United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 1998 Decided March 10, 1998
No. 97-3042
United States of America,
Appellee
v.
Robert Gale,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cr00297-02)
Dennis F. Nee argued the cause for the appellant.
Rachel Adelman Pierson, Assistant United States Attor-
ney, argued the cause for the appellee. Mary Lou Leary,
United States Attorney at the time the brief was filed, and
John R. Fisher, Elizabeth Trosman, G. Michael Lennon and
William M. Sullivan, Assistant United States Attorneys,
were on brief.
Before: Williams, Henderson and Garland, Circuit
Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Appellant Rob-
ert Gale challenges his drug trafficking convictions on the
ground that evidence admitted at trial was obtained through
the unlawful search of an apartment he used to prepare drugs
for distribution. He also appeals his sentence on the ground
that it was based in part on drugs not properly attributable to
him. We reject both challenges, concluding that Gale lacks
standing to contest the apartment search and that the court's
drug quantity findings are not clearly erroneous.
I.
On October 18, 1995 Johnny Moncrief received a report of
water dripping into unit 103 of the apartment building he
managed on Rhode Island Avenue, N.E. in Washington, D.C.
Attempting to discover the source of the drip, Moncrief
visited unit 203--the apartment immediately above unit 103--
which was leased to a "Mr. Creek." When no one responded
to his knocks and he was unable to open the door lock,
Moncrief obtained approval from his supervisor to enter the
apartment forcibly and called the Washington Metropolitan
Police Department for assistance with the entry.
Two uniformed officers, Tammy Lane and Michael Rorie,
responded to Moncrief's call and accompanied him to unit 203.
Lane knocked on the door twice but received no response.
Moncrief had begun to pry the door open when he heard a
voice from within call out: "I'm here. I was asleep. That's
the reason I didn't open the door, let you in." Appellant's
Appendix (App.) 50. The caller, who turned out to be Gale,
was unable to open the door from inside and Moncrief fin-
ished breaking the lock. He then entered the apartment and
went to the kitchen to check for a water leak. Lane re-
mained in the living room and spoke with Gale. When
Moncrief returned he overheard Gale identify himself to Lane
as "Mr. Creek." Moncrief and the officers then left the apart-
ment.
Once outside the apartment Lane asked Moncrief if the
person inside was Mr. Creek and was told: "That's not Mr.
Creek. He's not the tenant that we rented the apartment
to." Id. 53. Lane then returned to the apartment and,
standing in the doorway, asked Gale for identification. She
ran a check for outstanding warrants in Gale's name but
found none. While still in the doorway, Lane saw another
man, John C. Grier, emerge from the kitchen with a dog.
Gale explained that Grier had been holding the dog in the
kitchen because dogs were not allowed in the apartment.
Lane then walked into the kitchen where she noticed a box on
the counter. When she looked inside she saw what she
correctly surmised to be cocaine. She arrested both Gale and
Grier and searched their persons. She discovered 118 ziplock
bags of a mixture of cocaine and heroin in Grier's pants, a
small amount of cocaine base in his pocket and $607 in Gale's
pocket. Search warrants were obtained for both unit 203 and
unit 614, which was the residence of Gale's uncle. When the
two apartments were searched police discovered various
items used for drug packaging, a bag of marihuana, $2,146 in
cash, a semiautomatic pistol and ammunition.
In a superseding indictment filed January 4, 1996 Gale and
Grier were charged jointly with (1) conspiracy to possess with
intent to distribute cocaine, heroin and cocaine base, (2)
possession with intent to distribute cocaine base, (3) posses-
sion with intent to distribute heroin, (4) possession with intent
to distribute cocaine and (5) possession of marihuana. In
addition, Gale was charged with felon possession of a firearm
and felon possession of ammunition.
Gale and Grier each moved to suppress the physical evi-
dence recovered from the two apartments on the ground that
Lane's initial warrantless search of the kitchen in unit 203
violated their rights under the Fourth Amendment to the
United States Constitution to be free from unreasonable
search and seizure. On April 2, 1996, after an evidentiary
hearing, the district judge denied both defendants' motions,
concluding that neither one had sufficient interest in unit 203
to confer standing to challenge the search. After a second
evidentiary hearing on May 15, the district judge again
denied Gale's motion to suppress on the same ground. A
short time later the case was transferred to a different
district judge for trial.
