United States v. Cooper

UNITED STATES of America, Plaintiff-Appellee,

v.

Eric Allen COOPER & Albert Urbina, Defendants-Appellants.

No. 98-2123.

United States Court of Appeals,

Eleventh Circuit.

Feb. 14, 2000.

Appeals from the United States District Court for the Middle District of Florida. (No. 97-42-Cr-ORL-18),
G. Kendall Sharp, Judge.

Before DUBINA, Circuit Judge, KRAVITCH, Senior Circuit Judge, and NESBITT*, Senior District Judge.

KRAVITCH, Senior Circuit Judge:

The principal issue in this appeal is whether criminal defendants had a reasonable expectation of

privacy in a hotel room for which they neither paid nor registered. We hold that under the circumstances as

alleged by the defendants in their motion to suppress, they did not and thus lacked standing to move to

suppress evidence allegedly obtained in violation of the Fourth Amendment to the U.S. Constitution.

I. BACKGROUND

On January 26, 1997, at approximately 3:45 a.m., Robert Garcia checked into a Sheraton Hotel (the

"Sheraton" or the "hotel") in Orlando, Florida, and was assigned to Room 616. He was accompanied by an

unidentified male and a minor female later identified as JoAnn Grande, neither of whom actually registered

with the hotel. At approximately 5:45 the same morning, Allen Gonzalez checked into the hotel and was

assigned to Room 624, the room directly opposite Garcia's. He was also accompanied by an unidentified

male who did not register with the hotel. Because both Garcia and Gonzalez proffered the occupancy fees

in cash, hotel policy mandated that each present some form of photographic identification; each presented

*
Honorable Lenore C. Nesbitt, Senior U.S. District Judge for the Southern District of Florida, sitting by
designation.
a Florida driver's license, which the hotel desk clerk photocopied. Later that same day, Garcia departed the

hotel and allegedly turned the key to Room 616 over to Gonzalez.

Beginning on the evening of January 26, James O'Brien, a security officer employed by a private firm

under contract with the Sheraton, witnessed numerous individuals, including Defendants Eric Allen Cooper

and Albert Urbina (collectively, "Defendants"), coming and going from the sixth floor of the hotel,

particularly during the early morning hours of January 27. On one occasion, O'Brien assisted Defendant

Urbina in entering Room 616, as the key Urbina had was not working properly.

Shortly after midnight on January 28, O'Brien received a call from the occupant of Room 618, the

room adjoining Room 616. The guest complained that a ringing alarm clock in Room 616 was disturbing his

sleep. O'Brien proceeded to Room 616 and knocked on the door several times, receiving no response.

O'Brien, using his pass key, entered Room 616 to switch off the alarm. While inside the room, O'Brien

noticed in plain view what he assumed to be marijuana. Following what he described as hotel policy, O'Brien

immediately exited the room and "pin locked" it to prevent anyone other than himself from accessing the

room. He then notified the Orange County Sheriff's Office.

After two sheriff's deputies arrived, O'Brien escorted them to Room 616 and granted them entrance.

The deputies inspected the room and, concluding several varieties of narcotics were in fact on the premises,

requested assistance from a narcotics unit. The narcotics officers conducted on-site tests that confirmed the

presence of controlled substances.

O'Brien allowed the officers to lie in wait for the occupants of Room 616 in the adjoining room,

Room 618 (its occupant was relocated to another room). Shortly thereafter, Defendants, accompanied by

Grande, returned to the hotel. As arranged, O'Brien notified the officers that some of the people he had

observed going in and out of Room 616 were en route to the sixth floor. Defendants and Grande entered

Room 616, at which time the awaiting officers also entered through the adjoining room and arrested all three

individuals. The officers searched each suspect: from Defendant Urbina, they recovered the driver's license

