142 F.3d 1233 (10th Cir. 1998), 97-4098, United States v. Gama-Bastidas

Docket Nº:97-4098.
Citation:142 F.3d 1233
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jesus Roberto GAMA-BASTIDAS, Defendant-Appellant.
Case Date:April 28, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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142 F.3d 1233 (10th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jesus Roberto GAMA-BASTIDAS, Defendant-Appellant.

No. 97-4098.

United States Court of Appeals, Tenth Circuit

April 28, 1998

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Benjamin A. Hamilton, Salt Lake City, Utah, for Defendant-Appellant.

Scott M. Matheson, Jr., United States Attorney, and Brooke C. Wells, Assistant United States Attorney, District of Utah, Salt Lake City, Utah, for Plaintiff-Appellee.

Before BRORBY, McKAY, and BRISCOE, Circuit Judges.

McKAY, Circuit Judge.

After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Pursuant to a written plea agreement, Defendant Mr. Jesus Roberto Gama-Bastidas entered a conditional guilty plea to possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Defendant reserved the right to appeal the district court's denial of his motion to suppress evidence seized as a result of the protective search of his person and the search of the vehicle in which he was traveling as a passenger. See Fed.R.Crim.P. 11(a)(2). Defendant now appeals his conviction, arguing that the district court erred in denying the motion to suppress. Defendant asks us to suppress the evidence seized as a result of the allegedly unconstitutional searches and seizures. The government contends that Defendant has no standing to contest the searches, and it argues that the stop, searches, and seizures were constitutional. Defendant also appeals his sixty-

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month sentence, challenging the court's refusal to apply section 5C1.2 of the United States Sentencing Guidelines.

I.

Our review of a district court's denial of a motion to suppress is governed by well-established standards of law. We accept the district court's factual findings unless those findings are clearly erroneous, and we consider the totality of the circumstances and view the evidence in a light most favorable to the government. 1 See United States v. Gutierrez-Daniez, 131 F.3d 939, 940-41 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1334, 140 L.Ed.2d 494 (1998). The questions of standing and the reasonableness of a search or seizure are questions of law which we review de novo. See id. at 941; United States v. Shareef, 100 F.3d 1491, 1499 (10th Cir.1996).

On August 26, 1996, the Utah Highway Patrol executed a felony stop on a red Dodge Neon with Arizona license plates at the request of the Salt Lake City FBI Violent Crimes Task Force. R., Supp. Vol. I at 120, 127. This stop led to the discovery of cocaine in the Dodge Neon and to the arrests of the passenger, Defendant, and the driver, co-defendant Mr. Arnulfo Sosa-Garcia. 2

The FBI began investigating Defendant's brother, co-defendant Mr. Manuel Gama [Mr. Gama], and the Seranos street gang in late March 1996. The FBI suspected that Mr. Gama and members of the gang were involved in drug distribution activities in Salt Lake City, Utah. In August 1996, several confidential informants told the FBI that Mr. Gama was planning to transport a large quantity of cocaine from Arizona for distribution in Salt Lake City. One informant, Informant Five, and a cooperating witness were able to provide particularly detailed information to the FBI because Mr. Gama resided in their home during that time. Informant Five told the FBI that Mr. Gama went to Las Vegas, Nevada, to meet a brother and that he intended to return to Salt Lake City with cocaine. 3 Informant Five and the cooperating witness then notified the FBI that Mr. Gama, claiming to possess four or five kilograms of cocaine, had returned to Salt Lake City in a red Dodge Neon with Arizona license plates on August 24, 1996, and had taken the cocaine to an undisclosed hotel or motel to sell the cocaine. Mr. Gama was accompanied from Las Vegas by Defendant and Mr. Sosa-Garcia. R., Supp. Vol. 1 at 37-38, 95-97.

Between 9:30 p.m. and 10:00 p.m. on August 26, 1996, Informant Five notified an FBI agent that Defendant and another person intended to leave Utah and return to Las Vegas with the unsold cocaine in the red Dodge Neon. That FBI agent traveled to the apartment complex where Mr. Gama, Informant Five, and the cooperating witness resided, and where Informant Five said the vehicle would be located. Upon arriving at the complex, the FBI agent observed in the parking lot several Hispanic males, including Mr. Gama, standing around the red Dodge Neon with Arizona plates. While the FBI agent began surveilling the Dodge Neon parked outside the apartment, he also was communicating telephonically with Informant Five and the cooperating witness to ascertain additional information. Informant Five told the FBI agent that about one kilogram of cocaine was stashed inside the Dodge Neon, and he advised the FBI agent that one of the occupants of the vehicle may have a firearm. Informant Five then notified the agent that the Dodge Neon would follow a tan or white

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van when it left the apartment complex and that it would proceed on 7200 South Street to Interstate 15 southbound.

