U.S. v. Degaetani
1996 WL 172977
D.Kan.,1996.
March 20, 1996. (Approx. 4
pages)
Matthew B. Works, Works, Works & Works, P.A., Topeka, KS,
J. Richard Lake, Holton, KS, William K. Rork, Rork Law Office, Topeka, KS, for defendant
Charles Mark Degaetani.
MEMORANDUM AND ORDER
CROW, District Judge.
*1 The case comes before the
court on the defendant's motions to suppress evidence (Dk. 48 and 61) and
motion to join (Dk. 49) the defendant Michelle Singleton's motions. The
government filed a written response in opposition. (Dk. 51). The court heard
argument and evidence on these motions on February 21, 1996. After reviewing
the parties' briefs and the controlling law, the court is ready to rule.
INDICTMENT
The superseding indictment filed November 1, 1995, charges the defendant
Charles Mark Degaetani with sixteen counts. Count one charges that between July
16, 1995, and July 25, 1995, he transported goods taken by fraud, specifically
a 1990 Bayliner boat, in interstate commerce in violation of 18 U.S.C. §§ 2314 and 2. Count two charges that on August 30, 1995, he transported
the same boat taken by fraud from Nebraska to Kansas in violation of 18 U.S.C. §§ 2315 and 2.
Count three charges that on July 25, 1995, he knowingly made, uttered or
possessed a counterfeited payroll check purportedly issued by Mayflower Transit
Corporation and payable to David S. Napolino with the intent to deceive
Dillon's Supermarket, Topeka, Kansas, in violation of 18 U.S.C. § 513(a). Count four charges that on August 4,
1995, he knowingly made, uttered or possessed a counterfeited payroll check
purportedly issued by Mobil Oil Corporation and payable to Edward R. Parris
with the intent to deceive Dillon's # 68 Supermarket, Lawrence, Kansas, in
violation of 18 U.S.C. § 513(a). Count five charges that on August 4,
1995, he knowingly made, uttered or possessed a counterfeited payroll check
purportedly issued by John Deere Corporation and payable to Charles M.
DeAugustino with the intent to deceive Alvin's IGA Supermarket, Lawrence,
Kansas, in violation of 18 U.S.C. § 513(a). Count six charges that on August 4, 1995,
he knowingly made, uttered or possessed a counterfeited payroll check
purportedly issued by Texas Petroleum Corporation and payable to Edward R.
Parris with the intent to deceive Hy-Vee Foods #1377 Lawrence, Kansas, in
violation of 18 U.S.C. § 513(a). Count seven charges that on August 9,
1995, he knowingly aided and abetted the making, uttering or possessing of a
counterfeited payroll check purportedly issued by Mobil Oil Corporation and
payable to Carl F. Walters, with the intent to deceive Falley's #27
Supermarket, Topeka, Kansas, in violation of 18 U.S.C. §§ 513(a) and 2. Count eight charges that on August 7, 1995, he knowingly
aided and abetted the making, uttering or possessing of a counterfeited payroll
check purportedly issued by Mobil Oil Corporation and payable to Carl F.
Walters, with the intent to deceive Falley's #4 Supermarket, Topeka, Kansas, in
violation of 18 U.S.C. §§ 513(a) and 2. Count nine charges that on August 7, 1995, he knowingly
aided and abetted the making, uttering or possessing of a counterfeited payroll
check purportedly issued by Texas Petroleum Corporation and payable to Carl F.
Walters, with the intent to deceive Falley's #27 Supermarket, Topeka, Kansas,
in violation of 18 U.S.C. §§ 513(a) and 2. Count ten charges that on August 30, 1995, he knowingly
possessed counterfeited payroll checks purportedly drawn on thirty-four
different organizations and businesses in violation of 18 U.S.C. §§ 513(a) and 2.
*2 Count eleven charges that on
August 30, 1995, he knowingly possessed with the intent to use unlawfully so as
to affect interstate commerce more than five identification documents in
violation of 18 U.S.C. §§ 1028(a)(3) and 2. Count twelve charges that from July 1, 1995, continuing
through August 31, 1995, he conspired with Michelle Singleton and others to
unlawfully possess, make or utter counterfeit payroll checks on various
corporations with the intent to deceive other persons or organizations and in
furtherance committed overt acts as charged in counts three to eleven, all in
violation of 18 U.S.C. §§ 371 and 513.
