Martinez v. Zavaraz, 02-1133 (June , 2003)
(Howard A. Pincus, Federal Public Defender, Denver, Colorado)
Martinez was convicted of first degree murder in state court. He brought a § 2254 habeas action. In denying habeas relief, the district court found that Martinez had voluntarily, intelligently and knowingly waived his right to conflict-free representation. During a pretrial hearing, the prosecution advised the court of a possible conflict of interest arising from defense counsel's representation in an unrelated case of a potential witness at Martinez's trial. Defense counsel explained the nature of his former representation of Blea and Martinez agreed to waive any conflict. At trial, four of the government's witnesses failed to appear. The court scheduled a new trial. Two of the witnesses had been located and arrested. They, Olguin and Harris, told investigators that defense counsel had advised them to fail to appear. The prosecutor informed the court of the state's intention to file a grievance against defense counsel and again expressed concern regarding a conflict that could arise were counsel to remain on the case. The judge ordered counsel to discuss the conflict with Martinez. At the following hearing defense counsel had retained his own attorney who advised him that the incident would indeed create a conflict. Defense counsel moved to withdraw. After discussing the matter with Martinez, the judge proposed to resolve the conflict by prohibiting both parties from interrogating Harris and Olguin as to the reason for their failure to appear, and appointed independent counsel to advise Martinez on the conflict. At another hearing the matter was discussed further. Martinez submitted a letter stating he decided to keep his attorney. The court opted to wait until Martinez had an opportunity to consult with independent counsel. The court convened another hearing to consider the potential conflict again. Martinez decided to waive his right to conflict free representation and the court denied defense counsel's motion to withdraw. The jury convicted Martinez of first degree murder. On direct appeal the Colorado Court of Appeals concluded defense counsel labored under an actual conflict of interest but the Colorado Supreme Court reversed concluding that the record sufficiently supported the trial court's findings that Martinez's waiver was not constitutionally impermissible.
HELD: (1) The AEDPA provisions apply. The court set forth the standard of review. The court presumed state fact findings to be correct. The Colorado Supreme Court annunciated the correct legal standard. The right to effective assistance of counsel contemplates conflict-free representation. This right may be waived if the waiver is voluntary, knowing and intelligent. The trial court bears the duty to insure that the defendant understands the nature of the conflict and there affects on counsel's representation. The trial court clearly advised the defendant that if he had a different attorney, substitute counsel could explore the matter of the failure to appear.
United States v. Perez-Campos, 02-6123 (June 2, 2003)
(William P. Earley, FPD, Oklahoma City, Oklahoma)
Perez was convicted of false use of a social security number in violation of 42 U.S.C. § 408.
HELD: (1) The standard of review of a claim of insufficient evidence is difficult to prevail upon. Section 408 requires the government to show the defendant for any person with intent to deceive represented a particular social security number to be his or another persons, which representation is false. This appeal hinges on the second element, whether there was sufficient evidence of an intent to deceive.
United States v. Lora-Solano, 02-4139, and United States v. Cortez-Cruz, 02-4173 (June 3, 2003)
The defendants were convicted of possession with intent to distribute controlled substances following entry of conditional pleas to preserve the denial of their motions to suppress.
HELD: (1) Under the Fourth Amendment, a neutral and detached magistrate must issue a search warrant for the warrant to be valid. Review is de novo of the legal issue of whether a search or a seizure comports with the Fourth Amendment. A search warrant was obtained from a state judge pro-tempore. Based on a selection of another judge, appellants claim that the judge who signed the warrant was not an active judge. The judge had authority to perform judicial duties throughout the period. Evidence as to the practice of the Utah State Judiciary leaves no doubt that the judge was an active judge at the time of signing the warrant.
(2) The court reviews a district court's fact findings underlying a motion to suppress for clear error, and reviews de novo the ultimate determination. An anticipatory search warrant is valid when the warrant application indicates there will be a government controlled delivery of contraband to the place to be searched, probable cause for search is established, and provided the warrant's execution is conditioned on the contraband's delivery to, or received at the designated place. The warrant was valid despite the lack of a physical description of the _____. The informant did in fact have a phone conversation and relayed the contents of the conversation to police.
