U.S. v. Melucci, 89-1387

• Decision Date: 12 September 1989
• Docket Number: No. 89-1387,89-1387
• Parties: UNITED STATES of America, Appellee, v. Louis W. MELUCCI, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 200

888 F.2d 200

UNITED STATES of America, Appellee, v. Louis W. MELUCCI, Defendant, Appellant.

No. 89-1387.

United States Court of Appeals, First Circuit.

Heard Sept. 12, 1989.

Decided Nov. 1, 1989.

Edward J. Romano, Providence, R.I., was on brief, for defendant, appellant.

Kenneth P. Madden, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before BOWNES, TORRUELLA and MAYER, ^* Circuit Judges.

TORRUELLA, Circuit Judge.

Defendant Louis W. Melucci appeals a decision of the United States District Court for the District of Rhode Island convicting him of possession with intent to distribute marijuana and cocaine. The defendant brings five issues before this court for review: first, whether the defendant/appellant had standing to suppress the results of a search; second, whether a search by the police constituted an impermissible extension of a private search; third, whether the police improperly tested the results of a search; fourth, whether the search of a handbag and car was invalid; and fifth, whether the district court erred in allowing expert testimony on handwriting.

FACTS

Public Self Storage, Inc. ("PSS"), owned by John Cullen, consists of two long buildings surrounded by a chain link fence. Each building contains numerous modular storage units and each unit has its own outside door. Lessees secure the door with their own padlocks. On November 17, 1987, defendant Melucci leased a unit under a false name ("Fusi") and false address. He paid rent through the end of February 1989. By April 1, 1988, the rent on the unit was one month in arrears and John Cullen attempted to contact Melucci via the false name and false address on the lease, obviously without success. On April 5, 1988, Cullen, pursuant to the procedures set forth in the default section of the lease contract, took possession by cutting the padlock off the unit. He entered and observed several boxes covered with old clothes. He lifted some of the clothes off one box and found what he thought was marijuana. Cullen then locked the unit with his own padlock and telephoned the police.

Sergeant Marcoux responded to Cullen's call. Cullen took Marcoux to the unit and showed him the boxes. Marcoux searched the entire unit and found 41 one pound bags of marijuana. Cullen re-locked the unit and awaited the arrival of detective Almond. When Almond arrived, Cullen allowed him to enter the unit. Almond seized the contents of the unit and the cut lock. Cullen relocked the unit.

On April 25, 1988, Melucci complained that he could not get into his unit and paid the past due rent. While he was waiting officers Gauthier and Brunelle were called. These officers knew that a man claiming to be Fusi was in a car at PSS, and that he was there to pay the rent due. From the initial search these officers also knew that a large quantity of marijuana had been seized from the unit on April 5, 1988.

When the officers arrived, they saw the man claiming to be Mr. Fusi, but the defendant/appellant identified himself as Melucci. Melucci was asked to step out of his car. Then, the officers verified through Cullen that Melucci was the person claiming to be Fusi. Melucci was asked for identification. Melucci said that his identification was in a handbag on the front seat. The officers took the handbag from the car and searched it. They saw a waterpipe, two closed film vials, and identification. The police opened the vials, saw that they contained white powder, and took the identification. They then arrested Melucci.

The car was towed to the police department. Pursuant to a search warrant issued on April 25, 1988, the police searched the car and found approximately 500 grams of cocaine and a bale of marijuana.

1. Standing

The district court ruled that Melucci lacked standing to contest the search of the unit. We agree. The defendant has the burden of establishing standing. United States v. Hershenow, 680 F.2d 847, 855 (1st Cir.1982). To have standing a defendant must have a legitimate expectation of privacy in the area searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); United States v. Thornley, 707 F.2d 622, 624 (1st Cir.1983). Apart from a subjective expectation of privacy and the objective reasonableness of such an expectation, some of the factors that bear on the existence of a legitimate expectation of privacy include: ownership, possession or control of the premises searched; the ability to control or to exclude others' use of the premises; a legitimate presence on the premises at the time of the search; and the totality of the surrounding circumstances. United States v. Aguirre, 839 F.2d 854, 856 (1st Cir.1988); see also United States v. Lochan, 674 F.2d 960, 965 (1st Cir.1982).

Melucci's failure to pay rent coupled with Cullen's taking possession of the unit pursuant to the lease contract by removing the lock, indicates that Melucci's possession and control over the unit had terminated by the time of the search. Melucci was not present at the time of the search. Furthermore, Melucci rented the unit under a false name and false address. No rent was paid for March or April. Moreover, the lease terminated at the end of February. Under the totality of the circumstances, Melucci has no standing to contest the search of the unit. Id. This lack of standing renders discussion of Melucci's second argument--that the police search of the unit constituted an impermissible extension of Cullen's private search and his third argument--that the marijuana was improperly tested as a fruit of a warrantless search--unnecessary.

2. Handbag and car

The initial seizure of the bag was valid. The officers were aware that marijuana was found in the unit rented under Fusi's name at PSS. They knew Melucci paid the back rent on the unit identifying himself as Fusi to the PSS clerk. Officer Brunelle was concerned about a weapon being in the handbag. These facts fall within the reasonable suspicion standard articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The defendant argues that the seizure of the...