Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1988)

MEMORANDUM^* 

The government appeals the district court decision granting a motion to suppress evidence by defendants who were indicted for possession with intent to distribute marijuana and conspiracy. The government argues that the defendants lack standing to contest the search of another person's automobile. The government also contends that there was probable cause to search the automobile. Further, the government argues that there was probable cause to search the residence even without the evidence found in the automobile. We reverse the district court's decision and remand for a hearing on the issue of standing.

* On April 9, 1988, Drug Enforcement Administration (DEA) Agent Huling presented an application and affidavit for a search warrant to the U.S. Magistrate to search the defendants' residence. Prior to obtaining a search warrant, Agent Huling spoke with two informants about marijuana dealing by Jesus Rosales-Velasquez ("Rosales").

The first confidential informant (CI # 1) told Huling that Rosales was involved in the distribution of large quantities of marijuana from Tucson, Arizona to California. Huling states in his affidavit that this informant had given him reliable information in the past, resulting in many narcotics-related arrests and seizures. Huling spoke with CI # 1 regarding Rosales for a period of several months, and for the last time, three days before the search warrant was executed.

On April 6, 1988, Huling received information from a second confidential informant (CI # 2). CI # 2 told Agent Escobedo of the Tucson Border Patrol that, within the past 72 hours, he had been at the residence of the defendants and, while at the residence, he saw $250,000 in U.S. currency. CI # 2 stated that Rosales owned the residence and was there on the day CI # 2 saw the money. On that occasion, Rosales told CI # 2 that the currency was to be used to purchase a large quantity of marijuana and that Rosales and Rosales' brother, Philip, planned to purchase the marijuana in Tucson and take some to California. Rosales' brother lived in California.

Agent Huling also learned additional information from both informants that he did not put in the affidavit in order to ensure the anonymity of the informants. Both CI # 1 and CI # 2 told Huling on April 6 that a man named "Miguel" was the source of supply. CI # 2 gave Huling a physical description of Miguel and described the car that he was driving. Both informants stated on April 6 that marijuana was to be delivered and money was to be picked up at the Rosales residence. CI # 2 stated that this transaction was to take place in the next few days.

On April 6, 1988, three days before the search warrant was obtained, Huling set up a 24-hour surveillance of the Rosales residence. Agents observed a fairly large motor home parked in front of the residence with California license plates registered to a Paul Dean Chew of Bell Flower, California. A Toyota with California plates registered to Philip Luis Rosales, Jesus Rosales' brother, was observed coming to and going from the residence. Agents also observed a 1979 Cadillac registered to Jesus Rosales at the residence on several occasions between April 6 and April 9, 1988.

On April 7, 1988, the motor home and a black sedan also bearing California license plates were observed being driven in the Tucson area and parked at a shopping mall. Although not in the affidavit, Huling knew on April 9 that Jesus Rosales had been seen by other agents on April 7, 1988 leaving the residence carrying a shoe box and driving away in the motor home. The motor home was parked at at least two separate locations where different cars converged and various people met. Rosales returned to the residence in the motor home.

On April 9, 1988, shortly after midnight, agents observed a mini-van and a small vehicle arrive at the residence. The garage door opened and the Toyota registered to Philip Rosales was driven out of the garage. The mini-van was then backed into the garage and the door was closed.

About ten minutes later, a white sedan with two occupants pulled into the driveway and the driver left the car and entered the residence. Huling concluded, based on his observations and on the previous description by the informants, that this was the "Miguel" who was the source of supply. This person indeed later became known as Miguel de los Rios Salcedo. Salcedo stayed in the house for five to ten minutes and then returned to his car carrying a white bag containing a square-shaped object. The vehicle left the residence after a few minutes and was stopped by law enforcement officers after it left the area. Officers observed a white sack lying on the floorboard behind the driver's seat. Inside the sack was a shoe box which contained approximately $50,000 in cash.

