UNITED STATES of America, Plaintiff-Appellee, v. Bradford L. LOCKETT, Defendant-Appellant.
No. 90-30012.
United States Court of Appeals, Ninth Circuit.
Decided Nov. 23, 1990.
919 F.2d 585
Argued and Submitted Oct. 1, 1990.
It is entirely possible that the state courts on remand will read these passages as holding that the prosecution failed to introduce sufficient evidence to meet its constitutional burden of establishing guilt beyond a reasonable doubt. Certainly it would be difficult to come up with language more clearly conveying this idea than that used by the panel. If the state court does construe the panel‘s opinion as precluding a retrial, there will be no possibility of correcting the error. Once McGuire is released, the prosecution has no mechanism for coming into federal court to complain, as the state is not entitled to collaterally attack the state judgment.
Conclusion
The panel has overturned a state conviction, and has done so in a manner that seriously and unjustifiably interferes with the authority of the state courts, hamstrings state prosecutors and may result in the permanent release of a defendant who was justly and properly convicted of a heinous crime. We make a grave mistake by failing to take the case en banc to correct these errors and set the law of the circuit back on course.
Errol Carlsen, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.
Before KOZINSKI, O‘SCANNLAIN and FERNANDEZ, Circuit Judges.
O‘SCANNLAIN, Circuit Judge:
This appeal from convictions for drug-related crimes raises several significant issues, one of which involves standing to invoke a violation of the federal requirement for announcement before entry into a residence to serve a search warrant.
I
In June 1987, the Portland Police Bureau began investigating cocaine trafficking in the near north and northeast areas of the City of Portland, Oregon. Acting upon information supplied by a confidential informant, the police paid special heed to four individuals, Bradford Lockett, Herbert Lockett, Keith Horsley, and Marcella Manning. Portland police officers began to monitor the activities of Bradford Lockett (“Lockett“) and Manning, observing Lockett‘s activities approximately ten to twenty hours per week from October 1987 until his arrest on February 6, 1988.
During this period, Portland police officers observed Lockett engage in numerous suspicious activities. On two occasions, they observed Lockett accompany Marcella Manning (who appeared to be Lockett‘s girlfriend) to the Portland airport. In both instances, the pair drove their car in a manner that suggested that they were attempting to elude followers. At the airport, they avoided being seen with each other. Each time, Manning boarded a flight to Los Angeles; her name, however, was not on the passenger lists for any of these flights, suggesting that she purchased her tickets under an alias.
During the evening of January 19, 1988, Portland police set up a surveillance of a residence located at 6237 North Montana Street. Manning and another individual were observed through a picture window packaging a controlled substance. Lockett was present in the same room during most of this time, although he was never personally observed participating in the packaging process.
Also in January, Lockett and a young woman named Marvina Allen entered the Union Avenue branch of United States Bank with a briefcase containing $50,000 in cash and sought to purchase a cashier‘s check. When Lockett was informed that a currency transaction report would have to be completed regarding the transaction, Lockett left the bank, returning later with Charles Allen. Lockett claimed that the money belonged to Charles Allen and Marvina Allen, even though Charles Allen was unemployed and Marvina Allen worked as a telephone operator.
On February 6, 1988, the police again began monitoring Lockett‘s activities. Lockett and Marcella Manning were observed leaving an apartment located at 129 Northeast Thompson Street at approximately 3:05 p.m. The pair went to 6209 Northeast Seventh Avenue, where Manning delivered a blue and grey bag. They then proceeded to the 6237 North Montana Street residence. Both Lockett and Manning went into this location, where they remained for ten minutes. They then returned to the Thompson Street residence at approximately 4:00 p.m. As the evening progressed, the police observed numerous individuals go to the front door and then quickly leave.
At 7:13 p.m. that evening, numerous members of the Portland Police Bureau served a search warrant at the Thompson Street residence.1 Officer Jacobelli knocked on the door and announced that he was a police officer and that he had a search warrant. After four to five seconds elapsed without a response, the officers pried open the door and entered. Inside, they encountered Lockett, Marcella Manning, and Carla Manning. They also discovered approximately 1,800 grams of cocaine, most of it found either in a bedroom, in a plastic bag resting on the television set, or lying on a large plate on the coffee table in the living room. Some of the cocaine was contained in 80 small baggies, resting on or alongside the coffee table. Also found in the living room was a cooking pot and seven cigarette lighters. The room resembled, according to Officer Brumfield, a cocaine-packaging assembly line. A leather jacket belonging to Lockett was found in a closet. A paging device was discovered on Lockett.