Count thirteen charges that on August 30, 1995, he knowingly possessed in
excess of one pound of marijuana with the intent to distribute it in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D), and 18 U.S.C. § 2. Count fourteen charges that on August 30,
1995, he knowingly used a firearm during and in relation to a drug trafficking
crime (Count 13) in violation of 18 U.S.C. §§ 924(c) and 2. Count fifteen charges that on August 30, 1995, he
conspired with Michelle Singleton and others to possess in excess of one pound
marijuana with the intent to distribute it in violation of 21 U.S.C. §§ 846 and 841(b)(1)(D). Finally, count sixteen charges that on August
30, 1995, he knowingly used a firearm during and in relation to a drug
trafficking crime (count 14) in violation of 18 U.S.C. §§ 924(c) and 2.
In sum, Degaetani is charged with two counts (Nos. 1 & 2) of having
transported goods obtained by fraud in interstate commerce in violation of 18 U.S.C. §§ 2315 and 2, four counts (Nos. 3-6) of making, uttering or possessing
counterfeit payroll checks in violation of 18 U.S.C. § 513(a), three counts (Nos. 7-9) of aiding and
abetting the making, uttering or possessing of counterfeit payroll checks in
violation of 18 U.S.C. §§ 513(a) and 2, one count (No. 10) of possessing counterfeit securities in
violation of 18 U.S.C. §§ 513(a) and 2, one count (No. 11) of possessing more than five
identification documents in violation of 18 U.S.C. §§ 1028(a)(3) and 2, one count (No. 12) of conspiracy to possess, make or utter
counterfeit payroll checks in violation of 18 U.S.C. §§ 371 and 513, one count (No. 13) of possession with the intent to
distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D) and 2, one count (No. 15)
of conspiracy to possess with the intent to distribute marijuana in violation
of 21 U.S.C. §§ 846 and 841(b)(1)(D), and two counts (Nos. 14 & 16) of using a
firearm during and in relation to a drug trafficking offense.
FACTS
Shortly after 3:00 p.m. on August 30, 1995, Topeka Police Department officers
were called to the Hampton Inn in West Topeka. The manager at the Hampton Inn,
John Scott, told the arriving officers that the tenants in room 131 were to
vacate their room at 11:00 a.m. but had not done so and that the tenants now
owed additional rent.
Scott testified that a person identifying himself as Mark Carlucci first
checked into the Hampton Inn on the evening of August 28, 1995, and paid cash
to stay one night. At around 12:30 p.m. the following day, Carlucci paid to
stay another night. Scott contacted Carlucci's room the next morning on August
30, 1995, to ask if he intended to stay longer. Scott learned that Carlucci and
his guest would be staying and that Carlucci would come to the office shortly
to pay the rent for another night. Scott called Carlucci's room three more
times before 1:00 p.m. inquiring when Carlucci would be paying the rent. Scott
was told that they were waiting for Carlucci's employer to come by with a check
so that they could pay to stay another night. Scott informed Carlucci that the
Hampton Inn charged all customers staying past 2:00 p.m. for one-half day.
Scott again called Carlucci's room around 2:00 p.m., and Carlucci repeated his
plea for Scott to be patient. Anticipating a problem because Carlucci now owed
the Inn rent for one-half day, Scott called the Topeka Police Department around
3:00 p.m. requesting an officer.
*3 Sergeant Maurice Koch with
the Topeka Police Department was the first to arrive at the Hampton Inn. Koch
learned that the tenants in room 131 owed rent and that the Inn's management
wanted the tenants either to pay the rent for another night or vacate their
room. Sergeant Koch then drove around to the rear of the Inn and saw that the
tenants' car was still parked in front of their room. As he ran a license plate
check on the car, two males and a female emerged from room 131. One of the
males identified himself as Mark Carlucci. Carlucci was later identified as
Charles Mark Degaetani.
