Petition for Writ of Certiorari — Larson v. United States

Octoser Term, 1985

DUANE WENDALL LARSON,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RAYMOND J. SMITH *

ELLEN G. ROBINSON

BurRKE AND SMITH CHARTERED

55 West Monroe Street

Suite 1800

Chicago, Illinois 60603

(312) 853-3230

Attorneys for Petitioner

Duane Wendall Larson

Of Counsel:

ALAN M. DERSHOWITZ

LAURA HANFT

Harvard Law School

1525 Massachusetts Avenue

Cambridge, Massachusetts 02138

(617) 495-4617

* Counsel of Record

Midwest Law Printing Co., Chicago 60611, (312) 321-0220 Y

i \

i

QUESTIONS PRESENTED

I.

Whether the court of appeals erred in holding that a

registered hotel guest who has paid for one night and

communicated his intent to stay over; who is occupying

his assigned room; and who is vigorously asserting his

right to privacy, is not protected under the Fourth

Amendment as construed in Rakas v. Illinois from an un-

wanted, warrantless police search of his room.

Ii.

Whether the court of appeals erred in making a factual

“finding” of exigent circumstances where the district court

made no such finding, the officers did not rely on exigent

cirewmstances, and no exigency existed.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED .................

TAD: OF AUTIOURITIBG 6 ocr csc ceccecvess

ogi i BPPPeTeerrree cee ers

PEE ove eskscesensacaweceveawes ees

py er eeree rrr Te rer ry re re :,

REASONS FOR GRANTING THE WRIT:

I.

THE COURT OF APPEALS ERRED IN HOLD-

ING THAT A REGISTERED HOTEL GUEST

WHO HAS PAID FOR ONE NIGHT AND COM-

MUNICATED HIS INTENT TO STAY OVER;

WHO IS OCCUPYING HIS ASSIGNED ROOM;

AND WHO IS VIGOROUSLY ASSERTING HIS

RIGHT TO PRIVACY, IS NOT PROTECTED

UNDER THE FOURTH AMENDMENT AS CON-

STRUED IN RAKAS v. ILLINOIS FROM AN UN-

WANTED, WARRANTLESS POLICE SEARCH

OF HIS ROOM. THIS HOLDING THREATENS

THE PRIVACY RIGHTS OF THE ENTIRE

TRAVELING PUBBAU occesccccctvswnenss.

A. A Hotel Room Is The Constitutiowal

Equivalent Of A Home For Police-Search

POUND oon chcdsbinntscaneuaan eases.

B. Under Rakas, A Guest’s Failure To Pre-

Pay All Room Charges In Advance Is Not

Dispositive Of His Constitutional Rights ..

C. The Court Of Appeals Reduced The Rakas

Analysis To A Bright-Line Test That

Focuses On A Particular Hotel’s Policies

Instead Of The Reasonableness Of The

Privacy Expectations Of Guests ......

PAGE

iii

II.

THE COURT OF APPEALS ERRED IN MAK-

ING A FACTUAL “FINDING” OF EXIGENT

CIRCUMSTANCES WHERE THE DISTRICT

COURT MADE NO SUCH FINDING, THE OFFI-

CERS DID NOT RELY ON EXIGENT CIRCUM-

STANCES, AND NO EXIGENCY EXISTED ..

A. The Police Officers’ Actual Belief And

Judgment Is Central To The Doctrine Of

Exigent Circumstances ...............

B. The Police Officers Made No Subjective

Judgment Of Exigency ..............

C. There Was No Objective Basis For Con-

cluding That An Exigency Existed ...

D. When Appellate Judges Substitute Their

Speculations For Police Officers’ Judgment,

The Exigent Circumstances Exception

Swallows The Warrant Clause Whole ...

I Wie WE WS GH A's (E0585 bON Seo n050 ote

APPENDIX

Opinion of the United States Court of Appeals

20

ur GW Meee CHROME: 2... cece eens App. 1

Order of the United States Court of Appeals

for the Eighth Circuit Denying Rehearing

and Rehearing en banc ................ App. 13

Order of the United States Court of Appeals

for the Eighth Circuit Affirming the Judg-

ment of the District Court ............. App. 14

Order of the United States District Court for

the District of Minnesota, Fourth Division,

Denying the Motion to Suppress ....... App. 15

iv

TABLE OF AUTHORITIES

Cases PAGE

Adams v. Williams, 407 U.S. 148 (1972) ...... 14

Hoffa v. United States, 385 U.S. 293 (1966) ... 7

Illinois v. Gates, 103 S.Ct. 2317 (1988) ........ 14

Johnson v. United States, 333 U.S. 10 (1948) ....

Lcawaue ka CRaS Ae) eae caw ees eer 6, 7, 15, 19, 20

Katz v. United States, 389 U.S. 347 (1967) .... 10,15

Lutsig v. United States, 338 U.S. 74 (1949) ... 7

McDonald v. United States, 335 U.S. 451 (1948) .. 15

Michigan v. Clifford, 104 S.Ct. 641 (1984) ..... 6, 10

Mincey v. Arizona, 437 U.S. 385 (1978) ....... 15, 19

New York v. Quarles, 104 S.Ct. 26246 (1985) ... 15, 18

Oliver v. United States, 104 S.Ct. 1735 (1984) ... 10

Payton v. New York, 445 U.S. 5387 (1980) ..... 6

Rakas v. Illinois, 489 U.S. 128 (1978) ....... passim

Rawlings v. Kentucky, 448 U.S. 98 (1980) ..... 9, 19

Segura v. United States, 104 S.Ct. 3380 (1984) .. 19

Stoner v. California, 376 U.S. 483 (1964) ...... 4, Ae

United States v. Botelho, 360 F.Supp. 620 (D.

PRE TPGGE | icc ke cnddan nev cckancedeensess 9

United States v. Brock, 667 F.2d 1311 (9th Cir.

1982), cert. denied 103 S.Ct. 1271 (1983) ... 16

United States v. Croft, 429 F.2d 884 (10th Cir.

Peer err Pree corr rr rect y 12

Vv

United States v. Haddad, 558 F.2d 968 (9th Cir.

SE bn ck tA a REMAKE EA ONRES LKR REARS KA

United States v. Jeffers, 342 U.S. 48 (1951) ...

United States v. Lee, 700 F.2d 424 (10th Cir. 1983),

cert. denied, 103 S.Ct. 3094 (1983) .........

United States v. Lyons, 706 F.2d 321 (D.C. Cir.

ere ee Mg ere eee ee

Re rer i rn eee ae

United States v. Parizo, 514 F.2d 52 (2d Cir. 1975) .

United States v. Perez, 700 F.2d 1232 (8th Cir.

1983), cert. denied 104 S.Ct. 3587 (1984) ...

United States v. Sharpe, 105 S.Ct. 1568 (1985) ...

United States v. Whitten, 706 F.2d 1000 (9th Cir.

1983), cert. denied 104 S.Ct. 1593 (1984) ...

United States v. Wylie, 569 F.2d 62 (D.C. Cir.

1977), cert. denied 485 U.S. 944 (1978) .....

Vale v. Louisiana, 399 U.S. 30 (1970) .........

Warden v. Hayden, 387 U.S. 294 (1967) .......

Welsch v. Wisconsin, 104 S.Ct. 2091 (1985) ....

In THE

Supreme Court of the United States

OcToBer TERM, 1985

|

DUANE WENDALL LARSON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The petitioner Duane Wendali Larson respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Eighth Circuit entered in this proceeding on April 11,

1985, and the order of the United States Court of Appeals

for the Eighth Circuit, entered May 31, 1985, denying the

petition for rehearing with suggestion of rehearing en

banc.

