                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-4286
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Andre Ricardo Pierson,                  *
also known as Deandre Norris,           *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 9, 2000

                                  Filed: July 26, 2000
                                   ___________

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.
                            ___________

BEAM, Circuit Judge.


      Andre Ricardo Pierson appeals from a final judgment1 finding him guilty,
pursuant to a written plea agreement, of aiding and abetting possession with intent to




      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Pierson was sentenced to 235 months in prison. We affirm.


I.    BACKGROUND


      On the morning of September 18, 1995, Detective David Sebesta of the
Bloomington, Minnesota, Police Department received a tip from a confidential reliable
informant that a man named "Dre" was staying in room 243 of the Exel Inn in
Bloomington. The informant told Sebesta that Dre and another individual would be
picking up a female courier carrying one-half of a kilo of crack cocaine at the
Minneapolis/St. Paul airport later that day. According to the informant, Dre would be
driving either a white Buick or a turquoise Chevrolet Z28. The informant also told
Sebesta that Dre had previously been stopped at the airport, at which time airport
officials had seized $7000 from him. Sebesta confirmed that a Deandre Norris2 was
registered to room 243 and that airport officials had previously seized $7000 from him.
A turquoise Z28 was observed in the parking lot of the hotel.


      Officers then set up surveillance across the hall from room 243. They observed
two males, later identified as Pierson and Jimmy Brown, exit room 243 and drive away
in the Z28. Officers followed the vehicle to the airport. There they saw a female, later
identified as Sherdana Conklin, approach the vehicle. She carried a black garment bag.
Conklin placed the bag in the hatchback compartment of the car and got in. The



      2
       Pierson was originally charged under the name Deandre Norris. It was later
determined that his true name is Andre Ricardo Pierson.

                                          -2-
officers followed the car back to the hotel, where they observed the three occupants
exit the car and engage in conversation. Pierson and Conklin then carried luggage into
the hotel, and Brown drove away. Brown was subsequently stopped and arrested. A
search of his car failed to reveal any drugs.


      Meanwhile, back at the hotel, officers observed Pierson and Conklin enter room
243. Afraid that Brown would try to contact the occupants of the room, the officers
decided to arrest Pierson. Sebesta testified that the officers were not sure if Pierson
had weapons and thought that confronting him outside the room would be a safer
approach.    Sebesta then placed a phone call to Pierson's room during which he
identified himself as hotel management and requested Pierson to come to the front
desk. Officers, waiting in the hall, arrested Pierson when he exited the room and then
moved him back into the room.3 Pierson was handcuffed and advised of his Miranda
rights. Conklin was also arrested and handcuffed.


      Following the arrest, Pierson was taken to the room across the hall and given a
consent-to-search form. He signed the form after officers informed him they would
obtain a search warrant if he did not consent. Conklin also signed a consent-to-search



      3
        The district court noted that there was conflicting evidence presented at the
motions hearing on Pierson's exact location at the instant when the officers arrested
him. Sebesta testified that Pierson had exited the room, but Pierson testified that he
had begun to turn the door knob to exit the room when officers pushed in the door. The
district court carefully examined this point both at the motions hearing and in its
opinion and concluded that "the court finds the testimony of Sebesta to be more
credible than the testimony of defendant." Having reviewed the record, we conclude
that the district court's finding was not clearly erroneous.

                                          -3-
form. Officers questioned Pierson and Conklin as to the ownership of the luggage in
the room. Although, each of them claimed to own certain luggage, both expressly
disavowed ownership of the black garment bag. Officers then conducted a search of
the bag and discovered two bricks of cocaine base with a total weight of approximately
493 grams.


