U.S. v. Robertson

• Decision Date: 30 November 1987
• Docket Number: Nos. 86-3068,86-3074,s. 86-3068
• Citation: 833 F.2d 777
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leslie Craig ROBERTSON, and Connie M. Steeprow, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 777

833 F.2d 777

56 USLW 2362

UNITED STATES of America, Plaintiff-Appellee, v. Leslie Craig ROBERTSON, and Connie M. Steeprow, Defendants-Appellants.

Nos. 86-3068, 86-3074.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 7, 1987.

Decided Nov. 30, 1987.

Robert J. McCrea, Eugene, Or., for defendant-appellant Robertson.

Donald D. Diment, Jr., Eugene, Or., for defendant-appellant Streeprow.

Thomas N. Coffin, Eugene, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before ANDERSON, TANG and NOONAN, Circuit Judges.

OPINION IN No. 86-3068.

NOONAN, Circuit Judge:

Leslie Craig Robertson and Connie M. Steeprow appeal rulings on suppression of evidence. Robertson had stipulated that the evidence was sufficient to show that he had manufactured methamphetamine on a residence located at 855 68th Street, Springfield, Oregon and Steeprow had stipulated that the evidence was sufficient to show she attempted to manufacture methamphetamine at the same address. The stipulations are void if the motions to suppress are reversed on appeal. We affirm the district court as to Robertson, reverse as to Steeprow.

I

On October 16, 1985, at about 1:45 P.M., Richard W. Wisenor, an agent of the Drug Enforcement Agency (DEA), in Eugene, Oregon learned from an anonymous telephone call that Lyle Johnson was operating "a crank lab" at 855 68th Street, Springfield, Oregon, where the informant said Johnson lived. Wisenor, a veteran of 14 years with the DEA, knew that "a crank lab" was a manufactory of methamphetamine. His informant told him that she had visited the lab that morning and that it had been in operation with Johnson and two associates present.

Wisenor learned from the Springfield Utilities Board that Johnson was indeed a customer listed at 855 68th Street. He himself knew that Johnson had prior arrests for manufacturing methamphetamine in Lane City, Oregon. He now learned from state police of an outstanding Oregon arrest warrant against Johnson for this crime. The warrant, issued March 15, 1985, was, according to the county clerk, still valid. Driving to Springfield, Wisenor and a state police officer inspected the house at 855 68th Street from the outside and noted that the house windows were curtained and the garage windows were masked. They also observed by the house a black pick-up truck that turned out to be registered to a person with a prior drug record.

At about 4:30 P.M. of the same day, Wisenor accompanied by seven other police officers--Springfield Police, Oregon State Police, and DEA agents--arrived to arrest Johnson on the state warrant. They saw two persons--a woman, later identified as Steeprow, leaving the house on the walkway; a man, later determined to be Johnson, in the doorway. When the man saw the uniformed officers, he stepped inside, slammed the door and bolted it. The agents told the woman to freeze and displayed guns. The police then ordered the man to open the door and when nothing happened they forced it open. They found Johnson hiding under a foam rubber pad in the kitchen. Johnson told the police he had been "cooking" all day and felt sick. Wisenor noted equipment characteristic of a crank lab and sniffed such a laboratory's characteristic odor.

Shortly after the entry, Wisenor told Steeprow that she was free to go if she would leave her backpack and purse behind. She refused to leave them behind and therefore remained. Wisenor wrote out by hand a 7-page affidavit detailing the day's events. Some three hours later a warrant was issued by Magistrate Michael Hogan on the basis of Wisenor's affidavit.

With the warrant secured, the agents searched the house and Steeprow's backpack. Steeprow's and Robertson's fingerprints were found on the laboratory equipment. Formulas for making methamphetamine were found, in her handwriting, in Steeprow's backpack.

Johnson killed himself in prison. Robertson and Steeprow were indicted and moved to suppress the evidence. After a hearing, Magistrate Hogan made findings of fact and recommended denial of their motions. After a further hearing, District Judge James Burns denied them. Robertson was convicted of manufacturing methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 and was sentenced to fifteen years in prison with a five year special parole term. Steeprow was convicted of attempting to manufacture methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 and 18 U.S.C. Sec. 2 and was sentenced to five years in prison. Each appealed. Their appeals have been consolidated for argument and decision.

