briefcase Burns had possessed at the airport. Burns was carrying a suitcase.

A police dog trained to detect with his sense of smell various narcotics, including cocaine, was brought to the room, where his reactions indicated the presence of narcotics in the briefcase and suitcase.

A warrant was procured authorizing searches of the Pinto and room 1014. A brown paper sack situated on the front passenger's seat of the automobile contained $13,430.00. The briefcase in the motel room contained a plastic bag filled with a white substance later determined to be 100 percent cocaine, and the suitcase's contents included a triple beam scale.

Burns, Andrade and Reynolds were indicted for possession of cocaine with intent to distribute. A superseding indictment further alleged actual distribution. At the conclusion of the trial's evidence, the court removed the distribution charge from the jury's consideration, on grounds that the government's proof failed thereon as a matter of law. All three defendants were found guilty of possession with intent to distribute.

On appeal, the legality of the warrant underlying the searches of room 1014 and Reynolds' Pinto is challenged. Other issues raised involve the admissibility of the currency found in Reynolds' car, certain jury instructions, and the sufficiency of the evidence.

To be constitutional, a search warrant must issue only upon probable cause. This requires more than mere suspicion but less evidence than is necessary to convict. United States v. Brinklow, 560 F.2d 1003 (10th Cir. 1977). Sufficient facts are required for a reasonably prudent person to believe that a search of the described premises would uncover evidence of a crime. United States v. Neal, 500 F.2d 305 (10th Cir. 1974). Probability of criminal activity is the standard of probable cause. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969).

The facts presented to the issuing judge in this case satisfied that standard. The agent's "affidavit for search warrant" was detailed and persuasive.

It stated that "a reliable informant . . . reliable on numerous occasions in the past, dating back to 1972," whose assistance had "resulted in seizures of narcotics and arrests," alerted San Diego drug enforcement agents that Burns and Andrade would be traveling to Denver, Colorado, on July 28, 1978, with $30,000 to $50,000 for purposes of buying cocaine. It recited that this and other information provided by the informant, as to the two men's flight number and their physical appearances, were relayed to agents in Denver. The affidavit also detailed surveillance of Burns and Andrade from their arrival in Denver to their arrest, including Britt Reynolds' visit to room 1014 and Agent Lockridge's account of remarks overheard at that time. The affidavit described the arrests of all three appellants and the police dog's subsequent role, and briefly related the dog's training and qualifications. The affidavit was more than ample in providing probable cause to believe that an illicit drug transaction had occurred in room 1014 and that evidence thereof could be found both in room 1014 and Reynolds' Pinto.

Appellants assert that such information was inadequate because the informant's identity and reliability were not established and the assertion that Burns and Andrade would leave the Denver airport and drive to Colorado Springs was discredited by police surveillance.

We need not consider only the informant's story. A tip insufficient in itself may still be a factor in the magistrate's determination. Spinelli v. United States, supra, 393 U.S. at 418, 89 S.Ct. at 590. It may be buttressed by independent observations substantiating its details or by observations of activity reasonably arousing suspicion itself. United States v. Brand, 556 F.2d 1312 (5th Cir. 1977). The sum total of information in the affidavit provides the basis for determining probable cause.

Here, the informant's contribution was not inconsequential. The past reliability of the informant was presented in the affidavit, a significant fact in assessing credibility. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Also, the accuracy of much of his information was independently corroborated by Denver agents and bolstered by the general character of appellants' activities during the eight hours preceding their arrests. When all available factors are considered, including agent Lockridge's perceptions of the transaction in room 1014 and the subsequent reactions of the trained police dog to appellants' baggage, the issuing judge's determination is not subject to reasonable challenge.

Appellants assert that agent Lockridge's eavesdropping was unconstitutional and that the search warrant's products were illegal fruits. They rely upon Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), in which warrantless electronic eavesdropping on a telephone booth was proscribed. The court emphasized therein the Fourth Amendment's concern with people, rather than places, and condemned the invasion of the phone booth occupant's justifiable expectations of privacy. Nothing in that court's ruling would have served to suppress testimony of the phone conversation from one standing by the telephone booth. In Katz, the phone booth user "spoke under circumstances in which a reasonable person would assume that uninvited ears were not listening." Mr. Justice White concurring, Katz v. United States, supra, at 363, 88 S.Ct. at 518. This was because the unimpaired vision that attends use of a transparent phone booth afforded him the reasonable conclusion that no listener was in the vicinity. Legitimate privacy expectations cannot be separated from a conversation's context. Bedroom whispers in the middle of a large house on a large, private tract of land carry quite different expectations of privacy, reasonably speaking, than does a boisterous conversation occurring in a crowded supermarket or subway. Expectations attaching to a motel conversation must fall somewhere in between. Motel occupants possess the justifiable expectation that if their conversation is conducted in a manner undetectable outside their room by the electronically unaided ear, that it will go unintercepted. Contrarily, to the extent they converse in a fashion insensitive to the public, or semipublic, nature of walkways adjoining such rooms, reasonable expectations of privacy are correspondingly lessened. United States v. Fisch, 474 F.2d 1071 (9th Cir. 1973).

What a person knowingly exposes is not constitutionally protected from observation. Katz v. United States, supra. Neither are activities or objects which are exposed, regardless of subjective intent, in a manner inconsistent with reasonable expectations of privacy. United States v. Bruneau, 594 F.2d 1190 (8th Cir. 1979). Thus, it is not a "search" to observe that which occurs openly in public. Trujillo v. United States, 294 F.2d 583 (10th Cir. 1961). Nor is it a search when a law enforcement officer makes visual observations from a vantage point he rightfully occupies. United States v. Orozco, 590 F.2d 789 (9th Cir. 1979). This applies also to perceptions derived from hearing or smelling. See Cuevas-Ortega v. Immigration and Naturalization Service, 588 F.2d 1274 (9th Cir. 1979).

Agent Lockridge's eavesdropping was not illegal, and the results thereof were proper and competent evidence. United States v. Fisch, supra.

Appellants also challenge the arresting officer's use of Smokey, the drug- detecting police...