OpenJurist

917 F2d 29 United States v. Kvetko E

917 F.2d 29

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
William Scott KVETKO, aka Rodney Lee Scott, Charles E.
Miller, Ronald Lee Peck, Defendant-Appellant.

No. 89-10613.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 2, 1990.
Decided Oct. 24, 1990.

Before GOODWIN, Chief Judge, and JAMES R. BROWNING and RYMER, Circuit Judges.

1

MEMORANDUM*

2

William Scott Kvetko entered a conditional guilty plea to one count of stealing United States mail in violation of 18 U.S.C. Sec. 1708 after the district court had denied his motion to suppress evidence. Kvetko claimed, in the motion to suppress, that a postal inspector conducted an illegal search and arrested him without probable cause. The district court denied his motion. We affirm.

3

* Postal inspectors were investigating a group of people in the Phoenix area who had been using credit cards and cashing checks that had been stolen from the mail. As part of the investigation, on March 31, 1989, postal inspector Raul Vargas went to the Travel Lodge Motel in Phoenix, where Kvetko had rented room 103 using the credit card of Charles E. Miller. After an inspector accompanying Vargas knocked on the door of room 103, Kvetko answered and Vargas identified himself. Kvetko gave a false name and moved off to his right to a cluttered table when asked to produce identification. When Kvetko stepped away, Vargas took one step into the room to watch him. After Vargas saw evidence in the room linking Kvetko with stolen mail and after he seized a black book Kvetko was holding, Kvetko was handcuffed, read his Miranda rights and brought in for questioning. Kvetko then admitted he had forged Charles Miller's name on a credit card slip to rent the motel room. The postal inspectors obtained a search warrant for room 103, based in part on observations Vargas had made there, and seized evidence.

II

4

The validity of a warrantless search is reviewed de novo. United States v. Howard, 828 F.2d 552, 554 (9th Cir.1987). We review a conclusion of exigent circumstances de novo, and findings of fact are upheld absent clear error. United States v. Sarkissian, 841 F.2d 959, 962 (9th Cir.1988); United States v. Alvarez, 810 F.2d 879, 881 (9th Cir.1987). Probable cause for an arrest is reviewed de novo. United States v. Linn, 880 F.2d 209, 214 (9th Cir.1989).

III

5

* The fourth amendment's protection against unreasonable searches and seizures applies to those with "a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 401 (1978) (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, 583 (1967)). The district court ruled that Kvetko "had no expectation of privacy in the [motel] room. He had not rented the room, it was rented in the name of Charles E. Miller." It is well settled, though, that the fourth amendment applies to hotel rooms. Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374, 381 (1966); Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856, 861 (1964). In United States v. Holzman, 871 F.2d 1496 (9th Cir.1989), we held that where defendants had rented hotel rooms under a name listed on someone else's credit card, which they possessed, subsequent warrantless entries into those rooms were still unlawful. Id. at 1499, 1506-07. Kvetko was protected by the fourth amendment, even though he rented the motel room under false pretenses.

B

6

The postal inspectors were entitled to knock on Kvetko's door in order to question him. See Davis v. United States, 327 F.2d 301, 303 (9th Cir.1964) (no invasion of privacy to knock on door with intent to ask questions of occupant). When Kvetko opened the door in response to the knock, he voluntarily exposed any contents of his room that were in plain view. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967). Vargas was free to observe, from his vantage point at the doorway, whatever Kvetko left in a position to be observed.1

7

Vargas testified that he feared that Kvetko might be getting a weapon from the cluttered table. That was a reasonable concern, given the totality of the circumstances--including the fact that the name Kvetko gave differed from the name in which the room was registered, the possibility of Kvetko's involvement with a group stealing checks and credit cards from the mail and the fact that people previously arrested in connection with the same investigation had carried guns in their cars.

8

A reasonable fear of physical harm is an exigent circumstance that creates an exception to the search warrant requirement. United States v. George, 883 F.2d 1407, 1412 (9th Cir.1989). "But a warrantless search must be 'strictly circumscribed by the exigencies which justify its initiation.' " Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290, 300 (1978) (quoting Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Taking one step into the motel room was the least intrusive action Vargas could have taken to ensure his safety.