Huling prepared the application and affidavit for a search warrant which was signed by the magistrate at 6:48 a.m. on April 9, 1988. A search of the residence and vehicles revealed a quantity of marijuana in the mini-van, marijuana throughout the residence, and approximately $87,280 in a shoebox underneath a dresser in the master bedroom.

The defendants Jesus Rosales-Velasquez, Felipe Rosales, Patricia Rosales and Leopoldo Vasquez-Gutierrez were indicted for one count of possession with intent to distribute 85 pounds of marijuana and one count of conspiracy to possess with intent to distribute. On October 3, 1988, pretrial motions, including a motion to suppress evidence were heard before the district court. The motion to suppress was taken under advisement at the conclusion of the hearing and the parties were ordered to file supplemental memoranda within three days relating to the stop of the vehicle in question.

The district court held that the defendants had standing to contest the search of the vehicle based on the formalized arrangement between the defendants and de los Rios Salcedo, the car owner. The court also stated that because the government did not raise the issue of standing until it submitted its supplemental memorandum, it could not raise it now. The court then held that while there was founded suspicion for making the temporary stop of the vehicle, there was not probable cause to make a search of the vehicle. Because the agent intended to stop the vehicle and have the man arrested at the time the vehicle left the residence, probable cause was required for the stop and search of the vehicle. The court also concluded that nothing occurred at the time of the stop to justify the search of the vehicle pursuant to the agent's orders. Thus, probable cause did not exist. The court then held that the bases for the magistrate's issuance of the search warrant were the fruits of the improper arrest and search of de los Rios Salcedo and his vehicle. The government appeals this decision.

II

The government argues that the defendants lack standing to contest the search of de los Rios Salcedo's automobile. The government initially conceded this issue. In its response to the defendants' motion to suppress, the government cited United States v. Johns, 707 F.2d 1093 (9th Cir. 1983), rev'd on other grounds, 469 U.S. 478 (1985), for the proposition that "the Ninth Circuit has stated that co-conspirators have an expectation of privacy based on their co-venturer status." The government again conceded the issue at the hearing on the motion to suppress. However, in its supplemental memorandum submitted after the hearing, the government claimed that it had "erroneously failed to raise a preliminary issue in this case, that of standing of the defendants to contest the search of the car." The government argued that the relationship between the defendants and de los Rios Salcedo was insufficient to merit co-venturer status.

The district court rejected the government's argument. The court held that " [w]here, as here, defendants were operating under a formalized arrangement to achieve their goal, standing is present.... Furthermore, having failed earlier to set forth the standing issue, the United States may not raise it at this point in the proceeding."

The defendants argue that the issue of standing was never properly before the court since the government had conceded the issue at the hearing. They contend that " [f]or the government to raise the standing issue as was done in the instant case is more analogous to raising the issue for the first time on appeal." In fact, we have held that " [w]here an issue is conceded below, it cannot be raised for the first time on appeal." Pye v. Mitchell, 574 F.2d 476, 480 (9th Cir. 1978). However, in this case, the government did raise the issue at the district court in its supplemental memorandum and the defendants responded to the government's argument in their reply. Thus, the defendants "had the opportunity to challenge the government's new position and ... to ask for a hearing as to facts material to the new issues raised by the government." United States v. Miller, 822 F.2d 828, 831 (9th Cir. 1987). Under such circumstances, we have held that the issue was presented to the trial court and is therefore subject to review. Id. at 831-32.

Further, the government's initial concessions did not bar it from raising the issue in its supplemental memorandum. As we stated in United States v. Miller:

[W]here, as in this case the question is 'the legal effect of admitted facts,' the court cannot be controlled by a concession of counsel. 'We see no reason why we should make what we think would be an erroneous decision, because the applicable law was not insisted upon by one of the parties.' The rule has been repeated in a variety of circumstances. Even if a concession is made by the government, we are not bound by the government's 'erroneous view of the law.'

