U.S. v. Grandstaff

• Decision Date: 01 April 1987
• Docket Number: No. 86-1058,86-1058
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. David Lee GRANDSTAFF, Douglas Wayne Brown, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1353

813 F.2d 1353

UNITED STATES of America, Plaintiff-Appellant, v. David Lee GRANDSTAFF, Douglas Wayne Brown, Defendants-Appellees.

No. 86-1058.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 12, 1986.

Decided Jan. 8, 1987.

Amended April 1, 1987.

U.S. Atty's Office, Stephen M. McNamee, Philip G. Espinosa, and Daniel G. Knauss, Asst. U.S. Attys., Tucson, Ariz., for plaintiff-appellant.

Robert J. Hirsh, Steven Sherick, and S. Jeffrey Minker, Tucson, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before WRIGHT, SNEED and KOZINSKI, Circuit Judges.

AMENDED OPINION

PER CURIAM:

This case, raising a constellation of criminal procedure issues, illustrates that law school exams may not be as fanciful as they are reputed to be. Appellees Grandstaff and Brown were under suspicion for the armed robbery of $3,318,000 from the Tucson office of the First National Bank of Arizona in April 1981. Both were fugitives, having jumped bail on interstate transportation of stolen property charges pending in the District of Iowa. Arrest warrants were outstanding for both men.

On September 9, 1981, the FBI received a tip from an informant that Grandstaff and possibly Brown were in Denver. The informant said that Grandstaff was staying at the Sheraton Denver Airport Hotel and was driving a 1979 blue Chevrolet Monte Carlo. FBI agents went to the hotel where they found a blue Monte Carlo in the parking lot. From conversations with the hotel management, the FBI agents determined that Grandstaff was staying in room 223 under an assumed name. Grandstaff was observed checking out and was arrested as he attempted to return to room 223.

FBI agents searched Grandstaff and found a wallet containing false identification. At about the same time, another FBI agent obtained a key to room 223 and entered without knocking or announcing his presence. Inside, he found luggage which he did not open. He also found Brown in the bathroom and arrested him pursuant to the Iowa warrant. A search of Brown incident to the arrest turned up $4891 in cash and the keys to a Ford. Agents took the keys to the hotel parking lot and tried them on all Fords there. They turned out to fit a 1979 Ford Bronco. The agents did not open the Bronco's door or search its interior.

The next day, FBI agents obtained a search warrant from a Denver magistrate. The warrant authorized the search of the luggage in room 223, the Bronco and the Monte Carlo. The luggage was found to contain $51,770 in currency. The search of the Bronco and a suitcase in it yielded $129,990 more.

Grandstaff and Brown filed motions to suppress the evidence found in room 223, the Monte Carlo and the Bronco. Additionally, Brown sought suppression of evidence found on him after his arrest. The district court granted the motion to suppress the evidence found in room 223, in the Bronco and on Brown, and later denied the government's reconsideration motion. This appeal followed.

The government contends that district court erred in suppressing the room 223 evidence because it was seized pursuant to a warrant that can be sustained even without the information obtained during the earlier warrantless entry. It also argues

that, in any event, Brown had no legitimate expectation of privacy in Grandstaff's hotel room, and therefore has no standing to challenge the legality of the agent's entry and the seizures flowing therefrom. We examine the district court's suppression order separately as to Grandstaff and Brown.

I. GRANDSTAFF

A. The Standard of Review

Grandstaff argues that we should defer to the district court's determination, much as we defer to the decision of the magistrate in the normal case where the affidavit is unredacted. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983); United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir.1986); United States v. Seybold, 726 F.2d 502, 503 (9th Cir.1984) (resolving confusion about the standard of review in favor of deference to the magistrate on the basis of Gates ). The fallacy in this argument is that the district court did not confront directly, as did the magistrate, the question whether to issue the warrant. Nor would deferring to the district court promote the policy of encouraging police officers to apply for warrants. In brief, the district court does not stand in the shoes of the magistrate. Deferring to the district court in this case would serve no useful purpose.