[FN1] The others were identified at the time as Scott Rose and Michelle
Singleton. Degaetani told Sergeant Koch that he was going to speak with the
manager about the bill. Other officers arrived at the scene and remained in the
area of room 131 while Koch returned to the manager's office where he was met
by Degaetani.
Degaetani was upset with Scott for calling the police. He told Scott that he
had not yet received the funds necessary to pay the full rent for another
night. Scott insisted that Degaetani's time was up and that he needed to pay
for one-half day and leave the room. Scott gave Degaetani fifteen minutes to
get the money, pack his belongings, and vacate the room. After waiting the
allotted time and making a phone call to room 131 that was not answered, Scott
told Sergeant Koch that he no longer cared about the one-half day rent and that
he wanted the officers to evict the persons from room 131.
Scott sent a maintenance employee with a pass key to accompany Sergeant Koch to
room 131. Sergeant Koch knocked a couple of times on the door to room 131 and
announced himself and instructed the tenants that they were to vacate the room.
Sergeant Koch heard motion in the room, but no one came to the door. When
Sergeant Koch announced that management was preparing to enter the room with a
pass key, Rose or Degaetani finally opened the door and Sergeant Koch stepped
inside the room for the purpose of evicting them. This was the first time that
the officers had entered room 131 that afternoon. Degaetani explained to Koch
that he had not answered the door as he had been on the phone with his
attorney.
While telling them to vacate the room, Sergeant Koch observed that the tenants
had not made much effort to pack their belongings as many things were still
laying about the room. Koch asked where the female occupant was, and Rose and
Degaetani said that she was in the bathroom. Koch heard the bathroom stool
flush several times. He then noticed water flowing from beneath the bathroom
door and floating on the water was a green vegetation that appeared to be
marijuana. Koch also noticed what appeared to be a baggie of marijuana laying
in plain view on one of the beds.
Ms. Singleton did not open the bathroom door though she was asked several times
to do so. She told officers that she could not open the door as the inside door
handle had come off. She continued to flush the stool six or seven times.
Receiving permission from the Hampton Inn's staff, the officers forced open the
bathroom door and found Ms. Singleton with a plastic bag containing what
appeared to be marijuana. At that point, Singleton, Degaetani and Rose were
arrested.
*4 The officers called in a
drug dog which alerted to a bag. The officers found marijuana in the bag. In
plain view, officers also saw check writing equipment and blank checks. The
search incident to the arrest of the two defendants yielded false
identification, numerous counterfeit checks, check writing equipment, and two firearms.
The officers inventoried the room and took all property to the station for
safekeeping. Items of evidentiary value were kept in police custody.
DEGAETANI'S MOTION TO JOIN (Dk. 49)
It is the court's practice to grant such motions on the following conditions. See, e.g., United States v. Ridley, 814 F. Supp. 992, 995
(D. Kan. 1993). Unless argued in the motion to join, the joining defendant
will not be allowed to raise any new, additional or different arguments other
than those found in the moving defendant's motion and memorandum. "In
other words, any issues of prejudice, standing, fairness, need or other factors
unique to the party seeking to join shall be made in the written motion to join
or the court will consider them to have been waived." Id. Under
these conditions, the court grants Degaetani's motion to join Singleton's
motion to suppress evidence and denies Degaetani's motion to join Singleton's
motion to suppress statement and motion for 404(b) disclosure.
MOTION TO SUPPRESS (Degaetani Dks. 48 and 61).
Degaetani seeks to suppress all evidence seized during the search of the
"motel room on July 25, 1995."
[FN2] (Dk. 61 at 1). The Tenth Circuit in United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir.
1994), recently said that a defendant has the "burden of proving
whether and when the Fourth Amendment was implicated" at the point the
defendant or the evidence was seized. More specifically, the defendant must
prove his standing to challenge the search as well as a prima facie case of a
Fourth Amendment violation. Id. at 1496 n.1; see United States v. Poulsen, 41 F.3d 1330, 1335 (9th Cir.
1994) (the defendant has the burden of establishing his standing to assert
a Fourth Amendment violation). "The government then bears the burden of
proving that its warrantless actions were justified" under the facts and
law. Carhee, 27 F.3d at 1496.