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of Allen Gonzalez and approximately $6500 of United States currency in varying denominations bundled

together with rubber bands; from Defendant Cooper, they recovered approximately $1500 of United States

currency similarly bundled and a plastic bag containing what were later identified as four broken tablets of

flunitrazepam, or Rohypnol, a controlled substance. A complete inventory of Room 616 revealed:

approximately 3100 grams of marijuana; approximately 225 grams of 3,4-methylenedioxymethamphetamine

("MDMA"), also known by its street name "ecstasy"; approximately 58 grams of Rohypnol; approximately

8 grams of lysergic acid diethylamide ("LSD"); a Colt .38 revolver; $1043 of United States currency; two

packages of plastic bags; a pipe used for smoking marijuana; assorted narcotics paraphernalia; and an

address book. The street value of the narcotics seized exceeded $33,000.

Defendants were indicted on five narcotics-related counts: one count of conspiracy to possess and

distribute narcotics, in violation of 21 U.S.C. § 846 (Count I); and one count of possession with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, for each of the four controlled substances

found on the premises (Counts II-V). At trial, Defendants moved to suppress all evidence found in the hotel

room, asserting the police searched the hotel room and seized the evidence without a warrant and absent

exigent circumstances or consent, all in violation of their Fourth Amendment1 rights. The district court

denied the motion, holding Defendants had not alleged sufficient facts to establish they had a "reasonable

expectation of privacy" in the hotel room and therefore did not have standing to challenge the search and

seizure. Defendants requested an evidentiary hearing on the standing issue, but the district court declined to

hold one. Cooper and Urbina each were convicted on all five counts of the indictment and sentenced to

prison terms of ninety-seven and fifty-one months, respectively.

II. ANALYSIS

A. Search of the Motel Room

1
"The right of the people to be secure in their person, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be
seized." U.S. Const. amend. IV.

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1. The Motion to Suppress

The Supreme Court long has recognized that the Fourth Amendment's guarantee of freedom from

warrantless searches and seizures is not premised on arcane concepts of property and possessory interests;

instead, the Fourth Amendment protects an individual in those places where she can demonstrate a reasonable

expectation of privacy against government intrusion. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct.

507, 512, 19 L.Ed.2d 576 (1967). Such a place can include a hotel room. See Stoner v. California, 376 U.S.

483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964). Fourth Amendment rights, however, are personal, and

only individuals who actually enjoy the reasonable expectation of privacy have standing to challenge the

validity of a government search. See Rakas v. Illinois, 439 U.S. 128, 133-34, 143, 99 S.Ct. 421, 425, 430,

58 L.Ed.2d 387 (1978). Our initial inquiry, therefore, focuses on whether Defendants established in their

motion to suppress that they possessed a reasonable expectation of privacy in Room 616. See id. at 131 n.

1, 99 S.Ct. at 424 n. 1; United States v. Sneed, 732 F.2d 886, 888 (11th Cir.1984) (per curiam). We review

this mixed question of law and fact de novo. See United States v. Cooper, 133 F.3d 1394, 1398 (11th

Cir.1998).

To determine whether an individual has a reasonable expectation of privacy in a hotel room, courts

have looked to such indicia as whether the individual paid and/or registered for the room or whether the

individual's personal belongings were found inside the room. See United States v. Conway, 73 F.3d 975, 979

(10th Cir.1995); United States v. Carter, 854 F.2d 1102, 1105 (8th Cir.1988). Here, Defendants' motion to

suppress did not allege such details; instead, Defendants contend their motion's numerous references to the

hotel room as "theirs" established their privacy interests. We disagree. "A motion to suppress must in every

critical respect be sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude

that a substantial claim is presented.... A court need not act upon general or conclusory assertions...." United

States v. Richardson, 764 F.2d 1514, 1527 (11th Cir.1985) (internal citations omitted). Defendants'

offhanded references fall far short of meeting this standard, especially considering that Defendants' claim to

4
standing is founded only on their own ultimate conclusion that the hotel room was "theirs," rather than on

facts demonstrating that conclusion to be true. Even after the Government raised the issue of standing in its

opposition to Defendants' motion to suppress, Defendants failed to amend their motion to provide the specific

facts essential to demonstrating a reasonable expectation of privacy in a hotel room. See Sneed, 732 F.2d at

888 (acknowledging that Defendant Sneed failed to amend his motion once his standing was questioned).