       On October 3, 1995, Pierson, Conklin and Brown were charged with aiding and
abetting possession with intent to distribute cocaine base, in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2, and conspiracy to possess with intent to distribute cocaine
base in violation of 21 U.S.C. § 846. Pierson failed to appear for arraignment, having
fled the jurisdiction. He remained a fugitive until his arrest in California in January
1999. A superseding indictment was filed, adding a third charge of knowingly failing
to appear for arraignment in violation of 18 U.S.C. § 3146(a)(1). Pierson pled not
guilty and filed pretrial motions to suppress the cocaine base seized in the hotel room
as well as his post-arrest statements. The magistrate judge4 recommended the motions
be denied. The district court adopted the recommendation. Pierson then entered a
conditional guilty plea to Count I of the superseding indictment,5 preserving the right
to appeal the denial of his motion to suppress the cocaine base, pursuant to Federal
Rule       of Criminal Procedure     11(a)(2).6   He was sentenced to 235 months'


       4
      The Honorable Franklin L. Noel, United States Magistrate Judge for the District
of Minnesota.
       5
           The government moved to dismiss Counts II and III at the time of sentencing.
       6
       In his brief, Pierson also argues that the district court erred in not suppressing
his post-arrest statements. At oral argument, however, Pierson's counsel waived this
argument, acknowledging that Pierson's plea agreement specifically precluded Pierson

                                           -4-
imprisonment and 5 years supervised release.


      On appeal, Pierson argues that: (1) the district court erred in refusing to suppress
the evidence seized from the hotel room because the officers' entry into the room was
unlawful, and therefore any evidence obtained as a result of such entry is "fruit of the
poisonous tree;" and (2) his subsequent abandonment of the garment bag as well as his
written consent to search the room was involuntary.


II.   DISCUSSION


      "We review the facts supporting the district court's denial of the motion to
suppress for clear error and review de novo the legal conclusions based on those facts."
United States v. Glenn, 152 F.3d 1047, 1048 (8th Cir. 1998).


      First, we reject Pierson's claim that the officers' entry into room 243 was
unlawful. The district court found: (1) Pierson was lawfully arrested without a warrant
because he was in a public place; and (2) the officers' subsequent entry into room 243
was supported by exigent circumstances. We agree with both findings. Once Pierson
exited his room, the officers were entitled to arrest him without a warrant. See United
States v. Wixom, 460 F.2d 206, 209 (8th Cir. 1972) (no arrest warrant needed for
arrest outside motel room as long as officer had probable cause to believe felony had
been committed). Thereafter, exigent circumstances justified the officers' entry into the



from appealing any pretrial rulings other than the district court's refusal to suppress the
cocaine base seized from the hotel room.

                                           -5-
room: Pierson was barely outside room 243 when arrested by the officers; Conklin was
still in the room with the drugs and was ostensibly aware of the commotion taking place
just outside the door; and she could have destroyed the evidence if the officers had
decided to wait for a search warrant before entering the room. See United States v.
Knobeloch, 746 F.2d 1366, 1366-67 (8th Cir. 1984).7


      Although the officers' entry into the room was lawful on the basis of exigent
circumstances, it does not legitimate the subsequent search of the garment bag. See
United States v. Halliman, 923 F.2d 873, 880 (D.C. Cir. 1991) (lawful entry into hotel
room based on exigent circumstances does not authorize officers to search the
remainder of the room). Such an entry must be "'limited in scope to the minimum
intrusion necessary to prevent the destruction of evidence.'" Id. (quoting United States
v. Socey, 846 F.2d 1439, 1445 (D.C. Cir. 1988)). Once the officers had Pierson and
Conklin under control, there was no reason for the officers to believe that evidence was
in imminent danger of removal or destruction. See United States v. Larson, 760 F.2d
852, 855 (8th Cir. 1985). Nor is there any indication that other persons unknown to the
officers were thought to be in the room. See United States v. Carter, 854 F.2d 1102,
1107 (8th Cir. 1988).


      7
         We reject Pierson's assertion that because there was no testimony that entry into
the room was motivated by concern that evidence was about to be destroyed, the
district court's factual findings regarding exigent circumstances are clearly erroneous.
One of the officers testified that entry into the room was necessitated by their
awareness that Conklin remained in the room and had to be secured. See Suppression
Hearing Transcript at 91. Even if this were not so, we find no clear error in the district
court's factual findings which follow from a common-sense assessment of the situation
that existed at the time of Pierson's arrest. See Knobeloch, 746 F.2d at 1367 (noting
similar assertion by a defendant).

