USA. v. Silva

• Decision Date: 20 April 2001
• Docket Number: Nos. 99-10416,99-10422,AGUILAR-ESPINOZ,ZEPEDA-MEDRANO,99-10524,D,s. 99-10416
• Citation: 247 F.3d 1051
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARIO SILVA, JORGE, and ALEJANDROefendants-Appellants
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1051

247 F.3d 1051 (9th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARIO SILVA, JORGE ZEPEDA-MEDRANO, and ALEJANDRO AGUILAR-ESPINOZA, Defendants-Appellants.

Nos. 99-10416, 99-10422, 99-10524

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted September 12, 2000

Filed April 20, 2001

John J. Jordan, San Francisco, California, and Maria J. Fonseca, Redwood City, California, for the defendants-appellants.

Kathleen A. Servatius, Assistant United States Attorney, Fresno, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California. D.C. No. CR-98-05153-REC. Robert E. Coyle, District Judge, Presiding.

Before: Susan P. Graber, Raymond C. Fisher, and Marsha S. Berzon, Circuit Judges.

GRABER, Circuit Judge:

Defendants Mario Silva, Jorge Zepeda-Medrano, and Alejandro Aguilar-Espinoza challenge their convictions. They contend that the district court erred in denying their motions to suppress evidence gathered by police during an investigation of a conspiracy to manufacture and distribute methamphetamine. For the reasons discussed below, we hold that the police did not violate the Fourth Amendment when they searched the buildings in question. We remand the case, however, because the district court failed to rule on the validity of the search of Defendants' persons.

FACTUAL AND PROCEDURAL BACKGROUND

As part of an investigation into the purchase of chemicals used in the manufacture of methamphetamine, the California Bureau of Narcotics Enforcement secured a search warrant for several locations, including 2842 Apricot Road in Patterson, California, and 1420 Sylvan Avenue in Modesto, California. The latter is the residence of Defendant Zepeda-Medrano. Fearing that disclosure of the details contained in the warrant could jeopardize the continuing investigation of the case, the investigating officer asked the Superior Court of California to seal the warrant. Pursuant to California law, the court agreed.

The warrant authorized a search of 2842 Apricot Road; however, attached to the warrant was a picture of 2844 Apricot Road. The police ultimately found a methamphetamine laboratory in a shed located at 2852 Apricot Road. The confusion in addresses arose, at least in part, from the physical layout of Apricot Road. Apricot Road is an unsurfaced street along which are located a barn, several homes, and various trailers and sheds. Numbered mailboxes are located at the end of the street. The gas company's records show that there are only two residences on the property, 2842 and 2844. According to the tax assessor's records, all the residences on Apricot Road are located on one parcel of land. Although the property has not been subdivided officially, the lessees have done so informally.

When the police arrived to execute the search warrant, they realized that the residence authorized to be searched was not the residence pictured in the photograph. Nevertheless, they searched 2842 Apricot Road, the place described in the body of the warrant. The police found no drugs at that location. The agents then searched 2844 Apricot Road, the building pictured in the attachment to the warrant, and again found no drugs. While back on the road, in his truck, a police officer then observed a cloud of gas emanating from a shed 32 feet from the residence at 2852 Apricot Road. The door to the shed was open, and the officer could see a man in the process of "gassing out" liquid methamphetamine and converting it to a solid, a step in the manufacture of the usable form of the drug. The man whom the officer saw, Defendant Silva, fled but was apprehended. Officers then removed Defendants Aguilar-Espinoza and Zepeda-Medrano from inside the shed and arrested them. The police searched the persons of all three Defendants and seized several items, including keys from Zepeda-Medrano that fit a lock to the shed.

From the shed's open doorway, the police could see several objects, including a metal HCL gas cylinder with rubber and plastic tubing that led into a stained, white plastic bucket containing a liquid. The officers also could smell a strong chemical odor emanating from the structure. These observations led them to believe that the shed was a methamphetamine laboratory. The officers also discovered that the shed was an outbuilding belonging to 2852 Apricot Road. That discovery convinced the officer in charge to obtain a second warrant. After she secured the second warrant, the police searched the shed and seized several items. The officers left a notice of search and an inventory of all items seized on the door of the residence at 2852 Apricot Road. They did not leave a copy of the search warrant.