Shortly thereafter, the FBI agent confirmed Informant Five's reports. The FBI agent and several other FBI surveillance officers observed the same Dodge Neon with Arizona plates leave the apartment complex following a tan or white van, proceed on 7200 South, and enter Interstate 15 southbound. Traveling south on Interstate 15 in unmarked cars, the FBI agents continued to follow the Dodge Neon in an attempt to corroborate that the vehicle was heading to Las Vegas. 4 When the agents reached Utah County, they contacted the highway patrol to request assistance should they make a stop. Near Springville, Utah, after the agents had been following the same car for approximately one hour and believed that it was en route to Las Vegas, the FBI requested that the Utah Highway Patrol stop the vehicle. R., Supp. Vol. 1 at 47.

At approximately 11:45 p.m., because the FBI agents had information from Informant Five that the occupants of the car may be armed, the Utah Highway Patrol executed a felony stop of the red Dodge Neon. The Highway Patrol ordered Defendant and Mr. Sosa-Garcia out of the vehicle and instructed them to lay face down on the pavement. The FBI officers subsequently approached and handcuffed both men, conducted a pat-down search for weapons, and moved the two men to the rear of the Utah Highway Patrol vehicles. 5 During the initial detention and pat-down, at least one of the officers had a firearm drawn and directed toward the suspects. 6 Several of the FBI agents then began a warrantless search of the vehicle's trunk and interior. Upon finding several plastic bags containing approximately one-half to one kilogram of cocaine in the trunk, weighing scales in the trunk, and a small plastic bag with cocaine residue in the glove-box, the FBI arrested Defendant and Mr. Sosa-Garcia and impounded the vehicle. An additional two kilograms of cocaine were discovered in a hidden compartment in the trunk when the vehicle was searched at the FBI impound lot on August 28, 1996. 7

The bulk of the evidence that Defendant seeks to suppress was discovered during the FBI agents' searches of the car. Defendant maintains that such evidence should have been suppressed because it was seized in violation of his Fourth Amendment rights. However, because Defendant was a passenger in the car, we must address the threshold issue of whether Defendant has standing to challenge the searches of the car. 8

"Fourth Amendment rights are personal and may not be asserted vicariously." Skowronski, 827 F.2d at 1418 (citing Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387 (1978)). Suppression of evidence is an appropriate remedy only when the search violates a person's constitutional rights. "It is not enough that a person is aggrieved only by the introduction of damaging evidence derived from the search." Id. The proponent of a motion to suppress has "the burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search." Id. at 1417.

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In determining whether a search of an object has infringed upon a person's Fourth Amendment rights, the court must consider two factors: (1) whether the defendant has manifested a subjective expectation of privacy in the object of the challenged search, and (2) whether that expectation of privacy was objectively reasonable. See California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811-12, 90 L.Ed.2d 210 (1986); United States v. Arango, 912 F.2d 441, 445 (10th Cir.1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991). In Rakas, 439 U.S. at 148-49, 99 S.Ct. at 432-33, the Supreme Court held that a passenger who asserts neither a possessory nor a property interest in a vehicle would not normally have a legitimate expectation of privacy in the vehicle. Accord United States v. Eylicio-Montoya, 70 F.3d 1158, 1162 (10th Cir.1995); United States v. Martinez, 983 F.2d 968, 973 (10th Cir.1992), cert. denied, 507 U.S. 1056, 113 S.Ct. 1959, 123 L.Ed.2d 662 and 508 U.S. 922, 113 S.Ct. 2372, 124 L.Ed.2d 277 (1993); Arango, 912 F.2d at 445-46; United States v. Erwin, 875 F.2d 268, 271 (10th Cir.1989). A passenger generally does not establish standing to contest the search of a vehicle merely because he was charged with a possessory crime. See United States v. Eylicio-Montoya, 18 F.3d 845, 850 (10th Cir.1994). However, a defendant may establish a reasonable expectation of privacy by presenting evidence of some lawful control or possession of the vehicle. Id. at 851.

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