U.S. v. Lockett

• Decision Date: 23 November 1990
• Docket Number: No. 90-30012,90-30012
• Parties: 31 Fed. R. Evid. Serv. 1092 UNITED STATES of America, Plaintiff-Appellee, v. Bradford L. LOCKETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 585

919 F.2d 585

31 Fed. R. Evid. Serv. 1092

UNITED STATES of America, Plaintiff-Appellee, v. Bradford L. LOCKETT, Defendant-Appellant.

No. 90-30012.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 1, 1990.

Decided Nov. 23, 1990.

Phillip M. Margolin, Margolin & Margolin, Portland, Or., for defendant-appellant.

Errol Carlsen, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

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

Before KOZINSKI, O'SCANNLAIN and FERNANDEZ, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

This appeal from convictions for drug-related crimes raises several significant issues, one of which involves standing to invoke a violation of the federal requirement for announcement before entry into a residence to serve a search warrant.

I

In June 1987, the Portland Police Bureau began investigating cocaine trafficking in the near north and northeast areas of the City of Portland, Oregon. Acting upon information supplied by a confidential informant, the police paid special heed to four individuals, Bradford Lockett, Herbert Lockett, Keith Horsley, and Marcella Manning. Portland police officers began to monitor the activities of Bradford Lockett ("Lockett") and Manning, observing Lockett's activities approximately ten to twenty hours per week from October 1987 until his arrest on February 6, 1988.

During this period, Portland police officers observed Lockett engage in numerous suspicious activities. On two occasions, they observed Lockett accompany Marcella Manning (who appeared to be Lockett's girlfriend) to the Portland airport. In both instances, the pair drove their car in a manner that suggested that they were attempting to elude followers. At the airport, they avoided being seen with each other. Each time, Manning boarded a flight to Los Angeles; her name, however, was not on the passenger lists for any of these flights, suggesting that she purchased her tickets under an alias.

During the evening of January 19, 1988, Portland police set up a surveillance of a residence located at 6237 North Montana Street. Manning and another individual were observed through a picture window packaging a controlled substance. Lockett was present in the same room during most of this time, although he was never personally observed participating in the packaging process.

Also in January, Lockett and a young woman named Marvina Allen entered the Union Avenue branch of United States Bank with a briefcase containing $50,000 in cash and sought to purchase a cashier's check. When Lockett was informed that a currency transaction report would have to be completed regarding the transaction, Lockett left the bank, returning later with Charles Allen. Lockett claimed that the money belonged to Charles Allen and Marvina Allen, even though Charles Allen was unemployed and Marvina Allen worked as a telephone operator.

On January 25, 1988, Lockett purchased a house for $75,000 from Jo-Ellen Hembree, a real estate broker. At the time of closing, Lockett initially offered $75,000 in cash. When told that this would require the completion of several IRS forms, Lockett left and returned with a number of cashier's checks, which he then used to purchase the house.

On February 6, 1988, the police again began monitoring Lockett's activities. Lockett and Marcella Manning were observed leaving an apartment located at 129 Northeast Thompson Street at approximately 3:05 p.m. The pair went to 6209 Northeast Seventh Avenue, where Manning delivered a blue and grey bag. They then proceeded to the 6237 North Montana Street residence. Both Lockett and Manning went into this location, where they remained for ten minutes. They then returned to the Thompson Street residence at approximately 4:00 p.m. As the evening progressed, the police observed numerous individuals go to the front door and then quickly leave.

At 7:13 p.m. that evening, numerous members of the Portland Police Bureau served a search warrant at the Thompson Street residence. ¹ Officer Jacobelli knocked on the door and announced that he was a police officer and that he had a search warrant. After four to five seconds elapsed without a response, the officers pried open the door and entered. Inside, they encountered Lockett, Marcella Manning, and Carla Manning. They also discovered approximately 1,800 grams of cocaine, most of it found either in a bedroom, in a plastic bag resting on the television set, or lying on a large plate on the coffee table in the living room. Some of the cocaine was contained in 80 small baggies, resting on or alongside the coffee table. Also found in the living room was a cooking pot and seven cigarette lighters. The room resembled, according to Officer Brumfield, a cocaine-packaging assembly line. A leather jacket belonging to Lockett was found in a closet. A paging device was discovered on Lockett.

