US v. Donnes
| Decision Date | 18 October 1990 |
| Docket Number | No. CR89-0101J.,CR89-0101J. |
| Citation | 752 F. Supp. 411 |
| Parties | UNITED STATES of America, Plaintiff, v. Edward Lee DONNES, Defendant. |
| Court | U.S. District Court — District of Wyoming |
COPYRIGHT MATERIAL OMITTED
John Barksdale, U.S. Atty., Casper, Wyo., for plaintiff.
Douglas G. Madison, Cheyenne, Wyo., for defendant.
On March 28, 1989, the defendant Edward Donnes left Billings, Montana, en route to Sheridan, Wyoming. He and his traveling companions were driving a U-Haul truck and a 1973 Ford Galaxy. He was accompanied by his half brother, Jack Welch, and a friend, Peggy O'Donnell. The U-Haul had been rented in O'Donnell's name. The defendant and O'Donnell testified that the purpose of their trip was to retrieve the defendant's belongings located in a rented house and garage in Sheridan, where the defendant had lived for "quite a while" with his then-girlfriend, Cheryl Flippin. The evidence indicates that he had lived there continuously until at least February of 1989. The residence was rented by Flippin, using the name Dianne Whittier, from a Mr. Jack Marousak. Prior to leaving the house in March of 1989, Donnes and Flippin put a hasp and padlock on the front door to secure the premises.
On March 23, 1989, while Donnes and Flippin were gone, a search warrant was executed on the house at 162 Montana Street in Sheridan, the house in which the two had resided. An arrest warrant for Flippin had also been issued by the Wyoming Department of Criminal Investigation. Marousak was informed that the warrant was being served, and attempted to open the padlock on the front door for the officers with a key Flippin had sent him. The key would not open the lock, and members of the Wyoming Department of Criminal Investigation used bolt cutters to gain entry. After the search, which yielded contraband weapons, Marousak asked the officers if he could resecure the premises. The officers said he could, and he and a friend, Bill Bertrand, placed a new padlock on the door.
On March 28, Flippin had gone to the state of Oregon. Donnes parked O'Donnell's Ford in the driveway at 162 Montana, and the U-Haul was parked approximately seven blocks away. He was in possession of a key to the front door and a padlock key. When the padlock key did not work, Donnes forced the door open, and the three entered.
At approximately 1:20 p.m., the Sheridan Police Department received a call from a neighbor of the residence, reporting that the three individuals had forced their way into the house. Lieutenant Chris Sears and Sergeant T.G. Walker were dispatched to the scene. Walker ordered Donnes, Welch and O'Donnell out of the house and proceeded to check their identification. Though Donnes claimed to have Whittier's (Flippin's) permission to enter the house, he could provide the officer with neither an address nor phone number with which to contact her. The officers noted that the door had been forced open and that a coffee can of change was resting on the bumper of the car.
During the questioning, Lieutenant Robert Green of the Sheridan Police Department arrived at the house and received the information from Walker. Donnes told Green that he had permission to be in the house from Whittier, who Green knew to be Flippin. Green then decided to take the three suspects to the police station to check their stories and attempt to verify that Donnes had permission to enter the house. All three were transported to the station, and after further questioning, arrested for burglary in violation of Wyo.Stat. § 6-3-301, and for being accessories after the fact in aiding and abetting a fugitive, in violation of Wyo.Stat. § 6-5-202.
At some time during the questioning at the house, Marousak and Bertrand arrived. They remained in their vehicle until the suspects had been taken to the station, and then approached Sears, who had remained at the house. Marousak expressed his concern to Sears about some belongings he had in the house, and said he wished to check to see if anything was missing. Sears entered the house ostensibly to further investigate the suspected burglary and look for other suspects, and Bertrand and Marousak followed him in. Sears testified that he looked throughout the house and discovered no one. The evidence indicates that the living room was cluttered with boxes and furniture. Bertrand stated that, while looking around in the living room, he noticed a snowmobile glove lying on the floor. The glove was "bulging way out" and Bertrand, being suspicious, picked it up and looked inside. Inside the glove he saw a syringe and immediately gave the glove to Sears.
Suspecting the syringe was narcotics paraphernalia, Sears removed it and a camera lens case which was also in the glove. Sears opened the case and discovered a plastic bag containing two smaller bags and some "bindles." These containers were subsequently determined to hold methamphetamine.
Later the same afternoon, Sears and Sheridan Police Officer Wilson were instructed by Green to impound the Ford.1 Green testified that, at the time he ordered the impound, he was aware that drugs had been located in the house, and that two guns were found in the car. Green did not know how the guns had been discovered and did not remember personally seeing them in the car. Sears also testified that he could not remember seeing the guns in the car, but that the rifle was laying on the floor in the backseat, in its scabbard. Sears stated that the car was "inventory" searched while still in the driveway, and was later towed to the SPD impound facility, where it was inventoried again. In the initial search, the officers discovered the .2506 rifle and, under the front seat of the car, a .380 caliber pistol. Both items were included on the department's inventory form.
On September 22, 1989, Donnes was indicted for transporting firearms and ammunition while having a felony Information filed against him, in violation of 18 U.S.C. § 922(n), knowingly and intentionally possessing methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and using and carrying a firearm to commit a felony, in violation of 18 U.S.C. § 924(c).
Donnes now asks the Court to exclude from evidence the contraband discovered at the house and the guns discovered in the Ford. Donnes contends that both searches, conducted without attending search warrants, violated his Fourth Amendment right to be free from unreasonable searches and seizures. The Fourth Amendment, with few exceptions, protects a citizen's right to privacy by prohibiting police from conducting searches or seizures without first obtaining a warrant issued upon probable cause. "The security of one's privacy against arbitrary intrusion by the police — which is at the core of the fourth amendment — is basic to a free society." Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949). To give effect to the fourth amendment's guarantee against unreasonable searches and seizures, and to deter illegal police conduct, the court must apply the exclusionary rule and suppress any evidence unconstitutionally obtained. Nix v. Williams, 467 U.S. 431, 442-43, 104 S.Ct. 2501, 2508-09, 81 L.Ed.2d 377 (1984).
The Government contends initially that the defendant lacked standing to challenge the validity of the searches. When challenging the propriety of a search, the defendant has the "burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search." Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978). This determination is made by the Court by considering two primary factors; whether the defendant had an actual subjective expectation of privacy in the area searched and whether society is prepared to recognize such an expectation as reasonable. United States v. Erwin, 875 F.2d 268, 270 (10th Cir.1989), citing California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). In answering these questions, the Court can consider whether the defendant would use "precautions customarily taken by those seeking privacy," and the way in which the searched area had been used. United States v. Skowronski, 827 F.2d 1414, 1418 (10th Cir.1987). The mere introduction of incriminatory evidence against a particular defendant is not enough to establish that a person's rights have been violated. Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 965-66, 22 L.Ed.2d 176 (1969). "The `ultimate question' is `whether one's claim to privacy from government intrusion is reasonable in light of all the surrounding circumstances.'" United States v. Leary, 846 F.2d 592, 595 (10th Cir.1988), quoting Rakas, 439 U.S. at 152, 99 S.Ct. at 435.
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