United States v. Kenneth D. Gooch

fore, Misrepresentation C. Claims we need not address the district court’s additional determination that these claims half-heartedly argues Neubronner were time-barred due to the three and one- dismissing court that the district erred his years half elapsed that between the October manipulation claims of market and fraud on 30, 1987, public poor disclosure of GFC’s allegedly the market based on false and mis financial health and Neubronner’s first asser- leading prospectus in a statements GFG dat misrepresentation tion of his claims in his April (collectively ed referred to as complaint. fifth amended claims). misrepresentation his These claims 9(b), only clearly satisfy fail to but Rule they probably satisfy even fail to Federal IV. CONCLUSION 8(a)’s requirement Rule of Civil Procedure We affirm the district court’s dismissal plain a short and statement of a claim show prejudice with of Neubronner’s fifth amend- ing plaintiff is entitled to relief complaint ed grounds on the that Neubron- (though explore we need not latter this specifically ner plead contemporane- failed to point). trading, ous Milken’s alleged role complaint explain Neubronner’s does not conduct, wrongful and the factual basis of his how, stock, purchasing common GFC he misrepresentation 9(b), claims. Under Rule possibly prospectus, could have relied on the proper dismissal was in these circumstances. offering which concerned an of convertible AFFIRMED. invest, debentures which he did not year which was distributed a full before he

purchased Moreover, any GFC shares. he any allegedly

does not state the content of statements, misleading precise-

false and nor

ly when and where he obtained the false Gottreich,

information. See 552 F.2d at 867

(must time, allege place and content of mis-

representations); Semegen, 780 F.2d at 731. America, UNITED STATES of addition, provides he no factual basis for Plaintiff-Appellant, allegation

his on information and belief that approved prospectus, Milken read and other than his blanket assertion that Milken GOOCH, Defendant-Appellee. Kenneth D. responsible offerings for all and sales No. 92-35428. managed by securities Drexel’s west coast any office. Nor does he otherwise attribute Appeals, United States Court misleading false or statements to Milken Ninth Circuit. state pur- how Milken benefitted from the ported misrepresentations. Neubronner Argued May and Submitted 1993. merely point asserts that at some in time he Decided Oct. prospectus, read the and sometime later re- deciding purchase lied on it com- GFC stock, prospectus

mon and that the did not negative

include certain information about

GFC’s financial condition that at some un- presumably public.

identified time became allegations misrepresenta-

Neubronner’s 9(b) satisfy requirement

tion do not the Rule plaintiffs plead must the circumstances

constituting particularity. fraud with affirm the district court’s dismissal of misrepresentation ground claims on the 9(b). satisfy failed to Rule There- Ohms,

Timothy Atty., Spo- J. Asst. U.S. kane, WA, plaintiff-appellant. for Meek, Daniel J. Keane and Brian L. Keane Rasmussen, WA, Spokane, & for defendant- appellee. WRIGHT, ALARCÓN,

Before: BEEZER, Judges. Circuit BEEZER, Judge: Circuit appeals The United States the district judgment acquittal court’s of and the subse- prejudice quent order of dismissal with of D. conviction for defendant Kenneth Gooch’s any nor was there indication that had being possession of a firearm. a felon activity. ar- been in the criminal that a warrantless involved government contends a warrantless search rest of Gooch and lacking a the officers Still violate the Fourth tent did not Gooch’s searched the tent for the firearm. One of affirm. Amendment. We handgun under them found loaded Gooch’s

