U.S. v. Carr

• Decision Date: 25 July 1991
• Docket Number: No. 90-6379,90-6379
• Citation: 939 F.2d 1442
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold CARR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1442

939 F.2d 1442

UNITED STATES of America, Plaintiff-Appellee, v. Harold CARR, Defendant-Appellant.

No. 90-6379.

United States Court of Appeals Tenth Circuit.

July 25, 1991.

Howard R. Haralson, Oklahoma City, Okl., for defendant-appellant.

M. Jay Farber, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty. with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before ANDERSON, BARRETT and BRORBY, Circuit Judges.

BARRETT, Senior Circuit Judge.

Harold Carr (Carr) appeals from his conviction and sentence following his conditional plea of guilty entered pursuant to Rule 11(a)(2), Fed.R.Crim.P., 18 U.S.C., to Count III of a three-count indictment charging him with possession with intent to distribute a quantity of phencyclidine (PCP), a Schedule III controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1). Carr was sentenced to fifty-nine (59) months imprisonment, two (2) years of supervised release and a special assessment of $50.00.

Carr's conditional plea of guilty was and is dependent upon the validity of his Motion to Suppress all evidence obtained by federal agents during the early morning of July 4, 1990, from Room 230 of the Crosswinds Inn at 1224 South Meridian, Oklahoma City, Oklahoma. The district court conducted an evidentiary hearing on the motion and thereafter entered an order denying same. (R., Vol. I, Tab 26). The court found that Carr had no standing to contest the search in question and that the government had sustained its burden by a preponderance of the evidence that the warrantless search conducted of Room 230 was justified, relying, in part, on United States v. Acquino, 836 F.2d 1268 (10th Cir.1988). Id. The district court incorporated, by reference, all findings and conclusions announced at the evidentiary hearing. Id.

The district court proceeded pursuant to Rule 12, Fed.R.Crim.P., 18 U.S.C. to hear and decide Carr's Motion to Suppress. In United States v. Gay, 774 F.2d 368, 375 (10th Cir.1985), we set forth the standard of appellate review of a district court denial of a motion to suppress:

[W]e must accept the trial court's findings of fact unless they are clearly erroneous. See United States v. Leach, 749 F.2d 592, 600 (10th Cir.1984); United States v. Rios, 611 F.2d 1335, 1344 (10th Cir.1979). Furthermore, we must consider 'the evidence adduced at the suppression hearing ... in the light most favorable to the government.' United States v. Leach, 749 F.2d at 600 (quoting United States v. Rios, 611 F.2d at 1344); see also United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984); United States v. Di Giacomo, 579 F.2d 1211, 1216 (10th Cir.1978).

With respect to the trial court's conclusions of law, we have held that "the court's decision should identify the law upon which it relied and state the basis for its conclusion." Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642, 646 (10th Cir.1988). We review questions of law de novo. Dixon v. Richer, 922 F.2d 1456, 1460 (10th Cir.1991); Pueblo, supra; Osgood v. State Farm Mutual Auto Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). The question of whether a search and seizure was reasonable is a question of law. United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989).

On appeal, Carr contends that the district court erred in (1) concluding that he did not have standing to challenge the illegal search of his motel room, (2) finding that the exigent circumstances were caused by him (Carr) and not by the police, and (3) concluding that the warrantless search of his motel room was justified based upon the totality of the circumstances.

I.

We shall first consider Carr's contention that the district court erred as a matter of law in concluding that he did not have standing to object to the allegedly illegal search of his motel room. The facts are not in dispute because Carr did not offer any evidence relative to this issue. Thus, our review is de novo. United States v. Rascon, 922 F.2d 584 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2037, 114 L.Ed.2d 121 (1991).

In moving to suppress evidence, it is the duty of the moving party to show by a preponderance of the evidence that he/she was personally aggrieved by the alleged search and seizure because it invaded his/her subjective expectation of privacy which society is prepared to recognize as reasonable. Id. at 586. "It is immaterial if evidence sought to be introduced against a defendant was obtained in violation of someone else's Fourth Amendment rights." Id., quoting United States v. Arango, 912 F.2d 441, 445 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991).

