6 F.3d 1447 (10th Cir. 1993), 93-4019, United States v. McKneely

Docket Nº:93-4019.
Citation:6 F.3d 1447
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Dracy Lamont McKNEELY, Andrew Ellis, and Alandis Bennett, also known as Torjano Akines, Defendants-Appellees.
Case Date:October 08, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1447

6 F.3d 1447 (10th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellant,

v.

Dracy Lamont McKNEELY, Andrew Ellis, and Alandis Bennett,

also known as Torjano Akines, Defendants-Appellees.

No. 93-4019.

United States Court of Appeals, Tenth Circuit

October 8, 1993

Page 1448

Bruce C. Lubeck, Asst. U.S. Atty. (David J. Jordan, U.S. Atty., with him on the briefs), Salt Lake City, UT, for plaintiff-appellant.

Ronald J. Yengich of Yengich, Rich & Xaiz, Salt Lake City, UT, for defendants-appellees Dracy Lamont McKneely and Andrew Ellis.

Deirdre A. Gorman, Ogden, UT, for defendant-appellee Alandis Bennett, aka Torjano Akines.

MOORE, ANDERSON, and BALDOCK, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

The government appeals a district court order granting defendants' motions to suppress evidence seized following a traffic stop, challenging the district court's findings that: (a) defendant Bennett, the back seat passenger in defendant McKneely's rented station wagon, had standing to contest the seizure of the evidence; (b) defendants' detention was unlawful; (c) defendants did not consent to the search of their vehicle; and (d) the "good faith exception" to the warrant requirement did not apply to the facts of this case. United States v. McKneely, 810 F.Supp. 1537 (D.Utah 1993). We hold the district court's conclusions were erroneous and reverse its judgment.

On the morning of June 15, 1992, Sevier County Sheriff's Deputy Phil Barney, a veteran officer with 26 years' experience patrolling Utah highways and extensive experience apprehending suspected drug traffickers, was heading westbound on Interstate 70. Shortly after 9:00 a.m., he clocked an eastbound vehicle going 71 miles per hour in a 65 mile zone. He changed direction, followed the vehicle for a short distance, and turned on his emergency equipment, thereby automatically activating a video camera which videotaped the entire stop from that point onward. Deputy Barney also activated a body microphone which recorded all conversations within a certain distance.

As he approached the vehicle, Deputy Barney observed defendant Ellis in the driver's seat, defendant McKneely in the front passenger's seat, and defendant Bennett in the back seat. At first, Deputy Barney did not

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inform defendants why he had stopped them but instead asked to see Mr. Ellis' driver's license. Although Mr. Ellis had no driver's license, Deputy Barney discovered the vehicle was rented in Mr. McKneely's name and that Mr. McKneely, a licensed driver, had given Mr. Ellis permission to drive.

At that time, Deputy Barney smelled a "chemical" odor which he could not identify emanating from defendants' vehicle. There was nothing suspicious, however, about either Mr. McKneely's driver's license or the rental agreement.

Deputy Barney returned to his car and attempted to run a computer check on the vehicle and its occupants but was unable to do so because the computer system was "down." He gave Mr. Ellis a citation for driving without a license and a verbal warning for speeding. He also returned Mr. McKneely's driver's license and rental contract. He then asked if there were any drugs or guns in the vehicle. After receiving a negative response, he asked if he could search the vehicle.

The parties dispute whether consent was given. Though no understandable response to Deputy Barney's request was captured on tape, 1 at the suppression hearing he testified that defendant McKneely replied "yes" in a low or quiet voice. However, his contemporaneous police report indicated that Mr. Ellis, not Mr. McKneely, consented to the search.

Defendants exited and stepped to the rear of the vehicle. Defendant Ellis raised his hands to approximately chest level while exiting but immediately lowered them. Deputy Barney then proceeded to search the vehicle. When he discovered the glove compartment was locked and could not open it with the ignition key, he asked defendants if they had the key. Defendants replied they did not.