Moreover, the undisputed trial testimony of O'Brien, the hotel security officer, revealed that Robert Garcia

was the individual who actually paid and registered for Room 616, which he later transferred to Allen

Gonzalez; this evidence undermines any credible argument that Defendants were the individuals who paid

or registered for the room.2

In Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 1688, 109 L.Ed.2d 85 (1990), the

Supreme Court held that overnight guests in the homes of third-persons can have a reasonable expectation

of privacy in those premises. On appeal, Defendants argue they were the overnight guests of Gonzalez, thus

entitling them to a reasonable expectation of privacy in his hotel room. Whether the privacy interest

recognized in Olson extends to the overnight guests of hotel registrants, especially those guests not disclosed

to the hotel, is an open question in this circuit. Because Defendants did not allege in their motion to suppress

that they were Gonzalez's guests, however, we have no occasion to decide the issue.3 Again, Defendants

advanced no concrete foundation for standing in their motion to suppress. To now allow Defendants to

2
In their appellate briefs and at oral argument, Defendants suggest "Gonzalez" was actually an alias for
either Cooper or Urbina, one of whom used a fraudulent driver's license to check into the hotel. Defendants,
however, alleged this fact neither in their motion to suppress nor at trial, and they did nothing to refute
O'Brien's testimony that Gonzalez was a distinct individual whom O'Brien witnessed check in. Because
Defendants did not develop this "suggestion" in their motion to suppress, they are precluded from doing so
for the first time on appeal.
3
We note that the Supreme Court has qualified the holding of Olson to some extent. In Minnesota v.
Carter, 525 U.S. 83, 119 S.Ct. 469, 474, 142 L.Ed.2d 373 (1998), the Court held that in order to establish a
reasonable expectation of privacy in a third-party's home, an individual must demonstrate she is a guest on
the premises for a personal occasion, rather than for strictly a commercial purpose. Because the evidence in
this case suggests Defendants were using the hotel room predominantly to engage in narcotics trafficking,
Defendants likely would lack standing even if they had been the overnight guests of Gonzalez.

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supplement their motion to suppress with new factual allegations on appeal would undermine the requirement

enunciated in Richardson that motions to suppress be "definite, specific, detailed, and nonconjectural" when

considered by the district court.

We conclude Defendants' motion to suppress was deficient of any facts that might have demonstrated

that they had a reasonable expectation of privacy in Room 616. The district court correctly denied

Defendants' motion for lack of standing.

2. The Motion for an Evidentiary Hearing

Defendants also appeal the district court's refusal to hold an evidentiary hearing on the issue of

standing, arguing that had the district court granted them a hearing, they would have demonstrated a

reasonable expectation of privacy in the hotel room. We review the district court's action for abuse of

discretion. See Richardson, 764 F.2d at 1527.

As this court held in Sneed:

[W]here a defendant in a motion to suppress fails to allege facts that if proved would require the grant
of relief, the law does not require that the district court hold a hearing independent of the trial to
receive evidence on any issue necessary to the determination of the motion.

732 F.2d at 888. Based on our holding that Defendants' motion to suppress was wholly lacking in sufficient

factual allegations to establish standing, the district court did not abuse its discretion in refusing to hold an

evidentiary hearing. Defendants are not entitled to an evidentiary hearing based on a "promise" to prove at

the hearing that which they did not specifically allege in their motion to suppress.

B. Sufficiency of the Evidence Against Urbina

Urbina separately appeals his convictions on the ground that the evidence adduced at trial was

insufficient to prove beyond a reasonable doubt the elements of the crimes charged.4 We review the evidence

supporting a guilty verdict to determine whether "a reasonable jury, choosing among reasonable constructions

4
In his appellate brief, Cooper adopts those issues raised by Urbina on appeal insofar as they affect Cooper.
"[S]ufficiency arguments[, however,] are too individualized to be generally adopted." United States v. Davis,
61 F.3d 291, 296 n. 2 (5th Cir.1995). Cooper therefore has not properly raised the issue on appeal, and we
decline to consider it.

