United States v. Charles Edward Rancher, 940 F.2d 654, 4th Cir. (1991)
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Scribd Government DocsUnited States v. Charles Edward Rancher, 940 F.2d 654, 4th Cir. (1991)
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Scribd Government Docs940 F.
2d 654
Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of
unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles Edward RANCHER, Defendant-Appellant.
No. 90-5112.
United States Court of Appeals, Fourth Circuit.
Submitted July 1, 1991.
Decided Aug. 1, 1991.
Appeal from the United States District Court for the Northern District of
West Virginia, at Elkins. Robert Earl Maxwell, Chief District Judge. (CR89-268)
Geary M. Battistelli, Beneke, Battistelli & Bremer, Wheeling, W.Va., for
appellant.
William A. Kolibash, United States Attorney, Robert H. McWilliams,
Assistant United States Attorney, Wheeling, W.Va., for appellee.
N.D.W.Va.
AFFIRMED.
Before K.K. HALL, MURNAGHAN and NIEMEYER, Circuit Judges.
OPINION
PER CURIAM:
Charles Edward Rancher appeals from the judgment entered by the district
court following a jury verdict finding Rancher guilty of federal narcotics
violations. We affirm.
Rancher was arrested following a raid by local police upon an apartment
belonging to Steve Burress. Police had obtained a warrant to search the
apartment and, although they knocked and announced their identity and the fact
that they had a warrant, they did not wait before entering the apartment. The
occupants of the apartment, including Rancher, were ordered to lie on the floor.
Rancher had to be instructed several times to lie down. After patting him down,
police ordered Rancher to roll over. When he did, baggies containing cocaine
powder and cocaine base were found directly under him. Rancher was placed
under arrest and a more thorough search revealed $1,900 in cash secreted in his
underwear. Rancher was subsequently indicted on charges of conspiracy to
possess cocaine with intent to distribute and possession of cocaine with intent to
distribute.
Prior to trial Rancher moved to suppress the cocaine and cash. He argued that
the search violated 18 U.S.C. Sec. 3109, the federal "knock and announce"
statute.* The government argued that Rancher lacked standing to challenge the
search. The motion was referred to a magistrate judge for proposed findings
and recommendations. Following a hearing, the magistrate judge, noting that
the government had presented no support for its standing argument, assumed
for the purpose of decision that Rancher had standing, but held that
nonetheless, on the merits, exigent circumstances justified dispensing with the
waiting requirement of Sec. 3109. The district court adopted the magistrate
judge's report and denied the suppression motion.
Following denial of the suppression motion the case proceeded to trial and the
jury convicted Rancher on both counts. Rancher moved both at the close of the
government's case, and at the close of trial, for acquittal; both motions were
denied. Two days after trial ended Rancher moved for a new trial arguing that
the jury selection process in the Northern District discriminated against blacks.
The district court denied this motion as well and subsequently sentenced
Rancher to 160 months' imprisonment, to be followed by five years of
supervised release; it also imposed a fine of $5,000 and special assessments
totalling $100. Rancher filed a timely notice of appeal raising four claims
which we address in turn.
Whether a defendant may challenge the legality of a search which has produced
evidence against him involves an analysis of substantive fourth amendment
law. Rakas v. Illinois, 439 U.S. 128, 140 (1978). Fourth amendment rights are
personal, and the defendant must show that he himself had a "legitimate
expectation of privacy" in the area searched. Id. at 140; United States v.
Salvucci, 448 U.S. 83, 91-92 (1980). If a defendant has no such expectation
then he may not challenge the legality of the search or have evidence obtained
during the search suppressed. Rancher was no more than a temporary guest in
Burress's apartment; he had shown up to participate in a dice game. As a casual
guest he had no legitimate expectation of privacy in Burress's apartment and
thus could not challenge the legality of the search. We therefore affirm the
denial of the motion to suppress on this basis. We express no opinion as to
whether the facts of this case gave rise to exigent circumstances obviating the
requirement that officers await refusal before entering the premises to conduct
a search.
6
Rancher argues that the search which led to the discovery of the narcotics was
improper. Though we note the criticism that has been directed at police policies
of searching all persons present during the execution of narcotics search
warrants, see United States v. Harvey, 897 F.2d 1300, 1304 n. 2 (5th Cir.), cert.
denied, 59 U.S.L.W. 3405 (U.S.1990); United States v. Flett, 806 F.2d 823, 829
n. 9 (8th Cir.1986), this alone does not invalidate the present search, see Flett,
806 F.2d at 829. The officers were required to have a reasonable suspicion that
Rancher in particular posed a threat to them. The fact that the officers knew
they were executing a search warrant for narcotics and had some information
that weapons might be present, when coupled with the additional specific facts
that Rancher had to be instructed several times to lie down on the floor and
when he complied with that order he nonetheless continued to move around,
gave the police a reasonable suspicion that Rancher might pose a threat of harm
to them.
Rancher appeals the denial of his motion for acquittal. The test for deciding a
motion for acquittal is whether there is sufficient evidence which, giving the
government the benefit of all reasonable inferences, would sustain a jury
finding that the defendant was guilty beyond a reasonable doubt. United States
v. MacCloskey, 682 F.2d 468, 473 (4th Cir.1982). In testing the sufficiency of
the evidence, this Court must give "full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts." Jackson v.
Virginia, 443 U.S. 307, 319 (1979). The evidence need not exclude every
hypothesis, but need only be sufficient enough that "any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt." Id.
The evidence in this case was sufficient to go to the jury on both counts. The
cocaine was found directly under Rancher when he was ordered to turn over.
That other plausible explanations may have been offered by the defense does
not render the evidence insufficient.
9
Rancher next challenges the denial of his motion for a new trial. Two days after
the jury returned its verdict Rancher moved for a new trial arguing that blacks
had been underrepresented in the jury pool. The court denied this motion
finding no factual support for Rancher's claim.
10
Under 28 U.S.C. Sec. 1867(d) a defendant challenging the method by which
juries are selected is required to file along with his motion a "sworn statement
of facts which, if true, would constitute a substantial failure to comply with the
provisions of this title." Failure to file such a sworn statement requires that the
motion be denied. United States v. LaChance, 788 F.2d 856, 870 (2d Cir.), cert.
denied, 479 U.S. 883 (1986); United States v. Wellington, 754 F.2d 1457, 1468
(9th Cir.), cert. denied, 474 U.S. 1032 (1985); United States v. Foxworth, 599
F.2d 1, 3 (1st Cir.1979); United States v. Kennedy, 548 F.2d 608, 613 (5th
Cir.), cert. denied, 434 U.S. 865 (1977). Rancher failed to file a sworn
statement of facts in support of his motion and it could have been denied on that
basis alone. In addition, as the district court found, the available facts did not
support Rancher's motion.
11
Finally, Rancher argues that there was insufficient evidence to convict him of
the conspiracy because the government's witnesses were not credible. This
claim is without merit. The credibility of witnesses is strictly a matter for the
jury. United States v. Cecil, 836 F.2d 1431, 1441 (4th Cir.), cert. denied, 487
U.S. 1205 (1988). Rancher's counsel pointed out to the jury all those elements
which Rancher contends rendered the government's witnesses unreliable; the
jury, however, was unconvinced. There was sufficient evidence to support the
jury's verdict.
12
Accordingly, we affirm Rancher's convictions. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the decisional process.
13
AFFIRMED.
As the federal statute merely expesses the common law rule it is equally
applicable in the present context where local officers executed a state warrant.
Simons v. Montgomery County Police Officers, 762 F.2d 30, 33 (4th Cir.1985),
cert. denied, 474 U.S. 1054 (1986)
