U.S. v. Friend

• Decision Date: 25 April 1995
• Docket Number: No. 94-2263,94-2263
• Citation: 50 F.3d 548
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred A. FRIEND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 548

50 F.3d 548

UNITED STATES of America, Plaintiff-Appellee, v. Fred A. FRIEND, Defendant-Appellant.

No. 94-2263.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 15, 1994.

Decided March 15, 1995.

Rehearing and Suggestion for Rehearing

En Banc April 25, 1995.

William Bracker, Council Bluffs, IA, argued, for appellant.

Daniel A. Morris, Asst. U.S. Atty., Omaha, NE, argued, for appellee.

Before MAGILL, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.

LOKEN, Circuit Judge.

Fred A. Friend appeals his conviction on eight counts of drug trafficking in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of using a firearm equipped with a silencer during and in relation to a drug trafficking conspiracy in violation of 18 U.S.C. § 924(c). We conclude that the district court properly denied Friend's motion to suppress evidence seized during a search of his automobile. However, we agree with Friend that there was insufficient evidence that another conspirator's secret use of a firearm equipped with a silencer was, for Friend, a reasonably foreseeable consequence of the conspiracy. Accordingly, we reverse the firearm conviction and remand.

I. The Suppression Issue.

On October 17, 1990, police executed federal search warrants at numerous locations in and around Omaha, Nebraska, the result of a lengthy investigation of methamphetamine trafficking by Gary Apker and other members of the local Hell's Angels Motorcycle Club. This investigation is more fully described in United States v. Lucht, 18 F.3d 541 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 363, 130 L.Ed.2d 316 (1994), which affirmed the convictions of Apker and other conspirators.

The searches included the Hell's Angels clubhouse at 1906 Military Avenue in Omaha. Friend, a club member who lived next door, was in the clubhouse during this search, and police found 3.5 grams of methamphetamine on Friend's person. As the search continued, Officer Tim Shannon had his drug detection dog sniff the clubhouse, the garage at the rear of the clubhouse property, and several cars parked in the alley behind the clubhouse.

One of these cars belonged to Friend. It was parked next door to the clubhouse, between the alley and the garage for Friend's residence at 1916 Military Avenue. This property had a security fence surrounding its back yard. Locked gates barred entry to the fenced-in yard, where another vehicle was parked. However, Friend's car was parked outside the fenced area, between the garage and the public alley, backed up to the end of the fence.

Officer Shannon led his dog around Friend's car. On the driver's side, between the car and the garage, the dog alerted to the seam of the car door, indicating the presence of drugs in the rear seat or the trunk. Police then impounded the car. They obtained a search warrant based upon the dog's alert and discovered approximately one pound of methamphetamine in the trunk, packaged in the same manner as drugs found at Apker's house.

Friend was initially charged with violating Nebraska drug laws, but the state trial court suppressed the evidence found in the trunk of Friend's car. The Nebraska Supreme Court affirmed, concluding that the search was not authorized by the warrant to search the clubhouse; that Friend had a reasonable expectation of privacy in his parked, locked vehicle; and that the dog sniff was thus an unreasonable search prohibited by the Fourth Amendment. State v. Friend, No. 91-362 (Neb. July 25, 1991). The state charges were then dismissed, and federal authorities commenced this prosecution.

Following an evidentiary hearing, the district court denied Friend's motion to suppress the evidence seized from the trunk of his car. Disagreeing with the Nebraska Supreme Court, the district court concluded that Friend had no reasonable expectation of privacy in the area where his car was parked, and therefore the dog sniff was not a Fourth Amendment search:

The area [where the car was parked] is outside the garage and adjoins a public alley in such a manner as it is impossible to ascertain where the property line ends and the public area begins. The small concrete slab outside the garage is the only portion of the area in question that might conceivably be considered private, yet the slab was not even large enough to allow for parking a vehicle entirely on the slab. The alley area provides parking for the residents of 1906 and 1916 Military Avenue as well as all other neighboring residences and an apartment building. The garbage can of 1916 Military Avenue is located just inside the fence near where the vehicle in question was parked, and garbage cans of other residences are in the area, indicating the availability of the area to garbage collectors. Also, the area is available to delivery vehicles approaching the apartment building as well as neighboring residences. The area is completely open to public access and public view, and no signs or barriers are posted to the contrary. In fact, the fence gate leading from the yard of 1906 Military Avenue into the alley area demands that whoever leaves from that gate enter into the alley and walk by the area behind 1916 Military Avenue where the vehicle in question was parked.