Id. at 832 (citations omitted). At least two circuits are in agreement. In United States v. Blanco, the Sixth Circuit distinguished the government's statement at the suppression hearing that it was satisfied that the defendant had standing from an actual "stipulation" to that effect. It further stated that " [i]t is doubtful, indeed, whether the government has any power to 'stipulate' as to standing; questions of law are not generally subject to stipulation." 844 F.2d 344, 349 n. 4 (6th Cir.), cert. denied, 486 U.S. 1046 (1988) (citing United States v. Miller, 822 F.2d 828, 831-32 (9th Cir. 1987)). Similarly, the Second Circuit held in United States v. Tortorello that "whether [the defendant] has standing to challenge the legality of the searches is a question of law. A concession by the Government on a question of law is not binding on the court." 533 F.2d 809, 812 (2d Cir.), cert. denied, 429 U.S. 894 (1976).

Decisions by the First and Fifth Circuits would appear to be in conflict with this position. See United States v. Lott, 870 F.2d 778, 781 (1st Cir. 1989); United States v. Hernandez, 668 F.2d 824, 826 (5th Cir. 1982). In both cases the court held that the government was bound by its concession with regard to the defendant's standing. However, in neither case had the government attempted to withdraw its concession at the district court. In fact, the First Circuit expressly relied on the government's failure to ask the district court for a modification or rescission of its 'stipulation'. 870 F.2d at 781.

Two of our own cases are distinguishable for the same reason. See United States v. Johns, 707 F.2d 1093, 1100 n. 6 (9th Cir. 1983); United States v. Emens, 649 F.2d 653, 656 n. 4 (9th Cir. 1980). There is no indication in either case that the government made any attempt to rescind its concession before the district court. Therefore, they do not conflict with our holding in this case that the government is not foreclosed from contesting the standing of the defendants.

III

The government further argues that the district court erred in holding that the defendants have standing because they "were operating under a formalized arrangement to achieve their goal." The government contends that this one factor is insufficient to confer standing on the defendants.

In order to challenge the lawfulness of a search, the defendants must establish that they had a "legitimate expectation of privacy" in the place searched. Rakas v. Illinois, 439 U.S. 128, 143-44 (1978). The defendants must have exhibited an actual subjective expectation of privacy, and that expectation must be one that society is prepared to accept as reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979); United States v. Kovac, 795 F.2d 1509, 1510 (9th Cir. 1986), cert. denied, 479 U.S. 1065 (1987). "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." Kovac, 795 F.2d at 1510 (citing Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).

In Rakas v. Illinois, the Supreme Court explicitly rejected concepts of "vicarious" or "target" standing to assert fourth amendment rights. 439 U.S. at 133-38. The court "reaffirmed the principle that the 'rights assured by the Fourth Amendment are personal rights, [which] ... may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure...." Id. at 138. In other words, " [a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Id. at 134.

However, we have recognized what might be termed a "co-venturer" exception to the general Rakus rule against contesting the violation of another person's fourth amendment rights. "In several cases this court has found that participation in [a formalized] arrangement that indicates joint control and supervision of the place searched is enough to establish a Fourth Amendment protected privacy interest." United States v. Johns, 851 F.2d 1131, 1136 (9th Cir. 1988); see also United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir. 1984) (defendant exercised "joint control" over drug laboratory in his friend's house); United States v. Johns, 707 F.2d 1093, 1099-1100 (9th Cir. 1983) (defendant could contest seizure of drugs from another's vehicle because of their formal arrangement to transport contraband); United States v. Perez, 689 F.2d 1336, 1337-38 (9th Cir. 1982) (per curiam) (defendants driving accompanying vehicle could contest seizure of drugs from truck driven by coconspirator); but see Kovac, 795 F.2d at 1510-11 (insufficient formal arrangements of joint control), cert. denied, 479 U.S. 1065 (1987). In these cases, we have engaged in a fact-specific analysis focusing upon the degree of cooperation and the respective possessory interests involved.

