U.S. v. Obregon

• Decision Date: 13 November 1984
• Docket Number: No. 83-2464,83-2464
• Citation: 748 F.2d 1371
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fernando OBREGON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1371

748 F.2d 1371

UNITED STATES of America, Plaintiff-Appellee, v. Fernando OBREGON, Defendant-Appellant.

No. 83-2464.

United States Court of Appeals, Tenth Circuit.

Nov. 13, 1984.

David N. Williams, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M., with him on briefs), for plaintiff-appellee.

Nancy Hollander of Freedman, Boyd & Daniels, P.A., Albuquerque, N.M., for defendant-appellant.

Before BARRETT and DOYLE, Circuit Judges, and BOHANON, ^* District Judge.

BARRETT, Circuit Judge.

Fernando Obregon (Obregon) appeals from a judgment and probation/commitment order rendered after Obregon entered a conditional plea of guilty pursuant to Rule 11(a)(2), Fed.Rules Cr.Proc., 18 U.S.C.

Obregon pled guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and interstate travel in aid of racketeering in violation of 18 U.S.C. Sec. 1952(a)(3). Within his conditional plea Obregon reserved the right to appeal the district court's adverse rulings on his motions to suppress statements, physical evidence, oral or written statements, and his motion to dismiss. The parties stipulated that Obregon would be allowed to withdraw his guilty plea if he prevailed on appeal. A summary of the relevant facts will facilitate our review.

On July 3, 1983, Obregon was driving a rented 1983 Mercury westbound on Interstate 40 when he was stopped at a roadblock set up by the New Mexico State Police near Moriarty, New Mexico. The roadblock had been established to conduct routine driver's license and car registration checks, and to afford training to two members of the New Mexico Mounted Patrol, an auxiliary of the New Mexico State Police.

After Obregon stopped, he was approached by Officer Faison. Upon determining that Obregon was driving a rented car with expired license plates and that Obregon's name was not on the car rental contract, Officer Faison, concerned that the car might be stolen, requested that Obregon park the car on the shoulder of the interstate. Officer Faison then advised Obregon that they were having a training roadblock and that he wanted to search the car. Obregon gave his oral and written consent. Officer Faison then searched the car and removed a garment bag. Upon opening the garment bag, Officer Faison discovered clothing and personal items and a tape-sealed cardboard box. Officer Faison opened the box and discovered three separate bags of cocaine inside.

Upon discovering the cocaine, Officer Faison placed Obregon under arrest and advised him of his Miranda rights. Obregon stated that he did not wish to make a statement and that he wished to speak with a lawyer. Officer Faison subsequently took Obregon to the New Mexico State Police Office in Moriarty. While at the Moriarty office, Officer Faison was joined by Narcotics Agent Bustamonte who conducted a field test of the cocaine and took custody of the box and cocaine. Agent Bustamonte, accompanied by Agent Wallsmith, met with Obregon for the purpose of obtaining written confirmation that he had in fact been advised of his rights. Agent Bustamonte read Obregon his rights from a written form. ¹ Obregon then waived his right to counsel and right to remain silent Prior to trial Obregon moved to suppress the physical evidence seized at the time of his arrest and the statements he made to Agent Bustamonte. After a hearing, the court denied Obregon's motions, finding that Obregon had voluntarily consented to the search of the car he was driving and that Obregon had made an effective waiver of both his right to remain silent and his right to consult an attorney. The court also denied Obregon's subsequent motions to reopen the suppression hearing, to suppress oral and written statements, and to dismiss. In so doing, the court reiterated its prior findings that Obregon had voluntarily consented to the search of the rental car and its contents. The court also found that Obregon's motion to suppress the statements of Agent Bustamonte was not timely filed in accordance with Rule 12(c). Finally, in denying Obregon's motion to dismiss, the court found that the Government's inability to locate the cardboard box containing cocaine found in Obregon's garment bag did not prejudice Obregon to the extent that the case should be dismissed.

by signing the form. Thereafter, Obregon gave Agent Bustamonte a statement of the circumstances under which he had been transporting the cocaine.