OPINIONS BELOW

The opinion of the Court of Appeals, United States of

America v. Larson, appears at 760 F.2d 852 (1985), and

is reproduced in the Appendix hereto at App. 1 through

allies

App. 12. The order on denial of rehearing and rehearing

en banc, not yet reported, appears in the Appendix at

App. 18. The order affirming the judgment of the District

Court in accordance with the opinion of the Court of Appeals

appears in the Appendix at App. 14. The opinion of the

District Court, denying petitioner’s Motion to Suppress,

appears in the Appendix at App. 15 through App. 17.

JURISDICTION

The judgment of the Court of Appeals for the Eighth

Circuit was entered on Apri! 11, 1985. A timely petition

for rehearing en banc was denied on May 31, 1985, with

Circuit Judge Theodore McMillian voting to grant en banc

review, and this petition for certiorari was filed within

60 days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. Section 1254(1).

STATEMENT

This petition concerns the warrantless, non-consensual

police search of a motel room which, at the time of the

search, was occupied by a paying, registered guest who

had been assigned to the room.

Evidence adduced at the hearing on the motion to sup-

press revealed that about 6:40 p.m., on October 29, 1983,

Officers Schlueter and Holden of the City of Burnsville,

Minnesota Police Department responded to a report that

ee |

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an assistant manager for the Howard Johnson Motel in

Burnsville had found a “suspicious substance” in one of

the rooms.

Upon their arrival, the motel’s assistant manager, William

Webster, informed them that (1) “it appeared that they

had a room within the motel that had been vacated;” and

(2) “that there was [sic] several bags in the motel room

which contained white powder which he [Webster] con-

sidered to be a suspicious nature’’ (emphasis supplied). At

that time Webster also told the police that on October

28, 1983, one Sheila Burgess had registered for herself

and a male companion and had been assigned to room 124.

Webster informed the officers that Burgess left the motel

in a taxi the next morning; and that at 2:30 that after-

noon a maid had gone to make up the room but was told

by a male inside the room that “he did not want service

and that he was staying over.’”’ Webster then stated that

when telephone calls were made about 5:30 p.m. from the

room, he first sent the bellman and then inspected the

room himself. At 5:45 p.m., Webster entered the room and

found brown paper bags containing plastic bags filled

with white powder, which he could not identify, some keys

and prescription pill bottles. Webster testified that he

“wouldn’t recognize illegal narcotics if I saw them but

I knew it wasn’t sugar and I knew it wasn’t flour.’’ Webster

then called the Burnsville police.

At 7:00 p.m., the Burnsville police officers proceeded

to room 124 accompanied by Webster to conduct a search

directed to the room and its contents, including the

suspicious white powder. Webster inserted his pass key

and at the same time knocked on the door. At that time

the male occupant, who had returned to the room, answered,

“What do you want?” Webster said he was the manager

and that he wanted to get paid for the room for the day.

ailbiais

The male occupant answered, “I’ll be down to take care

of it in a few minutes.” Webster agreed, responding,

“Okay.”

Realizing that the occupant had returned to the room,

Officer Holden said, ‘“‘There was a brief time when quite

frankly Schlueter and I looked at each other—kind of like

‘what are we going to do now?’”’ Then Schlueter went

up and knocked on the door of room 124 himself. He an-

nounced himself as a police officer and asked to talk to

the person inside the room, who responded, “Just a

minute.” Fifteen seconds later petitioner Larson came out

of the room and closed the door behind him. Officer

Holden asked him for identification and Larson provided

his own driver’s license. One of the officers also asked

to whom the room had been registered, and Larson

demonstrated that ne was the “other” occupant of the

room, (the registration card showed two occupants), cor-

rectly naming Sheila Burgess of Lake Crystal, Minnesota,

whose name and address appeared on the registration

card that Webster had given the police.

Larson then inquired, in effect, ‘“What’s this all about?

If it’s about payment of the room, I already told the

manager that I’d come down and pay them.” At this

point, Officer Schlueter asked Larson for permission to

enter room 124. Larson refused. The officer then turned

to the motel manager, Donald Peterson, who had just ar-

rived at the room, and in Mr. Peterson’s words, ‘{Ble-

cause Mr. Larson had said that he would not give per-

mission to enter that room, and then the police officer

said, well, that it would come down to the motor lodge

manager [Peterson] making the decision,” Peterson then

stated that as far as he was concerned the officers could

enter.

———ee

idles

Before the door was actually opened, Larson stated that

he wanted everyone “to fully understand that [they] were

going into his room without his consent.” The officers

acknowledged that they were entering without Larson’s

consent. Nevertheless, Schlueter, followed by Holden, then

entered. Once in the room the officers saw several brown

paper bags containing a white powder, which was later

analyzed to be cocaine, liquor bottles, used Kleenex and

a blue vest. Upon searching the contents of the bags, they

placed Larson under arrest and proceeded to “process the

scene.”

After trial, Larson was sentenced to ten years incarcera-

tion. In June, 1985, his bond was revoked, and he began

serving his sentence.

REASONS FOR GRaNTING THE WRIT

I.

THE COURT OF APPEALS ERRED IN HOLDING THAT

A REGISTERED HOTEL GUEST WHO HAS PAID FOR

ONE NIGHT AND COMMUNICATED HIS INTENT TO

STAY OVER; WHO IS OCCUPYING HIS ASSIGNED

RVUOM; AND WHO IS VIGOROUSLY ASSERTING HIS

RIGHT TO PRIVACY, IS NOT PROTECTED UNDER THE

FOURTH AMENDMENT AS CONSTRUED IN RAKAS V.

ILLINOIS FROM AN UNWANTED, WARRANTLESS

POLICE SEARCH OF HIS ROOM. THIS HOLDING

THREATENS THE PRIVACY RIGHTS OF THE ENTIRE

TRAVELING PUBLIC.

This case is about hotel guests—all hotel guests—and

their constitutional entitlement to protection from war-

rantless police intrusions into their rooms. In determining

a

that petitioner Larson lacked a reasonable expectation of

privacy in his motel room when the police entered and

searched it, the court of appeals held, by unavoidable im-

plication, that none of us has a constitutionally protectable

privacy interest when we are guests in hotels, except in

the unusual circumstance that we have paid in full, in ad-

vance for all charges to be incurred during our stay.

The court’s opinion was, however, as wrong as it was

dangerous. In ruling that a guest who does not pre-pay

in full loses his Fourth Amendment rights, the court ap-

plied a bright-line legal standard that directly conflicts

with the case-by-case approach to Fourth Amendment

problems that this Court established in Rakas v. Illinois,

439 U.S. 128 (1978), and ignored a set of facts and circum-

stances in which any reasonable hotel guest would have

assumed that his privacy was fully protected.

A. A Hotel Room Is The Constitutional Equivalent Of A

Home For Police-Search Purposes.

The dispositive inquiry for contemporary claims to

Fourth Amendment protection is whether, under the cir-

cumstances existing at the time of a governmental search,

the defendant had a reasonable expectation of privacy in

the place searched. Rakas, 489 U.S. at 141-146. Our right

to privacy within our homes and dwelling places, of course,

has always received the highest degree of protection. E.9.,

Michigan v. Clifford, 104 S.Ct. 641, 649 (1984); Payton

v. New York, 445 U.S. 587, 589 (1980).

A hotel room, in which all of the personal functions of

daily life are performed, is as much a citadel of privacy

as a home; and a guest in a hotel or motel room enjoys

the full array of constitutional protections against unrea-

sonable searches and seizures. E.g., Johnson v. United

a

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States, 333 U.S. 10 (1948); Lustig v. United States, 338

U.S. 74 (1949); Hoffa v. United States, 385 U.S. 293, 301

(1966). That a guest’s occupancy of the room is brief, or

that he may have a permanent home elsewhere, is irrele-

vant. A hotel guest uses his room for personal, and fre-

quently intimate, living activities. Thus, for constitutional

purposes the room is a temporary home. The last 35 years

of hotel search opinions from this Court affirm and reaf-

firm this principle. Likewise, the fact that hotel person-

nel may enter a guest’s room on hotel business does not

dilute the guest’s privacy interests vis-a-vis the police.