Police then interviewed the lessee of the residence at 2852 Apricot Road, Jesse Figueroa. He stated that, in October of 1997, he was approached by someone named "Niko" who asked him to allow some unidentified Hispanics to sublease some of the structures on the property. Figueroa told officers that, since his meeting with "Niko," he had noticed two different groups of people using the property, who stayed 5 to 10 days each time. Figueroa did not identify Defendants as being among the people whom he had observed.

Later the same morning, the police executed a separate search warrant at Defendant Zepeda-Medrano's home, located at 1420 Sylvan Avenue. The officers knocked and announced their presence; when no one answered, they entered the home forcibly. Once inside, the officers found several individuals, including Zepeda-Medrano's wife. After searching the premises, the officers left with Zepeda-Medrano's wife a notice of search and a receipt listing all items that had been seized, but they did not leave a copy of the search warrant, nor did she request one.

Defendants were charged with conspiracy to manufacture, distribute, and possess methamphetamine and with manufacturing and possessing methamphetamine with the intent to distribute, in violation of 18 U.S.C. 2 and 21 U.S.C. 841(a)(1), 846, and 848. They filed a motion to suppress all evidence seized pursuant to the search warrants. Defendants argued that the police had conducted an illegal general search on Apricot Road that could not be cured by the second warrant (for the shed) or by the plain view doctrine. Defendants also asserted that the failure to show copies of the warrants to the residents of 2852 Apricot Road and 1420 Sylvan Avenue "violated the particularity requirements of the Fourth Amendment."

The district court refused to suppress any of the evidence. The court ruled that Defendants had not established a reasonable expectation of privacy in either 2852 Apricot Road or the shed and, thus, lacked standing to contest the search. The court also denied Defendant Zepeda-Medrano's motion to suppress the evidence seized from his home. The court held that "the mere failure by the searching officers to provide a copy of the search warrant during the search does not constitute a violation of the Fourth Amendment."

Defendants pleaded guilty to conspiracy to manufacture methamphetamine, reserving the right to appeal the district court's suppression rulings. Defendants Silva and Zepeda-Medrano were sentenced to 262 months' imprisonment followed by 60 months' supervised release. Defendant Aguilar-Espinoza received a sentence of 210 months' imprisonment followed by 60 months' supervised release. Defendants bring this timely appeal.

STANDARD OF REVIEW

We review de novo a district court's refusal to grant a motion to suppress evidence. United States v. Kemmish, 120 F.3d 937, 939 (9th Cir. 1997). We also review de novo a district court's conclusion concerning whether a defendant has standing to challenge a search or seizure. United States v. Sarkisian, 197 F.3d 966, 986 (9th Cir. 1999). We review the trial court's factual findings for clear error. Kemmish, 120 F.3d at 939.

DISCUSSION

A. The Search of the Shed at 2852 Apricot Road

Defendants challenge the district court's conclusion that they did not have standing to contest the search of the shed. Defendants submitted affidavits to the district court in which they claimed that they had a legitimate expectation of privacy in the shed as a "commercial" area and that they expected to be left alone as they manufactured methamphetamine. Defendants point out that Zepeda-Medrano possessed a key to the shed's lock and assert that they all had stayed in the shed during the night before the police arrived. Defendants also claim that, because the government argued at the arrest and bail hearings that Defendants exercised dominion and control over the items seized in the shed, the government should be estopped from making an inconsistent argument with respect to standing.

1. Standing

Fourth Amendment rights cannot be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 134, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978); United States v. Johns, 851 F.2d 1131, 1135 (9th Cir. 1988). In order to claim the protections of the Fourth Amendment here, Defendants must establish that they had an expectation of privacy in the shed and that their expectation was reasonable. Minnesota v. Carter, 525 U.S. 83, 88, 142 L. Ed. 2d 373, 119 S. Ct. 469 (1998). The reasonableness of an expectation of privacy is evaluated "either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Rakas, 439 U.S. at 143 n.12. Defendants have the burden of establishing that, under the totality of the circumstances, the search or the seizure violated their legitimate expectation of privacy. Sarkisian, 197 F.3d at 986.

Defendants argue that they had a legitimate expectation of privacy in the shed because they were renters of property used for commercial purposes or were overnight guests. It is true that an individual can have a legitimate expectation of privacy in a commercial area. Id. Similarly, an overnight guest...