U.S. v. Carter

Decision Date18 March 1994
Docket NumberNo. 93-5102,93-5102
Citation14 F.3d 1150
PartiesP UNITED STATES of America, Plaintiff-Appellee, v. Leslie CARTER, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Joseph C. Murphy, Jr., Asst. U.S. Atty. (briefed), Christopher E. Cotten, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Memphis, TN, Daniel A. Clancy, Asst. U.S. Atty Office of the U.S. Atty., Jackson, TN, for plaintiff-appellee.

Leslie Fatow (briefed), April R. Ferguson, Asst. Federal Public Defender (argued), Office of the Federal Public Defender, W.D. Tennessee, Memphis, TN, for defendant-appellant.

Before: KEITH, NELSON, and RYAN, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

This is an appeal from a conviction in a drug case. The defendant, a passenger in a motor vehicle that was found to contain several hundred pounds of marijuana, moved to suppress the marijuana evidence on the ground that the police had violated his Fourth Amendment rights by stopping the vehicle on a pretext and searching it without permission. The trial court denied the motion for want of standing, and a jury found the defendant guilty on possession and aiding-and-abetting charges. See 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

The defendant makes three arguments on appeal: (1) that although he was not in possession or control of the vehicle in which the marijuana was carried, he himself was detained illegally--and as an illegal detainee, he says, he had standing to contend that the marijuana ought to have been suppressed under the "fruit of the poisonous tree" doctrine; (2) that the court erred in admitting certain hearsay evidence under the co-conspirator exception to the hearsay rule; and (3) that the evidence against him was constitutionally insufficient to support a finding of guilt.

Without addressing the fruit-of-the-tree issue, the trial court concluded that the defendant lacked a reasonable expectation of privacy in the vehicle and thus lacked standing to challenge the search on the basis of any such expectation. We think that this conclusion, as far as it goes, is correct.

As to the fruit-of-the-tree argument, we have no doubt that the defendant had standing to challenge his own detention. His problem is that it was the arrest of the driver and the seizure of the driver's vehicle that led to the discovery of the marijuana, not any violation of the defendant's rights. Evidence obtained by exploiting a violation of the driver's constitutional rights could not be used against the driver, but we do not believe that the fruit-of-the-tree doctrine precluded the use of such evidence against the passenger. Accordingly, and because we do not find the defendant's remaining contentions persuasive, we shall affirm the conviction.

I.

Memphis, Tennessee, police officers Charles Cox and Edward Hall were patrolling an interstate highway in Memphis at around 4:30 in the morning on Sunday, November 17, 1991, when a 1991 GMC van came by. The officers saw that instead of a normal license plate, the van displayed what looked like a temporary "drive-out" tag from North Carolina. The officers had no way to check the validity of the tag by radio, and they pulled the van over.

The driver, a man named Timmie Locklear, rushed out of the van and walked quickly back to the patrol car. At the request of one of the officers Locklear produced a driver's license and some paperwork showing that he had recently purchased the van. A radio check disclosed that the driver's license was valid, that there were no outstanding warrants in Locklear's name, and that the van had not been reported stolen.

Mr. Locklear, who sat in the back seat of the patrol car while the check was going on, told Officer Cox that he and a man who was traveling with him (defendant Leslie Carter) were returning from a week-long visit with Locklear's sister in Hope, Arkansas. Mr. Locklear said he did not know the name of the street on which his sister lived and did not know what direction he had taken once he got to Hope. Locklear spoke choppily and acted nervous, according to Officer Cox.

Officer Hall, meanwhile, had a roadside conversation with the passenger, defendant Carter. When Carter got out of the van, according to the officer, he kept trying to walk away from the vehicle. Officer Hall asked him to wait a minute and questioned him as to where he and the driver had been. Mr. Carter replied that they had been in Arkansas--he could not say where, specifically--visiting a cousin. The trip had taken a day and a half, according to Carter.

Although the officers were suspicious about the stories they had been told, Officer Cox advised Mr. Locklear that he was free to leave. Before Locklear could get back in the van, however, the officer asked him if he would agree to let the vehicle be searched for contraband. Locklear refused. Stating that he would have to call a superior, Officer Cox then took Locklear by the arm and confined him, over protest, in the back of the patrol car.

