United States v. El Farra

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
$40,955.00 IN UNITED No. 07-55860
STATES CURRENCY,
Defendant.  D.C. No.
CV-05-01901-DMS
OPINION
BASEL EL FARRA, FATIMA EL
FARRA, and RAWIA EL FARRA,
Claimants-Appellants.

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
November 20, 2008—Pasadena, California
Filed January 27, 2009
Before: Susan P. Graber and Richard R. Clifton,
Circuit Judges, and David G. Trager,* District Judge.
Opinion by Judge Trager
*The Honorable David G. Trager, United States District Judge for the
Eastern District of New York, sitting by designation.
963
966 UNITED STATES v. EL FARRA
COUNSEL
Michael J. McCabe and Richard M. Barnett, San Diego, Cali-
fornia, for the claimants-appellants.
Bruce C. Smith, Assistant U.S. Attorney, Appellate Section,
Criminal Division, San Diego, California, for the plaintiff-
appellee.
OPINION
TRAGER, District Judge:
This case arises from a civil complaint brought by the U.S.
Government for the forfeiture of $40,955 that were the pro-
ceeds of marijuana sales. Basel, Fatima and Rawia El Farra
(together, “appellants”) claimed interests in the forfeited cur-
rency and now appeal rulings of the United States District
Court for the Southern District of California (1) denying their
motion to suppress evidence obtained in a search of Basel and
Fatima’s home, (2) admitting into evidence statements Basel
and Fatima’s son, Mohammad, made to the police and
(3) denying their motion to dismiss for spoliation of evidence.
UNITED STATES v. EL FARRA 967
For the reasons stated below, we affirm in part, reverse in part
and remand for further proceedings.
BACKGROUND
On May 28, 2005, members of the Narcotics Unit of the
City of Oceanside Police Department (“Narcotics Unit”)
searched the residence of Mohammad El Farra pursuant to a
search warrant issued by the Superior Court of California for
the County of San Diego. Mohammad El Farra is the adult
son of Basel and Fatima El Farra, in whose house he lived at
the time of the search.1 The search uncovered firearms, nearly
one and a half pounds of marijuana, a digital scale, packaging
materials and a heat sealer. Although the agents conducted a
cursory sweep of the rest of the house, the search focused on
Mohammad’s bedroom and bathroom, where all the incrimi-
nating evidence was found. After the search, the Narcotics
Unit seized $40,955 in U.S. currency, most of which was
found in a safe in Mohammad’s bedroom closet. Mohammad
told a Narcotics Unit detective, Gregory Rainwater, that
everything in the safe was his, and that most of the money
was proceeds from his drug sales, which he conducted from
his bedroom.
During the search, Narcotics Unit agents kept Basel, Fat-
ima, Mohammad, and Basel and Fatima’s daughter and grand-
daughter in the living room. There, Basel told the agents that,
although he did not know the combination to the safe, he kept
money and a watch in it. According to agents testifying at
trial, Basel was inconsistent in telling them the amount of
money and the type of watch he kept in the safe.
Mohammad was charged in the Superior Court of Califor-
nia for the County of San Diego with possession and pleaded
guilty to one count of felony possession of marijuana for sale,
1
Because several members of the El Farra family are involved here, this
discussion will refer to each of them by his or her first name.
968 UNITED STATES v. EL FARRA
for which he was sentenced to probation. The search warrant
was produced in Mohammad’s criminal case but was sealed
by the Superior Court.2 The United States filed a civil com-
plaint in federal court for forfeiture in rem against the $40,955
that was seized as proceeds of Mohammad’s marijuana sales,
and appellants filed claims for the seized cash.3
Appellants filed a motion to suppress evidence discovered
during the search without having had the opportunity to
review the warrant or affidavits supporting it. A review of the
warrant would have revealed that, although Mohammad was
the focus of the warrant, the entire house was subject to
search. Basel and Fatima argued that they were entitled to
challenge the search because they owned and occupied the
residence and had the right to admit or deny entry to Moham-
mad’s room. Their daughter, Rawia, who claimed $10,000 of
the seized currency, argued that, though she did not reside at
the home, she had an expectation of privacy in it because she
had a key to the house and stored property there. Other than
Basel’s claim that he owned the safe, the Government never
disputed these facts.
