U.S. v. Kovac, 85-3141

• Decision Date: 07 August 1986
• Docket Number: No. 85-3141,85-3141
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence J. KOVAC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1509

795 F.2d 1509

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence J. KOVAC, Defendant-Appellant.

No. 85-3141.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 6, 1986.

Decided Aug. 7, 1986.

Jeffrey J. Kent, Thomas M. Coffin, Eugene, Or., for plaintiff-appellee.

Jay W. Frank, Moule & Frank, Eugene, Or., for defendant-appellant.

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

Before ALARCON, REINHARDT, and THOMPSON, Circuit Judges.

ALARCON, Circuit Judge:

Defendant/appellant Lawrence J. Kovac (hereinafter Kovac) appeals from the judgment entered following his conviction under 21 U.S.C. Sec. 841(a)(1) for possession of cocaine with intent to distribute. Kovac contends that the trial court erred in denying his motion to suppress evidence seized from his house pursuant to a search warrant. He raises three arguments on appeal: (1) that information which furnished probable cause for issuance of the search warrant was obtained in violation of his Fourth Amendment rights, thus tainting the warrant and the evidence seized; (2) that the affidavit supporting the warrant was fatally deficient; and (3) that the search warrant was unlawfully executed.

Pursuant to his receipt of information that Kovac was selling large amounts of cocaine from his home, Special Agent Donald Sims (hereinafter Sims) of the Federal Drug Enforcement Agency (DEA) conducted a surveillance of Kovac's residence for over two weeks. In order to obtain information to support the issuance of a search warrant for the residence, Sims and Officer James Miller (hereinafter Miller) of the Salem Police Department (SPD) stopped Catherine Jo Robins (hereinafter Robins), Kovac's sister-in-law and then a probationary employee of the SPD, as she was driving away from Kovac's residence. The officers did not search Robins' car; instead, they questioned her regarding whether she had observed narcotics trafficking at Kovac's residence. After initially denying that she had observed any criminal activity, Robins admitted that she had seen a plastic bag containing over an ounce of marijuana at the residence that day.

State Police Officer Erik Vognild (hereinafter Vognild) relied on Robins' statement in his affidavit in support of the application for a search warrant for Kovac's residence. The warrant was issued by an Oregon state judge. Kovac's house was searched. The search disclosed, inter alia, 1.6 pounds of cocaine and 1.3 pounds of marijuana. We discuss the facts pertinent to each of Kovac's contentions under separate headings.

I. The Stop of Robins' Car

Kovac first contends that the stop of Robins' car violated his Fourth Amendment rights, and consequently, the search warrant and the evidence seized were tainted. The trial court found that Kovac lacked a legitimate expectation of privacy in Robins' car and, therefore, could not complain of the stop and its consequences. Where the facts are not in dispute, we review the issue of "standing" de novo. United States v. Kuespert, 773 F.2d 1066, 1067 (9th Cir.1985).

In order to contest the legality of a search or seizure, the defendant must establish that he or she had a "legitimate expectation of privacy" in the place searched or in the property seized. Rakas v. Illinois, 439 U.S. 128, 143-44, 99 S.Ct. 421, 430-31, 58 L.Ed.2d 387 (1978). The defendant must have exhibited an actual, subjective expectation of privacy and, more importantly, the expectation must be one that society is prepared to accept as reasonable and therefore, legitimate. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir.1984). The defendant has the burden of establishing that, 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).

Kovac asserts that he had a legitimate expectation of privacy in Robins' car because: (1) the car was parked in front of his house on three occasions during Sims' surveillance; (2) Kovac had driven the car once during that period; (3) Kovac's wife had a key to the car; and (4) Kovac and his wife had permission to use the car.

Kovac did not own the car and thus did not have an inherent right to control the car. See Rakas, 439 U.S. at 144 n. 12, 99 S.Ct. at 431 n. 12 (although "arcane" concepts of property law do not control, the owner of property will in all likelihood have a legitimate expectation of privacy in property by virtue of his inherent right to control it). Nor was Kovac present at the stop so as to be exercising actual control over the vehicle. Cf. United States v. Perez, 689 F.2d 1336, 1338 (9th Cir.1982) (defendants had a legitimate expectation of privacy in a truck they did not own because they were closely following and supervising the truck as it made its journey); United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir.1980) (defendant had a legitimate expectation of privacy in a car he did not own because he was in possession of the car with the permission of the owner and had a key to it, thus having the requisite level of control over the car), cert. denied, 450 U.S. 1043, 101 S.Ct. 1764, 68 L.Ed.2d 241 (1981).

