269 F.3d 1128 (10th Cir. 2001), 00-1442, US v. DeLuca

Docket Nº:00-1442
Citation:269 F.3d 1128
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellant, vs. FRANK LAWRENCE DeLUCA, Defendant - Appellee.
Case Date:October 25, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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269 F.3d 1128 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellant,


FRANK LAWRENCE DeLUCA, Defendant - Appellee.

No. 00-1442

United States Court of Appeals, Tenth Circuit

October 25, 2001


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[Copyrighted Material Omitted]

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Sean Connelly (James R. Boma, Thomas L. Strickland and Richard T. Spriggs, on briefs), Office of the US Attorney, Denver, Colorado, for Plaintiff - Appellant.

Laura B. Alms (and Jody C. Reuler, on the brief), Denver, Colorado, for Defendant - Appellee.

Before SEYMOUR, McWILLIAMS, and KELLY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

The government appeals from the district court's order suppressing methamphetamine that gave rise to a conspiracy charge against Defendant-Appellee, Frank Lawrence DeLuca. We have jurisdiction pursuant to 18 U.S.C. § 3731, and we reverse.


Mr. DeLuca was indicted on three drug-related counts: one count of conspiracy to possess more than 50 grams of actual methamphetamine with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A); and two counts of distribution of methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(C). App. at 9-10. The two distribution charges arose out of events which occurred in April 1999, and are not at issue here. Id. at 10. The events that gave rise to the conspiracy charge, however, are pertinent. In June 1999, during a New Mexico traffic stop, a state police officer seized a quantity of methamphetamine from the trunk of a car in which Mr. DeLuca was a passenger. On Mr. DeLuca's motion, id. at 12, the district court suppressed the methamphetamine as "the fruit of the illegal detention" of the car and its occupants. Id. at 78, 85.

On June 19, 1999, a New Mexico police officer was participating in a driver's license and registration checkpoint on Interstate Highway 40 in New Mexico when he stopped the car in which Mr. DeLuca was a passenger. The car had three occupants: Tineke Meyers, the driver; William Boyer, the backseat passenger and owner of the car; and Mr. DeLuca, the defendant and front-seat passenger. Upon the officer's request, Ms. Meyers produced a valid driver's license, and Mr. Boyer produced the vehicle registration. Id. at 73. As Mr. Boyer handed the officer the registration, the officer "observed that his right hand was visibly shaking and all occupants in the vehicle appeared to be nervous." Id. at 19 (statement of probable cause).

The officer inquired about the group's travel plans. Ms. Meyer said they had left Colorado Springs, Colorado, the previous day to go to Phoenix, Arizona, and that now they were on their way back to Colorado Springs. A second officer, having arrived on the scene and overhearing the conversation, asked if their luggage was in the trunk. Ms. Meyer replied that they had no luggage and that there was nothing in the trunk. At this point, the first officer asked Ms. Meyer if she would pull over on to the highway shoulder and Ms. Meyer did so. The first officer had not returned Ms. Meyer's license or the vehicle registration. Id. at 73-74.

Next, the first officer asked Ms. Meyer if he could search the trunk and Ms. Meyer consented. Upon opening the trunk, the officer "smelled an odd odor which [he]

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did not recognize," and "observed small bundles of clothing, various tools and an open bag of ground coffee beans." Id. at 19. The first officer obtained Ms. Meyer's consent to run a K-9 dog unit over the vehicle. Two dogs independently alerted to the left side of the trunk. After searching that area of the trunk, the first officer discovered a "green, leafy substance in a small plastic baggy, located in the portion of the trunk designated for storage of the tire jack," and, directly under that, "a 12 inch long object completely covered in white athletic type tape." Id. All of the occupants of the car denied knowledge of either item. The first officer arrested all three occupants of the vehicle for possession of narcotics. When the first officer slit open the taped package, he saw a "white substance," which he believed to be "meth or a cocaine derivative." Id.