The second judge severed the felon-in-possession counts
and granted a motion for acquittal on the conspiracy count.
Gale and Grier were then tried jointly on the four remaining
drug counts in August 1996. The jury convicted Grier of
possessing cocaine and heroin with intent to distribute but
hung on the counts against Gale.
Gale was tried again, alone, on the four drug counts in
November 1996. During the trial the district judge denied
Gale's renewed motion to suppress. "Assuming standing,"
the judge concluded that Lane's search of the apartment was
lawful. App. 190-91. The jury convicted Gale of possession
of marihuana and possession of heroin with intent to distrib-
ute.
On April 3, 1997 the district judge sentenced Gale to
concurrent terms of 121 months' imprisonment for possessing
heroin with intent to distribute and 12 months for possessing
marihuana. In calculating Gale's base offense level, the judge
held him responsible for all of the drugs seized, including
those found in Grier's pants. Gale appeals both the denials of
his motion to suppress and the length of his sentence. We
address each challenge separately.
II.
Gale first argues that all of the evidence seized as a
consequence of Lane's initial search of unit 203 should be
suppressed because the search violated the Fourth Amend-
ment's guarantee against unreasonable search and seizure.
"The Fourth Amendment generally prohibits the warrantless
entry of a person's home, whether to make an arrest or to
search for specific objects." Illinois v. Rodriguez, 497 U.S.
177, 180 (1990) (citing Payton v. New York, 445 U.S. 573
(1980); Johnson v. United States, 333 U.S. 10 (1948)). Fur-
ther, a criminal defendant "is assured by the trial right of the
exclusionary rule, where it applies, ... that no evidence
seized in violation of the Fourth Amendment will be intro-
duced at his trial unless he consents." Id. at 183. Neverthe-
less, "[t]he 'capacity to claim the protection of the Fourth
Amendment depends ... upon whether the person who
claims the protection of the Amendment has a legitimate
expectation of privacy in the invaded place.' " Rakas v.
Illinois, 439 U.S. 128, 143 (1978) (quoting Katz v. United
States, 389 U.S. 347, 430 (1967)). "A subjective expectation of
privacy is legitimate if it is 'one that society is prepared to
recognize as "reasonable," ' " Minnesota v. Olson, 495 U.S.
91, 95-96 (1990) (quoting Rakas, 389 U.S. at 143-144 n.12)).
Gale relies heavily on Olson in which the United States
Supreme Court held that "status as an overnight guest is
alone enough to show ... an expectation of privacy in the
home that society is prepared to recognize as reasonable."
Id. at 96. We conclude that the district court properly found
that Gale was not an overnight guest and correctly concluded
that he had no reasonable expectation of privacy in unit 203.
Gale did not claim that he rented the apartment or that he
lived there. To the contrary, he gave a different "residence
address ... to the court authorities when he was arrested,"
App. 148, and "items indicating he has residence elsewhere
... were seized in that apartment," App. 150. Gale did claim
that he was an "overnight guest" of the lawful tenant, Creek,
who made no appearance (and was not otherwise identified)
during the proceedings. After holding two hearings, the
district court concluded that it did "not find credible" Gale's
testimony that Creek "had given him permission to stay" in
the apartment. App. 148. Because that finding of fact is not
clearly erroneous, we must uphold it. See United States v.
Garrett, 959 F.2d 1005, 1007 (D.C. Cir. 1992).
The court explained that its credibility determination was
based in part on "judging [Gale's] credibility when he testified
that he had been there 29 nights out of [the] 30 nights" before
his arrest. App. 148. The court rejected Gale's claim in part
because there was "no substantial amount of clothing associ-
ated with him that's been shown [and] there was almost no
furniture in the apartment ... there's no evidence of any
bureau or anything else." App. 144. The kitchen contained
primarily drug paraphernalia. See App. 127.
