Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1988)

MEMORANDUM^** 

On October 17, 1988, Defendant-Appellant William Benjamin Jones was convicted of two counts of distribution of cocaine base within 1000 feet of a school, in violation of 21 U.S.C Secs. 841(a) (1), 845a. Jones was sentenced to three years imprisonment and six years supervised release. On appeal, Jones argues that the district court erred in finding that the warrantless entry of the Hyde Park residence was proper.

The charges arose as a result of a police surveillance. The police witnessed Jones standing in front of the Hyde Park residence where they saw him taking money from third persons. Jones would take the money and give it to co-defendant Fagan who was located in the residence. In return, Fagan would hand Jones a small object which Jones, subsequently, gave to the "purchaser" who had given him the money. The police arrested two of these purchasers a short distance from the Hyde Park residence and confiscated small amounts of rock cocaine found in their possession. Later, the police arrested Jones and charged him with distributing the cocaine found on these third persons.

The police later arrested Fagan and, after a warrantless search of his residence, found more cocaine. Fagan, alone, was charged with intent to distribute the quantity of cocaine found in his residence. Subsequently, Fagan filed a motion to suppress the evidence which was seized from the Hyde Park residence. In response to the suppression motion, the United States challenged Fagan's standing to contest the search. Jones verbally joined the suppression motion of his co-defendant at the suppression hearing. After Fagan provided evidence of his standing to contest the search of the house, the district court denied the suppression motion based on exigent circumstances and voluntary consent.¹ 

On appeal, Jones argues that the district court erred in denying the suppression motion. We affirm his conviction.

Defendant Jones argues that the district court erred in finding that the warrantless entry of the Hyde Park residence was proper. A party may challenge the legality of a search only if he has a legitimate expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128, 143 (1978). Here, Jones does not argue that he has a privacy interest in the Hyde Park residence or in the seized cocaine. Consequently, Jones has not met his "burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Id. at 131 n. 1.

Instead of arguing that he has standing to contest the search, Jones contends that because the government did not challenge his standing at the suppression hearing, the government waives any standing challenge on appeal. In United States v. Wanless, the government waived its objection as to defendants' standing because it "failed both at trial and on appeal to challenge appellants' right to contest the validity" of the searches. 882 F.2d 1459, 1463 n. 4 (9th Cir. 1989). Here, even assuming the United States failed to raise the issue of Jones's standing before the trial court, the government has "not waived its right to challenge the defendant's Fourth Amendment standing because it properly raised the issue on appeal." Id.

In sum, the United States has timely objected to Jones's standing. Because Jones does not contend that his Fourth Amendment rights were violated, as opposed to Fagan's Fourth Amendment rights, Jones has no standing to challenge the search of the Hyde Park residence.

AFFIRMED.