Believing that appellants were relying on the “automatic
standing” rule, which no longer has any vitality, the district
court held, without a hearing and without ordering the produc-
tion of the search warrant, that appellants lacked standing to
contest the search. In its order denying appellants’ motion to
suppress, the court noted, inaccurately, that the search was
limited to Mohammad’s bedroom suite.
After trial, a jury found that all $40,955 constituted pro-
ceeds from marijuana sales, and the court entered a judgment
and order of forfeiture on that amount.
2
The search warrant was not part of the record below. However, on
appeal, the parties submitted copies of the warrant, the supplemental affi-
davit, which was executed after the warrant was issued, the inventory of
the search and the sealing order.
3
Mohammad also filed a claim, which he later withdrew.
UNITED STATES v. EL FARRA 969
DISCUSSION
(1)
Motion to Suppress
A. Basel and Fatima
Because Basel and Fatima had a legitimate expectation of
privacy in their home, we reverse the district court’s order
holding that they lacked standing to challenge the search war-
rant, and we remand to the district court so it may revisit that
motion. Whether appellants had a legitimate expectation of
privacy in the home presents a mixed question of fact and
law. United States v. Singleton, 987 F.2d 1444, 1447 (9th Cir.
1993). “The district court’s ultimate legal conclusion is
reviewed de novo, and the findings of fact underlying that
conclusion are reviewed for clear error.” Id.[1] The question of who is entitled to contest a search is
often framed as one of standing. However, since the Supreme
Court’s “long history of insistence that Fourth Amendment
rights are personal in nature has already answered many . . .
traditional standing inquiries, . . . definition of those rights is
more properly placed within the purview of substantive
Fourth Amendment law than within that of standing.” Rakas
v. Illinois, 439 U.S. 128, 140 (1978). Thus, the Fourth
Amendment entitles only those who have a legitimate expec-
tation of privacy in an area to challenge a search of it. See,
e.g., Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). Appel-
lants have the burden of establishing their legitimate expecta-
tions of privacy. United States v. Zermeno, 66 F.3d 1058,
1061 (9th Cir. 1995). The expectation must be an actual one
and “one that society is prepared to recognize as ‘reason-
able.’ ” Smith v. Maryland, 442 U.S. 735, 740 (1979) (internal
quotation marks omitted) (quoting Katz v. United States,
389 U.S. 347, 361 (1967) (Harlan, J., concurring)).
970 UNITED STATES v. EL FARRA
The district court’s denial of Basel and Fatima’s standing
appears to have been based on a misunderstanding of their
claim. While the district court accurately pointed out that the
“automatic standing” rule from Jones v. United States, 362
U.S. 257 (1960), has long been overruled, it erroneously con-
strued Basel and Fatima’s claims of ownership and possession
of the house as arguments supporting their automatic standing
to contest the search. On this mistaken assumption, the district
court held that Basel and Fatima lacked standing because they
did not “attempt to establish that they had a legitimate expec-
tation of privacy in Mohammad’s bedroom.”
[2] However, “attempt[ing] to establish . . . a legitimate
expectation of privacy” is precisely what Basel and Fatima
were doing in claiming ownership of and residence in the
house. Under the Jones rule, a criminal defendant charged
with possession automatically had standing to contest the
search which yielded the item he was accused of possessing.
362 U.S. at 264. The Supreme Court has since rejected the
“automatic standing” rule in favor of a rule requiring defen-
dants to show a legitimate expectation of privacy in the area
searched. United States v. Salvucci, 448 U.S. 83, 92 (1980).