The supervisor, a Lt. Prewitt, arrived soon thereafter and renewed the request for permission to search the van. It is undisputed that Mr. Locklear refused to sign a consent-to-search form. The lieutenant testified that after a few minutes of conversation, however, Locklear gave oral consent to a search. The magistrate judge who conducted the suppression hearing did not believe that oral consent was given; the magistrate found as a fact that Mr. Locklear never consented in any way to the search of his vehicle.

With or without Locklear's consent, the officers proceeded to search the van. When the back door of the vehicle was opened, they immediately smelled marijuana. The odor (which Officer Hall described as "very strong") emanated from five suitcases that proved to contain a total of 437 pounds of marijuana.

Locklear and Carter were both indicted by a federal grand jury. Each of the men subsequently filed a motion to suppress any and all evidence seized as a result of the search of Locklear's van. Although he had only been a passenger in the van, defendant Carter argued in a brief filed in support of his motion that he had agreed to accompany Locklear on a lengthy trip; that he (Carter) had taken toilet articles and a change of clothing with him in the van; that he had entertained an expectation of privacy in the vehicle throughout the duration of the trip; that the van had been stopped on a pretext, the real reason for the stop having been a desire to search for drugs; that he had been detained in violation of his Fourth Amendment rights; and that any consent to search the vehicle "flowed from an illegal arrest and violated the 'fruits of the poisonous tree' doctrine."

Dealing first with defendant Carter's motion, which was filed more than a month before Locklear's, the magistrate conducted a hearing on the sole question whether Mr. Carter had standing to contest the search of the vehicle in which he was a passenger. Evidence presented at the hearing showed that Mr. Carter had no ownership interest in the van and no control over it; that he had no possessions in the van other than a change of clothes (a pair of jeans and a shirt) and a shaving kit found in the front of the vehicle; and that he claimed no possessory or other interest in the suitcases filled with marijuana.

In his report to the district judge the magistrate cited Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), for the proposition that in order to establish standing it was incumbent on Mr. Carter to prove that he had a legitimate expectation of privacy in the van or in the suitcases. Referring also to United States v. Pino, 855 F.2d 357 (6th Cir.1988), cert. denied, 493 U.S. 1090, 110 S.Ct. 1160, 107 L.Ed.2d 1063 (1990), the magistrate concluded that Mr. Carter had no legitimate expectation of privacy in either the van or the suitcases and thus lacked standing to assert that the search constituted a violation of his Fourth Amendment rights. It was recommended that Carter's motion to suppress be denied.

Mr. Carter filed a timely objection, confined to what he repeatedly characterized as "a very narrow and precise issue"--i.e., whether a passenger has an expectation of privacy in a vehicle in which he has placed personal belongings for use in connection with a trip in the vehicle. Upon de novo review of the record, the district court adopted the magistrate's report and denied defendant Carter's motion to suppress.

Several weeks later the same magistrate issued a report on Timmie Locklear's motion to suppress. As the owner and driver of the van, the magistrate noted, Locklear unquestionably had standing to challenge the search. Because the magistrate found that Mr. Locklear never gave the officers consent to search his vehicle, and because the magistrate did not understand the government to be contending that the officers had independent grounds for a search, it was recommended that Locklear's motion to suppress be granted. The magistrate went on to suggest that even if Mr. Locklear did give oral consent, the motion to suppress should still be granted. Mr. Locklear was arrested--without probable cause, as the magistrate determined--when he initially refused to let the van be searched. "[I]f there was a consent," the magistrate said, "it was obtained directly following, and directly as a result of, an illegal arrest.... The search, therefore, flowed directly from the illegal arrest."

After recommending that Locklear's motion to suppress be granted, the magistrate returned to the question of defendant Carter's standing to challenge the search. In this connection the report observed that "the result of suppressing the search for the driver and not the passenger is an unfortunate one, given that the progress of both driver and passenger [was] impeded by illegal actions of the police." The...

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