U.S. v. Osorio

• Decision Date: 06 November 1991
• Docket Number: No. 1152,D,1152
• Parties: UNITED STATES of America, Appellee, v. Norberto OSORIO and Jesus A. Castro, Defendants, Jesus A. Castro, Defendant-Appellant. ocket 90-1665.
• Court: U.S. Court of Appeals — Second Circuit

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949 F.2d 38

UNITED STATES of America, Appellee, v. Norberto OSORIO and Jesus A. Castro, Defendants Jesus A. Castro, Defendant-Appellant.

No. 1152, Docket 90-1665.

United States Court of Appeals Second Circuit.

Argued April 19, 1991.

Decided Nov. 6, 1991.

Lawrence M. Herrmann, New York City, for defendant-appellant.

Burton T. Ryan, Jr., Asst. U.S. Atty., E.D.N.Y. (Andrew J. Maloney, U.S. Atty., David C. James, of counsel), Brooklyn, N.Y., for appellee.

Before MESKILL, PRATT, and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Drug Enforcement Task Force agents made a warrantless nonconsensual entry into an apartment where appellant Castro was a guest and was sleeping. The agents searched the apartment and seized several items. The sole issue on this appeal is whether Castro's Fourth Amendment rights were violated by the search. We find that they were.

BACKGROUND

We first briefly summarize the relevant facts. On September 22, 1989, Castro entered the United States as a resident alien. Finding his former residence in Queens, a basement apartment, to be cold and damp, he stayed at his girlfriend's house until September 26. On September 26, his former roommate and co-defendant Norberto Osorio telephoned Castro at the home of his girlfriend and invited him to have a few drinks with him at the home of James Cardenas--the second floor apartment of the building located at 99-54 63rd Ave., Forest Hills, Queens. Castro had known Cardenas for eight or nine years, and considered him a friend. At the suppression hearing, Castro testified through an interpreter that Osorio had invited him to Cardenas's to "stay with [Osorio] so we could talk for a while and take a few drinks." Castro further testified that Osorio told him that Osorio had spoken to Cardenas and that they agreed that "we should meet in James' house, we should talk for a while ... and then we should have a few drinks."

Castro arrived at Cardenas' apartment at about ten p.m. on the evening of September 26. The apartment has three bedrooms, two bathrooms, and a kitchen and living area. Cardenas was present at the apartment, as was Miguel Ruiz, whom Castro had met earlier that day. Castro testified that upon arrival, he took a look around the apartment. The doors of the various rooms were open. The three sat around in the living area of the apartment and talked, waiting for Osorio.

Osorio, who had been arrested elsewhere, never arrived. Castro testified that he had received an invitation to sleep at Cardenas' apartment. In any case, the three retired to bed shortly after midnight. Castro and Cardenas shared a bunk bed in one of the bedrooms right off the kitchen; Ruiz slept in another bedroom. Before going to sleep, Castro undressed, except for his pants. He then went to sleep in the lower bed of the bunk bed; Cardenas occupied the upper bed.

At approximately 2:00 a.m., six or seven members of the Drug Enforcement Task Force knocked on the front door of the apartment building. The first floor resident and building owner, Jose Bravo, admitted the officers. They proceeded to the second floor, knocked on the door, and shouted, "Police." Cardenas opened the door and the officers came in. Cardenas refused to grant the officers his consent to search the apartment.

By this time, Castro had emerged from the bedroom, and Ruiz was in the kitchen. The officers directed Ruiz, Cardenas, and Castro to sit at the kitchen table. The agents immediately began to search the apartment and seize evidence without a warrant. About three hours later, at 5:00 a.m., an oral search warrant was issued. By 5:30 a.m., the search was concluded and Ruiz, Castro, and Cardenas arrested. From the kitchen, the officers seized a kilogram of cocaine, apparently from a garbage can, and a money counting machine and two boxes of ammunition. The government also seized approximately $65,000 in cash and two guns from the bedroom in which Castro and Cardenas had been sleeping, and a pink shirt from Ruiz's bedroom.

