United States v. Bradford L. Lockett

919 F.2d 585 31 Fed. R. Evid. Serv. 1092 UNITED STATES of America, Plaintiff-Appellee, v. Bradford L. LOCKETT, Defendant-Appellant. No. 90-30012. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 1, 1990. Decided Nov. 23, 1990. Phillip M. Margolin, Margolin & Margolin, Portland, Or., for defendant-appellant. Errol Carlsen, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before KOZINSKI, O'SCANNLAIN and FERNANDEZ, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 This appeal from convictions for drug-related crimes raises several significant issues, one of which involves standing to invoke a violation of the federal requirement for announcement before entry into a residence to serve a search warrant. 2 * In June 1987, the Portland Police Bureau began investigating cocaine trafficking in the near north and northeast areas of the City of Portland, Oregon. Acting upon information supplied by a confidential informant, the police paid special heed to four individuals, Bradford Lockett, Herbert Lockett, Keith Horsley, and Marcella Manning. Portland police officers began to monitor the…

This appeal from convictions for drug-related crimes raises several significant issues, one of which involves standing to invoke a violation of the federal requirement for announcement before entry into a residence to serve a search warrant.

I

In June 1987, the Portland Police Bureau began investigating cocaine trafficking in the near north and northeast areas of the City of Portland, Oregon. Acting upon information supplied by a confidential informant, the police paid special heed to four individuals, Bradford Lockett, Herbert Lockett, Keith Horsley, and Marcella Manning. Portland police officers began to monitor the activities of Bradford Lockett (“Lockett”) and Manning, observing Lock-ett’s activities approximately ten to twenty hours per week from October 1987 until his arrest on February 6, 1988.

During this period, Portland police officers observed Lockett engage in numerous suspicious activities. On two occasions, they observed Lockett accompany Marcella Manning (who appeared to be Lockett’s girlfriend) to the Portland airport. In both instances, the pair drove their car in a manner that suggested that they were attempting to elude followers. At the airport, they avoided…

concurring:

I concur in the cogent majority opinion, but find that I cannot agree with all of the reasoning in Part II of that opinion.

In Part II the majority determines that Lockett has standing to raise the knock and announce issue, but that he cannot have a suppression remedy. I agree that he has no right to claim that remedy, but I do not believe he has standing in the first place.

The majority approach appears to be driven by too narrow a construction of the fourth amendment itself, a point of view that causes the majority to believe that 18 U.S.C. § 3109 goes much beyond the amendment. While admitting that the fourth amendment may in some circumstances reach beyond mere privacy concerns (see footnote 4), the majority still sees privacy as the real core of the amendment. That view is understandable, since recent jurisprudence has focused upon the privacy aspect. Still and all, I believe it is incorrect.

It is my view that the safety emanations from the core of the fourth amendment are at least as important as its privacy emanations. The fear of a smashing in of doors by government agents is based upon much more than a concern that our privacy will be disturbed. It is…