U.S. v. Davis

• Decision Date: 24 June 1991
• Docket Number: 89-10451 and 90-10055,89-10416,Nos. 89-10415,s. 89-10415
• Citation: 932 F.2d 752
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sonnie DAVIS, Defendant-Appellant, v. Kevin DAVIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Kevin DAVIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 752

932 F.2d 752

UNITED STATES of America, Plaintiff-Appellee, v. Sonnie DAVIS, Defendant-Appellant, v. Kevin DAVIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Kevin DAVIS, Defendant-Appellee.

Nos. 89-10415, 89-10416, 89-10451 and 90-10055.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 18, 1991.

Decided April 17, 1991.

As Amended on Denial of Rehearing

June 24, 1991.

Francia M. Welker, Oakland, Cal., for defendant-appellant, Sonnie Davis; Stephen Shaiken, San Francisco, Cal., for defendant-appellant-cross-appellee, Kevin Davis.

Rory K. Little, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee-cross-appellant.

Appeal from the United States District Court for the Northern District of California.

Before TANG and NOONAN, Circuit Judges, and SHUBB, ¹ District Judge.

SHUBB, District Judge:

I. OVERVIEW

This case involves a conspiracy to distribute heroin and an attempt to kill a potential government witness. Sonnie Davis appeals the denial of a motion to suppress evidence supporting his conviction for possession with intent to distribute heroin in violation of 21 U.S.C. Sec. 841(a)(1). He argues the evidence supporting the conviction should have been suppressed as the fruit of an unlawful search. Kevin Davis appeals his conviction for attempting to prevent a witness from testifying in a federal case in violation of 18 U.S.C. Sec. 1512(a). He contends procedural errors and a lack of sufficient evidence against him provide bases for reversing his conviction. The United States cross-appeals Kevin Davis' sentence arguing the district court failed to sentence him under the appropriate guideline. For the reasons set forth below, we affirm the district court with respect to the appeals of Sonnie and Kevin Davis, and reverse on the sentencing issue in favor of the United States.

II. FACTS AND PROCEDURE

In the Spring of 1987, Oakland Police Department narcotics officers began an investigation of Sonnie Davis. The investigation resulted in the issuance of a search warrant, authorizing the search of Sonnie Davis' person and the person and home of Marilyn Morrison for heroin, paraphernalia used in the distribution of heroin, items that might show control of the premises, and other records or notebooks showing the sales of heroin. On March 30, 1988, before executing the warrant, the police went to the residence of Avis Andrews to follow up on a tip concerning possible drug activity. Upon arriving, they observed Sonnie Davis' blue Mercedes-Benz parked nearby. Later that morning, the police went to Morrison's home to execute the search warrant.

At a store near Morrison's house they located and searched Sonnie Davis. The search produced keys (later determined to open Andrews' apartment), a wallet with $1800 cash, and what appeared to the police to be a lock combination scribbled on a piece of paper. A search of Morrison's house yielded over 281 grams of heroin, narcotics distribution paraphernalia, and evidence establishing that the residence belonged to Morrison. The police arrested Morrison and Sonnie Davis.

That same afternoon, the police returned to Andrews' apartment where they had previously observed Sonnie's car. Andrews was on probation and subject to a search condition permitting the warrantless search of her apartment. A search of the home uncovered heroin, rock cocaine and drug paraphernalia in plain view. After a general search of the apartment, the police opened a safe in a closet of the master bedroom using the combination seized from Sonnie Davis. The safe contained in excess of 100 grams of heroin.

After his arrest, Sonnie Davis decided to have Morrison killed to prevent her from testifying against him. While in custody, he contacted his nephew, Kevin Davis, to arrange the killing. On April 20, Kevin Davis drove to Morrison's house with James Walker, one of Sonnie's main heroin distributors, who testified that "Kevin was going to shoot the woman that night." Kevin Davis did not kill Morrison that night because she had company. Four days later, Kevin Davis returned with Walker to Morrison's house where he shot Morrison four times at point blank range. Morrison survived the attack.

On June 22, 1988, Sonnie and Kevin Davis were indicted in a four-count indictment with three other persons. Count One charged Sonnie Davis, Avis Andrews, Marilyn Morrison, and other persons unknown, with conspiracy to possess heroin with intent to distribute. 21 U.S.C. Sec. 846. Counts Two and Three charged Sonnie Davis, Andrews, and Morrison with possessing heroin with intent to distribute. 21 U.S.C. Sec. 841(a)(1). Count Four charged Sonnie Davis, Kevin Davis, and Walker with knowingly attempting to kill Morrison with the intent to prevent the communication to any law enforcement officer information relating to the narcotics offenses. 18 U.S.C. Sec. 1512(a).

