U.S. v. McHugh, 84-1748

• Decision Date: 06 March 1985
• Docket Number: No. 84-1748,84-1748
• Citation: 769 F.2d 860
• Parties: UNITED STATES of America, Appellee, v. James McHUGH, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 860

769 F.2d 860

UNITED STATES of America, Appellee, v. James McHUGH, Defendant, Appellant.

No. 84-1748.

United States Court of Appeals First Circuit.

Heard March 6, 1985.

Decided Aug. 8, 1985.

James Michael Merberg, Boston, Mass., with whom Daniel Patrick Leonard, Boston, Mass., was on brief, for defendant, appellant.

James E. O'Neil, Providence, R.I., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before COFFIN and TORRUELLA, Circuit Judges, and RE, ^* Judge.

RE, Chief Judge:

Appellant, James McHugh, appeals from a judgment of conviction entered against him on March 27, 1984, following a jury trial in the United States District Court for the District of Rhode Island. Appellant was convicted of possession of marijuana with intent to distribute, in violation of section 2 of Title 18, United States Code and section 401 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. Sec. 841 (1982). Appellant was also convicted of conspiracy to distribute marijuana, in violation of section 406 of the Act. On September 7, 1984, appellant was sentenced to a five-year term of imprisonment and fined $15,000 on the conspiracy count of the indictment. On the possession count of the indictment, appellant received five years probation and a special parole term of four years.

The appellant contends that the district court, 575 F.Supp. 111 (D.C.R.I.1983), erred in denying his pre-trial motion to suppress evidence that he alleges was illegally obtained. In addition, appellant contends that the trial judge improperly denied his motion for judgment of acquittal.

Since we find the contentions of the appellant without merit, we affirm the judgment of conviction, the denial of motion for judgment of acquittal, as well as the imposition of the prison sentence, probation, fine, and special parole term ordered by the district court.

The Facts

During July of 1983, a waterfront residence, known as the Malone Camp, located along the Sakonnet River in Portsmouth, Rhode Island, was the target of investigative surveillance by the Rhode Island Drug Task Force, a joint task force comprised of Federal, state, and local law enforcement officers. On July 15, 1983, the members of the Task Force engaged in active surveillance of the Malone Camp included deputy United States Marshal, Joseph Thomas and Inspector Norman Phelps, who was employed by the state division of drug control. They were accompanied by Officer Coffey, a member of the Little Compton, Rhode Island, Police Department. The officers were aided in their duties by use of binoculars, telescopes, and a nightscope.

All three officers were conducting their surveillance from the shore opposite Portsmouth, in Tiverton, Rhode Island. Sometime after 8:45 p.m., Inspector Phelps went to the Portsmouth side of the river and stationed himself on Water Street, where he could observe the driveway entrance to the camp. From his position, Phelps could observe a jeep parked in the driveway of the camp, which effectively blocked its entrance. Between 10:30 p.m. and 11:00 p.m., Thomas radioed to Phelps that he saw lights on the river going to and coming from the camp, and also that he heard high-powered boats operating on the river.

Shortly after 11:00 p.m., Phelps saw a grey General Motors Corporation (GMC) pickup truck with its lights out come up the drive from the camp to Water Street. The truck came to a stop behind the jeep that was blocking the driveway. The bed of the truck was covered with a camper shell or "cap," the windows of which were covered with cardboard. Phelps observed appellant McHugh move the jeep so as to permit the truck to proceed onto Water Street. As the truck left the driveway, it rocked from side to side on the rough road, and the rear window of the camper cap popped open. Phelps was then able to observe burlap bales stacked in the bed of the pickup truck. As the truck paused, appellant stopped the jeep, got out, and secured the opening on the truck. The jeep driven by appellant then followed the truck, which was driven by Alfred Craven, toward the highway and out onto Route 138. Phelps followed both vehicles.

Approximately a mile later, the jeep stopped following the truck and headed back towards the waterfront. Phelps followed the truck into Massachusetts, where he enlisted the help of a Massachusetts state trooper. The trooper, at Phelp's behest, stopped the truck and arrested the driver. Approaching the truck, Phelps detected the smell of marijuana. He then opened the rear hatch of the truck and observed the bales. The pickup truck was then towed to a nearby Massachusetts State Police barracks. On July 22, approximately seven days later, the bales were opened. No warrant was obtained for the search of the truck, or the subsequent opening of the bales. The bales proved to contain a large quantity of marijuana, samples of which were introduced at the trial. After a four day jury trial, the appellant was convicted on both counts.