United States v. Jeffers, 342 U.S. 48, 51-2 (1951). Nor may

a hotel manager take it upon himself to waive a guest’s

Fourth Amendment rights. Stoner v. California, 376 U.S.

482, 490 (1964).

B. Under Rakas, A Guest’s Failure To Pre-Pay All Room

Charges In Advance Is Not Dispositive Of His Constitu-

tional Rights.

Had the police knocked on Larson’s door 24 hours

earlier, when Burgess and Larson had just arrived and

Burgess had registered and paid for the room for both

of them, the reasonableness of Larson’s expectation of

privacy would thus have been beyond dispute.! Larson,

however, stayed over into a second day but had yet not

paid for the second night’s lodging, a fact the court of

1 That someone else registered and paid for the room initially

is irrelevant to the assessment of Larson’s privacy interests. The

room was registered to two persons, and Mr. Larson was one of

them. During the initial paid-for period he was clearly a hotel

est. See, e.g., United States v. Lyons, 706 F.2d 321, 327 (D.C.

ir. 1983) (fact that hotel room paid for and rented for defendant

by police posing as narcotics customers irrelevant to defendant’s

constitutional right of privacy therein).

willie

appeals apparently found to be critical. Larson’s failure

to pre-pay the second night’s room rental cannot be deter-

minative of his constitutional rights, however, for the cir-

cumstances clearly demonstrate that his expectation of

continued occupancy and privacy was reasonable. His in-

tent to stay over had been communicated to the assis-

tant hotel manager in the afternoon before the police

search. At 7:00 p.m., that assistant manager replied

“okay” to Larson’s offer to come down “in a few minutes”

to pay for the use of the room for the holdover day. Lar-

son’s personal belongings had been in the room continu-

ously and he had been in and out of the room more than

once. The management had done absolutely nothing to

counter Larson’s assumption that he could continue to oc-

cupy the room for a second day. Far from informing Lar-

son by word or action that the room was no longer his,

the management affirmatively ratified Larson’s express

intent to stay over.

Despite these undisputed circumstances, the court of ap-

peals ruled that Larson’s vigorously asserted subjective

expectation of privacy was unreasonable.’ In reaching this

2 The court specifically held:

“Here, Larson’s exclusive right to privacy in room 124

elapsed prior to the police search. Larson stayed in the room

seven hours beyond the checkout time and five hours beyond

the time he had been given permission to stay without pay-

ing for the next day’s rent in advance as required by motel

policy” (App. 5).

° Larson’s subjective belief that he was entitled to keep police

out of his room is undisputed. Larson had paid for the first night.

He had communicated his intent to stay over, and received the

hotel’s ————. before the police entered and searched his

room. When the police knocked, he came out of his room, closing

the door behind He refused to consent to an search, and

indeed, insisted that the officers acknowledge that the search was

(Footnote continued on following page)

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determination, the court created a bright-line rule that

a hotel guest who stays over after an initial, paid-for

period loses his right to privacy whenever he does not

make full payment for the next night’s lodging in advance.

This rule is unprincipled and its implications are fright-

ening. The policies of hotels and motels vary widely with

respect to when payments are due for stays longer than

a single night.4 All of us who frequent hotels in business

and personal travels share the expectation that once an

initial period has been paid for, we can go about our busi-

ness, and settle all outstanding charges upon check out.5

Thus, common travelers would be shocked to learn that

their failure to make advance payments can, standing

alone, extinguish their right to privacy in rooms they have

continuously used and occupied. Yet this is the court of

appeals’ view of the law. And indeed the implications are

ominous. Where there is no constitutionally recognized

right of privacy, of course, there is no requirement of

3 continued

performed against his will and consent. Unlike the defendant in

Rawlings v. Kentucky, 448 U.S. 98, 100 (1980), for instance, who

“frankly admitted that he had no subjective expectation of

privacy” in his friend’s purse, Larson took steps to preserve his

privacy within the room, and persisted, before and during the

search, in expressing his belief that he had the right to refuse

his consent to search.

4 Expecting to pay at check-out is particularly reasonable where,

as here, there were charges for long-distance calls. Items such as

telephone or room service, which by their nature cannot be paid

for in advance are normally settled at check-out with any unpaid

room charges.

5 Had Larson been a week-to-week tenant in a rented cottage

or apartment, it is clear that non-payment of rent, without more,

would not make his expectation of privacy unreasonable. United

States v. Botelho, 360 F. Supp. 620, 624 (D.\ Hawaii 1973). The

same rule should be applied where a hotel guest continues to oc-

cupy a room but intends to pay at check-out.

==

probable cause—or indeed of any cause at all—before the

government can invade and search. Katz v. United States,

389 U.S. 347 (1967). If the court o* appeals’ ruling is

upheld, the police would have the right randomly and with

no cause to kick in the door of a honeymooning couple

who have overslept the hotel’s checkout time by a few

minutes or to systematically break in and search the room

of any business traveler—lawyer, judge, or senator—whose

business forces him to extend his stay for an extra few

hours but who is unable to return to the hotel to make

an additional pre-payment.

Finally, this single-fact rule directly conflicts with the

principled, case-by-case analysis to Fourth Amendment

issues demanded by Rakas. There, the Court held that

privacy rights are not to be determined by “arcane dis-

tinctions developed in property and tort law between

guests, licensees, invitees and the like.” Rakas at 143.

Under Rakas, the focus is not on the defendant’s con-

tractual right to the space or his proprietary interest in

the premises, but on the reasonableness of his privacy

expectation.

Tested against the factors applied in Rakas and its prog-

eny for measuring the reasonableness of a privacy expec-

tation, Larson’s expectation was manifestly reasonable.

See Rakas at 150-154 (Powell, J., conc.); Oliver v. United

States, 104 S.Ct. 1735 (1984); Michigan v. Clifford, 104

S.Ct. 641 (1984). Larson had used the hotel room as his

living quarters: he had slept there, kept his possessions

there, made phone calls there, performed private intimate

acts there. He had taken “reasonable precautions” to

maintain his privacy: he had kept his door shut and locked

from the inside; he did not open it to the maid and in

fact instructed her not to clean the room; nor did he later

open his door voluntarily to the assistant manager or the

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police. From a historical perspective, the Fourth Amend-

ment’s specific reference to “houses” includes hotel rooms.

This Court has held as much. Finally, Larson did, in fact,

have cognizable property and possessory interests in the

room and its contents; he was present in the room at the

time of the search; it was the room to which he was as-

signed and for which he had paid; he had slept in the

room; his personal belongings including keys and clothes

were there; he had the keys to the room; the assistant

manager had accepted his offer to pay for the second

night’s lodging.

C. The Court Of Appeals Reduced The Rakas Analysis To

A Bright-Line Test That Focuses On A Particular

Hotel’s Policies Instead Of The Reasonableness Of The

Privacy Expectations Of Guests.