air mattress in the tent. I charges, After dismissal of state a federal being possession indictment for a felon a.m., called the At about 3:50 a woman jury a firearm was then returned. A convict- County office behalf Stevens Sheriffs charge. ed Gooch of the federal Gooch time- Cole, man shot at claimed a had Marc who ly judgment acquittal for and for a moved officers campground. him Two at the state petition § new trial. Gooch also filed a 2255 they campsite, responded. As neared in corpus for habeas which he claimed inef- they leaving campsite. a vehicle observed in fective assistance of counsel that his coun- occupants The told the officers Gooch suppress sel had failed to move to the fire- “hurting people” campground at the and post-trial a arm. The district court held fired. Closer to the shots had been suppression hearing that the and determined campground, the officers encountered Marc firearm, along with the ammuni- holster and said Gooch had fired a shot his Cole. Cole tion, suppressed should have been and that fight a in which Gooch tried to direction after the warrantless arrest was invalid. The dis- fire.” “stick head into the These [Cole’s] trict court determined that had a rea- Gooch midnight and incidents occurred between expectation privacy in sonable of the tent 2:00 a.m. protected which was under the Fourth The officers arrived at the entrance to the Amendment, “exigent that there were no cir- campground approximately 5:00 a.m. and cumstances,” if and that even the arrest was some time for the arrival of then waited lawful, the search not a valid search deputy another and a reserve officer. It was incident to arrest. daylight by this time. Three officers then camp down the entrance to the headed road II itself, approximately a site distance of one The threshold issue is whether the way, they young mile. a On encountered protects person’s pri Fourth Amendment man, who told them was in his tent Gooch vacy public interests in a tent located on a with a The district court found that woman. campground. The lawfulness of a search or campsite, when the officers arrived at the arrest is reviewed de novo. United States v. they campsite quiet observed that Tarazon, 1045, Cir.1993), 989 F.2d 1048 asleep and determined that Gooch was — denied, U.S. -, 155, 126 cert. 114 S.Ct. living in his tent.1 had been closed Gooch (1993). L.Ed.2d 116 The district court’s fac- days; the tent for several he had no other findings tual are reviewed for clear error. residence. 1271, Echegoyen, United States v. 799 F.2d (9th Cir.1986). 1277 officers, seeking The without an arrest tent, pat- out of the ordered Gooch III down, him ted and arrested him. He was patrol handcuffed and locked car 20 Gooch must have had both a sub yards jective objectively expec from the tent. The officers then or- and an reasonable tent, occupant Mary privacy in dered the other tation of the tent. Katz v. United States, Baker, 347, 361, 507, 516, out of the tent. The district court 389 U.S. 88 S.Ct. (1967). government found the officers then talked to other 19 L.Ed.2d 576 con campers for about 15 minutes. The other tends that Gooch could not have had a sub campers threatening, jective expectation privacy in were not obstructive or of the tent Although asleep finding Gooch had either fallen that fact. This of the district court is passed consumption, out due to alcohol there is clearly erroneous. no evidence in the record that the officers knew