6
of the evidence, could have found that the defendant was guilty beyond a reasonable doubt." United States

v. Richardson, 764 F.2d 1514, 1524 (11th Cir.1985) (citing United States v. Bell, 678 F.2d 547, 549 (5th Cir.

Unit B 1982) (en banc),5 aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)). All

factual and credibility inferences are drawn in favor of the Government. See Bell, 678 F.2d at 549.

Urbina was convicted of four counts of possession of narcotics with intent to distribute and one count

of conspiracy to possess and distribute narcotics. Urbina argues on appeal that the Government neither

established his possession of the narcotics found in Room 616, nor his involvement in the criminal

conspiracy. We find his arguments to be without merit, as the record reveals ample evidence on which a

reasonable jury could have predicated its guilty verdicts.

Convictions for the possession of narcotics can be premised on either actual or constructive

possession, see United States v. Ramos, 666 F.2d 469, 475 (11th Cir.1982), and to prove constructive

possession, the Government needed only to demonstrate that Urbina "knew the identity of the substance[s]

and exercised dominion and control over [them]," Richardson, 764 F.2d at 1525, which the jury was free to

infer from circumstantial evidence. To sustain the conspiracy count, "the [G]overnment [did not need to]

prove that [Urbina] had knowledge of all details or phases of a conspiracy[, but only] that [Urbina] knew the

essential nature of the conspiracy." United States v. Payne, 750 F.2d 844, 859 (11th Cir.1985). The trial

evidence adequately supports the jury's ultimate conclusions that Urbina at a minimum constructively

possessed the narcotics in Room 6166 and was engaged in the ongoing criminal conspiracy. In addition to

observing Urbina frequenting the sixth floor of the hotel at unusual hours of the morning, O'Brien testified

5
Decisions by Unit B of the former Fifth Circuit issued after September 30, 1981, are binding on this court.
See Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982).
6
Further buttressing the sufficiency of the evidence of Urbina's guilt on the four possession counts is the
fact that those counts also charged Urbina with "aiding and abetting" in the possession of the narcotics. To
prove Urbina was an "aider and abetter," the Government needed only to demonstrate Urbina "willfully
associated himself with the enterprise to possess the [narcotics] and contributed to its success." Richardson,
764 F.2d at 1525; see also United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir.1981). The evidence
discussed above also reasonably supports such a finding by the jury.

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that on one occasion, he even assisted Urbina in entering Room 616 because Urbina's key was not working

properly, indicating Urbina had authorized access to Room 616 prior to his arrest there.7 Urbina's recurrent

and somewhat erratic association with the room where the narcotics were discovered, coupled with the large

sum of currency found on his person at the time of his arrest, provide a sufficient foundation for the jury's

guilty verdicts on all five counts of the indictment.

C. Application of the U.S. Sentencing Guidelines

Each defendant individually appeals his sentence, challenging the district court's application of the

United States Sentencing Guidelines (the "Guidelines"). We consider each appeal in turn, reviewing the

district court's factual findings for clear error and its application of the Guidelines to those facts de novo. See

United States v. Trujillo, 146 F.3d 838, 847 (11th Cir.1998).