Further support for the conclusion that Gale was not
Creek's "overnight guest" derives from the court's finding
that Creek himself "quite evidently [was] not living there in
203." App. 146. As the court noted, Moncrief had seen
Creek around the building only three times in two years--and
not at all in the few months before the search--and the rent
on the apartment was in arrears. See App. 146, 148. Al-
though the apartment was locked when Moncrief and the
officers came to investigate the leak, and Gale may have had
the key, Moncrief testified that it was not the key that had
been given to the lawful tenant. Unknown to the building's
managers, the lock had been changed, which was why Mon-
crief had to break it to enter the apartment. See 11/14/96
P.M. Trial Tr. 9 1-92. All of this supports the court's
surmise that Creek had abandoned the apartment, see App.
146, and that Gale (whose uncle lived elsewhere in the build-
ing) had occupied the premises "solely for the business of
packing for distribution narcotics." App. 149.
Under these findings, to the extent that Gale used or
resided in the apartment, he did so without permission of its
tenant. Without legal authority to be there, Gale lacked the
"legitimate expectation of privacy" in the premises required
to challenge the search. See Zimmerman v. Bishop Estate,
25 F.3d 784 (9th Cir.) (squatters and their guest lacked
"objectively reasonable expectation of privacy" in another's
property and consequently were precluded from claiming
search of shack on property violated Fourth Amendment),
cert. denied, 513 U.S. 1043 (1994); United States v. Ruckman,
806 F.2d 1471, 1472-74 (10th Cir. 1986) (squatter lacked
privacy expectation to challenge search of cave in which he
resided on federal land in Utah); Amezquita v. Hernandez-
Colon, 518 F.2d 8, 11-12 (1st Cir. 1975) (squatters on farm-
land owned by Commonwealth of Puerto Rico lacked Fourth
Amendment reasonable expectation of privacy to support
injunction protecting their homes), cert. denied, 424 U.S. 916
(1976).
In urging that the evidence below established his standing
as a matter of law, Gale relies on evidence not considered by
the judge in the two pre-trial denials, notably trial testimony
by Moncrief that other people had "told" him Gale personally
paid the rent for unit 203 "on several occasions" and that
Moncrief "saw" him do so once "in the early months of '95."
App. 165-66; see also id. 172. Moncrief's testimony on this
point was itself weak because it was contradicted by his own
earlier testimony, see 11/14/96 PM Trial Tr. 106, as well as by
Gale's statement that he had never paid rent, App. 62.
Further, even if the district court were to credit Moncrief's
second position, Gale's payment of rent in early 1995 would do
almost nothing to undermine the district court's conclusions
that by October 1995 Creek had most probably abandoned
the apartment and that Creek (who, according to Moncrief,
was not involved in Gale's rent payment) had not given Gale
permission to live there. Nor, in our view, would testimony
of an isolated rent payment seven months in the past give
Gale any independent ground on which to claim an October
1995 privacy expectation. We see no reason to believe that
this evidence, or any of the other evidence that emerged at
trial, would have led the district court to conclude that Gale
had a reasonable expectation of privacy in apartment 203 at
the time of the search.
III.
Next Gale challenges his sentence on the ground that the
district judge erroneously attributed to Gale drugs seized
from Grier's person. The district judge included the drugs
taken from Grier in Gale's relevant conduct calculation after
finding Gale "responsible for possession of all the drugs in
that apartment" because he and Grier were "aider[s] and
abetter[s]" of each other, noting Grier's testimony at the first
trial that "the drugs were in the kitchen initially and that he
stuck the drugs into his crotch in an effort to hide the[m]
from the police." App. 227-29. Because those findings are
not clearly erroneous, we affirm the sentence. See United
States v. Dingle, 114 F.3d 307, 313 (D.C. Cir. 1997) (upholding
attribution to aider/abetter of virtually all drugs found in
apartment where finding that principal and aider/abetter
jointly possessed them was not clearly erroneous).*
For the preceding reasons, the judgment of the district
court is
Affirmed.