U.S. v. Ponce

• Decision Date: 23 October 1991
• Docket Number: No. 26,D,26
• Citation: 947 F.2d 646
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gerardo I. PONCE, Juan C. Gonzalez-Calas and Hipolito Reyes-Cotto, Defendants-Appellees. ocket 91-1140.
• Court: U.S. Court of Appeals — Second Circuit

Page 646

947 F.2d 646

UNITED STATES of America, Plaintiff-Appellant, v. Gerardo I. PONCE, Juan C. Gonzalez-Calas and Hipolito Reyes-Cotto, Defendants-Appellees.

No. 26, Docket 91-1140.

United States Court of Appeals Second Circuit.

Argued Aug. 29, 1991.

Decided Oct. 23, 1991.

Elliot H. Fuld, Bronx, N.Y. (Goldstein, Weinstein & Fuld, David J. Goldstein, of counsel), for defendant-appellee Ponce.

Robert G. Walsh, Blasdell, N.Y. (Walsh & Sampson, P.C., of counsel), for defendant-appellee Gonzalez-Calas.

John Patrick Pieri, Buffalo, N.Y. (Condon & Pieri, P.C., of counsel), for defendant-appellee Reyes-Cotto.

Susan M. Barbour, Buffalo, N.Y., Asst. U.S. Atty., W.D.N.Y. (Dennis C. Vacco, U.S. Atty., W.D.N.Y., of counsel), for plaintiff-appellant.

Before OAKES, Chief Judge, FEINBERG and CARDAMONE, Circuit Judges.

FEINBERG, Circuit Judge:

This is an interlocutory appeal by the government from an order of the United States District Court for the Western District of New York, John T. Curtin, J., granting the motion of defendants Gerardo I. Ponce, Juan C. Gonzalez-Calas and Hipolito Reyes-Cotto for suppression of evidence seized during the search of a vehicle pursuant to a search warrant. For the reasons set forth below, we reverse and remand for further proceedings.

Background

On the morning of March 10, 1988, Buffalo police responded to a call and came to the Fairfax hotel in Buffalo, New York. When the police arrived at Room 903, they were met by Julio and Martha Casamayor, who said that earlier that morning Mrs. Casamayor had been assaulted and threatened by two men, one of whom had a gun. The Casamayors identified the men as defendants Ponce and Gonzalez-Calas. The Casamayors also said, among other things, that they had previously overheard Ponce and Gonzalez-Calas say that they kept drugs and money in compartments in the side panels of their car, a 1982 two-tone green Monte Carlo. The Casamayors further said that the two men left the hotel that morning in their car. In addition, the Casamayors had a package of cocaine that Mr. Casamayor said Ponce had left in their apartment that morning. At the time they made these statements, the Casamayors were in custody for possession of the cocaine. Shortly thereafter, Narcotics Detective Lawrence Sadlocha arrived and advised the other officers that during the course of an ongoing investigation, he had observed Ponce and Gonzalez-Calas use the same Monte Carlo automobile in a drug trafficking operation. He had also previously seen the Monte Carlo in the hotel parking lot and noted its license plate number.

Based on this information, the police put out a "pick-up" order to stop and hold the vehicle and its five occupants. ¹ The pick-up order stated that the occupants were considered armed and in possession of narcotics and money. A short time later, other police officers acting in response to the order forcibly stopped the car; with guns drawn they ordered the five occupants, including the three defendants on this appeal, to get out. The police officers told the five occupants they were under arrest and patted them down, finding nothing. The car was not searched at that time. The occupants were then taken to police headquarters and held there for five hours while Detective Sadlocha was obtaining a search warrant.

After preparing an application for a search warrant and locating a judge, Sadlocha attended an in camera hearing at which he and Julio Casamayor testified. Sadlocha and Casamayor told the judge most of the same information that formed the basis of the pick-up order. The judge found probable cause and issued a search warrant. The subsequent search of the car pursuant to the warrant revealed cocaine, two weapons and $27,000 in cash hidden in secret compartments behind side panels in the car.

Defendants were charged in state court with possession of contraband. After a suppression hearing, the state court judge found the search warrant invalid but upheld the search as incident to a proper arrest. The Appellate Division reversed, holding that both the search warrant and the search incident to arrest were invalid. People v. Alonso, 158 A.D.2d 988, 551 N.Y.S.2d 723 (1990). The court suppressed the evidence and dismissed the state indictment.

Thereafter, a multi-count federal indictment was obtained charging defendants with, among other things, conspiring to violate the narcotics laws and use of a firearm in connection with that conspiracy. Three counts relate to the seizure of evidence at issue here. Appellees moved to suppress the evidence and the parties agreed that the record of the state suppression hearing would suffice for purposes of the motion to suppress in federal court. The district judge granted the motion to suppress, finding invalid the search warrant and the search incident to arrest. The court also rejected the government's contention that defendants had no standing to move to suppress.

Discussion

On its appeal, the government again argues that defendants did not meet their burden of showing that they had standing to complain of the search of the automobile. To mount a challenge to a search of a vehicle, defendants must show, among other things, a legitimate basis for being in it, such as permission from the owner. See United States v. Ochs, 595 F.2d 1247, 1253 (2d Cir.), cert. denied, 444 U.S. 955, 100 S.Ct. 435, 62 L.Ed.2d 328 (1979). Defendants who do not have a legitimate basis for being in a car that is not registered in the name of any of the car's occupants cannot object to the search of the vehicle. See United States v. Smith, 621 F.2d 483, 487 (2d Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 875, 66 L.Ed.2d 812 (1981). In United States v. Sanchez, 635 F.2d 47 (2d Cir.1980), we found that the defendant had "demonstrated neither ownership of the [car], nor license from the owner to possess the [car]." Id. at 64. In addition, the panel noted that the registered owner of the car had not appeared below and that "it appears that he was never located by the government." Id.

In the case before us, the record indicates that the registered owner of the car is Julio Alonso. As in Sanchez, it appears that the registered owner was never located by the government. Although the driver of the car was named Enrique V. Alonso, the record is barren of any showing that he was the same person as the registered owner.

Ponce contends that his right to be in the car was established because the police had observed him and Gonzalez-Calas use the car over a long period of time. The fact that defendants were observed using the car does not establish their right to use the car. For example, the car might have been stolen. More importantly, the burden is not on the police to show that defendants were in the car illegitimately. The burden is on the defendants to show a legitimate basis for being in the car, see Sanchez, 635 F.2d at 64, and that showing cannot be made simply by having been observed using the car.

We might at this point adopt the government's argument and reverse the district court's suppression order. However, special circumstances here suggest that it might be unduly technical to follow that course. The similarity of the last name of the driver of the car and the last name of the car's registered owner raises some question as to whether defendants had permission from the owner to use the car. This question apparently was not significant in the state court suppression hearing because the state judge ruled that defendants had standing under state law rules granting standing when certain possessory offenses are charged and a statutory presumption of possession applies. The possible difference in standing law in the federal and state systems may have been overlooked when the parties agreed that the state suppression hearing would suffice for purposes of the federal suppression claim.

Accordingly, we turn to the government's next argument that there was probable cause for the issuance of the warrant to search the car and therefore the seized evidence should not have been suppressed. It should be noted at the outset that a state court's suppression of evidence is not binding on a federal court. See, e.g., United States v. Davis, 906 F.2d 829, 832 (2d Cir.1990). Under federal law, probable cause to search a place exists if the issuing judge finds a "fair probability that contraband or evidence of a crime will be found in a particular place" and a federal court must apply a "totality-of-the-circumstances analysis" in pursuing this inquiry. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983...