677 expected police-to remove the Fourth protections. he could have Amendment since above, respond he caused and to protected to the disturbance As noted tents are under privacy. According to this intrude on his the Fourth Amendment like a perma- more view, subjective would have a Also, no lawbreaker nent structure. a tent is more analo- privacy any place because expectation of gous (large) to a movable container than to a always expectation of arrest is imminent. vehicle; protects the Fourth Amendment ex- finding that established a The court’s Gooch movable, pectations privacy in of con- closed subjective expectation privacy of is not clear- Ross, 798, tainers. United States ly erroneous. 2157, 2165, 72 L.Ed.2d 572 (1982); Chadwick, United States v. already have established that a 97 53 L.Ed.2d 538 objectively person can an reasonable have Miami, Pottinger City also See expectation privacy private in a tent on (S.D.Fla.1992) F.Supp. (person has Nelson, property. LaDuke v. expectation privacy belong- reasonable (9th Cir.1985). n. n. 19 Accord ings personal area); public effects in Castillo, F.Supp. LaDuke v. Mooney, State v. 218 Conn. 588 A.2d 145 (E.D.Wash.1978). expecta This reasonable — (same), denied, U.S. -, cert. destroyed person’s tion is not tent (1991). Besides, public campground pitched instead on expectation privacy reduced in a vehicle is camp. legally permitted one is where large part in due to the fact that there is “protects people, not Fourth Amendment “pervasive” government regulation Katz, of vehi- 351, places.” 389 U.S. at 88 at S.Ct. 392, (What Carney, 471 cles. U.S. at 105 at 511; 351-52, S.Ct. id. at 88 S.Ct. at 511 a (“These expectations privacy 2069 reduced of preserve private, in citizen “seeks to as even derive not from the fact that the area to be public, may to the an area accessible be view, plain perva- searched is in constitutionally but from the protected.”); United States Chadwick, 1, 7, 2476, regulation capable sive of vehicles of travel- v. 433 U.S. 97 S.Ct. (1977). 2481, ing public highways.”); on the South Dakota 53 L.Ed.2d 538 Rakas v. Illinois, 364, 368, 128, 421, Opperman, v. 428 96 99 S.Ct. 58 U.S. S.Ct. (1976). (1978), interpreted Finally, L.Ed.2d 49 L.Ed.2d 1000 387 Court “capacity pro exception applies only Katz to hold that to claim the even the automobile depends open tection of the Fourth Amendment when a vehicle is on the road or is upon property right capable not a in the invaded place of movement and is “in a not place upon person but whether who regularly purposes used for residential —tem- protection claims the of the Amendment has porary Carney, or otherwise.” 471 U.S. at legitimate expectation privacy a in 392, of at 2070. The district court did 430; 143, place.” invaded Id. at 99 S.Ct. concluding not in a like a err tent is more 12, id. at 144 n. 99 at 430 n. 12. S.Ct. house than a car. We hold that Gooch had a (“Expectations privacy protected by of expectation privacy reasonable of such that Fourth Amendment ... need not be based the warrantless search of his tent violated personal on a common-law interest in real or Amendment. Fourth property, or on the of such an inter invasion est.”). IV government would have us police held the district court compare involving Gooch’s case to those mo required to obtain an arrest so homes, person bile motor a a which has was the warrantless arrest unconstitutional. expectation privacy. reduced of See Califor required suspected arrest a 386, 2066, No warrant is Carney, nia v. 471 105 U.S. S.Ct. (1985) (warrantless public place. v. felon a United States 85 L.Ed.2d 406 search of Watson, 411, 820, 46 mobile home which defendant resided did (1976). exigent circum L.Ed.2d 598 Absent not violate Fourth Amendment because auto stances, a arrest is unconstitu exception applied). The fact that a warrantless mobile moved, alone, “non-public” place, even may enough tent be tional in a 678 equivalent private residence.2 tent