                                           -6-
      The district court, however, upheld the search of the garment bag on the ground
that Pierson lacked standing to challenge the search because he had abandoned the bag
by expressly denying its ownership.8 We need not reach the abandonment issue
because we find Pierson lacks standing to challenge the legality of the search for a
more fundamental reason—the garment bag was not his.


      Fourth Amendment rights are personal and cannot be asserted vicariously. See
United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994). A defendant who "fails to
prove a sufficiently close connection to the relevant places or objects searched . . . has
no standing to claim that they were searched or seized illegally." Id. A defendant
moving to suppress evidence has the burden of showing a legitimate expectation of
privacy in the area searched. See id. "Factors relevant to the determination of standing
include: ownership, possession and/or control of the area searched or item seized;
historical use of the property or item; ability to regulate access; the totality of the
circumstances surrounding the search; the existence or nonexistence of a subjective
anticipation of privacy; and the objective reasonableness of the expectation of privacy
considering the specific facts of the case. " Id.


      The record shows that shortly before the time of the events in question, Pierson
spoke with Conklin, who was residing in California, and told her that Brown had
forgotten his bag at Pierson's apartment. Pierson asked Conklin to retrieve the bag and


      8
       The magistrate judge found that Pierson's consent to search the room was
involuntary but recommended that the motion to suppress be denied because Pierson
had voluntarily abandoned the bag. The district court did not discuss the issue of
consent, focusing instead on an abandonment analysis.

                                           -7-
bring it to Minnesota. At his change of plea hearing, Pierson testified that he had asked
Conklin to "do somebody a favor, to bring somebody's bag here [to Minnesota]." The
record also shows that when Brown dropped off Conklin and Pierson at the hotel, he
instructed them to keep the bag and remain in the room, indicating that he would return
to pick up the bag. Officer Sebesta also testified at a preliminary hearing that before
Pierson signed the consent-to-search form, he specifically asked Sebesta whether it was
for his property only that he was giving consent for the search. Only after Sebesta
answered in the affirmative did Pierson agree to sign the form. In fact, there is no
evidence in the record that Pierson ever testified to a possessory interest in the bag.
Although Pierson kept the bag in his hotel room for a short period of time and briefly
opened it to handle the bricks of cocaine, we find that such temporary possession, by
itself, is not sufficient to establish a legitimate expectation of privacy in its contents.
See United States v. Payne, 119 F.3d 637, 642 (8th Cir. 1997).


      At argument, Pierson conceded he would lack standing to challenge the search
if the bag was not his, but argued that because the issue of ownership of the bag was
not raised below, it cannot be considered now. We disagree. It is a well-settled
principle that we may affirm a district court's judgment on any basis supported by the
record. See United States v. Oligmueller, 198 F.3d 669, 671 (8th Cir. 1999).9 In sum,


      9
       Nor is this a case where the government has taken contrary positions regarding
Pierson's standing. For example, in United States v. Morales, 737 F.2d 761 (8th Cir.
1984), we rejected the government's argument that the defendant lacked standing to
challenge the search of a hotel room. We found in that instance that the government
had taken inconsistent positions at the suppression hearing, at trial, and on appeal
between arguing that the defendant had control over the room and that he had
abandoned any expectation of privacy in the room. Here, the government has

                                           -8-
we find the record supports a finding that Pierson lacked a privacy interest in the
garment bag. Therefore, he has no standing to challenge the legality of its search.


III.   CONCLUSION


       For the foregoing reasons, we affirm the decision of the district court.


       A true copy.


             Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




maintained all along that Pierson lacks standing because he denied ownership of the
bag. It now asks us to consider the possibility that he may also lack standing because
the bag, in fact, was not his. We do not think these facts fall within the Morales
paradigm. See Gomez, 16 F.3d at 256-57 (distinguishing government's actions from
the Morales case).


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