U.S. v. Conway, 94-3406

• Decision Date: 22 December 1995
• Docket Number: No. 94-3406,94-3406
• Citation: 73 F.3d 975
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Quincy J. CONWAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 975

73 F.3d 975

UNITED STATES of America, Plaintiff-Appellee, v. Quincy J. CONWAY, Defendant-Appellant.

No. 94-3406.

United States Court of Appeals, Tenth Circuit.

Dec. 22, 1995.

Steven K. Gradert, Assistant Federal Public Defender for the District of Kansas (David J. Phillips, Federal Public Defender, with him on the brief), Wichita, Kansas, for the Appellant.

Lanny D. Welch, Assistant United States Attorney for the District of Kansas (Randall K. Rathbun, United States Attorney, with him on the brief), Wichita, Kansas, for the Appellee.

Before TACHA, LOGAN, and BALDOCK, Circuit Judges.

TACHA, Circuit Judge.

On June 23, 1994, a jury convicted Quincy Conway of two counts of knowing and intentional possession of controlled substances, crack cocaine in one count and powder cocaine in the other, in violation of 21 U.S.C. Sec. 844 and 18 U.S.C. Sec. 2. Conway now appeals, claiming (1) that the district court erred when it held that he lacked standing to object on Fourth Amendment grounds to the search of a motel room; (2) that the court's jury instruction defining "reasonable doubt" denied the defendant's Fifth Amendment right to due process and Sixth Amendment right to a trial by jury; (3) that the court erred when it admitted into evidence three prior drug-related arrests of the defendant; and (4) that the court erred when it denied the defendant's motions for judgment of acquittal due to insufficient evidence supporting the jury's verdict.

We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291. Our disposition of this case turns primarily on the legitimacy of the motel room search, specifically whether the defendant possessed a subjective expectation of privacy that society is prepared to recognize as reasonable. We conclude that he did not present sufficient evidence to establish such an expectation. Conway's remaining challenges are without merit. Accordingly, we affirm.

I. Background

In the early morning hours of November 17, 1993, officers of the Wichita Police Department received word from an informant that two males and one female were in room number 33 of the Courtesy Motel on South Broadway in Wichita, Kansas, and were possibly engaged in narcotics trafficking. The informant further indicated that one of the males was named "Hondu." At approximately 1:00, the officers knocked on the door of room 33 for several minutes until Conway, completely undressed, opened the door partially. The officers asked him if the motel room was his. Conway stated that the room belonged to someone named "Randy" and that he was merely borrowing the room to engage in sexual relations with a female friend. The officers requested permission to search the room for Hondu. Conway agreed to allow the officers into the room on the condition that they would leave immediately after determining that Hondu was not present. However, the defendant indicated that he wished to dress first and began to shut the door. One officer then planted his foot between the door and the doorjamb to prevent the door from closing. At that point, Conway made a gesture indicating acquiescence and allowed the officers into the room.

After searching the room for Hondu and finding no one other than the defendant's female companion, an officer noticed a razor blade on the dresser. There appeared to be cocaine residue on the blade. An on-site test confirmed that the substance was indeed cocaine. The officers then found four plastic bags of crack and powder cocaine under a T-shirt. The T-shirt was located next to a pager and the room key on the dresser. When asked, Conway acknowledged that the pager belonged to him.

Conway was taken into custody, at which point he denied ownership of the T-shirt and the cocaine. He also offered to assist the officers in arresting and prosecuting others who were "larger than him" in the cocaine trade. Although Conway was unable to state the last name of the registered occupant of the motel room, motel records indicated that the room had been registered to a Randy Rone. Conway had been in the room for, at most, fifteen minutes before the officers arrived. He subsequently admitted knowing of the motel's policy forbidding persons other than registered guests from using the motel rooms.

II. The Defendant's Lack of Standing To Challenge the Search

Whether a defendant has standing to challenge a search under the Fourth Amendment is a question of law that is subject to de novo review. U.S. v. Rubio-Rivera, 917 F.2d 1271, 1274-75 (10th Cir.1990). "A defendant may not challenge an allegedly unlawful search or seizure unless he demonstrates that his own constitutional rights have been violated." Id at 1274. Standing to lodge such a challenge depends upon two factors: (1) whether one demonstrated by his conduct a subjective expectation of privacy, and (2) whether society is prepared to recognize that expectation as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); United States v. Soto, 988 F.2d 1548, 1552 (10th Cir.1993).

Before applying these requirements to the present case, we note the evidentiary burdens borne by a defendant seeking to suppress evidence on Fourth Amendment grounds. As this court iterated in United States v. Carr, 939 F.2d 1442, 1444 (10th Cir.1991), if a party moves to suppress evidence obtained as a result of an allegedly unconstitutional search, he has the duty to demonstrate a subjective expectation of privacy that society is prepared to recognize as reasonable. See also United States v. Deninno, 29 F.3d 572, 576 (10th Cir.1994). This precept stems from the general rule that "[t]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978).

We now turn to the question of whether Conway met the two requirements for establishing standing to challenge the search. As to the first half of the standing inquiry, Conway's personal, subjective expectation of privacy was unclear. Although the task in which he was engaged is one in which participants usually seek privacy, the activity is not, in itself, dispositive of the subjective expectation question. Conway testified at the suppression hearing that he was aware of the motel's policy barring persons other than registered occupants from using the motel rooms. Given this admission and the motel's practice of requesting police to remove unregistered occupants from the rooms, it is questionable whether Conway actually expected to be allowed to remain in the room once discovered.

Regardless of Conway's subjective expectations, he plainly fails the second half of the standing test; that is, he did not assert an expectation of privacy that society is prepared to recognize as reasonable. Clearly, a guest may possess an expectation of privacy in the premises of his host; and that expectation may meet the standard of societal reasonableness. Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The pivotal question in this case is whether Conway presented sufficient evidence to show that he was an invited guest of the registered occupant of the motel room. In Carr, we held that where an occupant of a motel room registered to another person presented no evidence that he was in lawful possession of the room or that he was the invited guest of the person to whom the room was registered, he failed to establish a reasonable expectation of privacy in the room. 939 F.2d at 1446. Likewise, in this case the evidence failed to establish Conway's guest status and expectation of privacy in the motel room.

Mere physical possession or control of property is not sufficient to establish standing to object to a search of that property. United States v. Arango, 912 F.2d 441, 444-446 (10th Cir.1990). Although a defendant need not come forward with documentation establishing legal possession of the area searched, id. at 445, he must at least demonstrate, in the case of a motel room, that he was the invited guest of the renter of the premises. Conway presented no testimony from the registered occupant confirming his asserted status as the registered occupant's guest. His possession of the motel room key and knowledge of the registered occupant's first name only is insufficient to establish his status as a guest. We find that Conway was without standing to challenge the constitutionality of the search because he failed to demonstrate an actual expectation of privacy and because he failed to demonstrate that he was an invited guest of the registered occupant.

III. The Reasonable Doubt Instruction

The sufficiency of a district court's jury instructions involves questions of law subject to de novo review. United States v. Barrera-Gonzales, 952 F.2d 1269, 1271 (10th Cir.1992). Conway claims that the court's instruction defining "reasonable doubt" understated the degree of certainty that a jury must reach in order to find a defendant guilty and subtly shifted the burden of proof to the defense. The challenged instruction stated:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt, and find him not guilty.

A trial judge retains extensive discretion in tailoring jury instructions, provided that they correctly state the law and fairly and adequately cover the issues presented. United States v. Merchant, 992 F.2d 1091, 1096 (10th Cir.1993); United States v....