U.S. v. Betancur, 93-4056

• Decision Date: 03 May 1994
• Docket Number: No. 93-4056,93-4056
• Citation: 24 F.3d 73
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscar BETANCUR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 73

24 F.3d 73

UNITED STATES of America, Plaintiff-Appellee, v. Oscar BETANCUR, Defendant-Appellant.

No. 93-4056.

United States Court of Appeals Tenth Circuit.

May 3, 1994.

Bruce C. Lubeck (Richard D. Parry, U.S. Atty., D. Utah, with him on the brief), Asst. U.S. Atty., D. Utah, for plaintiff-appellee.

Deirdre A. Gorman, of Farr, Kaufman, Sullivan, Gorman, Jensen, Medsker and Perkins, Ogden, UT, for defendant-appellant.

Before LOGAN, BRORBY, Circuit Judges, and SEAY, District Judge. ^*

SEAY, District Judge.

Defendant-appellant, Oscar Betancur, was charged in a one-count indictment with possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Betancur moved to suppress the admission of the cocaine found by a Sevier County Deputy Sheriff during a warrantless search of the vehicle Betancur was driving. Betancur claimed the cocaine was confiscated in violation of his Fourth Amendment rights. The district court denied the motion to suppress. Betancur entered a conditional plea of guilty under Federal Rule of Criminal Procedure 11(a)(2), thus preserving his right to bring this appeal challenging the district court's refusal to suppress the evidence. On appeal, Betancur contends the district court erred in finding: (1) the detention of Betancur and the vehicle was lawful, (2) Betancur does not have standing to contest the search of the vehicle, and (3) the warrantless search of the vehicle was supported by probable cause. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

I.

On July 8, 1992, Betancur was traveling east on Interstate 70 in a 1991 Ford pickup truck. Sevier County Deputy Sheriff, Phil Barney, was traveling west on Interstate 70 when he fixed his radar on the pickup truck and clocked its speed at 74 miles per hour, which exceeded the 65 mile per hour speed limit. Barney turned his vehicle and followed Betancur. The pickup truck was eventually brought to a stop after Barney had paced it and pulled up next to it. ¹ Just prior to stopping the pickup truck, Barney activated a video camera inside his patrol car. This video camera recorded the ensuing encounter between Betancur and Barney.

After both vehicles stopped on the shoulder of Interstate 70, Barney approached the pickup truck. Although it is not entirely clear from a viewing of the video tape, it appears that Barney paused momentarily to observe the rear wheel well before proceeding to the driver's side window to ask the occupant, Betancur, for identification and registration papers. ² Although Betancur indicated that he did not speak English well, there was sufficient communication to allow Barney to receive a New York driver's license in Betancur's name and documents establishing that the pickup truck was registered to a Francisco Nava ³ of Tennessee. Barney questioned Betancur about Nava and the ownership of the pickup truck. Betancur responded by stating "Denver ... Memphis ... Chattanooga, Tennis", but otherwise did not provide a satisfactory answer regarding how he came into possession of the pickup truck or about Nava. Barney then asked Betancur if he had any cocaine or marijuana and Betancur answered "no" several times. Barney next pointed to the bed of the pickup truck and asked "May I look in here"? Betancur answered "yes" and he exited the pickup truck and attempted to open the tool box which was located in the front portion of the bed near the rear window. As Betancur was attempting to open the tool box while in the bed of the pickup truck, Barney opened the tailgate and further examined the bed and the wheel well areas. Barney asked Betancur to step down from the bed and to stand near the rear of the pickup truck. Betancur stood down from the pickup truck, closed the tailgate, and seated himself in the driver's side of the pickup truck. Barney followed Betancur and asked for the keys to the pickup truck. After Betancur exited the pickup truck, Barney conducted a frisk of Betancur and placed Betancur to the rear of the pickup truck. Barney contacted dispatch and asked about a search warrant stating that there was a false compartment in the pickup truck. Barney asked dispatch to run a subject and vehicle check and requested a backup. Barney began to disassemble the rear portion of the pickup truck and, with the assistance of the backup officer, uncovered the false compartment which contained 100 kilograms of cocaine. Betancur was then placed in Barney's patrol vehicle and advised of his rights as he was being transported. As he was being advised of his rights, Betancur responded "no comprende".

