U.S. v. Morales, 83-1714

• Decision Date: 28 June 1984
• Docket Number: No. 83-1714,83-1714
• Parties: UNITED STATES of America, Appellee, v. Carlos MORALES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 761

737 F.2d 761

UNITED STATES of America, Appellee, v. Carlos MORALES, Appellant.

No. 83-1714.

United States Court of Appeals Eighth Circuit.

Submitted March 16, 1984.

Decided June 28, 1984.

Before HEANEY, BRIGHT and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Carlos Morales appeals from a final judgment entered in the District Court for the Eastern District of Missouri upon a jury verdict finding him guilty of possession of cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). For reversal appellant argues that the district court erred in denying his motion to suppress evidence seized during a warrantless search of a motel room. On appeal the government argues that appellant lacks standing to challenge the search of the room. For the reasons discussed below, we reverse.

On February 27, 1983, police officer Terry Taylor observed suspicious activity involving room 244 of the Days Inn Motel located in Woodson Terrace, Missouri. Taylor entered the motel to inquire to whom room 244 was registered. Betty Wagner, the desk manager, informed him that the room was registered to a Jesus Pupo through March 2. Wagner also stated that room 244 had received many telephone calls and that whatever activity was occurring in room 244 had to be connected to room 141 because the telephone callers would ask to be connected to room 141 if there was no response in room 244. Later that evening, Officer Taylor returned to the motel. While Wagner was talking to him, she received a telephone call for room 244; the caller stated that there was an emergency and that she must be connected to room 244 immediately. Officer Taylor and police officer Richard Kipper, and James Carrino, the motel's night auditor, went to room 244 to investigate. Carrino knocked on the door and announced his presence. An occupant of the room opened the door and allowed the uniformed officers and Carrino to enter. Upon entering the room, the officers observed drug paraphernalia in plain view. The officers informed the occupants that they were under arrest, attempted to read them their constitutional rights, and asked for identification. The officers, however, had difficulty in communicating because the occupants spoke Spanish. One of the occupants identified himself as Carlos Diaz; the other occupant was later identified as appellant Carlos Morales. While placing Diaz and appellant under arrest, the officers observed appellant place his hand under a cushion of a chair. Officer Kipper reached under the cushion and found a key to room 141. The officers attempted to use Diaz "somewhat as an interpreter" because he understood some "broken English." The officers asked Diaz whether he or appellant possessed or knew about the key to room 141. Diaz disclaimed any interest in the key.

Carrino called the desk to inquire to whom room 141 was registered. The desk manager informed him that the room was registered through March 1 to a Bob Simon of Miami, Florida. Carrino and the officers then went to room 141. Carrino knocked on the door and when there was no response, the officers and Carrino entered. The officers searched the room and seized, among other items, 21 ounces of cocaine, approximately $17,000.00 in cash, a handgun, and narcotics paraphernalia.

Appellant was taken to a Drug Enforcement Administration office, where he was advised of his constitutional rights and questioned by a Spanish-speaking police officer. Appellant stated that he had arrived in the United States from Cuba and was a resident of Miami, Florida. Appellant denied any knowledge of the key to room 141 or that he had ever been in room 141.

Before trial, appellant moved to suppress the evidence. At the suppression hearing, appellant did not present any evidence. Officer Taylor testified that he searched room 141 because "[d]ue to him [unclear whether pronoun refers to appellant or Diaz] disclaiming knowledge of the key or having possession of the key, we felt we should check out room 141, to see if possibly anyone had been hurt in the room or [the room] had been burglarized." From the bench, the district court found that because appellant had possession of the key but had disclaimed knowledge of the key, the officers had the right to search room 141. The district court also found that because the officers had arrested appellant, they had the right to search room 141.

At trial the government introduced the cocaine, the money, and evidence that appellant's fingerprints were on several items seized from room 141. Appellant objected to the introduction of the evidence on the ground that he was not registered to room 141 and had no connection to the room. At trial appellant admitted that he went to a room on the first floor of the motel, where he had had several beers and had placed several telephone calls to Miami, Florida. He also testified that at the time of his arrest he had disclaimed possession and knowledge of the key to room 141 to the police officers and continued to disclaim any interest in the key or the room. During closing argument, the government stressed that appellant had constructive possession of the cocaine because he had dominion and control over room 141. The government "submit[ted] to [the jury] that [appellant] had the key in his possession."

On appeal the government argues that appellant does not have standing to challenge the search of room 141. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court held that the proper fourth amendment focus should be whether the defendant has a legitimate expectation of privacy in the searched premises and that the defendant has the burden of establishing a legitimate expectation of privacy. Id. at 139, 99 S.Ct. at 428. In this case, it is undisputed that appellant offered no evidence to demonstrate that he had a legitimate expectation of privacy in room 141.

Despite appellant's failure to prove that he had a legitimate expectation of privacy in room 141, we nonetheless find that because of the inconsistent positions the government has taken at trial and on appeal concerning appellant's alleged disclaimer of knowledge of the key, ¹ the government has lost its right to challenge appellant's standing. At the suppression hearing, the government argued that because appellant disclaimed knowledge of the key which he possessed, he must have been in wrongful possession of the key and therefore had burglarized room 141. At trial, the government successfully argued that because appellant had possession of the key, he had dominion and control over room 141 and therefore had constructive possession of the cocaine seized from the room. Now on appeal, the government argues that because appellant disclaimed knowledge of the key, he abandoned the key and could not therefore have a legitimate expectation of privacy in room 141.

Under certain circumstances a disclaimer of an interest in property may constitute an abandonment. United States v. Veatch, 674 F.2d 1217, 1221 (9th Cir.1981) (listing cases holding that disclaimer of interest in property may constitute an abandonment), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982). "The very notion of abandonment ... implies a renunciation of any reasonable expectation of privacy." United States v. Alden, 576 F.2d 772, 777 (8th Cir.), cert. denied, 439 U.S. 855, 99 S.Ct. 167, 58 L.Ed.2d 161 (1978). However, abandonment is a question of fact " 'based generally upon a combination of action and intent.' Consequently, the district court's finding of abandonment will not be overturned on appeal unless clearly erroneous." Id. (citation omitted). In this case, whether appellant's disclaimer of knowledge of the key at the time of the search constituted an abandonment was never presented to the district court. In fact, the district court found that although appellant disclaimed knowledge of the key, he still possessed it. A leading commentator has cautioned that "[a]bandonment must be distinguished from a mere disclaimer of a property interest made to the police prior to the search, which under the better view does not defeat standing." 3 W. LaFave, Search & Seizure Sec. 11.3, at 548-49 (1978).

In Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), the Supreme Court...