The opinion of the court was delivered by: D. LOWELL JENSEN
On June 23, 1993, the following motions by defendants Qiang Jing Ma ("Ma") and Sam Tong Chan ("Chan") were scheduled to be heard by the Court: (1) Ma's motion to suppress his post-Miranda statements; (2) Chan's motion for discovery regarding special agent Stephen Tse; (3) Chan's motion to suppress evidence; and (4) Chan's motion to sever trials. Steven F. Gruel, Assistant U.S. Attorney, appeared on behalf of the United States. Stuart Hanlon of Tamburello, Hanlon, and Waggener appeared on behalf of defendant Sam Tong Chan ("Chan"). Motions (1) and (4) were withdrawn by defendants, and motion (2) was deferred at the hearing.
Having considered the papers submitted, the arguments of counsel, the applicable law, and the entire record herein, the Court hereby DENIES defendant Chan's motion to suppress evidence.
Defendants Qiang Jing Ma and Sam Tong Chan are charged in a two-count indictment alleging (1) a violation of Title 21 U.S.C. § 846 (conspiracy to possess with intent to distribute approximately 700 grams of heroin) and (2) a violation of Title 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (possession with intent to distribute and aiding and abetting in the possession with intent to distribute the same heroin).
Meanwhile, DEA Special Agent Peter Colichadas ("Agent Colichadas" observed defendant Chan outside the motel. Agent Colichadas watched Chan walk into the motel parking lot, where he was picked up by Ma in a 1984 Buick. Ma drove to Room 256 of the motel, parked outside, and then exited the vehicle. After Ma's departure, Chan exited the vehicle and was arrested.
At the time of defendant Chan's arrest (approximately two minutes after the actual arrest, according to Agent Colichidas), the DEA seized an electronic pager that was in Chan's possession. Declaration of Peter Colichidas, P 4, at 2. The DEA subsequently searched the pager incident to the arrest by activating its memory and retrieving certain telephone numbers that were stored in the pager. Two numbers, 588-8500, likely indicating the telephone number of the Best Western El Rancho Motel in Milbrae, and 256, likely indicating the room number where the drug negotiation with Agent Tse occurred, were found in the pager. No heroin was found on Chan and no warrant had been obtained to seize and activate the pager. Following his arrest, defendant Ma stated that the pager belonged to him and that he had lent it to Chan.
Defendant Chan now submits that the activation of this pager was a search requiring a warrant because the pager was a container in which defendant had a reasonable expectation of privacy. Chan reasons (1) that he had a legitimate expectation of privacy in the borrowed pager and (2) that the retrieval of numbers constituted a search, which was not justified as a warrantless search incident to an arrest or as a warrantless search involving exigent circumstances.
The government contends that the warrantless search of Ma's pager was valid. According to the government, Chan has no standing to contest the search of the pager. The government further asserts that Ma had no expectation of privacy in the seized pager. Even if Ma had a legitimate expectation of privacy, the government argues, that privacy interest was destroyed as the result of (1) a lawful search incident to arrest, or (2) exigent circumstances surrounding the search.
A. Chan's Privacy Interest in the Seized Pager
A person has an interest that warrants Fourth Amendment protection when that person maintains a legitimate expectation of privacy in the invaded property. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 430-431, 58 L. Ed. 2d 387 (1978). In determining whether an individual's Fourth Amendment rights have been violated, property ownership is a factor to be considered, but it is not determinative. United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 2553, 65 L. Ed. 2d 619 (1980). See e.g. Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990)(an overnight guest in an apartment had an expectation of privacy in the premises which was protected by the Fourth Amendment). The relevant inquiry is two-fold: (1) whether the individual has exhibited an actual ...