Thus, while ownership of the good seized does not automati-
cally confer standing on a defendant, ownership and posses-
sion of as well as access to the area in which the good was
found is certainly an important factor in determining whether
a defendant has a legitimate expectation of privacy in it. See
Alderman v. United States, 394 U.S. 165, 176-77 (1969); see
also Kyllo v. United States, 533 U.S. 27, 34 (2001); Minne-
sota v. Carter, 525 U.S. 83, 100 (1998) (Kennedy, J., concur-
ring); United States v. Reed, 572 F.2d 412, 422 (2d Cir. 1978)
(collecting Supreme Court cases affirming the special protec-
tion afforded one’s privacy in his home). Appellants, there-
fore, justifiably pointed out that “ ‘it is difficult to fathom how
[the Government] can seriously argue the owners of the resi-
dence, who reside in the residence don’t have standing.’ ”
Accordingly, the district court erred in ruling that Basel and
Fatima lacked a legitimate expectation of privacy based on its
UNITED STATES v. EL FARRA 971
construction of appellants’ argument as one seeking automatic
standing.
The Government contends that, regardless of Basel and
Fatima’s occupancy of the home, which it does not dispute,
they did not have a privacy interest in Mohammad’s bedroom.
The Government seems to argue that, because Mohammad
had possession of the bedroom, which had a separate entrance
and out of which he conducted a business, it formed, in effect,
a separate apartment in which Basel and Fatima retained no
expectation of privacy.
[3] First, the Fourth Amendment does not require Basel and
Fatima to establish that they had an exclusive possessory
interest, see Bumper v. North Carolina, 391 U.S. 543, 548
n.11 (1968), or an exclusive right of access or exclusion, see
Minnesota v. Olson, 495 U.S. 91, 99-100 (1990), in the bed-
room. See also Commonwealth v. Strickland, 326 A.2d 379,
383 (Pa. 1974) (applying Bumper and holding that the defen-
dant could challenge admission into evidence of a letter that
was found in a room other than the one he slept in five nights
a week). Basel and Fatima’s uncontested declarations of own-
ership and occupancy established their expectations of pri-
vacy in the entire home, which included Mohammad’s
bedroom.
[4] Furthermore, Mohammad’s bedroom was not suffi-
ciently separate to deprive Basel and Fatima of an expectation
of privacy. Despite Mohammad’s occupancy, his bedroom
formed part of the home, an area in which Basel and Fatima
had a legitimate privacy interest. Looking again to appellants’
uncontested declarations, Mohammad, Basel and Fatima took
no steps to separate Mohammad’s bedroom from the rest of
the house by, for instance, installing a lock on the door or
having Mohammad pay rent. Indeed, Basel and Fatima
claimed rights of access, possession and exclusion in the bed-
room.
972 UNITED STATES v. EL FARRA
[5] Likewise, Mohammad’s commercial activity did not
interrupt Basel and Fatima’s expectation that they would be
free from police intrusion into their home. Compare Mancusi
v. DeForte, 392 U.S. 364, 369 (1968) (holding that the Fourth
Amendment protects individuals from government intrusion
into the office as well as the home), with United States v.
Ealy, 363 F.3d 292, 295 n.1 (4th Cir. 2004) (holding that the
defendant had no reasonable expectation of privacy in an
adjacent, detached garage where his brother performed com-
mercial auto work and which the police entered through an
open service entrance sometimes used by the public). Regard-
less of Mohammad’s marijuana dealing, his bedroom
remained part of the home in which Basel and Fatima had an
expectation of privacy.
B. Rawia
[6] Rawia did not share her parents’ expectation of privacy
in the home and, thus, is not entitled to challenge the legality
of the search. In determining whether Rawia had a legitimate
expectation of privacy in the home, we must look at the total-
ity of circumstances. See Rawlings, 448 U.S. at 104. Although
Rawia had free access and a key to the house, she did not own
the house and did not live there at the time of the search. She
claimed that she stored items in Mohammad’s safe, but we
have never held that storage alone confers a Fourth Amend-
ment interest in the area searched. See, e.g., United States v.