place is not one’s United States was “the of a resi- (9th Alvarez, 879, Cir.1987); notwithstanding v. 810 F.2d public dence its location in a Olson, but, court, 96 n. 110 park,” Minnesota v. U.S. appellate like the decided 1688 n. grounds. S.Ct. the case on other Id. 155 N.W.2d Ruckman, 806 F.2d See United States at 715. (10th Cir.1986) J., (McKay, 1475-76 Though pitched tent Gooch’s on dissenting) (suggesting that of inhabitant public property, we hold that the closed tent public property objectively cave on has an “non-public” place purposes was a for expectation privacy reasonable therein analysis. Fourth Amendment We have rec house). if a even the cave is not considered that, ognized despite special af status yet have not settled whether a tent is a forded a residence under the Fourth Amend “non-public” place pur- for arrest warrant ment, privacy may “an individual’s interests poses. Rigsby, In United States v. 943 F.2d implicated variety settings.” in a be other — denied, Cir.1991), cert. U.S. Driver, United States (1992), -, L.Ed.2d 496 (9th Cir.1985). By establishing camp a the Sixth Circuit addressed whether an offi- ground, the state created a situation where pulled flap unzipped cer who back the of an campers up were invited to come to set unoccupied shotgun tent saw a inside campers reasonably tent. The could assert a required to obtain search warrant. legitimate, though temporary, interest The court concluded that no search warrant privacy their even in this short-term “dwell case, necessary. In that “there was no ing.” guest A Lodge, Yellowstone a hotel indication that the tent was like a ‘home’ or land, government park on would have no less temporary even habitation.” Id. at 636. expectation privacy reasonable an in his explicitly judgment The court reserved hotel, guest private hotel room than a in a privacy the defendant’s interest in the tent. logic camp and the same would extend to a (“This say Id. at 636-37 is not to that defen- opportunity site where the to extended itself, privacy dant had no interest in the tent spend night. California, the See Stoner v. tent, merely presence but that the of the in 483, 490, 11 apparently residing, which no one was did (1964) (hotel guest L.Ed.2d 856 has Fourth privacy not create a in the interest otherwise protections). Amendment Eng See also it.”). non-private surrounding area States, 803, Fung Jem v. United 281 F.2d Livermore, People The court in 9 Mich. (9th (“The Cir.1960) appel 805 transience of (1967), App. 155 N.W.2d 714 ad stay by lant’s in the [hotel] room searched police dressed whether could enter a tent in the officers does not dilute the force of con public campground and arrest occu- the protection. stitutional hotel The room pants. analyzed The court the case as one question appellant’s dwelling. was That he involving “dwelling upheld house” the but days lived there for but several is of no Michigan arrest because under law the offi- consequence.... right privacy The to must justified making cers were warrantless equal vigor be accorded with both to tran dwelling arrest in a house. The court relied guests occupants pri sient hotel and to involving entry police on a case into a house vate, permanent dwellings.”). support entry to police its conclusion that the justified. Id. appeal, For the first time on the government argues The defendant Livermore also raised that Gooch’s use of the “public” campground wrongful the issue whether the tent was a because state law “private” place, arguing prohibited using campground primarily that the information the required proof purposes. that the crime occurred in a for residence We do not address public place. argument, The state trial court presented assumed that as to “[i]ssues purposes argument” generally “[f]or the that the trial the court cannot be raised for happens, opinion rely any way 2. As it Gooch's tent was his residence. does not on the fact that However, police reasonably the officers could not actually Gooch had no other residence. expected have been to realize that fact. This

679 appeal.” time on States v. the first United A (9th on, Flores-Pay 558 Cir. exigencies by gov The cited 1991). Though pure canwe review issues of justifying ernment the arrest in case this law which were not raised before the district were the that risk evidence de would be id., record, court, it is not clear from the as a stroyed potential danger and to offi law, wrongfully matter that Gooch campers.3 cers and other As the district campground camping despite at the the fact observed, court there independent was “no legal that had no other See Gooch residence. indication” that the firearm would be de Ruckman, J., (McKay, 806 F.2d at 1476 dis- stroyed, could it nor even be from removed senting). present. the tent with officers The court district found the risk of to harm that We hold Gooch’swarrantless arrest in (cid:127) present officers and others to a closer proscription violated the his tent intoxicated, issue. The facts Gooch was Amendment, exigent circum- Fourth absent discharged recently, that a firearm had been stances. people leaving camp- and that ground supported in fear the officers’ conclu- V sion was an that there immediate threat However, public safety. there was no actual We review de exi novo whether ongoing threat. The district court found gent justify a ar- circumstances warrantless appeared the campground quiet Echegoyen, F.2d rest or seizure. daylight in the officers arrived hours. The findings The 1277-78. district court’s factual alleged fight discharge of the firearm clear at. 1277. are reviewed for error. Id. place took several hours before the arrest. burden,” government “heavy has the concluding The district court did not err in Alvarez, showing F.2d at reasonably deputies that the could not have exigent circumstances “made warrantless present there danger believed that was a imperative.” Al-Az arrest United States camp- other of the tent occupants or to other Cir.1985), zawy, F.2d cert. Alvarez, 810 ers. F.2d at 883-84. denied, government compares the circum- L.Ed.2d 700 in Al-Azzawy. stances to those In that here case, exigent we determined circumstances Exigent are circumstances “ police sole had existed on the basis that the which a harm ‘those in substantial risk of to by person been a reliable that the informed persons the involved or to the enforce law explosives. AV-Azzawy, possessed defendant process police would if were ment arise the However, expressly 784 F.2d at we delay [or to a search until a warrant arrest] Al-Azzawy’s contrasted circumstances with omitted) (citation could obtained.’” Id. be Morgan, those addressed United States v. (brackets original). Exigent circum (6th 1158, Cir.1984), cert. 743 F.2d 1161-1163 present per are stances “a reasonable denied, 2126, 85 entry son believe that ... neces [would] (1985). Morgan, the court L.Ed.2d 490 sary physical prevent to harm to the officers possession held that of automatic defendants’ persons, the relevant or other destruction of weapons give exigent did not rise to circum- evidence, escape suspect, of the or some stances. consequence frustrating improperly other le- gitimate law enforcement United efforts.” B (9th 1195, 1199 McConney, 728 States v. F.2d Cir.) (en banc), 824, 105 denied, justified by was also not cert. 469 The search U.S. (1984). circumstances, exigent as the court district merely government requirement be problems with warrant [A]mendment's 3. The also noted that Mor in the corner of cause it is United States v. radio communication southwest inconvenient.” (6th Cir.1984), gan, county obtaining a 1164 cert. would have made warrant not, denied, may in their U.S. 85 inconvenient. "Police officers 471 individual, [Fjourth ignore an L.Ed.2d zeal to arrest 490 680 search, judgment court’s the defen- The district time of the