Deputy Barney informed defendants that he would obtain a search warrant to search the locked glove compartment. Because he could not reach the Sevier County Attorney on his mobile phone, Deputy Barney radioed the county dispatcher, who relayed the deputy's information to the county attorney. As support for the issuance of the warrant, Barney gave two facts: (a) the strong, unidentifiable chemical smell coming from the vehicle; and (b) the missing key to the glove compartment. The actual warrant affidavit, however, included three additional grounds: (a) defendants' vehicle had been stopped for a traffic violation; (b) one of the defendants had a criminal record relating to controlled substance offenses; and (c) Barney's belief, based on his extensive drug investigation experience, that defendants were transporting drugs. 2

After calling in the search warrant, Deputy Barney began searching defendants' luggage, which he had taken from the rear of the station wagon. When one of the defendants objected and told the officer to stop, he returned to his car and amended the warrant application to include defendants' luggage.

The county attorney arrived with a search warrant about an hour and a half later. In the meantime, defendants sat on the tailgate of the rented station wagon. After the warrant had been delivered, Deputy Barney and other officers, who had joined him after the stop, opened the glove compartment and found approximately one pound of crack cocaine and a loaded pistol. Defendants were handcuffed, read their Miranda rights, and booked at the county jail.

The next day, defendants were transported to Salt Lake City and charged with possession with intent to distribute a mixture or substance containing crack cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(A) and 18 U.S.C. Sec. 2. Defendants McKneely and Ellis also were charged with carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c) and 18 U.S.C.

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Sec. 2. Defendants filed motions to suppress the evidence seized.

After holding evidentiary hearings and considering the parties' memoranda, the district court ultimately granted defendants' motions to suppress because of its findings that:

First, the stop of Defendants' car was not pretextual. Nonetheless, Barney did not have a reasonable suspicion to detain Defendants after the initial stop, nor did Defendants consent to the initial search. When Defendants objected to the search, Barney did not have probable cause to obtain a warrant. Consequently, the warrant was improper. Further, the illegally seized evidence may not be introduced because the magistrate abandoned his judicial function by issuing a warrant that did not have a substantial basis for a finding of probable cause.

McKneely, 810 F.Supp. at 1547-48. The government filed a timely notice of appeal, and the defendants were released from custody.

I.

In its written suppression order, the district court first considered whether defendant Bennett had standing, as the vehicle's back seat passenger, to challenge the search. Citing Supreme Court precedent, the court determined because Mr. Bennett had neither a reasonable expectation of privacy in the contents of the glove compartment as a passenger, nor "automatic standing" merely because he had been charged with a possessory offense, he lacked standing to challenge the search. However, relying on United States v. Arango, 912 F.2d 441 (10th Cir.1990), cert. denied, 111 S.Ct. 1318 (1991), the court nonetheless concluded Mr. Bennett could challenge his own seizure, and if that seizure was unlawful, the seized evidence "must be excluded as fruit of the poisonous tree." McKneely, 810 F.Supp. at 1544 (quoting Arango, 912 F.2d at 446 (citation omitted)). Finding defendants had been illegally detained by Deputy Barney, the court granted Mr. Bennett's motion to suppress.

It is undisputed that Mr. Bennett does not have standing to challenge the search of the vehicle merely as a passenger or because he was charged with a possessory crime. SeeUnited States v. Erwin, 875 F.2d 268, 270-71 (10th Cir.1989) (back seat passenger did not have standing to challenge anything but the traffic stop because he did not claim any possessory interest in the contraband seized and did not show legitimate ownership or possession of the vehicle); United States v. Salvucci, 448 U.S. 83, 91, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980) ("[L]egal possession of a seized good is not a proxy for determining whether the owner had a Fourth Amendment interest, for it does not invariably represent the protected Fourth Amendment interest.").

However, "standing to challenge a stop presents issues separate and distinct from standing to challenge a search." Erwin, 875 F.2d at 269. Therefore, "[e]ven if [a] defendant lacks standing to challenge the search of the car, if the initial stop was illegal, the seized contraband is subject to exclusion under the 'fruit of the poison tree' doctrine." Id. at 269 n. 2 (citations omitted); see alsoArango, 912 F.2d at 446. Here, because defendants have not challenged the district court's finding that the speeding stop was not pretextual, Mr. Bennett's standing is linked to whether defendants' pre-arrest detention was unlawful.

II.

In addressing defendants'...

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