Tuesday, August 19, 2008

Standing Alone

United States v. Hamilton, No. 06-2933-cr (2d Cir. August 15, 2008) (Leval, Sotomayor, Katzmann, CJJ)

Hamilton was convicted of participating in a marijuana conspiracy. He raised a host of issues on appeal, and prevailed on his claim that the district court erroneously concluded that he lacked standing to challenge a search.

The Fourth Amendment Issue

This investigation began in 1999, in Los Angeles, where local authorities arrested Hamilton and charged him with marijuana possession.
Hamilton was released on bail, then disappeared, and later acquired a Florida driver’s license in a different name. The government later learned that the LA marijuana would make its way to the Bronx.

In 2004, L.A. police officers intercepted a FedEx package containing marijuana that was supposed to go to an address in Encino, California. They conducted a controlled delivery, and discovered five men in the driveway of the house, one of whom was Hamilton, who was still using an alias. The men told the officers they did not live in the house and did not know who did, but that someone named Shane Johnson owned it. The men also said that someone named “Slick” was inside the house. Many of the house’s doors were open; the officers called out to Slick and, when he did not answer, entered the house. There was a man in one of the bedrooms, and he gave the officers consent to search the house, which contained guns, marijuana and related paraphernalia. While they were there, UPS arrived with a second package. The officers obtained a search warrant for both packages and discovered that each contained drug money.

Hamilton was arrested in 2005. In the district court, just before jury selection, his counsel moved to suppress the evidence obtained from the Encino house, citing the officers’ warrantless entry; counsel explained that he had only learned of the pre-consensual entry from the 3500 material. As to standing, counsel proffered that Hamilton had purchased the house, registered it in the name of his “common-law wife,” had free access to the house, and stayed there frequently. The AUSA countered that, when the LAPD saw Hamilton at the house in 1999, he denied living there. Counsel conceded that Hamilton did not have keys to the house but insisted that he had “access.” Without conducting a hearing, the court concluded that Hamilton did not have standing to challenge the search, concluding that his privacy interest in it was no greater than that of a mortgagee bank.

The circuit disagreed. Hamilton’s proffered facts showed that he had “free and frequent access” to the house, as well as “effective control of it,” and thus a solid expectation of privacy. “There is no authority for the proposition that one need live in the premises, or exercise control over them, in order to enjoy a privacy interest.” The district court therefore erred in “failing to draw reasonable inferences in Hamilton’s favor from the facts he alleged” and in denying the motion without a hearing. It remanded the case for further consideration of the motion to suppress.

The Hearsay Issue

At trial, Hamilton conceded that he had been involved in marijuana distribution in the past, but asserted that he had withdrawn from the conspiracy after his October 1999 arrest. Under this theory, the federal indictment, filed in January of 2005, was time barred. To counter this, the government introduced testimony that an agent had learned that Hamilton was “living with” Shane Johnson at the house that had been searched.

On appeal, the defense argued that this was improper hearsay. But the circuit sided with the government, which argued that the testimony was necessary to establish that Hamilton had been a fugitive since he skipped bail in 1999, and thus that the statute of limitations had been tolled. “[I]n order to persuade the jury that the statute of limitations was tolled,” the government “needed to show the course of its investigations that eventually led to the capture of the defendant.”

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