United States v. Lawrence J. Kovac

795 F.2d 1509, 1986 U.S. App. LEXIS 27826
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 7, 1986
Docket85-3141
StatusPublished
Cited by45 cases

This text of 795 F.2d 1509 (United States v. Lawrence J. Kovac) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lawrence J. Kovac, 795 F.2d 1509, 1986 U.S. App. LEXIS 27826 (9th Cir. 1986).

Opinions

ALARCON, Circuit Judge:

Defendant/appellant Lawrence J. Kovac (hereinafter Kovac) appeals from the judgment entered following his conviction under 21 U.S.C. § 841(a)(1) for possession of cocaine with intent to distribute. Kovac contends that the trial court erred in denying his motion to suppress evidence seized from his house pursuant to a search warrant. He raises three arguments on appeal: (1) that information which furnished probable cause for issuance of the search warrant was obtained in violation of his Fourth Amendment rights, thus tainting the warrant and the evidence seized; (2) that the affidavit supporting the warrant was fatally deficient; and (3) that the search warrant was unlawfully executed.

Pursuant to his receipt of information that Kovac was selling large amounts of cocaine from his home, Special Agent Donald Sims (hereinafter Sims) of the Federal Drug Enforcement Agency (DEA) conducted a surveillance of Kovac’s residence for over two weeks. In order to obtain information to support the issuance of a search warrant for the residence, Sims and Officer James Miller (hereinafter Miller) of the Salem Police Department (SPD) stopped Catherine Jo Robins (hereinafter Robins), Ko-vac’s sister-in-law and then a probationary employee of the SPD, as she was driving away from Kovac’s residence. The officers did not search Robins’ car; instead, they questioned her regarding whether she had observed narcotics trafficking at Kovac’s residence. After initially denying that she had observed any criminal activity, Robins admitted that she had seen a plastic bag containing over an ounce of marijuana at the residence that day.

State Police Officer Erik Yognild (hereinafter Vognild) relied on Robins’ statement in his affidavit in support of the application for a search warrant for Kovac’s residence. The warrant was issued by an Oregon state judge. Kovac’s house was searched. The search disclosed, inter alia, 1.6 pounds of cocaine and 1.3 pounds of marijuana. We discuss the facts pertinent to each of Ko-vac’s contentions under separate headings.

I. The Stop of Robins’ Car

Kovac first contends that the stop of Robins’ car violated his Fourth Amendment rights, and consequently, the search warrant and the evidence seized were tainted. The trial court found that Kovac lacked a legitimate expectation of privacy in Robins’ car and, therefore, could not complain of the stop and its consequences. Where the facts are not in dispute, we review the issue of “standing” de novo. United States v. Kuespert, 773 F.2d 1066, 1067 (9th Cir.1985).

In order to contest the legality of a search or seizure, the defendant must establish that he or she had a “legitimate expectation of privacy” in the place searched or in the property seized. Rakas v. Illinois, 439 U.S. 128, 143-44, 99 S.Ct. 421, 430-31, 58 L.Ed.2d 387 (1978). The defendant must have exhibited an actual, subjective expectation of privacy and, more importantly, the expectation must be one that society is prepared to accept as reasonable and therefore, legitimate. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir.1984). The defendant has the burden of establishing that, under the totality of the circumstances, the search or seizure violated his legitimate expectation of privacy in a particular place. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980).

Kovac asserts that he had a legitimate expectation of privacy in Robins’ car because: (1) the car was parked in front of his house on three occasions during Sims’ surveillance; (2) Kovac had driven the car once during that period; (3) Kovac’s wife had a key to the car; and (4) Kovac and his wife had permission to use the car.

Kovac did not own the car and thus did not have an inherent right to control the car. See Rakas, 439 U.S. at 144 n. 12, 99 S.Ct. at 431 n. 12 (although “arcane” con[1511]*1511cepts of property law do not control, the owner of property will in all likelihood have a legitimate expectation of privacy in property by virtue of his inherent right to control it). Nor was Kovac present at the stop so as to be exercising actual control over the vehicle. Cf. United States v. Perez, 689 F.2d 1336, 1338 (9th Cir.1982) (defendants had a legitimate expectation of privacy in a truck they did not own because they were closely following and supervising the truck as it made its journey); United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir.1980) (defendant had a legitimate expectation of privacy in a car he did not own because he was in possession of the car with the permission of the owner and had a key to it, thus having the requisite level of control over the car), cert. denied, 450 U.S. 1043, 101 S.Ct. 1764, 68 L.Ed.2d 241 (1981).

The sporadic and limited availability of Robins’ car to Kovac does not comport with the formal “joint control” arrangements which we have recognized as conferring a legitimate expectation of privacy on a defendant in a place he does not own. Cf. Pollock, 726 F.2d at 1465 (defendant was co-operator of a drug laboratory in his friend’s house; he was exercising “joint control” over the property, and thus had a legitimate expectation of privacy in the house); United States v. Johns, 707 F.2d 1093, 1100 (9th Cir.1983) (because they had a formal arrangement over the vehicle for transportation of contraband, defendants had a legitimate expectation of privacy in marijuana bales seized from a vehicle they did not own), rev’d on other grounds, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985); Perez, 689 F.2d at 1338 (defendants had a formal arrangement with a driver for transporting contraband in truck which they did not own). In Pollock, Johns, and Perez, the defendants were actively involved in joint control, with the owner, of a place or vehicle which they did not own. By contrast, Kovac’s authority to use the car was limited by the availability of the car for his use — the car was at his house only three times in over two weeks — and, in fact, he actually used the car only once during that time. Moreover, the defendants in Pollock, Johns, and Perez were asserting a proprietary interest in goods seized from a place or vehicle which they did not own, while Kovac asserts an interest in a person who happened to occupy a vehicle which he did not own. “Unlike a house, a truck, or a package, one cannot acquire a right to exclude others from access to a third person.” United States v. Kuespert, 773 F.2d at 1068; accord, United States v. Brown, 743 F.2d 1505, 1507-08 (11th Cir.), reh’g denied, 749 F.2d 733 (1984) (en banc).

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Bluebook (online)
795 F.2d 1509, 1986 U.S. App. LEXIS 27826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lawrence-j-kovac-ca9-1986.