The court of appeals did not consider a single one of

these facts or the Rakas factors for measuring reasonable-

ness. To the court the fact, standing alone, that Larson

had not pre-paid his bill in full was enough to deprive

him of the protection of the Fourth Amendment, despite

the reality that any reasonable hotel guest in Larson’s

shoes, knowing what Larson knew, would have considered

that he was entitled to privacy.® Surely, such a result is

6 The court of _— cited a Second Circuit case, United States

v. Parizo, 514 F.2d 52 (2d Cir. 1975), and others similar to Parizo

as precedent (App. 4). But even a cursory review of those deci-

sions indicates that the court’s reliance was misplaced. In each

of them the defendant was absent from the hotel room when the

search took place and had intentionally relinquished his posses-

sion of the room. In Parizo, the defendant was in police custody

during search, and the trial court specifically found that he had

“intentionally relinquished possession” of the room. In United

States v. Haddad, 558 F.2d 968 (9th Cir. 1977), the defendant had

checked out and gone to the airport when search was made. In

(Footnote continued on following page)

=

not consistent with Rakas. In Rakas, the Court recast

the Fourth Amendment analysis from one that focuses on

a defendant’s: “standing” to one that focuses on the rea-

sonableness of his privacy expectations. In so doing, how-

ever, the Court emphasized that all defendants found to

have had “standing” in prior decisions, would have had

“reasonable expectations of privacy” if tested under the

new analysis. Rakas at 139. Here, it was uncontested

that, as the magistrate specifically held at the suppres-

sion hearing, Larson had “standing’’ to invoke the Fourth

Amendment. Yet, despite Larson’s standing, the court of

appeals held he did not have a reasonable expectation of

privacy.

This summary rejection of Larson’s meritorious claim

to privacy is an erroneous departure from Rakas that

6 continued

United States v. Croft, 429 F.2d 884 (10th Cir. 1970), and United

States v. Lee, 700 F.2d 424 (10th Cir. 1983), cert. denied 103 S.Ct.

3094 (1983), the defendants were in custody during search. It was

surely plain to each of those defendants, as well as everyone else

involved, that under the circumstances their privacy interests in

the searched rooms had evaporated. Here, in sharp contrast, Mr.

Larson was present, having relinquished nothing, and vigorously

asserting his right to privacy throughout the search.

The cases cited by the court are inapposite for a second reason:

in each of them the expiration of the rental period pricr to the

challenged search was unambiguous. In Parizo, for instance, de-

fendant’s “‘vague”’ wish to stay over had not been communicated

to hotel management; indeed he had been “checked out’’ of the

room, and the room cleaned for a new occupant prior to the search.

514 F.2d at 53. In Haddad, the defendant had himself checked

out of the room and gone to the airport to leave the city. 558 F.2d

at 975. In Lee and Croft defendants were in custody when the

rental period elapsed without their having taken any steps to re-

tain the room. Here, Larson was occupying the room, the assistant

manager knew before the police even arrived that Larson intended

to stay over, and that same manager had accepted Larson’s offer

to come down and pay for the second night.

=

diverts the Fourth Amendment inquiry from the reason-

ableness of a guest’s expectations to differing house pol-

icies of thousands of hotels and hotel managers throughout

the country. This case presents an excellent opportunity

for the Court to consider the important and recurring

problem of the Fourth Amendment rights of hotel and

motel guests; and also to create a national approach to

the problem so that travelers, moving from state to state

and hotel to hotel, can assess the measure of privacy to

which they are entitled in their temporary homes.

II.

THE COURT OF APPEALS ERRED IN MAKING A FAC-

TUAL ‘“‘FINDING”’ OF EXIGENT CIRCUMSTANCES

WHERE THE DISTRICT COURT MADE NO SUCH FIND-

ING, THE OFFICERS DID NOT RELY ON EXIGENT CIR-

CUMSTANCES, AND NO EXIGENCY EXISTED.

As an alternative basis for denying Larson’s motion to

suppress, the court of appeals upheld the warrantless

search of his motel room on the ground that “exigent cir-

cumstances existed making it necessary to search the

room before a warrant could be obtained” (App. 6).7 The

* The predicate for this alternate holding—but not for the holding

on the Rakas issue—was that there was probable cause to conduct

the search (App. 6). The court of appeals’ findings on this had no

basis in the record. The only information the police had about

the room was the assistant manager’s statement that he had found

“a bag with plastic bags of white substance inside.” The assis-

tant manager, who was not known to the officers before the inci-

dent, testified that he knew nothing about narcotics: “I wouldn’t

recognize illegal narcotics if I saw them, but I knew it wasn’t

sugar and I knew it wasn’t flour.”

The officers did nothing to corroborate this information before

entering Larson’s room. In light of the assistant manager’s frank

and wholesale lack of knowledge and the absence of corroborative

(Footnote continued on following page)

=

court also made subsidiary findings of fact which pur-

ported to justify this conclusion (App. 6). But these find-

ings and conclusion are unsupported: the district court

never considered exigency, nor did it make any findings

of fact which would support such a conclusion. Moreover,

the appellate court’s findings are unsupportable: the

record from the suppression hearing indisputably demon-

strates that the searching officers were not acting on

either a subjective or objective belief that an exigency

existed. Indeed, they—like the district court—never con-

sidered the question.

The court of appeals’ blithe willingness to substitute

hypothesized facts for the facts reflected in the record,

is both erroneous and dangerous. If this decision is upheld,

the core of the exigent circumstances doctrine—the police

officer’s actual assessment of the situation—will be evis-

cerated. The traditional allocation of fact- and law-finding

functions between trial and appellate courts will be seri-

ously undermined. And the exigent circumstances doctrine

will be unloosed to expand to apply wherever appellate

judges can postulate facts that might, if present and

known to the officers, create a hypothetical exigency.

7 continued

facts or circumstances, his report to the police did not give them

probable cause to believe the white substance he had seen was

contraband. Illinois v. Gates, 103 S.Ct. 2317, 2326 (1983) (standing

alone without corroboration, an informant’s tip does not provide

probable cause); Adams v. Williams, 407 U.S. 148, 147 (1972) (un-

corroborated citizen’s tip is insufficient to support full-scale search).

In the event certiorari is granted, in addition to arguing the

Rakas and exigent circumstances issues, we will argue that there

was, as a matter of law, insufficient probable cause to support the

search.

oe

A. The Police Officers’ Actual Belief And Judgment Is Cen-

tral To The Doctrine Of Exigent Circumstances.

The rule of exigent circumstances provides the basis for

a “few specifically established and well-delineated” ex-

ceptions to the Constitution’s warrant requirement. Katz

v. United States, 389 U.S. 347, 357 (1967). Exigent cir-

cumstances exist where there is an emergency “threaten-

ing life or Jimb” or where there is a substantial risk to

the law enforcement process if a search is delayed. E.g.,

Mincey v. Arizona, 437 U.S. 385 (1978); Warden v.

Hayden, 387 U.S. 294 (1967); Johnson v. United States,

supra 333 U.S. 10. Where the exigent circumstances ex-

ception is relied upon to justify the warrantless entry into

a dwelling place, the actual circumstances underlying the

entry must be examined with extra scrutiny because of

the special protections the Fourth Amendment provides

persons in such a place. Welsch v. Wisconsin, 104 S.Ct.

2091 (1985).

Up to now, the law has been that the burden is on the

government to come forward with facts to demonstrate

the exigency. Vale v. Louisiana, 399 U.S. 30 (1970);

McDonald v. United States, 335 U.S. 451 (1948). Up to

now, this Court as well as the lower courts have consid-

ered that these facts must include proof that the searching

officers actually believed that an exigency existed at the

time of the search, or at least would have come to that

conclusion if they had had time to stop and think about

it. E.g., New York v. Quarles, 104 S.Ct. 2626 (1985);

United States v. Whitten, 706 F.2d 1000, 1014 (9th Cir.

1983), cert. denied 104 S.Ct. 1593 (1984), (the searching

officers ‘‘must be able to point to specific and articulable

facts supporting their belief. . .””); United States v. Wylie,

569 F.2d 62, 67 (D.C. Cir. 1977), cert. denied 435 U.S. 944

(1978). The need for the search “must be readily apparent

_

to the police.” United States v. Brock, 667 F.2d 1311, 1318

(9th Cir. 1982), cert. denied 103 S.Ct. 1271 (1983). Up to

now, the reviewing court’s assessment of the relevant

facts and circumstances has been limited to the reason-

ableness of the officer’s belief that exigent circumstances

existed, e.g., United States v. Morales, 737 F.2d 761, 764

(8th Cir. 1984), with reasonableness being assessed in

terms of the officers’ knowledge at the time of the search,

not hindsight or speculation. E.g., United States v. Perez,

700 F.2d 1232, 1237 (8th Cir. 1983), cert. denied 104 S.Ct.

3587 (1984).

