U.S. v. Ramirez

• Decision Date: 13 February 1987
• Docket Number: No. 86-3264,86-3264
• Citation: 810 F.2d 1338
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis RAMIREZ, Leopoldo Alegria-Valencia, Antonio G. Rodriguez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1338

810 F.2d 1338

UNITED STATES of America, Plaintiff-Appellee, v. Luis RAMIREZ, Leopoldo Alegria-Valencia, Antonio G.

Rodriguez, Defendants-Appellants.

No. 86-3264.

United States Court of Appeals, Fifth Circuit.

Feb. 13, 1987.

Frank Silvestri, New Orleans, La., for Ramirez.

Bruce G. Whittaker, New Orleans, La., for Valencia.

John H. Craft, New Orleans, La., for Rodriguez.

Cynthia Hawkins, Asst. U.S. Atty., John P. Volz, U.S. Atty., Harry W. McSherry, Jr., Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before VAN GRAAFEILAND ^*, HIGGINBOTHAM, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellants, Luis Ramirez, Leopoldo Alegria-Valencia, and Antonio G. Rodriguez were convicted following a jury trial for various violations of the Federal Controlled Substances Act. Alegria, and possibly Rodriguez, challenge the Drug Enforcement Agency's ("DEA") search of luggage and other items which were left in an abandoned hotel room. Ramirez urges that a Brady ¹ violation occurred. All three appellants question the sufficiency of the evidence and the failure of the district court to give certain jury instructions. We affirm.

Gabriel Quadri, a paid government informant, was approached by two Colombians who planned to smuggle a large amount of cocaine into the United States. Shortly afterward, in November, 1985, two of the Colombians' contacts, "Beto" and "Paco" met Quadri in New Orleans to arrange for the delivery of the cocaine from the M/V TUXPAN, docked in Gramercy, Louisiana. Quadri agreed to drive Paco and three of his confederates, Alegria, Rodriguez, and Jose Tapia, to Gramercy to retrieve the contraband.

Quadri testified that during the 35 to 40 minute trip, everyone in the car discussed the off-loading of the cocaine. Upon reaching Gramercy, Quadri dropped off Beto, Paco, and Alegria and proceeded to the TUXPAN with Rodriguez and Tapia, where they received a portion of the cocaine. ² The trio returned to Gramercy, picked up Beto, Paco, and Alegria and headed for New Orleans. Moments later, their vehicle was stopped by government agents, the occupants were searched, and six packages of cocaine were found secreted on the persons of Rodriguez and Tapia and lying in the car. Cash in the amount of $14,500 was recovered from Paco.

The sting was not yet complete. Following the arrest, two agents, Gonzales and Stein, took the $14,500 found on Paco and returned with Quadri to the TUXPAN intending to purchase more cocaine from crewmember Gomez. The three men negotiated the purchase in Gomez's cabin. Agent Gonzales placed the cash on a table, but ostensibly because of his limited education, Gomez refused to count it. Gomez left the cabin and retrieved fellow crewmember Ramirez who Gomez said would count the money. As Ramirez attempted to leave the cabin with the money, Gonzales stopped him and insisted upon seeing the merchandise. Ramirez then turned to Gomez and instructed him to show Gonzales the cocaine. Gomez gave Quadri several packages of cocaine. As Quadri left the vessel, the agents arrested Ramirez and Gomez.

Meanwhile, another government agent, Mark Greenlee, went to the Rodeway Inn in Kenner where several of the defendants had been staying. According to the hotel manager, Room 220 was registered under Alegria's name through noon of the next day (November 26, 1985). Greenlee stayed and watched the room. Having observed no activity, he left at approximately 2:00 a.m. the next day and returned at 8:00 a.m. During Greenlee's absence, the manager had seen no one return to Room 220. Greenlee told the manager that if the room were later determined to be abandoned, he (Greenlee) would like to view any personal property.

Not surprisingly, no one returned to the hotel room, the rental period expired, and the manager began to ready the room for new occupants. Following his usual procedure, the manager examined the property in the abandoned room and the next day, November 27, he requested Greenlee to assume custody of the property. Among the items Greenlee recovered from the hotel room were several suitcases containing money, used airline ticket stubs bearing the names of Rodriguez and Alegria, and a boarding pass bearing the name of Alegria. An address book containing the names and telephone numbers of Quadri and of other coconspirators and the name of the TUXPAN, was found lying on a table in Room 220.