II

A

Robertson argues that the seven-month delay in execution of the arrest warrant for Johnson was unconstitutional, violating the rights of "the individual" under the Fourth Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and comparable Oregon constitutional and statutory provisions. He claims that the warrant should have been executed during a routine traffic stop of Johnson months earlier.

Robertson encounters a fundamental obstacle: standing. A defendant must show standing even if the government has not pressed the issue in the district court. United States v. Nadler, 698 F.2d 995, 998 (9th Cir.1983). Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425-26, 58 L.Ed.2d 387 (1978). Even when officers make a blatantly pretextual arrest of one defendant that creates exigent circumstances justifying search of a second defendant's house, the second defendant may not challenge the legality of the arrest. United States v. Chase, 692 F.2d 69, 70 (9th Cir.1982). Here it is undisputed that the arrest warrant named only Johnson. Had he survived, he could have raised a challenge to the delay in execution of the warrant. Standing in for the dead man, Robertson may not invoke any rights Johnson might have had.

As to the alleged violations of state law, the evidence would be admissible in any case, United States v. Kovac, 795 F.2d 1509, 1511 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 951, 93 L.Ed.2d 1000 (1987). If Oregon law were relevant, Robertson lacked standing. State v. Emery, 41 Or.App. 35, 597 P.2d 375 (1979).

B

Robertson relies upon the district court's finding that he lived at the house to argue that his expectation of privacy was violated by execution of the arrest warrant for Johnson without a search warrant. Robertson, however, at most shared the residence with Johnson, who held the lease and paid the rent and utilities. As it was lawful for the police to enter to arrest Johnson, their entry was not excludable as a violation of any expectation of privacy on the part of Robertson. United States v. Ramirez, 770 F.2d 1458, 1460 (9th Cir.1985). Johnson was not Robertson's guest. See Steagald v. United States, 451 U.S. 204, 213, 101 S.Ct. 1642, 1648, 68 L.Ed.2d 38 (1981). Johnson was as much a resident as Robertson and so his residence could be entered with a warrant for his arrest. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980); Ramirez, supra; United States v. Underwood, 717 F.2d 482 (9th Cir.1983) (en banc), cert. denied, 465 U.S. 1036, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984). Robertson's motion to suppress fails.

The judgment as to Robertson is AFFIRMED.

OPINION IN No. 86-3074.

TANG, Circuit Judge:

In Steeprow's appeal, the facts are as set forth in United States v. Robertson, No. 86-3068. Steeprow challenges her detention and the subsequent search of her back pack.

I

Steeprow's Detention:

Steeprow objects to her detention, contending that it was not a Terry stop, but an arrest for which probable cause was lacking. We agree with this contention.

A

Whether an arrest has occurred depends on all the surrounding circumstances, including the extent to which liberty of movement is curtailed and the type of force or authority employed. See United States v. Patterson, 648 F.2d 625, 632 (9th Cir.1981) (citing United States v. Harrington, 636 F.2d 1182, 1186 (9th Cir.1981) (citations omitted)). We often confront the issue of when a legitimate "Terry stop," for which only reasonable suspicion of criminal activity is required, escalates into an arrest for which probable cause is required. The differing standards for each reflect the differing degrees of intrusion characteristic to each. A Terry stop involves no more than a brief stop, interrogation and, under the proper circumstances, a brief check for weapons. Beyond such a brief and narrowly circumscribed intrusion, an arrest occurs, for which probable cause is required. See Kraus v. City of Pierce, 793 F.2d 1105, 1108-09 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987). The ultimate question is whether, in view of all the circumstances, a reasonable person would believe himself to be under arrest. Id. In Kraus, we examined the turning of spotlights on defendants, along with the confrontation of them by officers with weapons drawn. Defendants were ordered to raise their arms and drop to their knees. We held that, under these circumstances, a reasonable person would believe himself to be under arrest. 793 F.2d at 1109. Previously, in United States v. Strickler, 490 F.2d 378 (9th Cir.1974), we had held that, where police cars surrounded a vehicle occupied by the defendant and pointed their guns at him, an arrest and not a mere investigatory detention had occurred, and thus could be justified only if probable cause existed. Id. at 379. We reasoned that, while at gunpoint, the restriction of defendant's liberty of movement was complete. In Strickler, we could discern no difference in terms of restriction of liberty between holding defendant at gunpoint and handcuffing him and pronouncing him to be under arrest. Similarly, in United States v. Ramos-Zaragosa, 516 F.2d 141, 144 (9th Cir.1975), we held...