(3) The test for determining the adequacy of the description of the location to be searched is whether the description is sufficient to enable the executing officer to locate and identify the premises and whether there is any responsible probability that another premise might be mistakenly searched. There was no reasonable probability that the officers would search the wrong premises. A technically wrong address does not invalidate a warrant if it otherwise describes the premises with sufficient particularity. The incorrect address provided to the magistrate and reflected in the warrant was not an instance of the police making false statements.
(4) A defendant may enter a conditional plea in order to preserve appellate review of a specified pretrial motion. The district court's decision not to grant a continuance was never mentioned as an issue on which the plea was conditioned and Cortez waived his right to appeal that issue and all other non-jurisdictional defenses.
(5) A district court may impose a three-level increase for a role in the offense as a supervisor. The court reviews the district court's determination for clear error. The district court properly found that Cortez met the requirements for the three-level increase. There were at least five participants. Cortez' home was the center of the activity and Cortez planned much of the activity.
United States v. Horey, 02-6119 (June 23, 2003)
Horey appeals the denial of his § 2255 motion. The question is whether trial counsel was ineffective for failing to object to an undisputably inapplicable career offender enhancement. Horey's prior conviction for possession of cocaine did not meet the definition of a qualifying felony under the guidelines. Appellate counsel did not raise the issue on direct appeal. The district court found that counsel's performance was deficient but there was no prejudice.
HELD: (1) When reviewing the denial of a § 2255 motion the court reviews the district court's legal rulings de novo. In Kissick, the circuit had focused on the statement in Lockhart v. Fretwell, that a court may not set aside a sentence solely because the outcome would have been different absent counsel's deficient performance. The circuit had adopted the rule that a defendant must not only allege prejudice of being erroneously sentenced under a higher guideline, but must also demonstrate that the error produced a large or significant effect on the sentence. This holding and analysis were abrogated in Glover v. United States, 531 U.S. 198, where the Supreme Court rejected the substantial prejudice requirement. The Supreme Court held that any amount of actual jail time has Sixth Amendment significance. Glover does not announce a new rule of constitutional law but instead clarifies the standards for analyzing the long standing right of effective counsel. As there is an increase in the actual amount of jail time that may be served using the improperly applied guideline range, Horey has established prejudice.
United States v. Barajas, 02-3194 (June 10, 2003)
(Steven K. Gradert, FPD, Wichita, Kansas)
After pleading guilty to a firearms offense, Barajas was sentenced to a term of imprisonment followed by three years supervised release. The district court imposed several conditions including paying child support and participating in a program for mental health treatment.
HELD: (1) Barajas complains he did not receive notice that he might be subject to the two challenge conditions of release. Although he did not mention lack of notice when given an opportunity to object, the issue is not necessarily waived. Under certain special circumstances, the court will consider a failure of notice claim even when not raised below. But here defense counsel had constructive notice that the challenged conditions of release might be imposed. The challenged conditions are among the recommended conditions set forth in the guidelines and the factual predicates were addressed in the PSR. Therefore the failure of notice claim must be rejected.
(2) The court emphasized it was not holding that the defendant was in fact entitled to notice. The circuit's earlier decision in Bartsma did not create a rule requiring notice prior to imposition of every condition of supervised release. Bartsma was limited to the unique facts of that case. The defendant was afforded in this case constructive notice of the possibility he would be subject to conditions that he pay child support and undergo counseling. Section 3583(d), 18 U.S.C., provides that a district court is authorized to impose as conditions of supervised release any of the discretionary conditions of probation in § 3563(b) including child support. The sentencing guidelines track the statute in §5D1.3(c). Also §3583(d), authorizes imposition of a condition to undergo treatment. See also §5D1.3(d)(5). Therefore the defendant had constructive notice of the possibility he would be required to pay child support and undergo mental health treatment.