The protection from unreasonable searches and seizures afforded by the Fourth
Amendment reaches only places and interests in which the defendant has a
reasonable expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 140-145 (1978). The
defendant must prove that he has a subjective expectation of privacy and that
his expectation is objectively reasonable under the circumstances. United States v. Singleton, 987 F.2d 1444, 1447-50 (10th
Cir. 1993). "[T]he demonstration of a legitimate expectation of
privacy 'is a threshold standing requirement, and analysis cannot proceed
further without its establishment."' Id. at 1449 (quoting United States v. Cruz Jimenez, 894 F.2d 1, 5 (1st Cir.
1990)).
Not unlike a home, hotel rooms occupied like a temporary abode receive the
Fourth Amendment's protection. Hoffa v. United States, 385 U.S. 293, 301 (1966); United States v. Foxworth, 8 F.3d 540, 544 (7th Cir. 1993),
cert. denied, 114 S. Ct. 1414 (1994); United States v. Richard, 994 F.2d 244, 247 (5th Cir.
1993); United States v. Parizo, 514 F.2d 52, 54 (2nd Cir. 1975); United States v. Croft, 429 F.2d 884, 887 (10th Cir. 1970).
The right to that protection in a hotel room depends "on the right to
private occupancy of the room." United States v. Croft, 429 F.2d at 887. The
well-established rule is that a guest in a motel room loses any reasonable
expectation of privacy in the room and, therefore, any standing to object to a
seizure or search of the room upon the expiration of the rental period. United States v. Huffhines, 967 F.2d 314, 318 (9th Cir.
1992); United States v. Rahme, 813 F.2d 31, 34 (2nd Cir. 1987);
United States v. Ramirez, 810 F.2d 1338, 1341 (5th Cir.),
cert. denied, 481 U.S. 1072 (1987); United States v. Croft, 429 F.2d at 887. As the Tenth
Circuit in Croft said:
*5 When the rental period has
elapsed, the guest has completely lost his right to use the room and any
privacy associated with it. The manager of the motel may then freely enter the
room, rent the room to others, and remove any belongings left in the room.
These belongings may be retained and eventually sold by the motel to pay for
back rent. (footnote omitted). Since after the rental period expires a guest
has no right of privacy, there can be no invasion thereof. (citation omitted).
429 F.2d at 887 (citing in footnote K.S.A. §§ 36-201 to 36-205); see United States v. Lee, 700 F.2d 424, 425 (10th Cir.),
cert. denied, 462 U.S. 1122 (1983). In short, once the rental period
expires, control over the room reverts to the motel manager, and the former
tenant no longer can reasonably assert an expectation of privacy in a place
from which he is being evicted. See United States v. Rambo, 789 F.2d 1289, 1295-96 (8th
Cir. 1986).
Even if the holdover tenant may have a property interest in items still found
in the room, the tenant does not have a reasonable expectation of privacy in
the room after the rental period terminates. The Second Circuit has said:
This rule applies even when the accused retains significant property interests
in the seized item or place. For example, we have held that once the guest's
access to the room is no longer his 'exclusive right,' he has no legitimate
expectation of privacy in the room even though he himself still has access. United States v. Parizo, 514 F.2d at 55; cf. United States v. Rambo, 789 F.2d at 1295-96 (rule
applied when rental period had expired even though defendant remained in
possession of the room).
United States v. Rahme, 813 F.2d at 34.
"Warrantless searches and seizures inside someone's home are presumptively
unreasonable unless the occupants consent or exigent circumstances exist to
justify the intrusion." United States v. Richard, 994 F.2d at 247 (citing Payton v. New York, 445 U.S. 573, 586, 590 (1980)).
When the occupancy period elapses without the tenant's payment for the next
day's rent, the hotel management regains control of the room and may give
consent to have the room searched. United States v. Rambo, 789 F.2d at 1296 n.7; United States v. Parizo, 514 F.2d at 54. "Federal
courts of appeals have uniformly approved warrantless searches of hotel or
motel rooms after occupancy has terminated." United States v. Ramirez, 810 F.2d at 1341 n.3 (and
cases cited therein); see also United States v. Poulsen, 41 F.3d at 1336-37.