9

The government must show that a warrant could not have been obtained in time, George, 883 F.2d at 1412 (citing United States v. Good, 780 F.2d 773, 775 (9th Cir.), cert. denied, 475 U.S. 1111, 106 S.Ct. 1523, 89 L.Ed.2d 920 (1986)). Under the circumstances here, to have waited at the door while fellow officers secured a warrant merely because Kvetko stepped out of view might have risked danger to the inspectors or the destruction of evidence. See id. at 1413 (citing United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300 (1976); United States v. Bustamante-Gamez, 488 F.2d 4, 8-9 (9th Cir.1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974)). As in George, "[L]aw enforcement officers confronting such a situation obviously would be irresponsible if they stood idly by awaiting the command of a neutral magistrate." Id. The reasonable fear that Kvetko would produce a weapon justified Vargas's position one foot inside the room. The district court did not err in concluding that "based on the information he had at the time," Vargas's entry into the room was proper.

10

From either his initial vantage point at the doorway or his new position one foot inside, Vargas could conduct a visual search of anything in plain view because he had a right to be where he was. From either or both of these vantage points, he could see in plain view a clear bag containing mail, a typewriter and correction fluid--which Vargas recognized as forging paraphernalia--and stereo equipment.

11

Vargas's seizure of the black book Kvetko held was also lawful. "The 'plain view' exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be." Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S.Ct. 812, 816, 70 L.Ed.2d 778, 784 (1982). Vargas had a right to be where he was to ensure that Kvetko would not produce a weapon. The book and the credit cards contained inside were in his plain view from that lawful position. Vargas had not created the exigency because his asking Kvetko for identification was not done in order to lure him out of sight and thereby give the inspector a pretext to step inside the room.

IV

12

Kvetko argues that the subsequent search warrant was invalid for two reasons relating to the underlying affidavit supporting it, which was sworn by a postal investigator who received relevant information over the radio from Vargas in the Travel Lodge parking lot. First, Kvetko claims the affidavit was based on information learned by Vargas's allegedly illegal search. Because we hold that there was no illegal search, there is no reason to remove any information based on that search from the affidavit. Second, Kvetko argues that some statements in the affidavit, which Vargas admitted were inaccurate, invalidate the warrant.

13

The standard for invalidating a search warrant based on false information is stringent, requiring "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit...." Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672 (1978) (emphasis added). "Allegations of negligence or innocent mistake are insufficient." Id. at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 682. Even if there is perjured or recklessly stated false information in a warrant application, the warrant stands if, when the false material is set aside, "there remains sufficient content in the warrant affidavit to support a finding of probable cause." Id. at 171-72, 98 S.Ct. at 2684, 57 L.Ed.2d at 682. See also United States v. Dozier, 844 F.2d 701 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988) (applying Franks ).

14

There is no evidence in this case that the affiant made any knowingly or recklessly false statements in support of the search warrant. Kvetko's assertion of inaccuracies without a showing of improper conduct cannot provide a basis for invalidating the warrant. Furthermore, even if the statements of which Kvetko complains were stricken from the warrant application, there would still have been probable cause to support its issuance.

V

15

Kvetko argues that his arrest in the hotel room lacked probable cause. The test for probable cause is

16

whether, [at the moment the arrest was made] the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.

17

Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145 (1964). Probable cause must be considered by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527, 543 (1983). See also United States v. Morgan, 799 F.2d 467, 469 (9th Cir.1986) (applying totality of circumstances standard).

18

In this case, Vargas did not go to the motel room to make an arrest. He went to ask questions to further his investigation. It was only when he added information from his lawful visual search of the room to the information he already possessed that he formed the probable cause necessary to arrest Kvetko. When Kvetko failed to produce identification, Vargas had the following information: postal inspectors had seen stolen mail in a truck allegedly belonging to a "Scott" in room 103; the black book bore a sticker with "Scott" on it; the man in the room was not the Charles Miller whose named had been used to rent the room; the room contained forging paraphernalia and a large bag containing mail; and the black book contained two credit cards, neither of which could provide identification for the man in the room. Based on the totality of the circumstances, there was enough information to form probable cause that Kvetko was involved in stealing checks and credit cards from the mail.

VI

19

Although the district court erred in ruling that Kvetko had no expectation of privacy in the motel room, it correctly ruled that there was no unlawful search or seizure and that there was probable cause to arrest Kvetko. Accordingly, we AFFIRM.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Kvetko asserts that Vargas put his foot in the door to prevent its being closed. Appellant's Brief at 22 n. 5. There is no evidence in the record to support that assertion