(3) The defendant claims the conditions are not reasonably related to his crime of conviction. This was not raised below. Review is for plain error. Under 18 U.S.C. § 3583(d), a court may impose a non-mandatory condition of supervised release to the extent that the condition is reasonably related to factors set forth in another section, involves no greater depravation of liberty than is reasonably necessary, or is consistent with any pertinent policy statements. In imposing a sentence, § 3553(a) sets forth factors to be considered, including the nature and circumstances of the offense, the need for the sentence imposed to afford deterrence, protect the public and provide the defendant with needed education, training, medical care. The defendant only complains that these conditions were not reasonably related to the nature and circumstances of the offense. Yet every circuit has held that a condition of supervised release may be imposed despite not being related to every enumerated factor, despite the use of the conjunctive and in the statute setting forth factors to consider. [VMK - MAKE SURE I SAY AND WHEN I'M SETTING FORTH THAT STATUTE]. The circuit held that although the district court should consider each enumerated factor when deciding whether to impose a condition of supervised release, it is not necessary for a condition to be reasonably related to all the factors identified in § 3553(a). The two conditions imposed, they are reasonable relationship to his history and characteristics and are
related to the factors such as the need to deter future criminal conduct, protect the public and provide with needed medical care.
United States v. Radcliff, 01-1557 (June 16, 2003)
(David B. Savitz, Denver, Colorado)
Radcliff, undersheriff for Ouray County, was convicted of conspiracy to distribute methamphetamine and of carrying a firearm during and in relation to that conspiracy. He was sentenced to 288 months imprisonment.
THERE WAS NOT ANYWHERE SAYING WE DON'T HAVE JURISDICTION ON A DOWNWARD DEPARTURE. ADDING HERE:
The methamphetamine distribution conspiracy began in 1996. its ring leader was Radcliff's brother-in-law, Wherley. In 1994, Radcliff married Wherley's sister, Lisa, who unbeknownst to Radcliff, was a long time user of methamphetamine. Lisa obtained methamphetamine from Wherley and from her aunt, Brenda Paul. Wherley and Paul began traveling to California every other weekend to purchase methamphetamine and bring it back to Ouray County. Customers would come to Wherley's trailer. During the conspiracy's infancy, the defendant discovered his wife's addiction and became a user himself. Defendant's role was to warn Lisa and Wherley about law enforcement risks to the operation and to mislead law enforcement regarding the illegal drug activity. In February 1997, Radcliff received information from a deputy that a neighboring county was setting up a roadblock for Wherley and Paul, who were returning from purchasing methamphetamine in California. Radcliff relayed this information to Lisa and Wherley and Paul were warned and were able to avoid detection. In June Radcliff and Lisa staged an act to convince another deputy that Radcliff had just discovered his wife's methamphetamine addiction. When Wherley was arrested in January 1998, with the defendant's knowledge, Lisa went to his trailer and took all of the inculpatory materials and stored them in her house before the warrant was executed. There were other incidents like this as well.
HELD: (1) Radcliff claims the evidence was insufficient to prove he carried a firearm in relation to the crime. The court reviews the sufficiency of the evidence de novo and asks only whether taking the evidence in the light most favorable to the government, a reasonable jury could find the defendant guilty. Section 924(c)(1) provides that whoever, during and in relation to any crime of violence or drug trafficking crime, uses or carries a firearm, shall, in addition to the punishment provided for such crime, be sentenced to imprisonment for five years. Radcliff claims the firearm was coincidentally present as part of his sheriff's uniform. A gun facilitates a drug trafficking crime because it deters interference with the crime. That supports the inference of the defendant intended that his weapon deter interference with his wife's transport of methamphetamine. The evidence demonstrated his willingness to interfere with law enforcement efforts targeting the drug operation. Other law enforcement agents knew Radcliff was willing to interfere with law enforcement activity. Several agents had experienced Radcliff's disruptions of their investigation into this matter. The suspicious manner in which Radcliff left his brother-in-law's residence supports the inference that he desired that his gun deter interference with his wife's transport of the methamphetamine.
(2) Some of the evidence was obtained by wiretap in Wherley's house. Radcliff moved to suppress the evidence because the wiretap orders failed to name the Department of Justice officials who had authorized the wiretap applications. Although the orders were facially insufficient the failure is a technical defect that did not undermine the purpose of the statute. There is no dispute that each of the applications was authorized by an appropriate individual within the DOJ. They were identified by name in the applications. But were not named in the orders. Every circuit to consider the question is held that 18 U.S.C. § 2518(10)(a)(ii) does not require suppression if the facial insufficiency of the wiretap order is no more than a technical defect.