In other words, up to now both this and the lower

courts have focused the exigent circumstances doctrine

on what the officers knew, when they knew it, and how

they evaluated it. It is precisely because of police _fficers’

experience that they are permitted to overcome the con-

stitutional presumption against warrantless searches in

situations where they can and do make expert, informed

decisions that an emergency exists which precludes ob-

taining a warrant before proceeding. The officer’s deci-

sion can be reviewed for reasonableness, but, because the

court possesses neither the policeman’s expertise nor his

on-the-spot knowledge of the facts, it cannot make the

decision in the first instance. Yet that is exactly what hap-

pened here.

B. The Police Officers Made No Subjective Judgment Of

Exigency.

As the court of appeals’ own statement of facts indi-

cates, the officers who searched Larson’s room thought

they were performing a “management-consent” search.®

8 Thus, the officer® :iever considered whether they had probable

cause to conduct a warrantless search.

~ ss

After Larson declined to authorize their entrance of his

room, the officers ‘sought consent from the motel man-

agers” to search, and entered and searched only upon re-

ceiving that consent (App. 3).°

Indeed, in making its de novo finding that exigent cir-

cumstances did exist, the court of appeals nowhere asserts

that the officers ever considered the issue of exigency or

believed that an emergency existed. Instead, the court

recites its own conclusion that there were exigent circum-

stances, and supports it with three facts: the room was

on the ground floor; it had two entrances; and the police

did not know whether anyone other than Larson was in

the room. Significantly, as the government conceded in

its response to Larson’s Petition for Rehearing, there was

no proof that the officers were even aware of the second

entrance.!® And the record clearly demonstrates that at

the time of the search, the police knew that Sheila Bur-

gess, the only other person ever known to have been in

the room with Larson, had left for the airport in a taxi

cab.

Thus, when the officers and assistant manager found

Larson in his room, the officers testified that they “looked

at each other—kind of like ‘what are we going to do

now?’” before knocking and identifying themselves. As

their testimony reflected, they neither expressed nor bore

any concern that evidence would be destroyed, that Lar-

son would disappear, or that someone would be harmed

® Of course, as discussed in Section I, above, the manager’s con-

sent was constitutionally irrelevant, because Larson retained a

legitimate — of tn in the room. Stoner v. Califor-

nia, supra 376 U.S. at 490.

10 Indeed, the government adduced facts concerning the location

and entrances of the room through motel personnel, and the of-

ficers did not testify on the subject.

=

before a warrant could be obtained. The conclusion is in-

escapable: the officers did not determine that an exigent

situation existed, and did not perform their search on that

basis.

C. There Was No Objective Basis For Concluding That An

Exigency Existed.

The basis of the court of appeals’ conclusion was that

the danger of destruction of evidence created an emergen-

cy. But there was nothing in the record from which it

could be inferred that any such danger actually existed.

Obviously, the mere fact that destructible narcotics may

have been involved is insufficient to establish an exigency,

because the possibility of destruction of evidence exists

in every narcotics investigation. There were no other facts

that, coupled with a suspicion of narcotics, could have

created an objectively reasonable exigency. When the of-

ficers knocked and identified themselves, Larson came out

of the room and shut the door behind him. No noise was

heard from within. There were no sounds of flushing

water, hasty steps, or other indications that destructive

action was imminent.!! In other words, this was not a

case like New York v. Quarles, supra 104 S.Ct. 2626,

where an appellate judge—or any other reasonable per-

son—could conclude that an exigency existed by merely

reviewing the record of testimony at the suppression hear-

ing. To the contrary, the court of appeals’ conclusion here

was based on pure judicial speculation.

Moreover, and significantly, the police officers had other

options—far more constitutionally palatable—than simply

11 As discussed, it was also uncontested that the only other per-

son known to have been involved with Mr. Larson—the woman

who checked in with him—left the hotel earlier that day.

=

making a warrantless search. They could have “frozen”

the situation by detaining Larson when he appeared out-

side his motel room while they obtained a warrant, tele-

phonic or otherwise. United States v. Sharpe, 105 S.Ct.

1568 (1985); Segura v. United States, 104 S.Ct. 3380

(1984).12 This would have avoided the constitutional issue

raised, and would have allowed the officers to enter the

room at any time on an emergency basis if they heard

suspicious noises or activity in the room.}*

D. When Appellate Judges Can Substitute Their Specula-

tions For Police Officers’ Judgment, The Exigent Cir-

cumstances Exception Swallows The Warrant Clause

Whole.

Permitting courts of appeals to make de novo and whol-

ly speculative findings on exigent circumstances presages

an uncheckable and unprincipled expansion of the exigent

circumstances exception; for its application will be limited

only by the extent of the appellate courts’ creativity.

Such a danger is not present in the superficially similar

event that a reviewing court is called upon to make an

initial determination as to whether probable cause existed

for a warrantless search. See, Johnson v. United States,

12 Indeed, in Segura, this Court drew precisely the distinction

sought here between the right to preserve the status quo and the

ight to search, when it held that premises could be secured while

officers, in good faith, obtained a warrant, but that absent exigent

circumstances, a search would have been illegal. 104 S.Ct. at

3386-90.

13 Such procedures are well-established and have long been upheld

by this Court. See, e.g., Rawlings v. Kentucky, supra 448 U.S.

98 (officers detained suspects in living room of apartment for 45

minutes while warrant obtained for search); Mincey v. Arizona,

supra 437 U.S. 385 (police guard could be stationed at entry of

apartment to preserve status quo while warrant obtained).

—20—

supra 333 U.S. at 13-14. Indeed, a police officer’s on-the-

spot determination of probable cause is merely a neces-

sary substitute for the magistrate’s neutral and detached

application of the law to the facts of the case. Ultimate

review of the determination by a court makes the officer’s

on the scene conclusions largely irrelevant. Conclusions

about exigent circumstances are quite different. In decid-

ing to forego a warrant and to invade a person’s personal

living quarters, we insist that officers make reasoned—

though speedy—decisions. We rely on their special exper-

tise and experience in assessing emergency situations, and

the judgments they make are not judicial, like a determi-

nation of probable cause, but intensely factual. That being

so, a reviewing court should not “second guess’’ the ex-

igencies of a Fourth Amendment situation, when the pro-

fessional on the spot never made the necessary “first

guess.”

CONCLUSION

This case presents several significant and recurring

questions of law. The “reasonable expectation of privacy”

of a hotel guest, who has paid for 2 previous night’s lodg-

ing and as to whom the management has agreed may pay

for the next night’s lodging, is of serious concern. The

propriety of an appellate court’s finding an exigency

where the police officers and the trial court found none

at...

raises important issues of judicial function.14 For these

reasons, the writ of certiorari should be granted.

Respectfully submitted,

RAYMOND J. SMITH *

ELLEN G. ROBINSON

BURKE AND SMITH CHARTERED

55 West Monroe Street

Suite 1800

Chicago, Illinois 60603

(312) 853-3230

Attorneys for Petitioner

Duane Wendall Larson

Of Counsel:

ALAN M. DERSHOWITZ

LAURA HANFT

Harvard Law School

1525 Massachusetts Avenue

Cambridge, Massachusetts 02138

(617) 495-4617 * Counsel of Record

4 Even if the Court were to have doubts as to whether the ex-

oun circumstances issue merits review, certiorari should never-

theless be ted to consider the Eighth Circuit’s significant and

unacceptable holding on the Fourth Amendment privacy issue,

which stands alone, wholly independent from the exigent circum-

stances issue.

