U.S. v. Rackley, 82-6020

• Decision Date: 13 February 1984
• Docket Number: No. 82-6020,82-6020
• Citation: 742 F.2d 1266
• Parties: 15 Fed. R. Evid. Serv. 103, 16 Fed. R. Evid. Serv. 326 UNITED STATES of America, Plaintiff-Appellee, v. Robert RACKLEY, Randall T. Crosby, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1266

742 F.2d 1266

15 Fed. R. Evid. Serv. 103, 16 Fed. R. Evid.

Serv. 326

UNITED STATES of America, Plaintiff-Appellee, v.Robert RACKLEY, Randall T. Crosby, Defendants-Appellants.

No. 82-6020.

United States Court of Appeals Eleventh Circuit.

Feb. 13, 1984.

Bruce E. Wagner, P.A., Fort Lauderdale, Fla., for Rackley.

Ernest A.J. Kollra, Fort Lauderdale, Fla., for Crosby.

Lurana Snow, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before RONEY, HATCHETT and ANDERSON, Circuit Judges.

HATCHETT, Circuit Judge:

Appellants, Robert Rackley and Randall T. Crosby, appeal their convictions for possession of cocaine with intent to distribute in violation of 21 U.S.C.A. Sec. 841(a)(1)and18U.S.C.A. Sec. 2, and conspiracy to distribute cocaine in violation of 21 U.S.C.A. Sec. 846.¹We affirm Rackley's convictions, but reverse Crosby's convictions.

I.FACTS

On July 7, 1982, United States Customs Group Supervisor Robert Guthrie, of the Florida Joint Task Group, informed Special Agent David McAndrews that an anonymous telephone caller informed him that drugs were being off-loaded from a boat at 714 Northeast 20th Avenue (house), in Fort Lauderdale, Florida.Agents McAndrews, Bruckner, and Heitschmidt proceeded to the house and "camped out" on the next-door neighbors' property in order to observe the area for illegal activity.The agents saw a fifty-foot boat, the "Miss Deb," tied in back of the house, but no incriminating activity.

McAndrews, Bruckner, and Heitschmidt walked to the front of the house at 714 Northeast 20th Avenue, and, as McAndrews started to knock on the door, he heard voices coming from the garage.With his ear to the garage door, McAndrews heard the sound of material being torn and a person saying, "[t]his looks like good stuff."

After leaving the premises, McAndrews ordered Bruckner and Heitschmidt to maintain surveillance of the house while he radioed for "backup" officers.Upon arrival of the backup officers, Agent Slick observed four men standing in the driveway of the house.Agent Slick could not tell whether these were the same men heard talking in the garage.When the four men went inside the house, the agents proceeded to the rear of the property.At the rear of the house, Agent McAndrews shouted at the men to come outside, displayed his badge, and identified himself as a Customs agent.As the agents watched, one of the four men "bolted" out of sight.The other three men came out of the house.The man who "bolted" out of sight was later identified as Kevin Pritchett.Although never apprehended, he was tried and convicted in absentia.The three men who came out of the house were William Sanders, Robert Rackley(appellant), and Randall T. Crosby(appellant).

When asked who owned the property, Sanders identified himself as the lessee.McAndrews asked if he could look inside the house for the man who had run away; Sanders said, "yes."McAndrews drew his weapon and, accompanied by Sanders, walked through the rooms of the house looking for the man later identified as Kevin Pritchett.When they reached the kitchen, McAndrews observed a door leading to the garage.McAndrews asked Sanders if the man could be in the garage.Sanders replied that he did not know, but agreed that the agent could look inside if he wished.Upon entering the garage, McAndrews first noticed an air conditioning unit with an alcove located behind it.No one was in the alcove.

Immediately thereafter, however, McAndrews noticed a strong acidic smell which he recognized to be the smell of cocaine.The odor came from two large plastic bags resting on a washing machine.When McAndrews asked Sanders what was in the bags, Sanders asked to see the agent's warrant.McAndrews then asked whether the "coke" belonged to Sanders; Sanders again asked to see the agent's warrant.At this point, McAndrews and Sanders went back outside, and Sanders, Rackley, and Crosby were placed under arrest.The arrest occurred prior to 2 p.m.Other DEA agents then secured the house while a search warrant was being obtained.

While the warrant was being prepared, McAndrews directed Sanders, Rackley, and Crosby to remove their shirts.Another agent, not realizing that the purpose for obtaining the shirts was to analyze them for drug residue, put all three shirts in the same paper bag.