It will not promote accuracy. We are in as good a position as was the district court to assess the legal sufficiency of the redacted affidavit. See United States v. Anderson, 453 F.2d 174, 175 (9th Cir.1971) ("all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath"); United States v. Rubio, 727 F.2d 786, 795 (9th Cir.1983) (following Anderson ). This assessment involves an application of the probable cause standard that is governed by McConney. See United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Hence de novo review of the district court's decision is appropriate.

B. The Merits

To decide whether the magistrate had a substantial basis for issuing the search warrant, we must ascertain what information properly was before him. On this appeal, the government does not deny that the FBI agent who entered room 223 immediately after Grandstaff's arrest acted unlawfully. Brief of Appellant at 8 n. 2. Any information obtained by that entry could not be used by the magistrate as a basis for issuing the search warrant. See Segura v. United States, 468 U.S. 796, 813-15, 104 S.Ct. 3380, 3389-90, 82 L.Ed.2d 599 (1984). Because the affidavit presented to the magistrate contained such information the question becomes whether the affidavit, purged of the illegally obtained information, still affords the magistrate a substantial basis for concluding that a search would uncover evidence of wrongdoing. If it does, we should reverse the district court. We conclude that we should do just that.

Our reasoning proceeds as follows. The district court, in granting Grandstaff's motion to suppress, struck from the affidavit information that it believed was tainted by the illegal entry. Excerpt of Record (E.R.) at 162-64 (Order of Oct. 11, 1985, exhibit A). In response to the government's motion for reconsideration, the district court later restored some of the information that it had struck. E.R. at 204 (Order of Jan. 23, 1986, at 6). As a result, the affidavit as redacted by the district court differed from the affidavit as originally presented to the magistrate in only two respects. It omitted all mention of Brown, his arrest, and the money found on his person. And it omitted all mention of the FBI agent's entry into room 223 immediately after Grandstaff's arrest. These two items comprised about 60 words in the original affidavit, the total length of which was about 880 words. Hence they amounted to about seven percent of the affidavit.

Clearly a substantial portion of the affidavit survived the district court's redaction. It still described the Tucson robbery, the trail of evidence implicating Grandstaff, how one suspect in the robbery, possessing The district court obviously was troubled by the relationship between probable cause to arrest and probable cause to search. It acknowledged that the redacted affidavit established probable cause that Grandstaff was guilty. E.R. at 161 (Order of Oct. 11, 1985, at 11). This relationship has troubled this court also. On the one hand, "it cannot follow in all cases, simply from the existence of probable cause to believe a suspect guilty, that there is also probable cause to search his residence. If that were so, there would be no reason to distinguish search warrants from arrest warrants...." United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir.1970). On the other hand,

                $950,000, had been arrested and had pleaded guilty, and Grandstaff's statement before a magistrate that he had no checking or savings accounts.  The affidavit also recited facts linking Grandstaff to room 223 and raising a reasonable inference that evidence of crime could be found therein.  As redacted, the affidavit states that Grandstaff had checked out but thereafter was arrested within 100 feet of room 223.  From this, it is reasonable to infer that Grandstaff was returning to his room for his luggage and, as we discuss below, that the luggage might well contain the stolen money.  See pp. 1356-57 infra.    Thus, the affidavit, so redacted, afforded the magistrate a substantial basis for finding that there was probable cause to issue a search warrant. 1   The district court should have reached this conclusion even if de novo review of the redacted affidavit were appropriate
                

"[t]he required nexus between the items to be seized and the place to be searched rests not only on direct observation, but on the type of crime, the nature of missing items, the extent of the suspects' opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property."

United States v. Gann, 732 F.2d 714, 722 (9th Cir.), cert. denied, 469 U.S. 1034, 105 S.Ct. 505, 83 L.Ed.2d 397 (1984). In this case, in which a federal fugitive was suspected of having stolen $3.3 million in cash, less than a third of which had been recovered, it was proper to infer that he might have some part of it with him in a hotel room five months after the robbery.

The facts in this case closely resemble those in United States v. Jackson, 756 F.2d 703 (9th Cir.1985). There we upheld a search warrant for defendant's apartment based on an affidavit linking him to a bank robbery that took place two months earlier. Id. at 705. The district court distinguished Jackson on three grounds....