APPENDIX

App. 1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

UNITED STATES OF AMERICA,

Appellee,

No. 84-5080 v.

DUANE WENDALL LARSON,

Appellant.

UNITED STATES OF AMERICA,

Appellee,

No. 84-5081 Vv.

SHEILA JANE BURGESS,

Appellant.

Appeals from the United States District Court

for the District of Minnesota.

Submitted: December 10, 1984

Filed: April 11, 1985

Before HEANEY, ROSS, and FAGG, Circuit Judges.

App. 2

ROSS, Circuit Judge.

A jury found Duane Wendall Larson and Sheila Jane

Burgess guilty on a count of an indictment which charged

them with possessing three pounds of cocaine with intent

to distribute in violation of 21 U.S.C. § 841(aX1) (1982),

and aiding and abetting such action in violation of 18

U.S.C. § 2 (1982). The cocaine was discovered by police

upon a warrantless search of a motel room in Burnsville,

Minnesota.

On appeal, both defendants argue that the evidence ob-

tained pursuant to the search should have been suppressed.

The defendants also assert that the trial court violated

their due process rights by refusing to grant a continuance

and by failing to conduct a sufficient review of the magis-

trate’s findings and recommendations on their motions to

suppress. Finally, defendant Burgess argues that the evi-

dence was insufficient to support her conviction, that the

prosecutor failed to disclose certain evidence in violation

of the dictates of Brady v. Maryland, 373 U.S. 83 (1963),

and that her due process rights were violated in that she

was not given sufficient time to prepare for trial.

We affirm defendant Larson’s conviction, but reverse

defendant Burgess’ conviction based on the insufficiency

of the evidence to support her conviction. Due to our reso-

lution of Burgess’ sufficiency of the evidence issue, we

shall not address the other issues as they relate to her.

FACTS

On the afternoon of October 28, 1983, a woman rented

room 124 of a Howard Johnson’s motel for one night. The

woman registered under defendant Burgess’ name and ad-

dress and advised the desk clerk that two people would

be occupying the room. She paid for the room in advance,

as required by motel policy.

On the morning of October 29, 1983, the woman checked

out of the motel and took a taxi to the airport to pick

up a car. She had received permission from William

ee ee ee a nt iain hated tetas

App. 3

Webster, the assistant manager, for the other occupant

of room 124 to stay in the room until 2:00 p.m. The

normal checkout time is noon.

At about 2:30 p.m. a maid went to clean the room, but

was told by defendant Larson that “he did not want serv-

ice and was staying over.” The maid then informed

Webster of this occurrence.

Webster sent a bellman to the room at about 5:30 p.m.,

since he feared that the occupant of room 124 would leave

without paying for several long distance phone calls which

had been made from the room. The bellman reported that

the room was unoccupied.

Webster then went to examine the room himself. When

no one answered the door, he entered and discovered

empty liquor bottles, prescription pills, keys, and grocery

bags containing plastic bags with white powder in them.

After getting the motel’s assistant restaurant manager to

help him examine the white powder more closely, he call

the motel’s general manager and th_ police.

At about 6:40 p.m. two Burnsville police officers arrived

at the motel. Webster informed them that there were sev-

eral bags containing a suspicious white powder in a

vacated room.

At about 7:00 p.m. Webster knocked on the door to

room 124. He was about to enter, using a passkey, when

he heard an answer from within the room. Webster in-

formed the occupant that the day’s rent had not been

paid. Larson replied from within that “he’d be down to

take care of it in a few minutes.” Webster replied “okay.”

The police then knocked on the door and asked to talk

to Larson. After a short delay, Larson came out of the

room and closed the door behind him. When Larson re-

fused to let the officers enter the room, the officers sought

consent from the motel manager. Upon receiving the

manager’s consent, the police entered room 124 and dis-

covered the cocaine.

App. 4

DISCUSSION

A. Motel Search

Larson moved to suppress the cocaine seized in room

124 on the ground that the search violated his fourth

amendment rights. The government contends, and the dis-

trict court found, that Larson failed to meet his burden

of proving that he had a legitimate expectation of privacy

in room 124 at the time of the search. See Rawlings v.

Kentucky, 448 U.S. 98, 104-05 (1980); Rakas v. Illinois,

439 U.S. 128, 181 n.1 (1978). _

The district court relied primarily on the decision in

United States v. Parizo, 514 F.2d 52 (2d Cir. 1975). In

Parizo, the court held that the admission of a sawed-off

shotgun seized by a police officer from the defendant’s

motel room was proper since the defendant, Chester

Parizo, lacked a reasonable expectation of privacy in the

motel room.

The facts in Parizo are similar to those in this case.

First, like Larson, Parizo had stayed in his motel room

beyond the occupancy period without paying for the next

day’s rent. Second, both Larson and Parizo had informed

motel employees of their intent to stay in their motel

rooms for an extended period. Finally, both Larson and

Parizo had their rooms searched, and their contraband

seized, by police officers after motel employees had dis-

covered their contraband.

The court in Parizo applied the facts as follows:

The facts of the present case illustrate the close rela-

tionships of these conceptual bases: when the term

of a guest’s occupancy of a room expires, the guest

loses his exclusive right to privacy in the room. The

manager of a motel then has the right to enter the

room and may consent to search of the room and the

seizure of the items there found. United States v.

Croft, 429 F.2d 884 (10 Cir. 1970) provides the clear-

est example of this point. The defendant had rented

a motel room for two days. Shortly after the check-

out time on the second day law enforcement officials,

App. 5

with the permission of the motel manager, searched

the room and subsequently removed incriminating

evidence. The court stated that the constitutional pro-

tection “is dependent on the right to private occupan-

cy of the room. When the rental period has elapsed,

the guest has completely lost his right to use the room

and any privacy associated with it.” Id. at 887. See,

also, Abel v. United States, 362 U.S. 217, 241, 80

S.Ct. 688, 4 L.Ed.2d 668 (1960); United States v.

Cowan, 396 F.2d 83 (2 Cir. 1968).

Id. at 54 (emphasis added, footnote omitted). See also

United States v. Lee, 700 F.2d 424, 425 (10th Cir.), cert.

denied, 103 S.Ct. 3094 (1988); United States v. Haddad,

558 F.2d 968, 975 (9th Cir. 1977).

We agree with the reasoning in Parizo. Here, Larson’s

exclusive right to privacy in room 124 elapsed prior to

the police search. Larson stayed in the room seven hours

beyond the checkout time and five hours beyond the time

he had been given permission to stay without paying for

the next day’s rent in advance as required by motel

policy. In addition, Larson had never checked into the

room. Burgess had checked in but had also checked out

several hours before the search. The district court’s find-

ing that Larson’s communications with motel personnel

were not sufficient to support a reasonable expectation

of a right of privacy in the room under these circum-

stances is supported by the facts. Accordingly, we affirm

the district court’s finding that Larson lacked a legitimate

expectation of privacy in room 124 at the time of the

search.

In addition, even if Larson had established a legitimate

expectation of privacy in the room, the warrantless search

was justified under the exigent circumstances exception.!

1 The magistrate found that exigent circumstances justified the

warrantless search. The district court, however, made no findings

on the issue. Instead, the court denied Larson’s motion to sup-

— the cocaine solely on the basis that Larson lacked a

egitimate privacy interest in room 124 at the time of the search.

App. 6

First, the officers had probable cause, under the totality

of the circumstances, to believe that contraband was

located in room 124. See Illinois v. Gates, 103 S.Ct. 2317,

2328 (1983). Both the assistant manager and the assistant

restaurant manager had closely examined the white

powder in the plastic bags. In fact, they had even rubbed

it between their fingers in an effort to determine what

it was. Both concluded that the powder was an illegal sub-

stance. The police officers were fully informed of this con-

clusion, as well as other circumstances surrounding room

124, by the assistant manager upon their arrival at the

motel.