(3) The court does not have jurisdiction to review the denial of the downward departure when the district court is aware it has power to depart. There is jurisdiction only where the district court states it does not have any authority to depart. A district court's statement that it lacks authority to grant the requested downward departure must be unambiguous. In this case the district court's language indicates it simply did not think a departure was warranted for the type of coercion that Radcliff alleged.
United States v. Osborne, 02-4119, United States v. Reese, 02-4167, United States v. Gordon, 02-4171 (June 18, 2003)
Each defendant plead guilty to bank fraud in connection with a check counterfeiting scheme in violation of 18 U.S.C. § 1344. All appeal the calculation of the amount of loss.
The government bears the burden of proving by a preponderance that the conduct of others should be attributed to the sentenced defendant. The court reviews the district court's fact findings for clear error and the ultimate determination of relevant conduct is reviewed de novo. Amount of loss is defined as the greater of actual loss or intended loss. Actual loss includes reasonably foreseeable pecuniary harm that resulted from the offense. Intended loss means pecuniary harm that was intended to result and includes intended pecuniary harm that would have been impossible or unlikely to occur. Section 1B1.3 provides in the case of jointly undertaking criminal activity, the base offense level is determined on the basis of all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaking criminal activity. A defendant will be held accountable for conduct that is in furtherance of the jointly undertaken criminal activity and reasonably foreseeable in connection with that criminal activity.
(2) Whether the district court applied a correct version of the guidelines presents a question of law reviewed de novo. Underlying fact findings are reviewed for clear error. District court found that Reese continued to have a role in the conspiracy until after the effective date of the 2001 Amendments.
(3) Fact findings in support of the amount of loss are reviewed for clear error. In calculating the amount of loss for purposes of relevant conduct, the district court need only make a reasonable estimate of loss.
(4) The court reviews the legality of a restitution order de novo, again reviewing fact findings for clear error and the amount of restitution for abuse of discretion. Even when a defendant is not convicted of conspiracy, the restitution amount may include relevant conduct of others that may be attributed to a defendant.
(5) When the defendant fails to raise a factual issue at sentencing, the court considers the issue waived and will not find plain error.
United States v. Hernandez, 01-8051 (June 19, 2003)
Hernandez was convicted of felon in possession of a firearm. He argues that his Fifth and Sixth Amendment rights were violated when a recused AUSA sent two mails to his son who was married to the defendant's sister, regarding the defendant's case. He also urges that the district court abused its discretion by admitting hearsay testimony under Rule 803(5).
HELD: (1) Defendant challenges his conviction on five grounds stemming from two e-mails from AUSA Kip Crofts to Shane Crofts intercepted by Connie Hernandez, urging Connie to cooperate in the investigation of the defendant, revealed that he had talked with a defense investigator, negative remarks by the defense investigator reveal a conflict of interest within the defense team, the district court erred by failing to hold a hearing, and second appointed counsel was ineffective for failing to address sufficiently the previous four issues. The circuit held that Kip Crofts and the entire U.S. Attorney's Office had already recused itself at the time of the e-mail so that Kit Crofts was not acting in his government capacity but rather as a concerned father. There is no evidence other than the interpretation of the e-mail that Kit Crofts intended to intimidate Connie Hernandez. Nor did she change her testimony after reading the e-mail. Even if the e-mail was an attempt to intimidate, prosecutorial misconduct entitles the defendant to relief only if the misconduct infected the trial to such an extent that it resulted in the fundamentally unfair trial.
(2) The one e-mail revealed that the AUSA Kit Croft had contact with the defense investigator Steve Brinkerhoff. Because the allegedly improper contact took place after the defendant was indicted and counsel appointed, the court reviewed the challenge under the Sixth Amendment rather than the general Fifth Amendment due process claim. Kit Croft's actions cannot be attributed to the state because he and the entire U.S. Attorney's Office had recused itself.