A subsequent search of Lockett‘s residence, which he shared with his parents, revealed currency totaling $25,000.
Lockett was eventually convicted by a jury on four counts: conspiracy to possess cocaine with intent to distribute, conspiracy to distribute cocaine, distribution of 500 grams or more of cocaine, and possession of 500 grams or more of cocaine with intent to distribute. This timely appeal followed.
II
Lockett argues that evidence obtained as a result of the search at 129 Northeast Thompson Street must be suppressed because the searching officers violated the “knock and announce” statute,
A
A person whose personal interests have not been infringed by an unannounced police entry does not have standing to challenge the entry under section 3109. See United States v. Valencia-Roldan, 893 F.2d 1080, 1081 n. 1 (9th Cir.), cert. denied, U.S., 110 S.Ct. 2181, 109 L.Ed.2d 509 (1990) (defendant lacked standing to challenge alleged violation of section 3109 because he was not present at the time of entry); United States v. DeLutis, 722 F.2d 902, 908 (1st Cir.1983) (expressing “serious doubt” as to whether an absentee owner had standing under section 3109). To have a sufficient personal interest for purposes of standing under section 3109, the person must be a member of the class of persons sought to be protected by the statute. See DeLutis, 722 F.2d at 908.
Accordingly, to determine whether Lockett has standing under section 3109, we first examine the purposes underlying section 3109. In United States v. Bustamente-Gamez, 488 F.2d 4 (9th Cir.1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974), we observed that
B
We turn first to Lockett‘s claim that he had an expectation of privacy in the Thompson Street residence. Lockett concedes that he did not reside at or hold a proprietary interest in the residence. However, Lockett maintains that he had an expectation of privacy nonetheless, citing our rule that a “formalized arrangement among defendants indicating joint control and supervision of the place [searched] is sufficient to support a legitimate expectation of privacy.” United States v. Johns, 851 F.2d 1131, 1136 (9th Cir.1988) (quoting United States v. Broadhurst, 805 F.2d 849, 852 (9th Cir.1986)).
The defendant bears the burden of proving that he has a legitimate expectation of privacy. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). Lockett contends that under Johns and Broadhurst, his membership in a joint criminal venture was sufficient to give him a legitimate expectation of privacy in the property used by the joint venture. Lockett, however, misreads our cases. Mere presence at the location of a narcotics search is insufficient to establish privacy standing. See United States v. Watts, 848 F.2d 134, 137 (9th Cir.), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 332 (1988). Moreover, mere membership in a criminal venture does not give a person an expectation of privacy in all property used by the venture. Rather, the defendant must show some “joint control and supervision of the place searched.” United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir.1984); see also Johns, 851 F.2d at 1136. Lockett has offered no evidence that he possessed any control or supervision over the Thompson Street residence. Thus, Lockett did not sustain his burden of showing a legitimate expectation of privacy.
C
Lockett also contends that he has standing within the scope of section 3109‘s safety rationale as set forth in Bustamente-Gamez and Ruminer merely because he was present at the Thompson Street residence at the time of the search. The safety rationale has been explained as follows:
Surreptitious entry of private premises . . . is also fraught with physical—even mortal—danger for both the occupants of the private premises and the police. The occupants, on discovering the unidentified intruders, may attempt to shoot them, and the police will doubtless return the fire. This danger was one of the reasons for enactment of
18 U.S.C. § 3109 requiring knocking and notice to occupants before entry to execute a search warrant.
Ford, 553 F.2d at 165 n. 58; see also Bustamente-Gamez, 488 F.2d at 9 (section 3109 “reduces the potential for violence to both the police officers and the occupants of the house into which entry is sought“). Arguably, any person present at the time of an alleged knock-notice violation may have standing under section 3109. Because Lockett was present at the Thompson street residence at the time of the alleged section 3109 violation, he conceivably might have standing to assert his safety interest
Nevertheless, even if we assume that section 3109 was violated, the mere possession of standing under that section‘s safety rationale is no guarantee that the relief Lockett seeks is available to him. Violation of section 3109 frequently results in the suppression of the evidence garnered after the illegal police entry. See United States v. Dicesare, 765 F.2d 890, 895 (9th Cir.), amended on other grounds, 777 F.2d 543 (1985). Suppression, however, may not always be the appropriate remedy for a section 3109 violation, as suppression is a remedy ordinarily reserved only for breach of one‘s constitutional rights.
