U.S. v. Carter

• Decision Date: 17 August 1988
• Docket Number: Nos. 87-5278,87-5279 and 87-5300,s. 87-5278
• Citation: 854 F.2d 1102
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry CARTER, a/k/a A.B. Lay a/k/a Prince, Tracy Lynn Jones, and Sheila Marie O'Meara, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1102

854 F.2d 1102

UNITED STATES of America, Plaintiff-Appellee, v. Henry CARTER, a/k/a A.B. Lay a/k/a Prince, Tracy Lynn Jones and Sheila Marie O'Meara, Defendants-Appellants.

Nos. 87-5278, 87-5279 and 87-5300.

United States Court of Appeals Eighth Circuit.

Submitted July 22, 1988.

Decided Aug. 17, 1988.

Rehearing Denied in Nos. 87-5278 Sept. 22, 1988.

Jonathan E. Fruchtman, Minneapolis, Minn., for appellant Lay.

Michael F. Fetsch, St. Paul, Minn., for appellant O'Meara.

Scott F. Tilsen, Minneapolis, Minn., for appellant Jones.

Thorwald H. Anderson, Jr., Minneapolis, Minn., for plaintiff-appellee.

Before HEANEY and MAGILL, Circuit Judges, and EDWARDS, ^* Senior Circuit Judge.

GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

Defendants Carter, Jones, and O'Meara appeal their convictions for possession with intent to distribute a controlled substance in violation of 21 U.S.C. Sec. 841(a)(1), 21 U.S.C. Sec. 846 and 21 U.S.C. Sec. 845b(a)(1) and (d)(2).

Defendants were convicted of various drug-related offenses discovered by an undercover police operation. Defendants assert several evidentiary issues on appeal which they feel warrant reversal of their convictions. Defendants were convicted under a four-count indictment; Count I--using a person under the age of 14 in a drug operation; Counts II and III--possession with the intent to distribute cocaine, and Count IV--conspiracy.

The evidence presented at this trial was overwhelmingly to the effect that all of the above-named appellants were involved in a substantial drug conspiracy operation. Nonetheless, substantial questions are presented.

These appeals represent the contention that the persons charged herein should go free "because the constable has blundered." As we will outline below, we do not think the record discloses such blunders.

The principal issue presented concerns whether one of the defendants (O'Meara) gave consent to a warrantless search of her motel room. It is undisputed that this search led to application for and issuance of a search warrant and the seizure of seven ounces of cocaine. The government does not dispute that the search warrant at issue was not sought or procured until after the officers had seen the cocaine and left the room. But the record in this appeal clearly allowed a finding that the initial entry was made with the consent of the occupant.

One of the parties involved in this conspiracy testified for the prosecution under a plea agreement. Three others, namely, defendants Carter, Jones and O'Meara were convicted after a jury trial. It is their appeals with which we deal.

On the evening of January 13, 1987, Minneapolis Police Narcotics Officer Jensen (Jensen) and an informant, Gloria Dysart (Dysart) arranged with defendant Carter to purchase one ounce of cocaine. The transaction was to take place that evening at a convenience store. When Carter failed to show, Jensen telephoned Carter via Carter's beeper. Carter stated that his girlfriend "Tracy" would be at the same convenience store with the cocaine. The informant provided a description of "Tracy."

Jensen and Dysart then left the convenience store, leaving a surveillance crew to observe the activity at the store. Thereafter a woman matching "Tracy's" description arrived. After standing by the open trunk of her car, she then used the public telephone and subsequently left. The police stopped the car and the driver identified herself as Tracy Jones. After receiving her Miranda warnings, she explained that the car was rented by Prince, a/k/a Carter. Jones was arrested and the car impounded. A search warrant was issued for the car. The search uncovered one ounce of a weak cocaine/mannitol substance, plastic bags and 1.5 lbs. of baking soda.

Jensen and Dysart again telephoned Carter. Carter agreed to meet them and did so. When Carter requested front money to get the cocaine, Jensen refused and Carter left. Later that evening Carter was arrested with co-defendant Richey and his beeper was confiscated by Minneapolis Narcotics Officer Vande Steeg (Vande Steeg).