(3) The defendant argues that the e-mail showed an actual conflict of interest within the defense team and that Brinkerhoff violated the duty of loyalty. Defendant has failed to show how the investigator's opinion of him prejudiced his case in any way. To the extent this is a claim of ineffective assistance of counsel, that claim will not be reviewed on direct appeal ordinarily. But this claim is sufficiently developed so that the court did address it. Any harm caused by the investigator's dislike of him was cured when Brinkerhoff and trial counsel withdrew and the defendant received new counsel. Second, defendant has failed to allege any facts suggesting that the investigator's dislike of him negatively affected his case in any way. Personality conflicts are not conflicts of interest.
(4) The defendant urges the district court should have conducted a hearing. This is reviewed for plain error. The evidence did not show any pattern of _______ and no hearing was necessary.
(5) Where there is no merit to the underlying claims, second counsel could not be ineffective for failing to pursue them.
(6) The court reviews evidentiary rulings for abuse of discretion and review of decisions admitting statements contested as hearsay is especially deferential. The district court admitted hearsay testimony about the serial number of the gun he was charged with possessing. He claims the exhibits did not satisfy the requirements of the recorded recollection exception. The district court did not abuse its discretion. Rule 803(5) is the exception to the hearsay rule for recorded recollections. The issue of admissibility of recorded recollections constructed by more than one person has not appeared with frequency in the case law. But two circuits have suggested that a past recollection is admissible where it is the product of an oral report of facts of one witness to another who writes them down. While the Tenth Circuit has not addressed this squarely, in Chaney the court had held that an FBI report was admissible when the report contained facts observed by a witness and written down by an agent. The purpose of the hearsay rule is to preclude a class of evidence considered less reliable then in-person testimony. The exceptions to the general rule excluding hearsay recognize numerous instances where circumstantial guarantees of trustworthiness justify acceptance of a hearsay statement. The circuit held that a recorded recollection compiled through the efforts of more than one person is admissible under Rule 803(f) where each participant in the chain who testifies at trial as to the accuracy of his or her piece of the chain. Therefore the district court properly admitted the serial number records of two persons.
United States v. Jones, 02-1459 (June 18, 2003)
(Lynn Hartfield and Charles Szekely, FPD, Denver, Colorado)
Jones plead guilty to three counts of involuntary manslaughter and was sentenced to 71 months imprisonment. The presentence report recommended a nine level upward departure. In support of the PSR, the government moved for an upward departure. The district court agreed but did not adopt the recommended departure or the methodology. Instead the district court departed upward seven levels, to offense level 21. The district court based this on significant danger to public safety created by Jones' conduct and multiple deaths within a single family unit. The sole question is whether the district court erred in concluding that Jones' conduct fell outside the heartland of involuntary manslaughter cases.
HELD: (1) A sentencing court may depart if the court finds there was an aggravating or mitigating circumstance of a kind or to a degree not adequately taken into consideration. The court accepts the district court's findings of fact unless clearly erroneous and gives due deference to application of the guidelines to the facts. When the district court departs, the court reviews de novo the district court's determinations. Application of the de novo standard of review in sentencing departure cases represents the shift from the Tenth Circuit's earlier case law. Prior to the PROTECT ACT of 2003 the court reviewed under a unitary abuse of discretion standard in Collins. The amendments in the PROTECT ACT modify the unitary abuse of discretion standard but the applicable analytical framework remains the same. The court first ascertains was the district court set forth in a written order, its specific reasons for departure. Second, the court considers whether the factors advance the objectives set forth in § 3553(a)(2), and insure that the district court's reliance on those factors did not violate any specific prohibition in the guidelines. Review under this second prong is de novo. Third, the court considers whether the factors relied upon were authorized and justified. To determine whether they were authorized the court looks at § 3553(b)(1). This third step is the heartland determination. The court reviews de novo its application of the guidelines to the facts. Finally, the court asks whether the district court's sentence depart to an unreasonable degree. In reviewing the degree of departure the court gives due deference to the district court.
(2) The district court satisfied § 3553(c)(2)'s requirement of a written order and judgment setting forth specific reasons for departure.
