U.S. v. Larson

• Decision Date: 31 May 1985
• Docket Number: Nos. 84-5080,84-5081,s. 84-5080
• Citation: 760 F.2d 852
• Parties: UNITED STATES of America, Appellee, v. Duane Wendall LARSON, Appellant. UNITED STATES of America, Appellee, v. Sheila Jane BURGESS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 852

760 F.2d 852

UNITED STATES of America, Appellee, v. Duane Wendall LARSON, Appellant.

UNITED STATES of America, Appellee, v. Sheila Jane BURGESS, Appellant.

Nos. 84-5080, 84-5081.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 10, 1984.

Decided April 11, 1985.

Rehearing and Rehearing En Banc Denied May 31, 1985.

Michael Nash and Raymond J. Smith, Chicago, Ill., for appellant.

Richard E. Vosepka, Minneapolis, Minn., for appellee.

Before HEANEY, ROSS and FAGG, Circuit Judges.

ROSS, Circuit Judge.

A jury found Duane Wendall Larson and Sheila Jane Burgess guilty on a count of an indictment which charged them with possessing three pounds of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982), and aiding and abetting such action in violation of 18 U.S.C. Sec. 2 (1982). The cocaine was discovered by police upon a warrantless search of a motel room in Burnsville, Minnesota.

On appeal, both defendants argue that the evidence obtained pursuant to the search should have been suppressed. The defendants also assert that the trial court violated their due process rights by refusing to grant a continuance and by failing to conduct a sufficient review of the magistrate's findings and recommendations on their motions to suppress. Finally, defendant Burgess argues that the evidence was insufficient to support her conviction, that the prosecutor failed to disclose certain evidence in violation of the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that her due process rights were violated in that she was not given sufficient time to prepare for trial.

We affirm defendant Larson's conviction, but reverse defendant Burgess' conviction based on the insufficiency of the evidence to support her conviction. Due to our resolution

of Burgess' sufficiency of the evidence issue, we shall not address the other issues as they relate to her.

FACTS

On the afternoon of October 28, 1983, a woman rented room 124 of a Howard Johnson's motel for one night. The woman registered under defendant Burgess' name and address and advised the desk clerk that two people would be occupying the room. She paid for the room in advance, as required by motel policy.

On the morning of October 29, 1983, the woman checked out of the motel and took a taxi to the airport to pick up a car. She had received permission from William Webster, the assistant manager, for the other occupant of room 124 to stay in the room until 2:00 p.m. The normal checkout time is noon.

At about 2:30 p.m. a maid went to clean the room, but was told by defendant Larson that "he did not want service and was staying over." The maid then informed Webster of this occurrence.

Webster sent a bellman to the room at about 5:30 p.m., since he feared that the occupant of room 124 would leave without paying for several long distance phone calls which had been made from the room. The bellman reported that the room was unoccupied.

Webster then went to examine the room himself. When no one answered the door, he entered and discovered empty liquor bottles, prescription pills, keys, and grocery bags containing plastic bags with white powder in them. After getting the motel's assistant restaurant manager to help him examine the white powder more closely, he called the motel's general manager and the police.

At about 6:40 p.m. two Burnsville police officers arrived at the motel. Webster informed them that there were several bags containing a suspicious white powder in a vacated room.

At about 7:00 p.m. Webster knocked on the door to room 124. He was about to enter, using a passkey, when he heard an answer from within the room. Webster informed the occupant that the day's rent had not been paid. Larson replied from within that "he'd be down to take care of it in a few minutes." Webster replied "okay."

The police then knocked on the door and asked to talk to Larson. After a short delay, Larson came out of the room and closed the door behind him. When Larson refused to let the officers enter the room, the officers sought consent from the motel manager. Upon receiving the manager's consent, the police entered room 124 and discovered the cocaine.

DISCUSSION

A. Motel Search

Larson moved to suppress the cocaine seized in room 124 on the ground that the search violated his fourth amendment rights. The government contends, and the district court found, that Larson failed to meet his burden of proving that he had a legitimate expectation of privacy in room 124 at the time of the search. See Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978).