At the suppression hearing before the district court, Barney testified that he has over twenty-five years of law enforcement experience on Utah highways. Barney further related the events as recorded in the video tape. With respect to Barney's initial observations of the pickup truck after it was stopped for speeding, he testified that as he approached the pickup truck he noticed it was high, similar to his own Ford four-wheel drive pickup truck. He thought this characteristic was unusual in that the pickup truck was a two-wheel drive vehicle. He also testified that as he approached the pickup truck, he noticed the pickup truck's bed bottom appeared lower than normal and that the rear wheel well area was bright with fresh, clean undercoating.

Betancur testified at the suppression hearing that he did not own the pickup truck and did not know the owner. Betancur further testified that he was being paid to drive the pickup truck from one place to another and that the person who gave him the pickup truck was "Tio".

II.

On review of a denial of a motion to suppress, we must accept the district court's factual findings unless they are clearly erroneous. United States v. Berryhill, 880 F.2d 275, 280 (10th Cir.1989), cert. denied, 493 U.S. 1049, 110 S.Ct. 853, 107 L.Ed.2d 846 (1990). The questions of standing and the reasonableness of a search under the Fourth Amendment are questions of law subject to de novo review. United States v. Dodds, 946 F.2d 726, 727 (10th Cir.1991); United States v. Abreu, 935 F.2d 1130, 1132 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 271, 116 L.Ed.2d 224 (1991).

Betancur initially argues that the district court erred in finding he lacked standing to contest the search of the pickup truck. The district court determined that Betancur did not have an expectation of privacy in the pickup truck and was therefore not in a position to challenge the legality of the search.

The issue of "standing" to challenge a search is not a concept which is separate and distinct from the merits of the underlying Fourth Amendment claim. The Supreme Court has recognized that the question of "standing" to challenge a search is "more properly subsumed under Fourth Amendment doctrine." Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978); see Abreu, 935 F.2d at 1132; United States v. Erwin, 875 F.2d 268, 269-70 (10th Cir.1989). Given that "standing" is "invariably intertwined" with substantive Fourth Amendment analysis, the inquiry focuses on whether there has been a violation of the Fourth Amendment rights of the particular defendant who is seeking to exclude the evidence. Rakas, 439 U.S. at 140, 99 S.Ct. at 428-29. It is immaterial whether someone else's Fourth Amendment rights have been violated as "Fourth Amendment rights are personal and may not be asserted vicariously." United States v. Skowronski, 827 F.2d 1414, 1418 (10th Cir.1987). A defendant who seeks to exclude evidence carries the burden of establishing that his own Fourth Amendment rights have been violated as a result of a search. Rakas, 439 U.S. at 130 n. 1, 99 S.Ct. at 423-24 n. 1; Abreu, 935 F.2d at 1132; Skowronski, 827 F.2d at 1417.

In determining whether a search violated the Fourth Amendment rights of the defendant, the court considers two factors: whether the defendant has manifested a subjective expectation of privacy in the area searched and whether that expectation is one society would recognize as objectively reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Dodds, 946 F.2d at 728; Abreu, 935 F.2d at 1132.

Applying these principles in United States v. Arango, 912 F.2d 441 (10th Cir.1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991), we held that Arango, who was the driver of a pickup truck stopped for speeding by a Utah Highway Patrol Officer, did not have a reasonable expectation of privacy in the pickup truck because he did not establish that he was lawfully in possession of the pickup truck. After being stopped, Arango produced registration papers listing Walter A. or Linda A. McConaughy as the owners. Arango told the officer that the registered owner was a friend who had loaned him the pickup truck for a vacation in Denver. At the suppression hearing, however, Arango conceded that he obtained the pickup truck from Jesus Gonzalez, who was not the owner. Because Arango failed to introduce any evidence establishing that Gonzalez obtained lawful possession of the pickup truck, we held that Arango did not sustain his burden of establishing a violation of his Fourth Amendment rights.

In United States v. Erwin, 875 F.2d 268 (10th Cir.1989), we applied the principles for determining whether a search violated one's Fourth Amendment rights and concluded that Erwin, who was a passenger in the vehicle which was searched, did not have a reasonable expectation of privacy in the vehicle. The testimony in Erwin suggested that the vehicle in which Erwin was a passenger had been loaned to the driver by Erwin. The owner of the vehicle, however, was a third-party by the name of Parmet. At the suppression hearing, Erwin did not claim ownership in the vehicle or the seized marijuana and did not introduce any evidence to establish his legitimate possession of the vehicle. Consequently, we held that Erwin's Fourth Amendment rights...