Ruling on Mr. DeLuca's motion to suppress the taped package, the district court found that the initial stop of the car as part of a highway safety program was "defensible." Id. at 75. However, the court concluded that the stop became "indefensible" after Ms. Meyer produced a valid driver's license and Mr. Boyer produced a valid registration. Id. at 76. The court found that Mr. Boyer's shaking hand and the apparent nervousness of the car's occupants was not enough to justify their continued detention and that the officer's failure to return the license and registration precluded the detention from becoming consensual. Id. The court concluded that "[s]ince [the officer] lacked any particularized and objective basis for attributing criminal activity to any occupant of the car, the continued detention and his further inquiries were illegal." Id. at 77. The court went on to hold that there was "a direct, palpable link between the detention of the car's occupants and discovery of the package in the car's trunk" and, therefore, that the methamphetamine must be suppressed as the "fruit of the illegal detention." Id. at 79-80, 85.


On appeal, the government concedes two points: (1) although the initial traffic stop was legal, the stop became illegal after Ms. Meyer had produced a valid driver's license and Mr. Boyer had produced a valid vehicle registration; and (2) the officer's failure to return the license and vehicle registration precluded the stop from becoming a consensual encounter. Aplt. Br. at 8. Therefore, the only issue we are confronted with on appeal is whether the methamphetamine found in the car's trunk must be suppressed as "fruit" of Mr. DeLuca's illegal detention.

"In reviewing the district court's grant of a suppression motion, we accept the district court's factual findings absent clear error and review de novo the district court's determination of reasonableness under the Fourth Amendment to suppress the contraband evidence." United States v. Olguin-Rivera, 168 F.3d 1203, 1204 (10th Cir. 1999). We also review de novo the issue of whether a defendant has standing to challenge a search. United States v. Eylicio-Montoya, 70 F.3d 1158, 1161 (10th Cir. 1995). In this case, the government only challenges the district court's legal determination that the methamphetamine was the "fruit" of Mr. DeLuca's illegal detention. Aplt. Br. at 6; see also App. at 73 (district court order stating that both parties rested upon the state police officer's statement of probable cause to inform the court of the relevant facts).

Fourth Amendment rights are personal, and, therefore, "a defendant cannot claim a violation of his Fourth Amendment rights based only on the introduction of evidence procured through an illegal search and seizure of a third person's property or premises." United States v.

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Erwin, 875 F.2d 268, 270 (10th Cir. 1989) (citations omitted). Based on this principle, we have held that without a possessory or property interest in the vehicle searched, "passengers lack standing to challenge vehicle searches." Eylicio-Montoya, 70 F.3d at 1162 (citations omitted). However, "[t]his court has repeatedly recognized that although a defendant may lack the requisite possessory or ownership interest in a vehicle to directly challenge a search of that vehicle, the defendant may nonetheless contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of the [defendant's] illegal detention." United States v. Nava-Ramirez, 210 F.3d 1128 (10th Cir.), cert. denied, 121 S.Ct. 206 (2000) (citations omitted). As Mr. DeLuca concedes, he did not have a possessory or property interest in the vehicle in which the methamphetamine was found, and therefore lacks standing to directly challenge the search of the vehicle. Aplee. Br. at 9. Mr. DeLuca does have standing, however, to contest the lawfulness of his own detention and to seek to suppress the methamphetamine as the fruit or derivative evidence of that illegal detention.

To suppress evidence as the fruit of his unlawful detention, Mr. DeLuca must make two showings: (1) "that the detention did violate his Fourth Amendment rights"; and (2) that there is "a factual nexus between the illegality and the challenged evidence." Nava-Ramirez, 210 F.3d at 1131 (internal quotations and citation omitted). "Only if the defendant has made these two showings must the government prove that the evidence sought to be suppressed is not 'fruit of the poisonous tree,' either by demonstrating the evidence would have been inevitably discovered, was discovered through independent means, or was so attenuated from the illegality as to dissipate the taint of the unlawful conduct." Id. (citations omitted). In this case, the government concedes that Mr. DeLuca's continued detention was unlawful once the car's occupants had produced a valid driver's license and vehicle registration. Aplt. Br. at 8. Therefore, Mr. DeLuca must show that there is a factual nexus between his unlawful detention and the discovery of the methamphetamine.

In order to show such a factual nexus, "[a]t a minimum, [Mr. DeLuca] must adduce evidence at the suppression hearing showing the evidence sought to be suppressed would not have come to light but for the government's unconstitutional conduct." Nava-Ramirez, 210 F.3d at 1131 (footnote and citation omitted). Mr. DeLuca has not met this "but for" test, as we find that this case falls squarely within the holding of Nava-Ramirez. Mr. Nava-Ramirez was driving a car in which the owner of the vehicle...

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