Except for the three appellants, all co-conspirators pleaded guilty to the drug offenses for which they were charged. The jury found all three guilty of various offenses related to conspiracy or possession with intent to distribute cocaine or importation of cocaine.

I.

Alegria challenges the denial of his motion to suppress evidence obtained from the search of Room 220 at the Rodeway Inn. Although Rodriguez adopted the briefs of his co-defendants by letter instead of submitting a separate brief, it is not certain whether he participates in appeal of this claim. Nevertheless, because Rodriguez apparently shared Room 220 with Alegria and because Rodriguez's counsel orally joined the motion to suppress in the trial court, we will address this issue with regard to Alegria and Rodriguez.

For fourth amendment purposes, it is necessary to analyze the search of the room and the inspection of the personal property separately. Regarding the room search, Alegria argues that the DEA, having waited for the rental period to expire instead of securing a search warrant, improperly exploited an exception to the exclusionary rule. Appellants explicitly acknowledge the "well-settled rule that a guest in a hotel or motel loses his reasonable expectation of privacy and consequently any standing to object to 'an unauthorized seizure of the premises' after his rental period has terminated." United States v. Jackson, 585 F.2d 653, 658 (4th Cir.1978), quoting United States v. Parizo, 514 F.2d 52, 54-55 (2d Cir.1975). ³

Citing United States v. Dowell, 724 F.2d 599 (7th Cir.1984), appellants analogize Agent Greenlee's conduct to a situation in which law enforcement officials deliberately wait for exigent circumstances to arise before conducting a warrantless search and seizure. This argument is as ingenious as it is erroneous. While Dowell implies that such conduct might render illegal a search and seizure otherwise justifiable by reference to exigent circumstances, its statements to that effect constitute sheer dicta. ⁴ The dicta, are, moreover, contrary to the controlling law of this circuit found in United States v. Mitchell, 538 F.2d 1230 (5th Cir.1976) (en banc), cert. denied, 430 U.S. 945, 97 S.Ct. 1578, 51 L.Ed.2d 792 (1977). In Mitchell, this court held that even if government agents had time to obtain a warrant to search a vehicle, their failure to do so did not taint a search and seizure which was justified at the time of its conduct by the exigent circumstances exception. Appellants' proposed "exploitation" argument is fully refuted by the holding of Mitchell:

We deal here with a crime and a criminal, not with a sporting event. True, the constable put himself in the way to blunder, though he did not. Appellant would nevertheless have us disqualify him from the game because he chose a course less than the best, or perhaps because his heart was not entirely pure. But it was not a game, and we decline to do so.

Id. at 1233-34.

Because the hotel room was abandoned, appellants had forfeited their reasonable expectation of privacy in it, and a search by the hotel manager did not trespass on appellants' fourth amendment rights. An equally compelling refutation of appellants' position, as will be discussed below, is that the hotel manager was not acting in the capacity of a government agent, and his independent conduct implicated no fourth amendment concerns.

Appellants purport to assert nevertheless a reasonable expectation of privacy in the address book and luggage which were obtained and searched by the hotel manager before he delivered them to the government. Their contention is fundamentally flawed by the fact that neither appellant has asserted ownership of the address book or luggage. "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978). Even if we assume that the airline ticket papers bearing the names of Rodriguez and Alegria were appellants' property, they may not assert that the search or seizure of the luggage which contained the papers was constitutionally infirm. The Supreme Court held in Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), that a defendant had no legitimate expectation of privacy in a friend's purse where he had stored illegal drugs. Rawlings undertook a careful analysis of the facts to determine whether the defendant could appropriately seek shelter within the fourth amendment. The analysis here is, by contrast, perfunctory and the result foreordained because Alegria and Rodriguez established no facts at the suppression hearing concerning ownership of the luggage or the terms under which their ticket stubs were placed in it. See also U.S. v. Strmel, 744 F.2d 1086, 1088-89 (5th Cir.1984); United States v. Renton, 700 F.2d 154, 160-61 (5th Cir.1983). Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), cited by appellants, is inapposite. In that case, the closed luggage was unquestionably owned by and in the possession of the defendant when it was searched.

Equally undermining appellants' contention that they are entitled to fourth amendment protection is the fact that the room was searched and the luggage seized and inspected initially by a private party, the hotel manager. The ...