One of the factors that suggests a legitimate expectation of privacy is ownership of the goods or the premises where the contraband is found. In fact, in virtually every case in which we have applied the exception, the party granted standing to contest the search of another's property himself had an ownership interest in seized or searched property. Johns, 851 F.2d at 1136; United States v. Quinn, 751 F.2d 980, 981 (9th Cir. 1984) (per curiam), cert. dismissed, 475 U.S. 791 (1986); Johns 707 F.2d at 1099-1100; Perez, 689 F.2d at 1337-38; United States v. Robertson, 606 F.2d 853, 858 n. 2 (9th Cir. 1979). For example, in United States v. Johns, 707 F.2d 1093, the case cited by the district court, we found that pilots of airplanes used to transport packages of marijuana, who were also owners of the packages, had standing to object to the search of the packages after they had been removed from the airplanes and loaded into trucks, as the pilots were in a bailor/bailee relationship with the other five defendants. Additionally, the court found that the pilots had an interest in the packages that was indistinguishable from the other defendants. This formalized arrangement to transport marijuana, along with the pilots' interest in the packages, created a legitimate expectation of privacy. 707 F.2d at 1099-1100.

Where defendants claim no ownership of the vehicle searched or of the evidence discovered, they may in certain circumstances claim an interest due to a "joint venture." This is the basis of the district court decision on the issue. "Clearly, a formalized agreement among the defendants indicating joint control and supervision of the place searched is sufficient to support a legitimate expectation of privacy." United States v. Broadhurst, 805 F.2d 849, 852 (9th Cir. 1986). However, the finding of the district court that standing may be based on a formalized agreement to meet the parties' goals does not accurately reflect the current law on this issue. A mere formalized agreement is not enough for a finding of standing. There must also be some evidence of joint control and supervision.

For instance, in Broadhurst, actual ownership was less clear, but there was extensive evidence of formalized business arrangements to grow marijuana on a rural site. 805 F.2d at 851-52. "Participation in an arrangement that indicates joint control and supervision of the place searched sufficiently establishes such an expectation [of privacy]." 805 F.2d at 852.

In United States v. Pollock, possessory interests were likewise unclear, but we emphasized the fact that the coconspirator was present at the time of the search. 726 F.2d 1465 (9th Cir. 1984) (citing Rakas, 439 U.S. at 142-43, for the proposition that legitimate presence on the premises is relevant--but not central--to the inquiry into the legitimate expectation of privacy); but see Broadhurst, 805 F.2d at 852 (limiting importance of presence on premises in fourth amendment inquiry).

United States v. Mendia, 731 F.2d 1412 (9th Cir.), cert. denied, 469 U.S. 1035 (1984), is similar to the instant case as it now appears on appeal. In Mendia, where the defendant gave heroin to a man who put it in his truck and drove away, we held that the defendant had abandoned his reasonable expectation of privacy in the heroin and could not move to suppress. We distinguished United States v. Perez, where the defendants had followed closely in another vehicle "in order to make sure no one interfered with the carrying out of their plan and the delivery of their property." 689 F.2d 1336 (9th Cir. 1982). Unlike the defendant in Mendia, the Perez defendants "took reasonable precautions to maintain their privacy interest." Id.

In this case, the record does not include any evidence indicating that the defendants have an ownership interest in the money or in de los Rios Salcedo's automobile. There is no evidence indicating that the defendants exercised joint control over the automobile or the money. There is also no evidence that they supervised de los Rios Salcedo's transportation of the money or took any precautions indicative of having a legitimate privacy interest in the money or the automobile. Instead, the record indicates a completed transaction between de los Rios Salcedo and the defendants. He had apparently delivered the goods and they had paid cash on delivery. They had no continuing interest in the money or the automobile.

However, the record is incomplete. Because the government had conceded the issue, the defendants did not have the opportunity to introduce additional evidence of any formalized arrangement between themselves and de los Rios Salcedo. Therefore, although we hold that the record as it now exists fails to show a formalized arrangement sufficient to accord the defendants standing, we remand for a hearing on this issue to allow the defendants to submit whatever additional evidence may exist.

REVERSED and REMANDED.