Officers obtained a search warrant at approximately 9 p.m.Other agents arrived at the premises, accompanied by a specially trained narcotics detection dog.The dog, "Biff," was allowed to sniff around the driveway and house."Biff" alerted to plastic bags of clothing containing traces of cocaine in a flat-bed pickup truck parked in the driveway."Biff" also alerted to the trunk of a Lincoln Continental automobile parked near the pickup truck.When agents opened the trunk of the automobile, they found three blue suitcases stacked upon one another.The agents obtained another search warrant for the three suitcases.After obtaining the second search warrant, the agents opened the suitcases and found each one filled with cocaine.The agents seized a total of 260 pounds of cocaine from the house and vehicles.

Sanders, Rackley, and Crosby moved to suppress introduction of the cocaine and all physical evidence obtained by the search.At the suppression hearing, in an effort to establish Rackley's standing to contest introduction of evidence obtained during the search, Sanders testified that Rackley was a friend who often stayed in the house.He asserted that Rackley had a key, as well as the right to exclude others from the house.The government established on cross examination, however, that Rackley did not store items in the house when he was not in town, and that he only slept in the guest room.Further, the government elicited cross examination testimony establishing that Rackley had not stayed at the house the night before the raid.The district court denied the motions to suppress.²

At trial, the government agents testified that Rackley appeared to be very nervous when he came out of the house.They assumed he was nervous because he had a problem opening a can of soft drink.The government also placed into evidence a copy of the pickup truck's registration certificate, reflecting that the truck was registered to Rackley.Rackley called as a witness a forensic chemist who testified that, in his opinion, the cocaine found in trace amounts on the three shirts did not come from the cocaine found in either the pickup truck or the Lincoln Continental.The government then offered rebuttal testimony by a DEA chemist who explained that the cocaine found on the truck and in the Lincoln Continental could not validly be compared to the cocaine found on the clothing, because the cocaine found on the clothing had been exposed to contaminants such as moisture and heat.During the redirect examination of "Biff's" handler and trainer, the government conducted an in-court demonstration of "Biff's" ability to alert to drugs.

After testifying at the suppression hearing, Sanders failed to appear at trial.His bail was forfeited, and he was tried in absentia.All three defendants were convicted on both counts.Sanders's appeal was dismissed in November, 1982.Rackley and Crosby have raised on appeal the issues discussed below.

II.ISSUES

The four main issues raised on appeal are: (1) whether the district court properly denied the appellants' motion to suppress evidence; (2) whether the evidence was sufficient to convict appellants Rackley and Crosby; (3) whether the district court abused its discretion in permitting a live demonstration before the jury; and (4) whether the district court properly instructed the jury on circumstantial evidence.

A.Suppression of Evidence

Appellants, Rackley and Crosby, contend that the district court erred in denying their motion to suppress the seized cocaine, as well as the "trace" amounts of cocaine found on their shirts.They assert that the evidence should be suppressed because they were subjected to an illegal detention and arrest without probable cause.They assert that the warrantless search of the house was illegal, as was the sampling and testing of the substance taken from the bags located in the garage.Moreover, Crosby and Rackley insist that neither of them ever exercised any dominion or control over the narcotics or the premises where they were found.In the alternative, they argue that the only nexus between them and the cocaine is that they were present when the cocaine was found.

The government asserts that the appellants' motion to suppress was properly denied because neither appellant had an expectation of privacy in either the house, garage, or Lincoln Continental.Further, the United States argues that the initial search was conducted pursuant to the valid consent of Sanders, the lessee.

A person challenging the constitutionality of a search must show that he possesses a legitimate expectation of privacy in the premises searched or the items seized.Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387(1978);United States v. Long, 674 F.2d 848, 852(11th Cir.1982);United States v. Richards, 638 F.2d 765, 769(5th Cir.), reh'g denied, 646 F.2d 962, cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638(1981).A defendant's fourth amendment rights are violated only when the challenged conduct invades that party's legitimate expectation of privacy rather than the expectation of privacy of a third party.United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468(1980).

The evidence shows that neither Crosby nor Rackley had a legitimate expectation of privacy to afford them standing to contest the search of the house.In United States v. Meyer, 656 F.2d 979(5th Cir.1981), the Fifth Circuit stated that:

[w]hile an ownership or possessory interest is not necessarily...