Prior to trial, Kevin Davis moved unsuccessfully to sever his trial from Sonnie Davis'. He did not renew the motion to sever during trial or at the close of evidence. The jury trial began on February 23, 1989. On six separate occasions during the course of the trial, Kevin Davis moved for mistrial based on prosecutorial misconduct. The district court denied the motions for mistrial. On March 10, 1989, after seven days of testimony, the jury convicted Sonnie and Kevin Davis on all counts.

After the trial, Kevin Davis moved for a new trial or judgment of acquittal, challenging the sufficiency of the evidence. Kevin Davis also moved to join Sonnie Davis' post-trial motion to dismiss the indictment on the ground that the government failed to properly designate the Special Assistant to the United States Attorney who obtained the indictment from the grand jury. The district court denied these motions.

During the sentencing hearings, the district court ruled that one of Kevin Davis' prior convictions did not fall under the "career offender" provisions of the Sentencing Guidelines. Consequently, rather than sentence him to 210 months, the applicable sentence if "career offender" guideline applied, the district court sentenced him to 120 months. The government timely appealed Kevin Davis' sentence on September 15, 1989.

III. SUPPRESSION OF HEROIN FOUND IN SAFE

A. Standard of Review

Sonnie Davis argues the heroin seized from the safe at Andrews' apartment impermissibly exceeded the scope of Andrews' probation search condition. We must first determine whether Sonnie Davis has standing to assert a violation of the fourth amendment. We review "the question of whether a defendant has standing to assert a Fourth Amendment claim de novo, although we review the underlying facts for clear error." United States v. Iglesias, 881 F.2d 1519, 1522 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1154, 107 L.Ed.2d 1057 (1990) (citations omitted). This circuit has not addressed the standard for reviewing a question involving the scope of a probation search. The question of whether the officers could reasonably have suspected the safe was within the custody or control of Andrews' and within the scope of her probation search condition involves a mixed question of fact and law; we review it de novo. Cf. United States v. Flippin, 924 F.2d 163, 164-65 (9th Cir.1991) (whether a search was based on sufficient suspicion is mixed question of law and fact); United States v. McLaughlin, 851 F.2d 283, 286 (9th Cir.1988) (whether police exceed scope of a warrant reviewed de novo). But cf. United States v. Rubio, 727 F.2d 786, 797 (9th Cir.1983) (whether the scope of consent has been exceeded is a factual question reviewed for clear error); United States v. Guzman, 852 F.2d 1117, 1121 (9th Cir.1988) (unclear if question of authority to consent to a search is reviewed for clear error or de novo).

B. Standing

The government contests the district court's finding that Sonnie Davis had a legitimate expectation of privacy in the place searched. ² To contest the legality of a search under the fourth amendment, the defendant must demonstrate a legitimate expectation of privacy in the place or item searched by showing an actual subjective expectation of privacy which society is prepared to recognize. Minnesota v. Olson, 495 U.S. ----, 110 S.Ct. 1684, 1687, 109 L.Ed.2d 85 (1990); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Rakas v. Illinois, 439 U.S. 128, 143 & n. 12, 99 S.Ct. 421, 430 & n. 12, 58 L.Ed.2d 387 (1978). The defendant has the burden of establishing, under the totality of the circumstances, the search or seizure violated his legitimate expectation of privacy in a particular place. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980).

The Supreme Court has held an overnight guest has a reasonable expectation of privacy in a friend's residence even though he has no legal interest in the premises and does not have legal authority to determine who may enter the household. Olson, 495 U.S. ----, 110 S.Ct. at 1688-89; see also United States v. Robertson, 606 F.2d 853, 858 n. 2 (9th Cir.1979) (overnight guest had standing to assert fourth amendment violation in search of his possessions). This court has held that a defendant who moved a laboratory to his friend's house to avoid detection and who used that site to manufacture drugs had a legitimate expectation of privacy. United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir.1984). A defendant who was an alleged co-owner of a storage unit and had allegedly paid a portion of the rental payments even though defendant's name did not appear on the rental agreement was held to have had a legitimate expectation of privacy in the place searched. United States v. Johns, 851 F.2d 1131, 1135-36 (9th Cir.1988). Finally, in United States v. Harwood, 470 F.2d 322 (10th Cir.1972), the court held that a defendant who stored containers in the attic of a friend's garage with the latter's permission to "come and go" to check...