(3) The district court considered three factors in making its heartland determination. In determining whether a case falls within the heartland of involuntary manslaughter cases, a district court may properly consider the degree of danger to public safety created by the conduct. And in Whiteskunk, this court also held that a sentencing court may consider varying degrees of recklessness within the heartland determination. Jones' blood alcohol level was more than twice the legal limit and he had five previous drunk driving convictions, putting him on notice. The district court considered these in concluding that Jones exhibited extreme recklessness and created a significant danger to public safety.
(4) The third basis of departure was multiple deaths all within a single family. Multiple deaths presents a permissible ground for departure. See Whiteskunk. Jones was convicted on three separate counts for the three deaths. The district court concluded that in killing a mother, father and infant child the multiple counts do not contemplate the tragedy that occurred here completely eliminating one branch of two different families. The circuit found the district court's reasoning persuasive.
(5) A district court may consider prior criminal convictions in determining the appropriate criminal history level and offense level. It may be appropriate to count a single factor both in assessing criminal history and the offense level.
(6) All three factors that the district court relied on were permissible. The factors were authorized and justified by the facts of the case. The district court departed one level for multiple deaths. One level for danger to the public and five levels for extreme recklessness. The circuit had some concerns about the analogy to brandishing a firearm under §2B3.1. The district court should at most have imposed a four-level increase rather than a five-level increase. The court will not remand if it is satisfied the district court would have imposed the same sentence had it not relied upon an improper analogy. Insofar as the district court's methodology would have been reasonable had it analogized Jones' conduct to use of a dangerous weapon rather than brandishing of a firearm, the circuit may reduce the district court's five level increase resulting in a four-level increase. But the district court also concluded that Jones' offense level should be increased at least two levels based on the presence of the two other factors. The circuit agreed and found that a three-level increase would have remained within the boundaries of reasonableness so that it need not remand.
United States v. Jeppeson, 02-8071 (June 20, 2003)
Jeppeson was charged with conspiracy to traffic in methamphetamine, possession with intent to distribute. He pleaded guilty to count one. As a career offender his guideline range was 188 to 235 months. The district court denied role in offense reduction holding that such a reduction is unavailable to a defendant who qualifies as a career offender under §4B1.1.
HELD: (1) The court reviews de novo a district court's interpretation of the guidelines, and reviews as fact-findings for clear error, giving due deference to the district court's application of the guidelines to the facts. The question of whether a defendant designated as a career offender is eligible to receive a downward adjustment for a role in offense is a question of first impression in the circuit. But every other circuit has concluded that a defendant is not entitled to a downward departure under §3B1.2 following a career offender adjustment under §4B1.1. A close look at the sequence in which a sentencing court is instructed to apply §4B1.1, reveals that courts should not make such a reduction subsequent to making a career offender adjustment. The sentencing court must make any applicable role in offense or acceptance of responsibility adjustment to the offense level before making a career offender adjustment.
(2) Well settled that the Court of Appeals lacks jurisdiction to review a discretionary refusal to depart.
United States v. Hatfield, 01-7151 (June 25, 2003)
Hatfield pleaded guilty to possession with intent to distribute marijuana and maintaining a place for the purpose of manufacturing, distributing and using methamphetamine and marijuana. He was sentenced to 36 months imprisonment. He reserved his right to appeal the denial of a motion to suppress.
HELD: (1) In reviewing the decision of a district court to deny a motion to suppress, the court accepts its fact findings unless clearly erroneous and views the evidence in the light most favorable to the government. The ultimate determination of reasonableness is reviewed de novo. Hatfield argues that evidence seized pursuant to the warrant was fruit of the poisonous tree because the key fact cited in the affidavit to establish probable cause - - Officer Harrold's statement that he saw marijuana in plain view in Hatfield's back yard - - was based upon two alleged unconstitutional searches. First, Officer McCullum, conducted a non-constitutional search of the back yard during the knock and talk interview, and his observations of the back yard directed Officer Harrold to examine the chicken coop where the marijuana was discovered during his subsequent search. Second, Hatfield argues that Harrold's observation was an unconstitutional search because Harrold trespassed into Hatfield's adjacent pasture to seize the back yard and the chicken coop. Under the fruit of the poisonous tree doctrine, the exclusionary rule bars the admission of physical evidence and live testimony obtained directly or indirectly to the exploitation of unconstitutional police conduct. If Officer Harrold's observation of the marijuana occurred as a result of an unconstitutional search, the evidence would be inadmissible. But the circuit concluded that neither officer engaged in an unconstitutional search. When the police come on to private property to conduct an investigation and restrict their movements to places visitors could be expected to go, observations made from such vantage points are not covered by the Fourth Amendment. Hatfield's driveway was open to the public, permitting the officers to park their patrol car behind his pick up truck. Observations by the officer standing on the driveway do not constitute a search.
