U.S. v. Kim

• Decision Date: 07 February 1997
• Docket Number: No. 96-50270,96-50270
• Citation: 105 F.3d 1579
• Parties: 97 Cal. Daily Op. Serv. 899, 97 Daily Journal D.A.R. 1325 UNITED STATES of America, Plaintiff-Appellee, v. Duk Kyung KIM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1579

105 F.3d 1579

97 Cal. Daily Op. Serv. 899, 97 Daily Journal

D.A.R. 1325

UNITED STATES of America, Plaintiff-Appellee, v. Duk Kyung KIM, Defendant-Appellant.

No. 96-50270.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1996.

Decided Feb. 7, 1997.

Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.

Lauren T. Nguyen, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Dickran M. Tevrizian, District Judge, Presiding, D.C. No. CR-95-00779-DMT.

Before: BRUNETTI, TROTT, and THOMAS, Circuit Judges.

BRUNETTI, Circuit Judge:

Duk Kyung Kim appeals his conviction for possession of stolen property from a foreign shipment, alleging that the district court erroneously refused to suppress evidence and that the evidence presented was both legally and factually insufficient to support the jury's guilty verdict. Specifically, he argues that: 1) the district court incorrectly held that his associate, Seon Yong Wee (the lessee of the storage locker where the stolen property was found) had actual and apparent authority to consent to the search of the storage locker; 2) the evidence was insufficient to support a finding that the property in the locker was in fact the property that was stolen; and 3) the evidence was insufficient to prove the property was in foreign commerce at the time it was stolen.

I. Facts

In June, 1995, FBI Special Agent Emmanuel Ladsous's investigation of stolen foreign shipments led him to Seon Yong Wee. Wee told Agent Ladsous that he had rented units at the Public Storage Management ("PSM") facility in Glendale, California and that he believed that Kim, his associate, had placed a large number of stolen television sets and tools in the units.

Agent Ladsous asked Wee for permission to search the units and Wee consented. Wee directed Agent Ladsous and Los Angeles County Sheriff's Department Detective Richard Garcia to the facility. Wee also showed the agents lease agreements indicating that he had rented three units at PSM. The agreements indicated that other individuals, including Kim, also had access to the units. Wee did not have the keys to the units but agreed to allow the agents to cut off the locks in order to search the units. Officers contacted the fire department, which removed the locks.

At the time that he gave his consent, Wee also told Agent Ladsous that Kim had hired him to rent the storage units and to inventory merchandise. Agent Ladsous testified that he believed that Wee had authority to consent to the search because the leases were in Wee's name and Kim was listed only as an additional person authorized to access the units. The Agent also learned that Wee had been the only individual present during the unloading of some of the allegedly stolen goods and that Wee had temporarily kept the keys to the storage units afterwards.

The agents found a large number of "Campbell and Hausfeld" pneumatic tools and fittings inside the storage units. Kim was subsequently arrested and charged with possession of stolen property from a foreign shipment pursuant to 18 U.S.C. § 659.

At trial, Kim filed a motion to suppress the evidence found at PSM, maintaining that Wee had neither apparent nor actual authority to consent to the FBI's search. The district court denied his motion, and Kim now appeals that ruling. He also appeals the jury's guilty verdict. Kim alleges that the evidence presented was both legally and factually insufficient to support his conviction. We affirm both the district court's decision to admit evidence and the jury's guilty verdict.

II. Standard of Review for Authority to Consent

A. Determination of Appropriate Standard of Review

In the past decade, this Circuit has consistently declined to decide the appropriate standard of review for a district court's ruling on authority to consent to a search. See, e.g., United States v. Dearing, 9 F.3d 1428, 1429 n. 1 (9th Cir.1993) ("We have not decided the standard of review for apparent authority determinations."); United States v. Welch, 4 F.3d 761, 764 n. 4 (9th Cir.1993) (same); United States v. Sealey, 830 F.2d 1028, 1031 (9th Cir.1987) (same); United States v. Hamilton, 792 F.2d 837, 841 (9th Cir.1986) (same).

