U.S. v. Ibarra

• Decision Date: 26 November 1991
• Docket Number: No. 91-2922,91-2922
• Citation: 948 F.2d 903
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Juan IBARRA, John Joe Guerrero, and Robert Franklin Chambers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 903

948 F.2d 903

60 USLW 2419

UNITED STATES of America, Plaintiff-Appellant, v. Juan IBARRA, John Joe Guerrero, and Robert Franklin Chambers, Defendants-Appellees.

No. 91-2922.

United States Court of Appeals Fifth Circuit.

Nov. 26, 1991.

Suggestion for Rehearing En Banc

Granted Feb. 21, 1992.

Paula C. Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Bertram A. Isaacs, Asst. U.S. Atty., Houston, Tex., Doug Wilson, Atty., U.S. Dept. of Justice, Washington, D.C., for U.S.

Mike DeGeurin, Houston, Tex., for Ibarra.

Lewis Dickson, Houston, Tex., for Chambers.

Robert Scardino, Houston, Tex., for Guerrero.

Appeals from the United States District Court for the Southern District of Texas.

Before WILLIAMS, DUHE, and EMILIO M. GARZA, Circuit Judges.

DUHE, Circuit Judge.

The United States appeals the district court order suppressing evidence seized pursuant to a consent search. Appellees-Cross Appellants, the criminal defendants Ibarra and Guerrero, seek review of the district court's refusal to suppress other evidence seized as a result of their arrests. We reverse in part, dismiss in part, and remand.

Facts

Acting on a tip that drug trafficking and money laundering were taking place there, Houston police set up surveillance of a house at 7663 El Rancho. They watched as Appellee Guerrero entered the house and later left with Appellee Ibarra in separate cars. As the police followed them, Ibarra and Guerrero engaged in countersurveillance, including driving at erratic rates of speed, weaving through traffic, and entering and exiting freeways at random. The two cars separated, but both eventually arrived at 215 Ashby Street. After visiting that house for approximately a half hour, Ibarra and Guerrero left in the same car. The police temporarily lost sight of this car. When they found it, Guerrero was driving and Ibarra was on foot several blocks away. The police stopped Guerrero who told them he had a gun in his car. A search of the car revealed a nine millimeter handgun. The officers arrested Guerrero and signalled to the officers following Ibarra to stop him. The officers searched Ibarra and found on him records of drug transactions. Both Ibarra and Guerrero denied any knowledge of the Ashby Street house.

Later that night, officers went to the Ashby Street house. Appellee Chambers answered the door and, after the officers asked to come in, allowed them to enter. The officers told Chambers of their investigation. Chambers told them that he had been living in the house for two weeks. The officers asked if they could search the house and garage for evidence of money laundering and drug trafficking, and Chambers agreed. Chambers, however, refused to sign a consent to search form, stating that he did not own the house.

The Ashby Street house consisted of a bedroom with a closet, a kitchen, a living room, a bathroom, and an attic. On their first time through the house, the officers found evidence of money laundering ¹ in the kitchen and a gun in the bedroom. One officer then went outside to see if the house had attic or cellar space. Noting that it had an attic, he returned inside to search for an entrance. One was found, boarded up, in the bedroom closet. The police then used the handle of a sledgehammer to knock out the boards. Upon entering the attic, they found nearly $1,000,000 in cash, ledgers, and a money counting machine.

Appellee Chambers moved to suppress the evidence found in the Ashby Street house and Appellees Ibarra and Guerrero adopted his motion. Ibarra and Guerrero also moved to suppress the evidence found incident to their arrests. The district court granted Appellees' motion regarding the Ashby Street evidence, but denied Ibarra and Guerrero's request with respect to evidence gained from their arrests.

From the bench the district judge gave the reasons for his ruling. He indicated that Chambers gave a "reasonably knowing and appropriate" consent to search the house and garage. Though the judge believed the search of the rooms and the garage of the house to be reasonable, he found that the search of the attic was not, stating that by the time the police found the attic entrance, Chambers was constructively under arrest. The judge further stated that having found evidence of money laundering, probable cause was clearly established and the intervention of a magistrate was necessary to determine the propriety of entering the attic. Though the judge specifically declined to rule on whether Guerrero and Ibarra had standing to contest the evidence found at the house, he suppressed it "for all purposes." With respect to the other evidence, the judge found that Ibarra and Guerrero's arrests and the searches incident to them had been reasonable.