1. Cooper's Sentencing Appeal

Pursuant to section 2D1.1(b)(1) of the Guidelines, Cooper was assessed a two-level enhancement

in his base offense level for the possession of a firearm during a narcotics-related offense. Cooper objected

to the enhancement on the grounds that the Government did not demonstrate at trial that the revolver found

in the hotel room belonged to him or, in the alternative, that the revolver was actually connected to the

underlying offense. Cooper's first argument fails because, even if the firearm actually belonged to Urbina

rather than Cooper, the adjustment was nonetheless proper because the two were co-conspirators with equal

dominion over the room where the gun was found. See United States v. Matthews, 168 F.3d 1234, 1248 (11th

Cir.1999).8 Cooper's alternate argument likewise fails because the Guidelines state "[the enhancement] should

7
We recognize Urbina's possession of the key to Room 616 might appear in tension with our earlier
holding that Urbina had no expectation of privacy in the hotel room. Aside from Urbina's failure to mention
this fact in his motion to suppress, however, other courts have held that possession of a key to a hotel room,
without more, does not establish a reasonable expectation of privacy in the room. See, e.g., United States v.
Conway, 73 F.3d 975, 980 (10th Cir.1995).
8
As Matthews explains:

A defendant's sentence may also be enhanced for possession [of a firearm] by a
co-conspirator if (1) the actual possessor is charged as a co-conspirator; (2) the

8
be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the

offense." U.S. Sentencing Guidelines Manual § 2D1.1 cmt. 3 (1997) (emphasis added). The revolver was

found in the hotel room directly under packaged bricks of marijuana, suggesting an active connection with

the narcotics enterprise that Cooper does not credibly rebut. The district court therefore correctly assessed

the two-level enhancement against Cooper.

2. Urbina's Sentencing Appeal

Pursuant to section 4A1.1(c) of the Guidelines, Urbina was assessed one criminal history point for

a two-count conviction in 1996 for driving with a suspended license and possessing marijuana, both

misdemeanors. Urbina, unrepresented by counsel, pleaded guilty to both counts and served one day in jail.

Urbina was also assessed three other criminal history points, which, without the additional point for the 1996

conviction, would have placed him in criminal history category II, rather than in category III. See U.S.

Sentencing Guidelines Manual ch. 5, pt. A (1997) (Sentencing Table). Urbina objected to the assessment

of this additional point for the 1996 conviction, arguing the Government had not alleged in his pre-sentence

investigative report that Urbina had waived his right to counsel in pleading guilty to the 1996 changes, thus

rendering this conviction "presumptively invalid" and unable to be considered in a sentencing proceeding.

Cf. Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967) ("To permit a conviction

obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance

punishment for another offense is to erode the principle of that case.") (emphasis added) (internal citation

omitted).

Generally, this court does not allow a defendant to collaterally attack the constitutionality of a

conviction for the first time in a sentencing proceeding. See United States v. Jackson, 57 F.3d 1012, 1018

co-conspirator possessed the firearm in furtherance of the conspiracy; and (3) the defendant
who receives the enhancement [ (in this case, Cooper) ] was involved in the conspiracy at
the time of the possession.

168 F.3d at 1248.

9
(11th Cir.1995); see also U.S. Sentencing Guidelines Manual § 4A1.2 cmt. 6 (1997) ("[T]his guideline and

commentary do not confer upon the defendant any right to attack collaterally a prior conviction or sentence

beyond any such rights otherwise recognized in law...."). "[W]hen a defendant, facing sentencing, [however,]

sufficiently asserts facts that show that an earlier conviction is 'presumptively void,' the Constitution requires

the sentencing court to review this earlier conviction before taking it into account." United States v. Roman,

989 F.2d 1117, 1120 (11th Cir.1993) (en banc) (per curiam). This court has suggested that "presumptively

void" convictions "are small in number and are perhaps limited to uncounseled convictions." Id. Although

Urbina's 1996 conviction was indeed uncounseled, the burden was on Urbina "to lay a factual foundation for

collateral review on the grounds that the state conviction was 'presumptively void.' " Id. As the district court

remarked, Urbina did not make this threshold showing, thereby precluding collateral review of the 1996

conviction. Consequently, the district court did not err in assessing Urbina the additional criminal history

point and placing him in criminal history category III.

III. CONCLUSION

We AFFIRM the district court's denial of Defendants' motion to suppress, AFFIRM Defendants'

convictions on all counts of the indictment, and AFFIRM Defendants' individual sentences.

10