A primary object of the fourth amendment is to provide a constitutional safeguard for a person‘s privacy. See INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984).2 The primary remedy for government violation of the fourth amendment is the suppression of the illegally-obtained evidence. See Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984). Although suppression of probative evidence undermines the societal interest in securing convictions of those who violate society‘s laws, the Supreme Court has nevertheless recognized that the “deterrent values of preventing the incrimination of those
whose rights the police have violated” sufficiently warrants the suppression of evidence in such cases. United States v. Payner, 447 U.S. 727, 734-35 n. 8, 100 S.Ct. 2439, 2445 n. 8, 65 L.Ed.2d 468 (1980).3
Section 3109, like the fourth amendment, has as its primary purpose the protection of legitimate expectations of privacy. See Sabbath v. United States, 391 U.S. 585, 589, 88 S.Ct. 1755, 1758, 20 L.Ed.2d 828 (1968). In fact, section 3109 is often described as being grounded in the fourth amendment. See United States v. Comstock, 805 F.2d 1194, 1209 n. 17 (5th Cir.1986), cert. denied, 481 U.S. 1022, 107 S.Ct. 1908, 95 L.Ed.2d 513 (1987) (observing that it appears that the “Supreme Court‘s view [is] that section 3109 mirrors Fourth Amendment values and may indeed simply replicate Fourth Amendment requirements“); Ruminer, 786 F.2d at 383; see also United States v. Valenzuela, 596 F.2d 824, 830 (9th Cir.), cert. denied sub nom. Lizarraga v. United States, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979) (section 3109 requirements have been incorporated into the fourth amendment). Thus, to the extent that the fourth amendment and section 3109 are essentially coextensive, the applicable remedies—principally suppression—should likewise be identical.
However, as we have already observed, section 3109 lacks symmetry with the
Indeed, the Supreme Court has warned against the overuse of suppression as a remedy. See Payner, 447 U.S. at 734-35, 100 S.Ct. at 2445-46. A federal court, the Court warned, should not use its supervisory powers to “suppress evidence tainted by gross illegalities that [do] not infringe the defendant‘s constitutional rights.” Id. at 733, 100 S.Ct. at 2445. We take heed of this warning today. At best, Lockett has safety interest (as opposed to privacy interest) “standing” under section 3109. Such an interest, however, is not based upon an interest in privacy of constitutional magnitude. Under the reasoning of Payner, suppression is not an available remedy under such circumstances.5
The motion to suppress was properly denied.
III
Lockett contends that the district court erred in allowing Portland Police Officer Derrick Foxworth to testify, as an expert, that only persons intimately involved with a cocaine packaging operation are usually allowed at the packaging site. Lockett does not dispute Foxworth‘s status as expert witness under
A witness is not permitted to give a direct opinion about the defendant‘s guilt or innocence. See United States v. Kinsey, 843 F.2d 383, 388 (9th Cir.), cert. denied, 488 U.S. 836, 109 S.Ct. 99, 102 L.Ed.2d 75 (1988). With this caveat, however, an expert may otherwise testify regarding even an ultimate issue to be resolved by the trier of fact. See id. Foxworth‘s testimony falls in the latter classification rather than the former. Foxworth merely described a typical cocaine packaging operation. See United States v. Arvin, 900 F.2d 1385, 1389 (9th Cir.1990). The jury was left to determine, on its own, whether there was a cocaine distribution operation in the present case, and whether Lockett‘s presence was an exception to the general practice of cocaine packaging operations. Foxworth‘s testimony did not in-
Lockett also argues that the testimony should have been excluded because the “expert testimony was not needed to explain ‘innocent’ actions.” Appellant‘s Opening Brief at 19. We interpret this to be a challenge to the testimony under
IV
Lockett urges that the district court erred in denying his motion for a new trial. In support of his motion, Lockett offered an affidavit by Marcella Manning. This affidavit, Lockett asserts, is “newly discov-
ered evidence” within the meaning of
Marcella Manning appeared at Lockett‘s trial, but refused to testify. However, following Lockett‘s conviction, Manning provided Lockett with a sworn affidavit in which she claims that Lockett did not have any knowledge that cocaine was being delivered to the Thompson Street residence, that he did not assist in any way with the packaging of the cocaine, and that none of the packaging materials or cocaine belonged to Lockett. Manning stated that Lockett had been at the residence for only five to eight minutes before the police broke in. Manning stated that, if Lockett received a new trial, she would testify that Lockett had no knowledge of or involvement with the cocaine found at the Thompson Street residence, and that she at no time conspired with Lockett to distribute cocaine. The district court denied the motion.