found: “At the handcuffed, custody, and locked dant was AFFIRMED. car. He was not a patrol of a in the back only one anyone, and he was danger to ALARCON, dissenting: Judge, Circuit any had reasonable deputies that majority has decided that the district law, The violated the or had grounds to believe concluding totali- not err in that the court did have been a threat possibly who could justify a ty circumstances did not them.” entry tent and search Gooch’s warrantless argues the officers government requiring upon exigent circumstances based immediately be the tent to search needed protect the officers from immediate action to presented potential dan firearm cause the join opinion in their because harm. I cannot campsite. The at the ger to the children erroneously that the court found the district exigent an alone is not presence of a firearm entry prior to the officers were told 1167; F.2d at Morgan, 743 circumstance. majority, con- asleep. The while Gooch was Gooch, F.Supp. 732 United States clearly errone- ceding finding that this (E.D.Wash.1991). by cited The cases ous, impact of this has failed to discuss the circumstances where government involved regarding an essential fact on the dis- error would be left inside unsupervised children there were no trict court’s conclusion weapon explosives if with the the house remand, exigent circumstances. Without a Al-Azzawy, it. the officer did not secure whether, when this court cannot determine Antwine, 895; States v. F.2d at United error, the district court would informed of its (8th Cir.1989); 1144, 1147 States F.2d United that there were no reverse its determination Cir.1988). Queen, F.2d circumstances, especially light exigent case, no one remained in the In the instant the fact that it stated that the issue of exi- time of the search. It would tent at the ques- gent created a “difficult circumstances prevent children or have been difficult to tion” for the court. entering the tent until a anyone else from government’s ar warrant was obtained. I. any gument logically would authorize war officers had reason to rantless search where gravity appreciate To of the district a firearm involved. believe error, necessary court’s factual it is to con- not a case in which one or two This was totality of circumstances known to sider the police quickly in officers were forced to react approximately At 4:00 a.m. on officers. only an inaccessible locale could be July County Dep- Stevens Sheriffs The offi- reached on foot for some distance. Campbell responded uties and Ed Burns Ted directly only campground, to the cers drove claiming have to a call from man been road, main in two vehicles. one mile off the Washington Department shot at the State of They parked just yards from the tent. (“DNR”) campground of Natural Resources Gooch, present to arrest Three officers proceeding Long Lake. While to the backup. ongo- with another as There was no campground, deputies the encountered an exigent ing threat. hold that no circum- occupants in- automobile. The of the car stances existed. deputies the that Ken was formed Gooch “hurting people” campground at the DNR on