Davis, 932 F.2d 752, 757 (9th Cir. 1991) (holding that a party
had a Fourth Amendment interest because he both stored
items in a safe and paid part of the rent for the apartment in
which the safe was kept). Moreover, even if the jury believed
she had a claim to any of the money, mere ownership of the
item seized does not entitle its owner to challenge the search
of the area in which it was found. See Salvucci, 448 U.S. at
92. In light of the totality of circumstances, Rawia has not met
her burden in establishing a legitimate expectation of privacy.
UNITED STATES v. EL FARRA 973
(2)
Other Issues
A. Applicability of Crawford v. Washington
[7] The district court did not err in admitting statements
Mohammad made to the police during and after the search of
the house. According to appellants, the testimony was barred
by the Confrontation Clause of the Sixth Amendment. In
Crawford v. Washington, 541 U.S. 36, 68-69 (2004), the
Supreme Court held that the Confrontation Clause prohibits
the introduction of “testimonial” out-of-court statements4 by
witnesses whom the accused had no opportunity to confront.
Although some constitutional protections apply to civil forfei-
ture proceedings, the Supreme Court long ago established in
United States v. Zucker, 161 U.S. 475, 481 (1896), that the
Confrontation Clause does not, and there has been no indica-
tion since Crawford that the Court will revisit its holding in
Zucker.
B. Spoliation
[8] The district court did not abuse its discretion by denying
appellants’ motion to dismiss. Appellants moved to dismiss
on the basis of spoliation. Their argument was that the series
years on the bills seized by the Narcotics Unit would have
tended to show that they belonged to Basel, who claimed to
have earned them long ago, and not Mohammad, who would
have earned them more recently. According to appellants, the
Government had deprived them of the ability to prove that the
currency was old by depositing it in a bank, thereby despoil-
ing evidence essential to their claims.
4
Testimonial statements include those made during police interroga-
tions. Crawford, 541 U.S. at 52, 68.
974 UNITED STATES v. EL FARRA
Under its inherent power to control litigation, a district
court may levy sanctions, including dismissal of the action,
for spoliation of evidence. Leon v. IDX Sys. Corp., 464 F.3d
951, 958 (9th Cir. 2006) (citing Anheuser-Busch, Inc. v. Natu-
ral Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995)).
However, sanctions may issue only when a party had some
notice that the evidence was potentially relevant. See Leon,
464 F.3d at 959; United States v. Kitsap Physicians Serv., 314
F.3d 995, 1001 (9th Cir. 2002); see also Akiona v. United
States, 938 F.2d 158, 161 (9th Cir. 1991). A party does not
engage in spoliation when, without notice of the evidence’s
potential relevance, it destroys the evidence according to its
policy or in the normal course of its business. See Kitsap Phy-
sicians, 314 F.3d at 1001-02 (affirming the district court’s
finding of no spoliation when potentially relevant documents
were destroyed in the defendants’ normal course of business).
[9] Appellants contend that they gave the Government
notice of the relevance of the bills when Basel told the police
at the time of the search that the bills belonged to him and that
he had earned them long ago. This, however, was not ade-
quate notice. It is unreasonable to expect that, from these
statements, the police were meant to divine that evidence of
the series years, which indicate a bill’s age, should somehow
be preserved. At no subsequent point until the motion was
filed in September 2006, nearly a year after the complaint and
a year and a half after the search, was there a request for the
preservation of the bills. Considering the currency’s marginal
relevance and appellants’ inadequate notice, the district court
did not err in denying appellants’ motion to dismiss.
CONCLUSION
The district court’s order holding that appellants lacked
standing to challenge the search warrant is reversed as to
Basel and Fatima, affirmed as to Rawia, and remanded to the
district court for further proceedings consistent with this opin-
ion. The district court’s rulings denying appellants’ Fifth
UNITED STATES v. EL FARRA 975
Amendment and spoliation claims are affirmed. Each party to
bear its own costs.
AFFIRMED in part, REVERSED in part, and
REMANDED for further proceedings.