Second, exigent circumstances existed making it neces-

sary to search the room before a warrant could be ob-

tained. Room 124 was on the ground floor and had two

entrances. At the time the officers entered the room, they

had no knowledge as to whether there were other oc-

cupants of room 124, as it had previously been thought

that the room was vacant. Unless the officers acted quick-

ly, there was a danger that the cocaine would be de-

stroyed or removed from the room either by another oc-

cupant, or by Larson when the police were done question-

ing him. We have previously held that such an exigency

removes the requirement that the police officers act with

a warrant. See, e.g., United States v. Knobeloch, 746 F.2d

1366, 1367 (8th Gir. 1984), cert. denied, 105 S.Ct. 1362

(1985); United States v. Palumbo, 735 F.2d 1095, 1097 (8th

Cir.), cert. denied, 105 S.Ct. 332 (1984); United States v.

Kulcsar, 586 F.2d 1283, 1286-88 (8th Cir. 1978). Accord-

ingly, we find that the district court’s denial of the mo-

tion to suppress the cocaine was proper.

B. Continuance

Larson next alleges that his due process rights were

violated by the trial court’s failure to grant his motion

for a continuance. On January 30, 1984, two days prior

to trial, Larson’s attorney filed a motion for a continuance.

The sole reason given for the requested delay was that

App. 7

the attorney who was to present his case at trial, Oscar

Goodman, was engaged in a trial in Nevada which would

last approximately one week. Larson attached an affidavit

explaining that each of his three sets of attorneys had

veen hired to perform specific tasks—one to conduct the

trial, one to draft and litigate pretrial motions, and one

to serve as local counsel.

The district court denied the motion on the basis that

Larson had been given adequate time for trial prepara-

tion and adequate notice of the trial date.2 The court also

noted that the court had a full docket, that the court had

not been informed of the division of functions amongst

Larson’s attorneys prior to Larson’s motion for a con-

tinuance, and that pian took a risk that his Nevada

trial attorney would be engaged in a trial in that state.

On the morning of February 1, 1984, the court heard

arguments on Larson’s motion to withdraw appearances

of all counsel other than Oscar Goodman and on a re-

newed motion for a continuance. The court again denied

Larson’s motion for a continuance. The court stated that,

in addition to the previous reasons given for denial of the

motion, denial was appropriate since the case was not ex-

ceedingly complex. The court also emphasized the uncer-

tainty of when Goodman would ever be available for trial.

While Goodman had previously estimated that his trial

would last one week, he was now estimating that the trial

would last at least two weeks.

The court also denied Larson’s motion to withdraw ap-

pearance of all counsel other than Oscar Goodman. Lar-

son refused to permit his other attorneys (specifically,

2 Larson had been indicted on October 29, 1983, and arraigned

on November 23, 1983. At the time of arrai ent, trial was set

for January 25, 1984. On January 19, 1984, the trial was resched-

uled to January 30, 1984, so that objections to the magistrate’s

findings and recommendations, which were issued on Jan 19th,

could be filed. Subsequently, the trial was postponed until Feb-

ruary 1, 1984, to allow counsel to file responses to their respec-

tive objections to the magistrate’s findings and recommendations.

App. 8

Raymond Smith, who handled the pretrial motions) to par-

ticipate in the trial on the basis that he felt Oscar Good-

man could do a better job and because he did not feel

that the other attorneys were prepared for the trial. After

fully advising Larson of the dangers of proceeding with-

out counsel, the court permitted Larson to proceed with-

out counsel, but asked that the other attorneys serve as

standby counsel.

It is well established that trial courts are vested with

broad discretion in matters of continuances. See Morris

v. Slappy, 103 S.Ct. 1610, 1616 (1983); Ungar v. Sarafite,

376 U.S. 575, 589 (1963); United States v. Lingo, 740 F.2d

667, 668 (8th Cir. 1984). In United States v. Bernhardt,

642 F.2d 251 (8th Cir. 1981), we listed the following five

factors which trial courts must weigh when exercising this

disere von:

1) the nature of the case and whether the parties

have been allowed adequate time for trial prepa-

ration;

2) the diligence of the party requesting the continu-

ance;

3) the conduct of the opposing party and whether

a lack of cooperation has contributed to the need

for a continuance;

4) the effect of the continuance and whether a delay

will seriously disadvantage either party;

5) the asserted need for the continuance, with

weight to be given sudden exigencies and unfore-

seen circumstances.

Id. at 252. The trial court here recognized the existence

of these factors, as it cited Bernhardt when denying Lar-

son’s: motion for a continuance.

Each of the factors as applied to Larson’s case indicates

that Larson’s motion for a continuance was properly

denied. First, the case was not complex, and adequate

time for trial preparation and adequate notice of the

_

~~

App. 9

scheduled trial date had been given. Second, the defense

team exhibited a lack of diligence in that the court was

not informed of Goodman’s status as trial attorney, or of

his scheduling conflict, until two days before trial. Third,

the government did not contribute in any way to the need

for a continuance. Fourth, denial of the continuance did

not seriously disadvantage Larson, as he had attorneys

available to him who were thoroughly familiar with his

defense and competent to handle the trial. Finally, Good-

man’s scheduling conflict was not altogether unforeseeable.

If the court had been put on notice of the problem earlier,

it might have been able to accommodate Goodman’s sched-

ule. In sum, we find that the trial court did not abuse

its discretion, as it had more than ample justification for

denying Larson’s motion for a continuance.

C. Review of Magistrate’s Recommendations

Larson’s final claim is that the trial judge failed to make

a de novo review of the record of the hearing before the

istrate on the motion to suppress, or of the particular

findings and recommendations of the magistrate which he

objected to. This claim is primarily founded on the fact

that the trial judge’s order py | Larson’s motion to

suppress the cocaine was issued on January 31, 1984—only

one day after Larson filed his objections to the magis-

trate’s findings and recommendations and only eleven days

after the magistrate’s findings and recommendations were

filed.

The Federal Magistrates Act provides that: “A judge

of the court shall make a de novo determination of those

portions of the [magistrate’s] report or specified findings

or recommendations to which objection is made.” 28

U.S.C. § 636(bX1) (1982). In addition, the Fifth Circuit has

held that constitutional concerns require that ‘‘an appellate

court * * * be satisfied that a district judge has exer-

cised his non-delegable authority by considering the ac-

tual testimony, and not merely be reviewing the magis-

trate’s report and recommendations.” United States v.

App. 10

Elsoffer, 644 F.2d 357, 359 (5th Cir. 1981). See Hernandez

v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983). See generally

United States v. Raddatz, 447 U.S. 667 (1980).

We are satisfied that the trial judge here exercised her

authority properly, as her order denying Larson’s motion

to suppress the cocaine expressly states that she made

a de novo review of the record and that she conducted

a thorough review of all objections and responses to the

magistrate’s findings and recommendations.

D. Sufficiency of the Evidence (Burgess)

Burgess argues that the evidence was insufficient to

support her conviction for possession of cocaine with in-

tent to distribute and for aiding and abetting Larson in

such action. To establish Burgess’ guilt on the possession

with intent to distribute charge, the government was re-

quired, of course, to establish Burgess’ possession of the

cocaine. This court has determined that the requisite

possession may be either actual or constructive, and has

defined constructive possession as “knowledge of presence

plus control.” United States v. Caspers, 736 F.2d 1246,

1249 (8th Cir. 1984).