VI occupants Long Lake. The also indicated fired, government finally that not inform contends the shots had been but did deputies “search incident to a the that Gooch fired the shots. search falls into the campground, exception proceeding to the warrant re While to the the lawful arrest” California, deputies walking Marc quirement. encountered Cole Chimel (1969). alongside Mr. that 23 L.Ed.2d 685 the road. Cole stated lawful, they need not fired shots in his direction after As the arrest was not we Gooch engaged family dispute. a in a These events the warrantless search was decide whether midnight between and 2:00 a.m. incident to a lawful arrest. occurred valid search Campbell Deputies court, and Burns arrived at province of the district which has the a.m., campground the at where responsibility around to .5:00 determine factual matters. joined they subsequently by Deputy III. deputy.

Steve Bruchman a and reserve deputies a Without the ordered 12(e) Rule of the Federal Rules of Crimi- from his tent. Gooch Gooch was searched Procedure, nal which governs motions to sup- placed and under placing arrest. After “[wjhere requires press, that factual issues ear, patrol deputies Gooch in a the ordered motion, determining are involved in the Baker, Mary companion, Gooch’s from the court shall [district] state its essential find- later, Approximately tent. fifteen minutes ings 12(é) on the record.” While Rule does deputies the conducted a search warrantless here, not address precise presented the issue of the tent and handgun located loaded i.e., remedy what is available to the Govern- under a mattress. ment when the district court has made a

clearly finding issue, erroneous on a material 12(e) clearly the drafters Rule assumed II. that the district court would make accurate upon arriving The district court found that factual contrary determinations. A conclu- campground deputies the determined impute sion would Congress to an intent to sleeping During that was in his Gooch tent. an enact absurd required rule. We would be argument, requested oral we that counsel for 12(e) hold that to Rule is satisfied if findings supplemental indicating Gooch file a brief court, by madé regardless are the trial of the portion of the supported record that this fact that there is no evidence in the record to finding. support them. brief, In supplemental his Gooch asserts I would if reviewing hold that court Sergeant that record shows that Burns that determines the district court has made a spoke pedestrian along with a the roadside clearly erroneous factual determination on a way campground. According to the his issue, required material a remand is for fur- Gooch, pedestrian Sergeant informed findings factual ther that reflect on the true that Burns Gooch was sleeping the tent he state the record. The district court must girlfriend. with shared his Gooch acknowl- determine, instance, in the first whether the edges, Sergeant that testify, Burns did not fact the officers did not know that whether explains Deputies Campbell but that asleep Gooch was before ordered him Sergeant Bruchman testified that Burns had persuading out tent was a factor in been informed that asleep. Goochwas Coun- it necessary them that to locate his misrepresented sel for Gooch has the evi- immediately protect firearm themselves produced dence in the trial court. The rec- campground and others at the from lethal support ord does not the district court’s find- force. ing any of the officers were informed My conclusion that this court cannot sub- prior to the search asleep. Gooch itself weighing stitute for the court in trial I agree majority with the that the district effect of the true circumstances relied finding clearly upon by court’s After believing exigent erroneous. the officers in acknowledging the required district court’s error in circumstances a warrantless search 1, majority proceeds supported by Supreme analysis footnote to make its Court’s States, findings regarding own exigent Murray whether cir- v. United justified cumstances for the hand- search