The district judge later submitted written reasons for suppressing the evidence found on Ashby Street. He found that Chambers's consent to search the house had been free and voluntary, but could not have included consent to structurally dismantle the secured closet ceiling by use of a sledgehammer. The judge also concluded that the Due Process Clause called for suppression, finding that the conduct of the officers was "outrageous" and qualified "as the sort of arbitrary and capricious police conduct that shocks [a court's] sense of justice and fundamental fair play." To allow the evidence to be used against Ibarra and Guerrero, the judge wrote, would reduce the exclusionary rule's desired deterrence of unconstitutional police practices "to an impotent nullity."

Standing

Though the district judge declined to decide expressly if Ibarra and Guerrero had standing to contest the search of the Ashby Street house, by excluding the evidence found there for all purposes, he implicitly concluded that they did. Whether a defendant has standing to contest an allegedly illegal search is a question of law. United States v. Kye Soo Lee, 898 F.2d 1034, 1037 (5th Cir.1990). After de novo review, we find the implicit standing conclusion of the district court flawed.

Ibarra and Guerrero may not assert the exclusionary rule unless their Fourth Amendment rights have been violated. Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978). To establish a Fourth Amendment violation, they must show that they had a legitimate expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. Antone, 753 F.2d 1301, 1306 (5th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 64, 88 L.Ed.2d 52 (1985). In assessing whether a legitimate expectation of privacy exists, we examine several factors including:

whether the defendant has a possessory interest in the thing seized or the place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation of privacy that it would remain free from governmental intrusion, whether he took normal precautions to maintain privacy and whether he was legitimately on the premises.

United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir. Unit A July 1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 140 (1982).

Neither Ibarra nor Guerrero has shown an expectation of privacy in the Ashby Street house. Neither owned the house, nor did either lease it or live in it. Neither has shown that he maintained any control over the premises nor even a subjective expectation of privacy in the home or its contents. Indeed, both men denied any knowledge of the house when they were arrested. Without such showings, neither has standing to contest the search. Chambers, in contrast, resided in the house, exerted control over it, and has standing to object to the submission of evidence found there.

Chambers' Claim

When reviewing a district court's suppression ruling, we accept the trial judge's factual findings unless they are "clearly erroneous or influenced by an incorrect view of the law." United States v. Lanford, 838 F.2d 1351, 1354 (5th Cir.1988). The district court's ultimate conclusions of Fourth Amendment reasonableness, however, are subject to de novo review. United States v. Colin, 928 F.2d 676, 678 (5th Cir.1991).

The district court's finding that the police structurally dismantled the attic entrance is clearly erroneous. Nothing in the record suggests that the police disturbed the structural integrity of the Ashby Street house. To the contrary, the record indicates that the house was built with an attic space and that a passageway to this space was located in the bedroom closet. Though the entrance was covered by boards, one officer testified that through them he could see what appeared to be a bag. The police did not alter the frame of the house; they merely removed a barrier blocking a visible, pre-existing passageway.

The removal of such a barrier does not constitute the type of brutal conduct that implicates the Due Process Clause. See Rochin v. California, 342 U.S. 165, 173-73, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952) (holding that forcible extraction of defendant's stomach contents violates Due Process Clause). The Due Process Clause is violated only in the rarest and most outrageous circumstances, those which shock our universal sense of justice. United States v. Arteaga, 807 F.2d 424, 426 (5th Cir.1986); United States v. Yater, 756 F.2d 1058, 1066 (5th Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985). This is not one of those unusual instances.

Nor does entrance to the attic constitute a Fourth Amendment violation. The police may search without a warrant when they have consent to do so from a person with authority to give consent. Illinois v. Rodriguez, --- U.S. ----, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990). Chambers, though not the owner of the house, resided there as its sole occupant and thus had authority to consent to the search. The district court found, and we agree, that his consent was voluntary. Unlike the district court, however, w...