On appeal, Friend argues that the search of the clubhouse and his person were illegal; that the police had no other basis for entering his property and searching his locked car, by dog sniff or otherwise; and therefore that the warrantless search violated his Fourth Amendment rights.

A.

At the outset, we note an aspect of this issue not discussed by the parties orthe district court. The October 17, 1990, searches were the product of joint federal-state law enforcement. Friend was then prosecuted in state court. Only when suppression of key evidence was affirmed by the Nebraska Supreme Court did federal authorities commence this prosecution, seeking to rely upon the very same evidence.

The district court undertook its own de novo determination of Friend's suppression motion, essentially ignoring the Nebraska Supreme Court's prior decision. It appears settled that this was correct, because the Fourth Amendment issue "is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed." Elkins v. United States, 364 U.S. 206, 224, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960); see also United States v. Singer, 687 F.2d 1135, 1144 n. 16 (8th Cir.1982); United States v. Wedelstedt, 589 F.2d 339, 347 (8th Cir.1978), cert. denied, 442 U.S. 916, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). While we have misgivings about the result that rule produces in this case, where federal and state authorities jointly obtained the evidence, and the State took the suppression issue to its highest court, we are bound by Supreme Court and Eighth Circuit precedent that the state court's Fourth Amendment determination is not binding on the United States in a subsequent federal prosecution.

B.

Turning to the merits of the Fourth Amendment issue, we agree with the district court that the dog sniff of Friend's car was not a Fourth Amendment search. In United States v. Place,462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983), the Supreme Court commented:

[T]he canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here--exposure of respondent's luggage, which was located in a public place, to a trained canine--did not constitute a "search" within the meaning of the Fourth Amendment.

Though it was technically dictum in Place, we quoted this passage in United States v. Harvey, 961 F.2d 1361, 1363 (8th Cir.), cert. denied, 506 U.S. 883, 113 S.Ct. 238, 121 L.Ed.2d 173 (1992), and concluded that a dog sniff of luggage on a public bus is not a Fourth Amendment search.

Place and Harvey control the question presented in this case. Like a piece of luggage in a public place, "the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office." South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976). To be sure, the Fourth Amendment protects against unreasonable searches of automobiles--for example, absent probable cause police may not break into and search a car that is parked and locked on a public street or alley. But a dog sniff of a car parked on a public street or alley, like a dog sniff of unopened personal luggage on a public bus, is so limited an intrusion on protected privacy interests as to not amount to a search for Fourth Amendment purposes.

In this case, Friend's car was parked, not on the street, but on his property, outside a locked gate and fence, between the garage and a public alley. Friend argues that his Fourth Amendment rights were violated when Officer Shannon led the dog onto this property to conduct a drug detection sniff. We disagree. Fourth Amendment protection is strongest for a person's home and the area around a home, known as the curtilage. By contrast, the Fourth Amendment does not protect an open field, see Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214 (1984), and it does not protect illegal activity or contraband in a barn that can be observed from an open field. See United States v. Dunn, 480 U.S. 294, 303-05, 107 S.Ct. 1134, 1140-42, 94 L.Ed.2d 326 (1987).

We agree with the district court that all of the curtilage factors identified in Dunn, 480 U.S. at 301, 107 S.Ct. at 1139, ¹ support that court's finding that Friend's car was not parked within the curtilage of his residence. This finding is not clearly erroneous. See United States v. Swepston, 987 F.2d 1510,...