At no time during the course of the trial court's hearings on the Motion to Suppress conducted on September 7, 10 and 11, 1990, did the defendant Carr offer any evidence, (R., Vol. II, p. 33), notwithstanding his obligation to establish a subjective expectation of privacy in the room searched. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). During the September 11, 1990, hearing, the following colloquy occurred:

THE COURT: Counsel, before I rule I want to address one issue that was raised in the briefs which we didn't discuss yesterday and that is the issue of standing. What's your position, Mr. Haralson [counsel for defendant Carr] with respect to the standing issue?

MR. HARALSON: Our position is that he has standing to object to this. He was a resident of the hotel room. He was there. You only register the name of one person; you don't register the name of all the occupants in the hotel.

THE COURT: All right. What does the evidentiary record show with respect to the registration? The government says it's registered in the name of another individual. I assume that is somewhere in the affidavits or in the reports.

MR. HARALSON: I believe it is.

THE COURT: Is there any reference at all with respect to a nexus between your client and that hotel room prior to the entry into the hotel room? In other words, if I were to read these affidavits with a fine-tooth comb again, would I see anything in terms of knowledge about your client that the officers had prior to entering that hotel room?

MR. HARALSON: I don't believe so.

THE COURT: All right. Mr. Farber, [the prosecutor], your position with respect to standing.

MR. FARBER: Your Honor, in the defendant's brief or otherwise, the defendant has never asserted any standing to my knowledge. Again, the court has pointed out that the registration was not to him. There is no nexus. That all he was was there. I don't believe that that raises sufficient standing to warrant him having standing to assert any violation of his constitutional rights.

THE COURT: All right. I'm going to deny the motion to suppress.... the court further finds in this matter that the defendant has no standing to assert any potential fourth amendment violation. The decisions of the Supreme Court of the United States, Rakas v. Illinois, , 99 S.Ct. 421 [58 L.Ed.2d 387 (1978) ] and United States v. Salvucci , 100 S.Ct. 2547 [65 L.Ed.2d 619 (1980) ] made clear that the burden is upon the defendant, not the government, to establish standing in the form of a reasonable expectation of privacy with regard to the search of the motel room. There was no evidence offered by the defendant on this point. There was no affidavits or testimony with respect to the issue of standing. Further the only evidence presented to the court, specifically the reports before the court accompanying the affidavits and accompanying the various motions revealed that the motel room had been rented by a third party individual not presented during the course of these events, and, in my view, the defendant has not established by a preponderance of the evidence that he has standing, a reasonable expectation of privacy in the search of the hotel room. (Emphasis supplied).

(R., Vol. II, pp. 42-3, 57-8).

After the district court ruled on the defendant's motion to suppress, counsel for Carr stated that he (counsel) had misunderstood his burden of proof relative to the issue of standing and, while recognizing that the court had made "sufficient findings and sufficient rulings," he asked the court to accept an affidavit of his client taken by the government at the time of his arrest as a supplement to the record. Counsel stated, however, that he was "not asking the court to take and reopen this whole matter ..." (R., Vol. II, p. 56). The court directed that the affidavit be handed to the clerk and marked as a rejected exhibit. Id.

The rejected exhibit contains Carr's statement that he had left Los Angeles, California, about three weeks before the arrest by bus for Oklahoma City and that since then "I have been staying at the Crosswinds Motel, Room 230, on South Meridian, Oklahoma City, Okla ..." (R., Vol. I, Tab 25). The exhibit further contains Carr's statement that he went to the Crosswinds with Eddin Price, Jr., who was jointly indicted with Carr, and that they stayed there until their arrest. Id.

We hold that the district court did not abuse its discretion in refusing to accept the proferred affidavit following the suppression hearings and the court's findings/conclusions thereon. The standing issue was clearly raised by the government. At no time during the suppression hearings did the defendant Carr address the issue. It was only after the district court denied the motion to suppress that counsel for Carr presented the affidavit as a "supplement to the record." We reject Carr's argument that "the inadvertence of defendant's counsel to not timely present to the court based upon a misunderstanding of the burden of proof should not be held against this defendant and accordingly should be considered and thereby allowing the defendant the requisite standing to object to the illegal search and seizure." (Brief of Appellant, p. 12).

The affidavit of Special Projects-Narcotics Division Agent Jim Hughes, admitted in evidence during...