A subsequent search of Lockett's residence, which he shared with his parents, revealed currency totaling $25,000.

Lockett was eventually convicted by a jury on four counts: conspiracy to possess cocaine with intent to distribute, conspiracy to distribute cocaine, distribution of 500 grams or more of cocaine, and possession of 500 grams or more of cocaine with intent to distribute. This timely appeal followed.

II

Lockett argues that evidence obtained as a result of the search at 129 Northeast Thompson Street must be suppressed because the searching officers violated the "knock and announce" statute, 18 U.S.C. Sec. 3109 (1988).

A

A person whose personal interests have not been infringed by an unannounced police entry does not have standing to challenge the entry under section 3109. See United States v. Valencia-Roldan, 893 F.2d 1080, 1081 n. 1 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 2181, 109 L.Ed.2d 509 (1990) (defendant lacked standing to challenge alleged violation of section 3109 because he was not present at the time of entry); United States v. DeLutis, 722 F.2d 902, 908 (1st Cir.1983) (expressing "serious doubt" as to whether an absentee owner had standing under section 3109). To have a sufficient personal interest for purposes of standing under section 3109, the person must be a member of the class of persons sought to be protected by the statute. See DeLutis, 722 F.2d at 908.

Accordingly, to determine whether Lockett has standing under section 3109, we first examine the purposes underlying section 3109. In United States v. Bustamente-Gamez, 488 F.2d 4 (9th Cir.1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974), we observed that "[t]hree interests are said to be served by the rule of announcement: (1) it reduces the potential for violence to both the police officers and the occupants of the house into which entry is sought; (2) it guards against the needless destruction of private property; and (3) it symbolizes the respect for individual privacy summarized in the adage that 'a man's house is his castle.' " Id. at 9; see also United States v. Ruminer, 786 F.2d 381, 383 (10th Cir.1986) (section 3109 "serves several purposes: (i) it decreases the potential for violence; (ii) it protects the privacy of the individual by minimizing the chance of forcible entry into the dwelling of the wrong person; and (iii) it prevents the physical destruction of the property by giving the occupant time to voluntarily admit the officers"); United States v. Ford, 553 F.2d 146, 165 n. 58 (D.C.Cir.1977). Lockett claims that he has standing under what may be described as both the privacy and safety interests served by section 3109.

B

We turn first to Lockett's claim that he had an expectation of privacy in the Thompson Street residence. Lockett concedes that he did not reside at or hold a proprietary interest in the residence. However, Lockett maintains that he had an expectation of privacy nonetheless, citing our rule that a "formalized arrangement among defendants indicating joint control and supervision of the place [searched] is sufficient to support a legitimate expectation of privacy." United States v. Johns, 851 F.2d 1131, 1136 (9th Cir.1988) (quoting United States v. Broadhurst, 805 F.2d 849, 852 (9th Cir.1986)).

The defendant bears the burden of proving that he has a legitimate expectation of privacy. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). Lockett contends that under Johns and Broadhurst, his membership in a joint criminal venture was sufficient to give him a legitimate expectation of privacy in the property used by the joint venture. Lockett, however, misreads our cases. Mere presence at the location of a narcotics search is insufficient to establish privacy standing. See United States v. Watts, 848 F.2d 134, 137 (9th Cir.), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988). Moreover, mere membership in a criminal venture does not give a person an expectation of privacy in all property used by the venture. Rather, the defendant must show some "joint control and supervision of the place searched." United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir.1984); see also Johns, 851 F.2d at 1136. Lockett has offered no evidence that he possessed any control or supervision over the Thompson Street residence. Thus, Lockett did not sustain his burden of showing a legitimate expectation of privacy.

C

Lockett also contends that he has standing within the scope of section 3109's safety rationale as set forth in Bustamente-Gamez and Ruminer merely because he was present at the Thompson Street residence at the time of the search. The safety rationale has been explained as follows:

Surreptitious entry of private premises ... is also fraught with physical--even mortal--danger for both the occupants of the private premises and the police. The occupants, on discovering the unidentified intruders, may attempt to shoot them, and the police will doubtless return the fire. This danger was one of the reasons for ...