In lieu of providing a standard, we have repeatedly held that the standard of review did not effect our determination of the case at issue. Dearing, 9 F.3d at 1429 ("Whether we review de novo ... or for clear error, our conclusion is the same."). As we have uniformly affirmed decisions regarding authority to consent, the result has been to uphold the district court without delineating an appropriate standard. See, e.g., Dearing, 9 F.3d at 1429 n. 1; United States v. Kelley, 953 F.2d 562, 566 (9th Cir.1992); Sealey, 830 F.2d at 1031; Hamilton, 792 F.2d at 841. We now hold explicitly that district court authority determinations are reviewed de novo.

United States v. McConney delineates this Circuit's approach to deciding the appropriate standard of review for the type of mixed questions of law and fact presented by authority determinations. 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). In McConney we stated:

If application of the rule of law to the facts requires an inquiry that is "essentially factual"--one that is founded "on the application of the fact-finding tribunal's experience with the mainsprings of human conduct,"--the concerns of judicial administration will favor the district court, and the district court's determination should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo.

728 F.2d at 1202 (citations omitted).

McConney identified three distinct steps to deciding such a mixed question: (1) establishment of facts; (2) selection of the applicable rule of law; and (3) application of the law to the facts. Id. at 1200. The district court's determination of the facts is reviewed for clear error and its selection of the applicable rule of law is reviewed de novo. Id. at 1200-01. The standard of review for the district court's application of law to facts is based on a functional analysis. Id. at 1202.

Under the McConney approach, we must first ascertain if determination of authority to consent is "essentially factual" or instead requires a studied analysis of mixed facts and law. Judge Hall's dissent in Hamilton provides a persuasive argument for the latter characterization. 792 F.2d at 844-45 (affirming district court ruling that third party had apparent authority to consent to a motor home search) (Hall, J., dissenting). In response to the majority's decision not to determine the standard of review for authority decisions, Judge Hall argued that the Court should apply a de novo standard: "While a trial court may be in the best position to determine the actual extent of mutual use, the question of whether these facts constitute a 'sufficient relationship' for the purposes of the fourth amendment is an inherently legal one." Hamilton, 792 F.2d at 844. ¹ As Judge Hall noted, this analysis requires us to "consider abstract legal doctrines, to weigh underlying policy considerations, and to balance competing legal interests." Id. at 844 (quoting McConney, 728 F.2d at 1205). We agree that this balancing presents a mixed question of law and fact that should be examined under a de novo standard.

Our decision is also guided by the constitutional implications of consent analysis. As McConney noted, de novo review is favored when courts apply the law to facts in constitutional cases. This process "requires consideration of the abstract principles that inform constitutional jurisprudence." McConney, 728 F.2d at 1203. Applying this test, McConney held that the "exigent circumstances" justifying a police search conducted without following standard procedures is reviewable de novo because it is rooted in constitutional principles and policies. Id. at 1204-05. The same type of concerns are presented when reviewing the existence of authority to consent to a search: balancing society's interest in effective law enforcement with the expectations of privacy contained in the Fourth Amendment. Thus, applying de novo review in the present context is appropriate and consistent with our application of a de novo standard in "exigent circumstances" cases. See United States v. Von Willie, 59 F.3d 922, 925 (9th Cir.1995) (applying de novo review to exigent circumstances decision).

Analysis illustrates that review of a trial court's determination of authority to consent to a search requires a considered judgment of both factual circumstances and legal issues. Thus, we review the district court's authority decisions de novo.

B. Authority Issue

Utilizing the de novo standard, we focus on Kim's argument that the district court erroneously denied his motion to suppress the evidence found in the PSM storage locker. Kim claims that Wee had neither actual nor apparent authority to consent to a search of the containers, as he was a mere employee operating at Kim's direction. Kim analogizes their relationship to sub-lessor and sub-lessee, arguing that Kim was essentially sub-leasing the units from Wee, and that consequently, Wee had no authority to consent to the search. We do not find this argument persuasive.

The Supreme Court has ruled that consent to a search must be made by an individual with common authority over the property. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The Court defined common authority as ...