Vande Steeg responded to a beeper call from Richey's house. The call was answered by Richey's 12 year-old daughter, Selena. Vande Steeg explained that Carter had given him the beeper and he was interested in buying one ounce of cocaine. Selena told him that "Sheila" had Carter's "whole stash." Selena again called Vande Steeg by the beeper and Vande Steeg told her to have O'Meara call him as soon as possible. When O'Meara did not call, Vande Steeg called Selena back. Selena explained that O'Meara wanted to know how he knew her and Carter. He stated that he had purchased cocaine from them before. O'Meara then called Vande Steeg and assured him of the sale. Through prior conversations with Selena, Vande Steeg had discovered that O'Meara was located at the Snelling Motor Inn.

Vande Steeg and Jensen proceeded to the Snelling Motor Inn. Asking the manager to page O'Meara, the officers waited for her to leave the room and arrested her. After O'Meara was arrested, the officers asked if anyone else was in the motel room. O'Meara said no, but told them that they could look if they wanted. Further O'Meara requested shoes and coat because she had been arrested while barefoot on a typically cold January night in Minnesota. Upon entering the room, the officer made a protective sweep search, saw approximately seven (7) ounces of cocaine on a table in the room. Nothing was taken from the room until the officers secured a search warrant for the room.

Vande Steeg presented O'Meara with the inventory list compiled during the search of the motel room pursuant to the warrant. O'Meara contended that $4,000 hidden under the mattress had been omitted. Vande Steeg called the motel to postpone cleaning until he could return and recover the money. Thereafter, the money was retrieved. Throughout the time of this incident, O'Meara was current in her motel bill.

Roseanna Richey, co-defendant, testified for the prosecution under a plea agreement. Her testimony confirmed the information that was given by the informant, Gloria Dysart. Thus, there was strong evidence that a conspiracy existed with Carter being the front man. Richey described the defendants' various roles. Richey, herself, sold cocaine and "crack" from her home for Carter. O'Meara brought the cocaine to Carter, who would then give it to Jones to transform into "crack." Transforming the cocaine to "crack" took place in Richey's home. Jones would then distribute the "crack" to the others, including Richey, to sell. Jones kept the books. The money from the sales was given to Jones who then paid Carter.

I

Appellants Carter and O'Meara challenge the search of O'Meara's motel room. The United States raised the issue of Carter's standing to challenge the searches of the motel. O'Meara registered and paid for two people at the Snelling Motor Inn, although the second person was not identified. In Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980), the Supreme Court reaffirmed its holding in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), that abandoned a separate inquiry into a defendant's standing to contest an allegedly illegal search in favor of an inquiry that focused directly on the substance of the defendant's claim that he or she possessed a legitimate expectation of privacy (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)), in the area searched. In United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980), the Supreme Court shifted the Fourth Amendment inquiry to a determination of whether the defendant had a possessory interest in the items seized, and whether the defendant had an expectation of privacy in the area searched. The First Circuit elaborated upon this inquiry in United States v. Gomez, 770 F.2d 251, 254 (1st Cir.1985):

The following factors are relevant to a privacy expectation: possession or ownership of the area searched or the property seized; prior use of the area searched or the property seized; legitimate presence in the area searched; ability to control or exclude others' use of the property; and a subjective expectation of privacy. United States v. Lochan, 674 F.2d 960, 965 (1st Cir.1982).

The expectation of privacy associated with a person's home applies with equal force to a properly rented motel room during the rental period. United States v. Rambo, 789 F.2d 1289, 1295 (8th Cir.1986).

Here Carter cannot claim a real expectation of privacy in the motel room. He never appeared there; he neither checked in nor paid for the room. Moreover, none of his personal belongings was discovered in the room. It is strange to claim a privacy interest in a place where one has never been or where no belongings of the claimant are kept. Further, Carter did not have the ability to exclude others' use of the room. In United States v. Larson, 760 F.2d 852, 855 (8th Cir.), cert. denied, 474 U.S. 849, 106 S.Ct. 143, 88 L.Ed.2d 119 (1985), this court held that among the factors to be considered when evaluating a person's expectation of privacy in a motel room are the facts that the occupier never checked into the room, nor paid for the room.

II

The magistrate, whose decision was affirmed by the trial judge, recommended that the search be upheld on two separate grounds. The first ground designated by the magistrate was that O'Meara consented to the search. It is a well established principle that consent to conduct a search is a recognized exception to the requirement of a warrant and probable cause. Davis v. United States, 328 U.S. 582, 593-594, 66 S.Ct. 1256, 1261-1262, 90 L.Ed. 1453 (1946). If a consent to search is the fruit of a Fourth Amendment violation, then the consent is deemed a nullity and the evidence is inadmissible. Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). Although O'Meara denies any consent...