gun discussing Murray, without the agents whether district federal law enforcement con- clearly understanding entry court’s erroneous of a warrantless into a ducted Boston grant the facts caused it to the motion. where warehouse observed bales of Therefore, majority I marijuana. assume that the has Id. at 108 S.Ct. at 2532. finding agents made a that it placed didn’t matter what the warehouse under The the sur- regarding applied officers were told whether Gooch and for a veillance search asleep. informing magistrate This determination invades the the of without the ini- court, making appellate responsible is for marijuana they observed. the entry the tial Id. at 608-610. findings. factual 535-36, at 2532. At issue Id. at S.Ct. truly search was the second was whether particularly important that I believe it is initial warrantless independent from the to the district court to we remand this matter The Id. at at 2535. S.Ct. search. rectify unsupportive finding, because of its ap- the motion and the court denied district consequences of the district court’s clear the affirmed, concluding that it was pellate court sup previously noted that a error. We have that the warrantless en- “absolutely certain important pression hearing “often as as slightest in the try way contributed no Prieto-Villa, F.2d at the trial itself.” of a warrant or to to the issuance either Georgia, v. Waller (quoting during the lawful discovery the evidence of 81 L.Ed.2d 31 104 S.Ct. pursuant to the war- occurred search that (1984)). particularly im This observation is 542-43, at 2536. rant.” Id. at case, portant in this as the Government has that it would be unable to sustain conceded determined that the Supreme Court proof its of the absence burden Appeals’ the Court of support record did not tent. physical evidence seized from Gooch’s indepen- findings application of light In of the fact that the district court fur- and remanded for dent source doctrine in this stated that whether the facts case findings contested issue. factual on the ther question,” dis demonstrated a “difficult 543-44, 108 Id. at at 2536. The Court S.Ct. against question court resolved that trict “it is the function of the Dis- concluded that based on an erroneous factual Government Appeals of rather than the Court trict Court finding. mandatory A 543, 108 remand is under Id. at to determine the facts.” Murray, Supreme decision in and the this, Court’s as where the at 2536. In a case such Prieto- explained law of this circuit as factual has made erroneous district court Villa. may judgment our findings, we not substitute and make a the district court

for of totality of the circum- IV. finding that the factual exigent not establish circum- stances did The Government has also raised serious justifying search of the warrantless stances questions concerning alleged Gooch’s viola- of his firearm. Gooch’s tent and the seizure Washington regula- of numerous state tions Murray prohibiting campground relied on tions the use of previously have 12(e) requires property primarily purposes. the dis- for residential determining that Rule Ciraolo, findings of fact The Government cites trict court to make essential California See ruling upon suppress. a motion to Prieto-Villa, (1985) proposition person that a United States v. 910 F.2d 601 for the must Prieto-Villa, (9th Cir.1990). expectation privacy legitimate the defen- have a In police protection the Fourth Amend while the searched a invoke the dant was arrested 211, 106 of ment. Id. at If apartment process in the S.Ct. at 1811. these co-defendant’s violated, Id. conspiracy. regulations may at indeed investigating drug a Gooch pre-trial suppress motion to not be able to demonstrate he had a Prieto filed a post-arrest legitimate expectation privacy in his tent. of cocaine and state- introduction Government, however, Id. police. failed to this made to the 603. The raise ments argument but failed to before the district court. Under district court denied his motion “[ijssues circuit, presented findings permit the law of this not make sufficient factual Id. at 605-06. We held generally appellate to the trial court cannot be raised review. 12(e) States United appeal.” for the first time on required that Rule the district court to Flores-Payon, findings re- Cir. appropriate make factual and 1991). Supreme I development adequate of an Because believe the manded for the Murray requires Id. at 607. determining that Court’s decision we record. 12(e) court, mandatory requirement this ease to the district imposed Rule remand Murray for the court, question legitimate ex- whether Gooch had on the district we cited court, privacy in proposition pectation a tent used as that the district Washington residence violation of law

should be resolved the district court. TILTON, individual,

Robert G. an

Plaintiff-Appellant,

Gary RICHARDSON, Anthony, L. Ole

Harry Guetzlaff, Tony Wright, C. David

Burrows, George Otstott, A. Defen-

dants-Appellees.

No. 92-5154.

United Appeals, States Court of

Tenth Circuit.

Sept.

Case Details

Case Name: United States v. Kenneth D. Gooch

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 6, 1993

Citation: 6 F.3d 673

Docket Number: 92-35428

Court Abbreviation: 9th Cir.