In United States v. Diggs, 649 F.2d 731 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981), we held that “[w]hen a defendant who has chosen not to testify comes forward to offer testimony exculpating a co-defendant, the evidence is not ‘newly discovered.‘” Id. at 740. Lockett concedes that Diggs controls this case, but argues that Diggs should be overruled and replaced with a rule that “newly available evidence” can constitute “newly discovered evidence.” We, of course, lack the authority to grant Lockett‘s request to overrule Diggs. See United States v. Salas, 879 F.2d 530, 537 (9th Cir.), cert denied, U.S., 110 S.Ct. 507, 107 L.Ed.2d 509 (1989) (“A three-judge panel of this court cannot disregard or overrule a prior decision of this court.“). Moreover, on the facts of this case, we
V
Finally, Lockett contends that the federal Sentencing Guidelines, under which he was sentenced, violate the due process clause of the fifth amendment by effectively transferring sentencing authority from the district court to the prosecutor. We considered and rejected this argument in United States v. Sanchez, 908 F.2d 1443, 1445-46 (9th Cir.1990); see also United States v. Brady, 895 F.2d 538, 541 (9th Cir.1990) (Sentencing Guidelines violate neither substantive nor procedural due process).
AFFIRMED.
FERNANDEZ, Circuit Judge,
concurring:
I concur in the cogent majority opinion, but find that I cannot agree with all of the reasoning in Part II of that opinion.
In Part II the majority determines that Lockett has standing to raise the knock and announce issue, but that he cannot have a suppression remedy. I agree that he has no right to claim that remedy, but I do not believe he has standing in the first place.
The majority approach appears to be driven by too narrow a construction of the fourth amendment itself, a point of view that causes the majority to believe that
It is my view that the safety emanations from the core of the fourth amendment are at least as important as its privacy emanations. The fear of a smashing in of doors by government agents is based upon much more than a concern that our privacy will be disturbed. It is based upon concern for our safety and the safety of our families. Indeed, the minions of dictators do not kick in doors for the mere purpose of satisfying some voyeuristic desire to peer around and then go about their business. Something much more malevolent and dangerous is afoot when they take those actions. It is that which strikes terror into the hearts of their victims. The fourth amendment protects us from that fear as much as it protects our privacy.
While the privacy paradigm has raised a mist before our eyes, no such brume afflicted our ancestors. The knock and announce requirement, including its safety purposes, was reported on by Sir Edward Coke. See Semayne‘s Case, 5 Coke‘s Rep. 91a (K.B.1603). And, as Justice Story indicated in his commentaries, the fourth amendment was designed to protect “personal security, personal liberty and private property.” See
Similar concerns have been expressed throughout our history. See, e.g., Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (personal security); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (knock and announce); Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed.2d 647 (1921) (personal security), overruled on other grounds, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886) (personal security), overruled on other grounds, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). In other words, the safety protection functions which inform
Therefore, I do concur, but do so on grounds which bespeak a somewhat different view of the scope and power of the fourth amendment. I do so with the hope that we will not forget the full glory of that amendment and that we will continue to see that its brilliant light is made of a spectrum of colors, rather than the single one we see when we limit ourselves to using a privacy lens.
Notes
The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. . . . And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.Id. at 350 n. 4, 88 S.Ct. at 510 n. 4 (quoting Griswold v. Connecticut, 381 U.S. 479, 509, 85 S.Ct. 1678, 1695, 14 L.Ed.2d 510 (1965) (Black, J., dissenting)).