Following their indictment with Osorio for conspiring to distribute and possess cocaine with intent to distribute and two counts of possession of cocaine with intent to distribute, defendants Ruiz, Castro, and Cardenas moved to suppress the physical evidence seized during the search. The district court granted the motions of all the defendants except Castro. As to Castro, the district court held that because Castro was merely a casual visitor to Cardenas' apartment, his Fourth Amendment rights had not been violated by the illegal search. The district court found that Castro had not been invited to stay overnight, but was only in Cardenas' apartment in order to meet Osorio. At the time of Osorio's arrival, the district court found, both would depart and Castro would be Osorio's invited overnight guest.

Castro pleaded guilty conditionally to conspiring to distribute and possess cocaine, pursuant to Fed.R.Crim.Pro. 11(a)(2). He was sentenced to 33 months imprisonment followed by three years of supervised release. His plea is conditioned upon the outcome of this appeal.

DISCUSSION

On appeal, the government does not contest the illegality of the search and seizure of the items in Cardenas' apartment. Rather, the only issue is whether the search and seizure violated Castro's Fourth Amendment rights. See Rakas v. Illinois, 439 U.S. 128, 138-39, 99 S.Ct. 421, 427-28, 58 L.Ed.2d 387 (1978) (framing question to be one of "particular defendant's rights under the Fourth Amendment," rather than one involving "standing"). We review the question of whether a defendant's Fourth Amendment rights were violated by a governmental action de novo, although we review the district court's determination of underlying facts for clear error. United States v. Davis, 932 F.2d 752, 756 (9th Cir.1991).

The party moving to suppress bears the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978); United States v. Davis, 932 F.2d 752 (9th Cir.1991). The movant must show that he had an expectation of privacy in the invaded place and that the expectation was legitimate, one that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); Rakas v. Illinois, 439 U.S. at 140-41, 99 S.Ct. at 428-29; United States v. Paulino, 850 F.2d 93 (2d Cir.1988). In evaluating these claims, the court generally considers whether the defendant had any property or possessory interest in the place searched or the items seized. Rakas v. Illinois; United States v. Paulino; United States v. Davis, 932 F.2d 752, 756 (9th Cir.1991); United States v. Burnett, 890 F.2d 1233 (D.C.Cir.1989).

Castro concedes that he had no property or possessory interest in the items seized. Castro argues, however, that the district court was clearly erroneous in concluding that he was not an overnight guest and that, as an overnight guest, Castro's Fourth Amendment rights were violated by the search. He cites Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), in which the Supreme Court held that the warrantless arrest of an overnight guest in the home of another violated the guest's Fourth Amendment rights.

We turn first to the issue of whether Castro was in fact an overnight guest at Cardenas' apartment. The district court's conclusion that Castro was not an overnight guest was predicated upon the finding that Castro was to be an overnight guest of Osorio's, "at Osorio's apartment, probably [in Queens]." Mem. of June 20, 1990, at 3.

The record does not support this finding. Castro did not testify that Osorio had invited him to Osorio's apartment. Rather, Castro's testimony was that Osorio had invited Castro to "stay with [Osorio] so we could talk for a while and take a few drinks." The purpose of the invitation was clearly for conversation and entertainment. Even if the word "stay," taken alone and as translated from the Spanish, could be construed to imply an overnight invitation, Osorio had not invited Castro to Osorio's house. Rather, the invitation was to the home of Castro's long-time friend Cardenas, to "talk for while ... and then [ ] have a few drinks."

Whatever the state of the invitations that led Castro to Cardenas' apartment, however, after Osorio failed to show up, the only reasonable conclusion is that Castro became an overnight guest of Cardenas. It was at that time, not previously, that Castro received an overnight invitation. At the suppression hearing, the following exchange took place:

Q: Did anyone invite you to stay over and sleep [at Cardenas' house in Queens]?

A: Yes.

Castro never specifically stated whether it was Cardenas or Ruiz who issued the invitation to stay overnight at Cardenas' house. In any event, Cardenas shared his bedroom with Castro, who, half undressed, retired to bed at the same time as Cardenas. Thus, it is inescapable that Cardenas permitted Castro to stay in his apartment for the night. That is all that Olson requires to qualify as an overnight guest. In Olson, the defendant's guest status rested on the fact that he "spent the night of the robbery on the floor of the Bergstrom's house, with their permission." Id. 110 S.Ct. at 1688 n. 6.

We accordingly conclude that the district court was clearly erroneous in finding that Cardenas' apartment served only as a ...