By the express terms of the agreement with Hampton Inn, Degaetani's cash
payment on August 29, 1995, lawfully entitled him and his registered guest to
exclusive possession of room 131 until August 30, 1995, at 11:00 a.m. In short,
Degaetani's lawful occupancy of room 131 expired at 11:00 a.m. and whatever
expectation of privacy he could claim in that room depends on circumstances
other than the express terms of his prior agreement with Hampton Inn.
*6 At the hearing, defense
counsel argued that Degaetani had a reasonable expectation of privacy in the
room based on a mutual understanding with Scott. Specifically, he argues that
Scott first extended the time to pay for continued occupancy and then when
Degaetani failed to come up with the money to pay the rent Scott allowed him a
brief period to pack his belongings and vacate the room. He argues that the
police entered his room before the time had expired for him to pack his bags
and vacate.
Courts have recognized instances where a tenant's subjective expectation of
privacy reasonably continued past the technical expiration of the lease. In United States v. Owens, 782 F.2d 146, 150 (10th Cir. 1986),
the Tenth Circuit found that the defendant renting a motel room reasonably
expected that he had rented the room for the entire week because he had
deposited funds equal to the weekly rate. Even if he was not a weekly tenant,
the court found that his reasonable expectation of privacy continued past the
noon check-out time, as several days before the motel had inquired of his plans
and had allowed him to pay the rent at 3:00 p.m. Id. In United States v. Watson, 783 F. Supp. 258 (E.D. Va. 1992),
the hotel had been lax in enforcing its check-out policy and had allowed the
defendant on four prior days to stay past the noon check- out time and to pay
the next day's rent either in the late afternoon or evening.
The facts here do not resemble Owens or Watson and do not show
that Degaetani had a reasonable expectation of privacy in the room when the
officers entered it. Having failed to pay the rent for another night within the
time given by Scott, Degaetani had no legitimate expectation of privacy in the
room though he remained in possession of it. It is uncontroverted that Scott
openly treated Degaetani as a holdover tenant. When Degaetani did not timely
return to the manager's office with the additional rent as promised, Scott
directed the police officers to evict the tenants in room 131. Both Scott and
Sergeant Koch testified that the time allotted for Degaetani to vacate the room
had expired when Koch knocked on the door to evict the tenants from room 131.
Whatever claim of privacy that Degaetani could have based on Scott giving him
time to vacate the room need not be resolved, for the allotted time had lapsed
before the officers ever entered room 131. Sergeant Koch understood that Scott
had authorized him to enter room 131 in order to evict the tenants. Scott
plainly intended for the police officers to enter the room for that purpose, as
he had sent a maintenance person with a pass key along with the officers. When
Sergeant Koch lawfully stepped into room 131, he observed marijuana in plain
view thus providing him with probable cause to arrest the defendants and to
search them and the immediate area incident to their arrests.
[FN3]
IT IS THEREFORE ORDERED that the defendant Degaetani's motion to join (Dk. 49)
is granted as to the defendant Singleton's motion to suppress evidence (Dk.
16);
*7 IT IS FURTHER ORDERED that
the defendant Degaetani's motions to suppress evidence (Dk. 48 and 61) are
denied.
FN1.
For the remaining part of this order, the court will refer to the defendant by
his name, Charles M. Degaetani.
FN2.
Presumably, the defendant is referring to the search that occurred on August
30, 1995, as there is no evidence of record that a search occurred on July 25,
1995.
FN3.
The defendant Degaetani does not advance any specific arguments challenging the
subsequent search of his bags. The court believes the
search and seizure of the bags
were proper as a search incident to arrest. Even if the court were to find that
the search of the bags was not a lawful search incident to arrest, the evidence
would not be suppressed, as it would have been inevitably discovered during the
inventory search of the properly seized items.
The government announced at the
close of the hearing that it does not intend to introduce any evidence from the
search of the two vehicles. In light of this representation, the court denies
the defendant's motion to suppress any evidence seized from the cars as moot.
This ruling is without prejudice to the defendant's right to renew this motion
in the event that the government later decides to introduce this evidence.
D.Kan.,1996.
END OF DOCUMENT
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