Following the court's disposition of Obregon's pretrial motions, and prior to the commencement of trial, Obregon entered a conditional plea of guilty, reserving the right to appeal the court's adverse rulings on his pretrial motions. On appeal, Obregon raises six allegations of error, posited as follows: (1) the defendant had a legitimate expectation of privacy in the vehicle he was driving and in his possessions within that vehicle; (2) the detention of the defendant in this case was not supported by reasonable suspicion; (3) the Government did not prove that the defendant consented to the searches and seizures; (4) even if the defendant voluntarily consented to the search, this consent did not overcome the taint of the unlawful detention; (5) the defendant's statements obtained after he invoked his right to counsel must be suppressed; and (6) the destruction of evidence, material to the defense, denied the defendant a fair trial.

I.

Obregon contends that he had a legitimate expectation of privacy in the vehicle he was driving and in his possessions within that vehicle, and therefore had Fourth Amendment standing to challenge the propriety of the search of those possessions. Obregon cites to Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) for the proposition that he had a legitimate expectation of privacy in the rented car he was driving at the time of his arrest even though his interest in the rented car may not have been a recognized property interest at common law.

In finding that Obregon did not have standing to challenge the stop and subsequent search of the car on Fourth Amendment grounds, the district court relied upon Rakas v. Illinois for the basic propositions that Fourth Amendment rights are personal rights which cannot be vicariously asserted and that a defendant's legitimate expectation of privacy must be determined in light of the facts and circumstances of each case. The district court found specifically:

Defendant had the keys to the car and may have had permission from the renter of the car to use it, but this is not determinative of the standing inquiry in this case. Defendant was driving a rented vehicle and was not named on the rental agreement or any other documents, either as the renter or as an authorized driver. Defendant made no showing that any arrangement had been made with the rental car company that would have allowed him to drive the car legitimately. Indeed, the defendant testified that he waited outside of Miami airport while an unrelated third party arranged the rental of the car. Defendant's relationship to the rented car is too attenuated to support a claim of standing. (R., Vol. I at pp. 55-56.)

Although counsel have not cited, and our own research has not produced, any opinion directly on point, i.e., whether a defendant In Erickson, the defendant, Sidney Erickson, who had keys to an airplane and had left it at Monarch Aviation in Grand Junction, Colorado, on May 6, 1983, challenged the district court's finding that he did not have standing to object to the installation of a transponder in the airplane, downed in New Mexico on May 9, 1983. During trial, Erickson testified that the plane, formerly owned by Emery Air Freight, had been sold by an aircraft broker to Armadillo Air Ambulance, a partnership between Erickson and one Jake Volley. Erickson submitted affidavits and "other papers" supportive of his alleged ownership in the plane. After hearing Erickson's testimony and after reviewing all the evidence introduced by Erickson, the trial court found that Erickson's testimony was not credible. The court found/concluded that Erickson did not have standing to challenge the installation of the transponder. In upholding the district court we held:

in sole possession and control of a car rented by another whom he claims to have voluntarily delivered the car to him has standing to challenge a search or seizure of the car, we believe the district court's findings are supported by our recent decision in United States v. Erickson, 732 F.2d 788 (10th Cir.1984).

Defendant was given every opportunity to establish his claimed partnership in the plane ... the trial court found that his testimony in that regard was not credible. In such a situation we are bound by the trial court's determination unless it is clearly erroneous ...

* * *

Looking to defendant's claim that his possession gave him standing, the judge noted that there was no tie between defendant and Emery Air Freight, and stated, "That leaves unexplained the circumstance wherein this defendant was in possession of the airplane on May 6, 1983 and therefore, he has failed to show that he had a reasonable expectation of privacy." Tr. 113.

In Rakas v. Illinois, 439 U.S. 128, 143-144 n. 12, 99 S.Ct. 421, 430-31 n. 12, 58 L.Ed.2d 387, the Supreme Court stated that,

"... one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude."

The question, then, is whether Erickson sufficiently showed lawful possession or control to confer standing.

No testimony showed that the defendant had anything to do with Emery Air Freight or that he was authorized by Emery to possess, use, or fly the aircraft. Thus defendant failed to show lawful possession of the plane giving rise to a legitimate expectation of privacy. See ...