To establish Burgess’ guilt on the aiding and abetting

charge, the government was required to establish that

Burgess associated herself with the unlawful venture, that

she participated in it as something she wished to bring

about, and that she sought by her action to make it suc-

ceed. Nye & Nisen v. United States, 336 U.S. 613, 619

(1949); United States v. Anziano, 606 F.2d 242, 244-45 (8th

Cir. 1979). Since Burgess must have engaged in “ ‘some

affirmative participation * * * which at least encourages

the perpetrator,’” her “mere presence * * * at the scene

of the crime or * * * [her] mere association with persons

engaged in illegal activity is not sufficient” to establish

that she was guilty of idee and abetting. United States

v. Anziano, supra, at 245 (quoting United States v. Knife,

592 F.2d 472, 476 (8th Cir. 1979)). See United States v.

Kelton, 446 F.2d 669, 671 (8th Clr. 1971).

App. 11

When reviewing the sufficiency of the evidence to up-

hold a guilty verdict, we apply the following principles:

First, the court must view the evidence in the light

most favorable to the verdict rendered. Second, the

court must accept all reasonable inferences which

tend to support the jury verdict. Third, the evidence

need not “‘exclude every reasonable hypothesis ex-

cept that of guilt but simply that it be sufficient to

convince the jury beyond a reasonable doubt that the

defendant is guilty.”

United States v. Wells, 721 F.2d 1160, 1161 (8th Cir. 1983)

(quoting United States v. Taylor, 599 F.2d 832, 838 (8th

Cir. 1979)) (citations omitted). Applying these principles,

we find that the evidence does not sufficiently establish

Burgess’ guilt.

The evidence against Burgess consists almost exclusively

of the fact that she had checked into and stayed with Lar-

son in the motel room from which the cocaine was later

seized. But, as Burgess emphasizes, she had checked out

of the motel room over seven hours before the evidence

establishes that the cocaine was in the motel room.®

In addition to Burgess’ presence at the motel room, the

government attempts to use certain other circumstantial

evidence to infer Burgess’ guilt. First, the government

points out that Burgess had familial and financial rela-

tionships with Larson, in that Larson was married to

Burgess’ sister and Larson had a financial interest in

Burgess’ two cars. According to the government, the in-

ference to be drawn from this evidence is that Larson

and Burgess are in the drug business together.

Second, the government emphasizes that Burgess had

picked up a car at the airport after checking out of the

’ Burgess checked out at about 10:30 a.m. The assistant manager

first discovered the cocaine at about 6:00 p.m. There is no evidence

as res the actual time at which the cocaine made its way into the

motel room.

App. 12

motel. According to the government, the inference to be

drawn is that Burgess picked up the cocaine at the air-

port and then took it to Larson.

The government’s evidence is so scant that the jury

could only speculate as to Burgess’ guilt. The evidence

is such that a reasonably minded jury must have a rea-

sonable doubt as to Burgess’ knowledge of the existence

of the cocaine or of her intent to aid and abet Larson’s

drug scheme. See United States v. Frol, 518 F.2d 1134,

1137 (8th Cir. 1975); United States v. Stephenson, 474 F.2d

1353, 1355 (5th Cir. 1973). Accordingly, the facts of this

case require that we vacate the judgment of conviction

as to Burgess.

In sum, the judgment of the district court is affirmed

as to Larson and reversed as to Burgess.

A true copy.

Attest: (Signed)

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

App. 13

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1984

UNITED STATES OF AMERICA,

Appellee,

No. 84-5080-MN. vs.

DUANE WENDALL LARSON,

Appellant.

Appeal from the United States District Court

for the District of Minnesota

Appellant’s petition for rehearing en banc has been con-

sidered by the Court and is denied.

Petition for rehearing by the panel is alse denied.

Judge Theodore MecMillian would have granted the

petition.

May 31, 1985

App. 14

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

September Term, 1984

UNITED STATES OF AMERICA,

Appellee,

No. 84-5080MN VS.

DUANE WENDALL LARSON,

Appellant.

Appeal from the United States District Court

or the District of Minnesota—CR 4-83-84(1)

JUDGMENT

(Filed June 18, 1985)

This appeal from the United States District Court was

submitted on the record of the said District Court, briefs

of the parties and was argued by counsel.

Upon consideration of the premises it is hereby adjudged

and decreed that the judgment of the District Court is

affirmed in accordance with the opinion of this Court.

April 11, 1985

A true copy.

ATTEST: (Signed)

Clerk, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

6/13/85

App. 15

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Cr. No. 4-83-84 v.

DUANE WENDALL LARSON, and

SHEILA JANE BURGESS,

Defendants.

ORDER

United States Magistrate J. Earl Cudd filed a Report

and Recommendation in this case on January 19, 1984.

The Magistrate recommended that defendants’ motion to

suppress evidence obtained pursuant to a search of a hotel

room (Room 124) be denied and that defendants’ motion

to suppress evidence obtained following the seizure of an

automobile be granted. The United States and both defen-

dants filed objections to the Report and Recommendation

by January 26, 1984. The court gave the parties until

January 30 to file responses to these objections.

Defendants object to the Magistrate’s recommendation

that the motion to suppress evidence obtained pursuant

to the search of Room 124 be denied.! They argue that

Larson had a reasonable expectation of privacy in Room

124 when the search occurred. Among other factors, de-

fendants assert that Larson had informed the hotel maid

that he was “staying over” and that, in a discussion with

the assistant hotel manager, he had agreed to pay for

1 Count I of the indictment charges defendants with possession

¢ ee three pounds of cocaine in violation of 21 U.S.C.

1(aX1).

App. 16

another night to which the manager replied ‘“‘okay”. De-

fendant Burgess also objects to the Magistrate’s conclu-

sion that she had no protectable privacy interest in the

room.

The government objects to the Magistrate’s recommen-

dation that the motion to suppress evidence obtained

following seizure of the car be granted.2 The government

argues that probable cause existed for the seizure and

cites eighteen factors in support. The government also

argues that the car was evidence in plain view and was

therefore subject to seizure and that even if the seizure

were improper, no evidence flowed from it that would

taint the otherwise valid warrant because nothing con-

tained in the affidavit came as a result of the seizure.

Based upon the court’s independent determination and

a de novo review of the record, including a thorough re-

view of all objections and responses submitted, the court

finds itself in basic agreement with the Report and Rec-

ommendation of the Magistrate. With respect to the

seizure from Room 124, Larson did not have a reasonable

expectation of privacy. Larson gave a vague indication to

the hotel maid of an intention to stay over. But he neither

paid in advance for a second night, as required, nor direct-

ly notified any management personnel at the motel of his

alleged intention. Based on these and other factors, and

paying particular attention to the decisions in Rakas v.

Tilinois, 514 U.S. 52 (1978), and United States v. Parizo,

514 F.2d 52 (2d Cir. 1975), the court agrees with the

Magistrate that defendants’ motion to suppress evidence

obtained pursuant to the search of Room 124 should be

denied.

The court acknowledges that less stringent Fourth

Amendment standards apply to automobiles than to resi-

dences, but finds that there was no probable cause to

2 The evidence obtained pursuant to the seizure of the car con-

sists of approximately 50 grams of cocaine which forms the basis

of Count II of the indictment.

App. 17

seize the automobile in this case. The only connection be-

tween the automobile and the narcotics activity at the time

of its seizure was that it was registered to Burgess. The

“plain view” exception to the Fourth Amendment does

not apply here because the automobile was not clearly

incriminating evidence. See Washington v. Chrisman, 455

U.S. 1 (1982). The government’s claim of exigent circum-

stances is not supported by the facts viewed as a whole.

See United States v. Chadwick, 483 U.S. 1 (1977). In

reaching its conclusion on Count II the court has also

carefully considered United States v. Place, ____ US.

___, 108 S.Ct. 2637 (1983), and United States v. Allard,

634 F.2d 1182 (9th Cir. 1980).

Accordingly, based on all the files, records, and proceed-

ings herein,

IT IS HEREBY ORDERED that

1. Defendants’ motion to suppress evidence taken from

the motel room is denied.

2. Defendants’ motion to suppress evidence taken from

the automobile is granted.

Dated: January ____, 1984.

United States District Judge