The district court relied primarily on the decision in United States v. Parizo, 514 F.2d 52 (2d Cir.1975). In Parizo, the court held that the admission of a sawed-off shotgun seized by a police officer from the defendant's motel room was proper since the defendant, Chester Parizo, lacked a reasonable expectation of privacy in the motel room.

The facts in Parizo are similar to those in this case. First, like Larson, Parizo had stayed in his motel room beyond the occupancy period without paying for the next day's rent. Second, both Larson and Parizo had informed motel employees of their intent to stay in their motel rooms for an extended period. Finally, both Larson and Parizo had their rooms searched, and their contraband seized, by police officers after motel employees had discovered their contraband.

The court in Parizo applied the facts as follows:

The facts of the present case illustrate the close relationships of these conceptual bases: when the term of a guest's occupancy of a room expires, the guest loses his exclusive right to privacy in the room. The manager of a motel then has the right to enter the room and may consent to search of the room and the seizure of the items there found. United States v. Croft, 429 F.2d 884 (10 Cir.1970) provides the clearest example of this point. The defendant had rented a motel room for two days. Shortly after the checkout time on the second day law enforcement officials, with the permission of the motel manager, searched the room and subsequently removed incriminating evidence. The court stated that the constitutional protection "is dependent on the right to private occupancy of the room. When the rental period has elapsed, the guest has completely lost his right to use the room and any privacy associated with it." Id. at 887. See, also, Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683 , 4 L.Ed.2d 668 (1960); United States v. Cowan, 396 F.2d 83 (2 Cir.1968).

Id. at 54 (emphasis added, footnote omitted). See also United States v. Lee, 700 F.2d 424, 425 (10th Cir.), cert. denied, 462 U.S. 1122, 103 S.Ct. 3094, 77 L.Ed.2d 1353 (1983); United States v. Haddad, 558 F.2d 968, 975 (9th Cir.1977).

We agree with the reasoning in Parizo. Here, Larson's exclusive right to privacy in room 124 elapsed prior to the police search. Larson stayed in the room seven hours beyond the checkout time and five hours beyond the time he had been given permission to stay without paying for the next day's rent in advance as required by motel policy. In addition, Larson had never checked into the room. Burgess had checked in but had also checked out several hours before the search. The district court's finding that Larson's communications with motel personnel were not sufficient to support a reasonable expectation of a right of privacy in the room under these circumstances is supported by the facts. Accordingly, we affirm the district court's finding that Larson lacked a legitimate expectation of privacy in room 124 at the time of the search.

In addition, even if Larson had established a legitimate expectation of privacy in the room, the warrantless search was justified under the exigent circumstances exception. ¹ First, the officers had probable cause, under the totality of the circumstances, to believe that contraband was located in room 124. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). Both the assistant manager and the assistant restaurant manager had closely examined the white powder in the plastic bags. In fact, they had even rubbed it between their fingers in an effort to determine what it was. Both concluded that the powder was an illegal substance. The police officers were fully informed of this conclusion, as well as other circumstances surrounding room 124, by the assistant manager upon their arrival at the motel.

Second, exigent circumstances existed making it necessary to search the room before a warrant could be obtained. Room 124 was on the ground floor and had two entrances. At the time the officers entered the room, they had no knowledge as to whether there were other occupants of room 124, as it had previously been thought that the room was vacant. Unless the officers acted quickly, there was a danger that the cocaine would be destroyed or removed from the room either by another occupant, or by Larson when the police were done questioning him. We have previously held that such an exigency removes the requirement that the police officers act with a warrant. See, e.g., United States v. Knobeloch, 746 F.2d 1366, 1367 (8th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1362, 84 L.Ed.2d 383 (1985); United States v. Palumbo, 735 F.2d 1095, 1097 (8th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 332, 83 L.Ed.2d 268 (1984); United States v. Kulcsar, 586 F.2d 1283, 1286-88 (8th Cir.1978). Accordingly, we find that the district court's denial of the motion to suppress the cocaine was proper.

B. Continuance

Larson next alleges that his due process rights were violated by the trial court's failure to grant his motion for a continuance. On January 30, 1984, two days prior to trial, Larson's attorney filed a motion for a continuance. The sole reason given for the...