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United States v. Benson

filed: November 17, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICHARD DONALD BENSON, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. ROSE ELLIS, AKA ROSE CECILIA ELLIS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Nevada. D.C. No. CR-91-00103-01-LD, D.C. No. CR-91-00103-02-LD. Lloyd D. George, District Judge, Presiding.

Before: Ferguson, Thompson, and O'scannlain, Circuit Judges.

MEMORANDUM

OVERVIEW

Defendant-appellant Richard Donald Benson appeals his jury conviction for engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. Benson argues search warrants that produced evidence against him at trial were issued without probable cause, that insufficient evidence supported his conviction, and that during closing argument the prosecutor improperly vouched for the government's case.

Defendant-appellant Rose Ellis appeals her jury conviction for conspiracy to distribute and/or possess with the intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 846. Ellis argues that the district court erred in denying her motion for severance. She also contends the prosecutor improperly vouched for the government's case during closing argument.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Discussion

A. The Search Warrants

A successful challenge to the denial of a motion to suppress evidence requires a showing of standing to contest the search, Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 1687 (1990); United States v. Davis, 932 F.2d 752, 756 (9th Cir. 1991), and a showing that the magistrate had no substantial basis to believe the affidavit supporting the warrant established probable cause. United States v. Ocampo, 937 F.2d 485, 490 (9th Cir. 1991).

1. Standing

A defendant must have a "legitimate expectation of privacy" in an area to contest the validity of a search of that area. Rakas v. Illinois, 439 U.S. 128, 149 (1978). Benson had no such expectation as to Rose Ellis's residence on Roxboro. The district court did not err in determining that Benson lacked standing to challenge this search.

As the owner and occupant of the Argone residence, however, Benson had standing to challenge that search. Rakas v. Illinois, 439 U.S. at 133-34. Benson also had standing to contest the search of his mother's home on Plainview. A houseguest has a legitimate expectation of privacy in a host's home even if that guest has no property interest in the home. Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684 (1990). The district court found that Benson's mother gave Benson keys to her home on Plainview, that he kept personal possessions there, that he sometimes spent the night there, and that he was free to come and go at will. Under Olson, Benson had a legitimate expectation of privacy in his mother's home, and standing to challenge its search.

2. Probable Cause

We apply a "totality of the circumstances" test to determine whether probable cause existed to justify a search. Illinois v. Gates, 462 ...


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