The sporadic and limited availability of Robins' car to Kovac does not comport with the formal "joint control" arrangements which we have recognized as conferring a legitimate expectation of privacy on a defendant in a place he does not own. Cf. Pollock, 726 F.2d at 1465 (defendant was co-operator of a drug laboratory in his friend's house; he was exercising "joint control" over the property, and thus had a legitimate expectation of privacy in the house); United States v. Johns, 707 F.2d 1093, 1100 (9th Cir.1983) (because they had a formal arrangement over the vehicle for transportation of contraband, defendants had a legitimate expectation of privacy in marijuana bales seized from a vehicle they did not own), rev'd on other grounds, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985); Perez, 689 F.2d at 1338 (defendants had a formal arrangement with a driver for transporting contraband in truck which they did not own). In Pollock, Johns, and Perez, the defendants were actively involved in joint control, with the owner, of a place or vehicle which they did not own. By contrast, Kovac's authority to use the car was limited by the availability of the car for his use--the car was at his house only three times in over two weeks--and, in fact, he actually used the car only once during that time. Moreover, the defendants in Pollock, Johns, and Perez were asserting a proprietary interest in goods seized from a place or vehicle which they did not own, while Kovac asserts an interest in a person who happened to occupy a vehicle which he did not own. "Unlike a house, a truck, or a package, one cannot acquire a right to exclude others from access to a third person." United States v. Kuespert, 773 F.2d at 1068; accord, United States v. Brown, 743 F.2d 1505, 1507-08 (11th Cir.), reh'g denied, 749 F.2d 733 (1984) (en banc).

Finally, Kovac cannot assert a legitimate expectation of privacy in the car based on Robins' familial relationship to his wife; the fact that Kovac's wife had a key to the car does not confer a legitimate expectation of privacy on Kovac. See United States v. Hodges, 606 F.2d 520, 523 (9th Cir.1979) (defendant could not have a legitimate expectation of privacy in the searched premises based on his relationship with a co-conspirator whose father owned the premises), cert. denied, 444 U.S. 1035, 100 S.Ct. 708, 62 L.Ed.2d 671 (1980).

Because Kovac did not have a significant connection with Robins' car by which he had either an inherent or actual right to control its use and exclude others, he did not have a legitimate expectation of privacy in the car. Therefore, the trial court correctly held that Kovac's Fourth Amendment rights were not implicated by the stop of Robins' car.

II. Validity of Search Warrant For Kovac's Residence

Kovac next contends that the affidavit filed in support of the search warrant was invalid.

A. Applicable Law

Kovac's argument that state law should apply to determine the validity of the warrant and the search is meritless. In United States v. Henderson, 721 F.2d 662, 664 (9th Cir.1983), cert. denied, 467 U.S. 1218, 104 S.Ct. 2665, 81 L.Ed.2d 370 (1984), we commented that "[i]t is clear from our precedents that evidence obtained by federal officials, or by federal officials acting in concert with state officers, in violation of state law but in compliance with federal law is admissible." (emphasis added). See United States v. Adams, 694 F.2d 200, 201-02 (9th Cir.1982) (evidence obtained by federal and state officials in conformance with federal wiretapping statute is admissible in federal prosecution without regard to state law), cert. denied, 462 U.S. 1118, 103 S.Ct. 3085, 77 L.Ed.2d 1347 (1983); United States v. Daniel, 667 F.2d 783, 785 (9th Cir.1982) (per curiam) (where federal agent was involved in state investigation and decision had been made prior to wiretap to present case to federal court rather than to state court for prosecution, evidence secured by wiretap in conformity with federal constitution and federal law, but in violation of state law, was admissible).

In the instant case, the federal officials were clearly acting in concert with state officers in obtaining the information from Robins and in executing the search warrant. Thus, whether the officials complied with state law is not relevant; the only question is whether the officials acted in compliance with federal law.

B. Sufficiency of the Affidavit

After Sims and Miller stopped Robins on the open road, Robins agreed to accompany them to the Eugene DEA office, where she was questioned for approximately two hours before she admitted that she had seen narcotics at...