875 F.2d 268 (10th Cir. 1989), 87-2475, United States v. Erwin

Docket Nº:87-2475.
Citation:875 F.2d 268
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Ray ERWIN, Defendant-Appellant.
Case Date:May 16, 1989
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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875 F.2d 268 (10th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,


James Ray ERWIN, Defendant-Appellant.

No. 87-2475.

United States Court of Appeals, Tenth Circuit

May 16, 1989

Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

Paula G. Burnett, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with her on the brief), D.N.M., Albuquerque, N.M., for plaintiff-appellee.

Before LOGAN and SEYMOUR, Circuit Judges, and ANDERSON, District Judge. [*]

LOGAN, Circuit Judge.

Defendant James Ray Erwin was charged with possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), and with aiding and abetting in violation of 18 U.S.C. Sec. 2. He pleaded guilty to both charges, reserving the right to appeal the district court's denial of his motion to suppress the marijuana seized during his arrest. On appeal, defendant asserts that (1) the district court erroneously held that he lacked standing to challenge the stop and search of a car in which he was a passenger, (2) the traffic stop was a pretext to conduct an otherwise illegal search for drugs, and (3) his consent to the search was involuntarily elicited. We find it necessary only to address defendant's first two contentions, and we affirm the district court's denial of the motion to suppress. 1

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Defendant was a passenger in a station wagon automobile driven by co-defendant Robert Clevenger that was stopped by New Mexico State Police Officer Forrest Smith for traveling sixty-seven miles per hour in a fifty-five mile per hour zone. While requesting Clevenger's drivers' license and registration, Officer Smith noticed a strong scent of air freshener and observed that Clevenger was very nervous. Clevenger displayed a valid license but was unable to produce the automobile's registration. After informing Clevenger that he was going to issue a citation, Smith asked Clevenger what he was carrying in the back of the station wagon, and Clevenger responded that there were some clothes and baby items. Smith then asked if he could take a look, and Clevenger acceded.

Defendant, who was sleeping in the back seat, had awakened by this time. Both he and Clevenger got out of the vehicle, and defendant opened the rear door of the station wagon with a key from his pocket. Officer Smith felt some handbags lying in the back, and lifted up the edge of a carpet that covered the entire rear section of the vehicle. Smith then observed a sheet of glass partially covering what appeared to be doors leading to the tire well. The doors were sealed shut by four silver screws that did not appear congruous with the rest of the car's interior. Smith detected the odor of raw marijuana emanating from a crack in the doors not covered by the glass. Smith returned to his vehicle and radioed for assistance.

Smith subsequently discovered twelve plastic-wrapped packages of marijuana in the tire well and placed Clevenger and defendant under arrest. Both moved the court to suppress the marijuana seized from the car. After a hearing, the district court ruled that neither defendant had legitimate expectations of privacy in the car sufficient to confer standing to challenge the search. The court also found that the stop by Smith was not a pretext to conduct an illegal search for drugs and that the defendants had consented to the search.


Defendant Erwin initially argues that the district court erred in finding he lacked standing to challenge the stop and subsequent search of the car. We believe that standing to challenge a stop presents issues separate and distinct from standing to challenge a search. Thus, defendant's challenge to the stop and search must be examined separately. 2


The Supreme Court has recognized that questions of "standing" to challenge a

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search and seizure are "more properly subsumed under substantive Fourth Amendment doctrine." Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978); see United States v. Leary, 846 F.2d 592, 595 (10th Cir.1988). The proper inquiry is whether a challenged stop and search violated the Fourth Amendment rights of a criminal defendant making the challenge. See Rakas, 439 U.S. at 140, 99 S.Ct. at 429. This inquiry requires a determination of whether the Fourth Amendment was designed to protect an interest of the defendant that was violated by the stop and search. See id. Thus, the question presented here is whether a passenger of a vehicle has sufficient Fourth Amendment interests to challenge a traffic stop of that vehicle.

We believe the traffic stop in this case implicates an interest of defendant that the Fourth Amendment was designed to protect. In challenging the stop, defendant is objecting to the seizure of his person, and the "Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of arrest." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). It is beyond dispute that a vehicle's driver may challenge his traffic stop, and we see no reason why a person's Fourth Amendment interests in challenging his own seizure should be diminished merely because he was a passenger, and not the driver, when the stop occurred. Drivers and passengers have similar interests in seeing that their persons remain free from unreasonable seizure. Accord State v. Eis, 348 N.W.2d 224, 226 (Iowa 1984); see also United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985) ("stopping a car and detaining its occupants constitute a 'seizure' within the meaning of the Fourth Amendment"); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979) (same). Furthermore, we reject any notion that a vehicular stop detains for Fourth Amendment purposes only the driver simply because the passenger may be free to depart. See Berkemer v. McCarty, 468 U.S. 420, 436, 104 S.Ct. 3138, 3148, 82 L.Ed.2d 317 (1984) ("It must be acknowledged at the outset that a traffic stop significantly curtails the 'freedom of action' of the driver and the passengers, if any, of the detained vehicle.... Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so.") (citation and footnote omitted). Thus, we conclude that defendant may challenge the legality of the traffic stop in this case.


Before discussing the legality of the stop, we first consider whether defendant has standing to challenge the subsequent search by Officer Smith. Whether defendant can challenge the search requires a consideration of two primary factors: whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as objectively reasonable. See California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988); Leary, 846 F.2d at 595; United States v. Paulino, 850 F.2d 93, 97 (2d Cir.1988). In conducting this analysis, we must remember that Fourth Amendment rights are personal and 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. Rakas, 439 U.S. at 134, 99 S.Ct. at 425; United States v. Skowronski, 827 F.2d 1414, 1418 (10th Cir.1987). We conclude that defendant has not met his "burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search." Id. at 1417-18 (footnote omitted) (citing Rakas, 439 U.S. at 131 n. 1, 99 S.Ct. at 424 n. 1).

First, defendant does not claim that he owned the marijuana or secreted it away in the hidden compartment. Although ownership of the item seized is not determinative, it is an important consideration in determining the existence and extent of a defendant's

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Fourth Amendment interests. See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 105-06, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 91 & n. 6, 100 S.Ct. 2547, 2552 & n. 6, 65 L.Ed.2d 619 (1980); Rakas, 439 U.S. at 130 n. 1, 148, 99 S.Ct. at 424 n. 1, 433. 3 Defendant, however, contends that since he was charged with a possessory crime he must have an interest sufficient to challenge the search that uncovered it. This claim of "automatic standing" was rejected by the Supreme Court in Salvucci, when the Court "decline[d] to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area search." 448 U.S. at 92, ...

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