Two questions are presented on this appeal: (1) whether the district court improperly denied appellant's motion to suppress evidence seized as the result of the warrantless search of the pickup truck; and (2) whether the trial court improperly denied appellant's motion for judgment of acquittal.

We hold that the appellant lacked a reasonable expectation of privacy in the GMC pickup truck, and therefore lacked standing to contest the search. Alternatively, we hold that neither the initial seizure of the truck, nor the subsequent search of its contents was violative of the fourth amendment. Since we also hold that the trial court properly denied appellant's motion for judgment of acquittal, we affirm.

I. Fourth Amendment Challenges

Appellant McHugh appeals the denial of his pre-trial motion to suppress evidence. On November 8, 1983, after a hearing, the district court denied the appellant's motion. 575 F.Supp. 111, 119 (D.R.I.1983). The denial was based upon the district court's finding that appellant lacked standing to contest the search, and, alternatively, that the seizure and search of the pickup truck were constitutionally permissible. Id. at 115-16. On appeal, unless they are clearly erroneous, we must affirm the pretrial determinations of the district court. United States v. Regan, 687 F.2d 531, 535 (1st Cir.1982); United States v. Jobin, 535 F.2d 154, 156 (1st Cir.1976).

Appellant's Standing to Contest the Search

There is no automatic standing to contest the legality of a search and seizure for a defendant charged with a crime of possession. United States v. Salvucci, 448 U.S. 83, 95, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980). A defendant must show that his own constitutional rights have been infringed; vicarious assertion of another's constitutional rights is insufficient. See Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978). The initial inquiry, therefore, is whether the defendant had a legitimate expectation of privacy in the area searched or the article seized. Rakas, supra, 439 U.S. at 140-49, 99 S.Ct. at 428-33; United States v. Lochan, 674 F.2d 960, 963-64 (1st Cir.1982).

The Supreme Court has enunciated a two-step process to determine whether the defendant possessed a legitimate expectation of privacy. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). First, a court must ascertain whether the defendant had a subjective expectation of privacy. Second, it must determine whether the defendant's subjective expectation, viewed objectively, was reasonable. Smith, 442 U.S. at 740, 99 S.Ct. at 2580 (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)); see also United States v. Hershenow, 680 F.2d 847, 855 (1st Cir.1982). Hence, the burden is on the defendant to establish not only that he had a subjective expectation, but also that this expectation was objectively reasonable. United States v. Thornley, 707 F.2d 622, 624 (1st Cir.1983); United States v. Goshorn, 628 F.2d 697, 700 (1st Cir.1980).

Appellant McHugh contends that he had a reasonable expectation of privacy in the GMC pickup truck driven by Craven. Appellant cites the following facts in support of this contention. He was seen driving the truck on several occasions. He also was seen securing the cap to the bed of the pickup truck, and accompanied the truck on part of its journey. The fact that the windows of the truck were covered, he argues, also supports his reasonable expectation of privacy. Finally, McHugh contends that there is sufficient evidence for this Court to infer that he partially owned the bales, and that Craven was a bailee.

Although McHugh may have had a subjective expectation of privacy, these facts, at most, show that he intended to hide the bales. For fourth amendment purposes, however, "a legitimate expectation of privacy means more than a subjective expectation of keeping incriminating evidence hidden." United States v. Thornley, 707 F.2d 622, 624 (1st Cir.1983).

Assuming that McHugh had a subjective expectation of privacy, viewed objectively, this expectation must also be reasonable under the circumstances. This court has held that "[o]wnership and possession, while not dispositive of expectation of privacy, are relevant factors in this regard." United States v. Goshorn, 628 F.2d 697, 701 (1st Cir.1980). See Salvucci, supra, 448 U.S. at 91, 100 S.Ct. at 2552.

The truck was neither registered nor owned by McHugh. A registration check made three or four days before the seizure revealed that the truck was registered by a Paul Richter to Paul's Building Company. McHugh's brother Lawrence was observed driving the truck on occasion. At the time the truck was seized, Craven was in sole possession and control of the truck and its contents. The district court found no evidence that appellant had any legal right to exclude others from the truck's possession...