(2) The touchstone of Fourth Amendment analysis is a reasonable expectation of privacy. The prototypical area of protective privacy is the interior of a home. Linked to that core area is a home's curtilage. The curtilage is the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of his life. Open fields do not provide the setting for such intimate activity. The special protection by the Fourth Amendment to people and their persons, houses, papers, and effects is not extended to open fields. The location of the marijuana was in a well defined yard behind Hatfield's residence, in an among several small structures close to the back of the house. The area could not be observed from the street. The marijuana was in the curtilage of the home because the area was so intimately tied to the home it should be placed under the umbrella of the Fourth Amendment. But Officer Harrold never physically invaded the curtilage. The question is whether an observation of the curtilage by police from a vantage point in an adjacent opened field violates an expectation of privacy that is reasonable. Officer Harrold was standing in Hatfield's own pasture, and the officer can be said to have trespassed. The court discussed the Dunn Supreme Court decision in its own Fullbright decision. Police observation of a defendant's curtilage from a vantage point in the defendant's open field is not a search under the Fourth Amendment. Even though Hatfield had a subjective expectation of privacy in the space immediately behind his house, that is not a reasonable expectation of privacy at least with respect to visual observations made from an adjoining open field. Had Officer Harrold physically invaded the curtilage that would have constituted a search. The fact that officers trespass does not transform their actions into a search.
United States v. Hocker, 02-4148 (June 26, 2003)
(Steven B. Killpack, FPD, Salt Lake City, Utah)
This is an appeal from denial of a motion to suppress evidence obtained incident to a search of a car driven by the defendant but borrowed from a person other than the registered owner. The court had to consider whether its earlier decision in Raspon deprives the defendant of standing. Hocker entered a conditional guilty to possession of methamphetamine with intent to distribute.
HELD: (1) When facts are uncontroverted, the court reviews the standing issue de novo. When the facts are contraverted, fact findings are reviewed under the clearly erroneous standard, but legal issues are reviewed de novo. Fourth Amendment rights are personal and cannot be claimed vicariously. Standing turns on whether the individual manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as objectively reasonable. To establish standing to challenge a car search, the defendant has to show he had a legitimate possessory interest in or lawful control over the car. A defendant need not submit legal documentation showing a chain of lawful custody from the registered owner to himself. Important factors are whether the defendant asserted ownership over items seized, whether the defendant testified to his expectation of privacy, whether the defendant presented any testimony at the suppression hearing that he had a legitimate possessory of interest. Hocker did not assert ownership over the contraband. Hocker did explain how he came to possess the vehicle and whether the defendant submitted evidence of a legitimate possessory interest in the vehicle was a critical inquiry. When the proponent of a motion to suppress is the car's driver but not the registered owner, mere possession of the car and keys does not suffice to establish a legitimate possessory interest. The proponent must establish he gains possession from the owner or someone with authority to grant possession. Hocker declared he borrowed the car from Sabala who was not the registered owner but was a relative of the registered owner. In addition, Hocker stated he presumed that Sabala owned the car and that if she didn't it was only because she had not yet purchased the vehicle from her cousin. Sabala had used the car as her own during the full week of Hocker's visit, and kept it at her home address. Hocker knew the registered owner personally. Therefore, a reasonable person would assume Sabala was in lawful possession of the subject automobile. Therefore, Hocker had a reasonable expectation of privacy.
Reversed.