92 F.3d 430 (6th Cir. 1996), 95-5535, United States v. Jenkins

Docket Nº:95-5535.
Citation:92 F.3d 430
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Dean JENKINS, Defendant-Appellant.
Case Date:August 13, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 430

92 F.3d 430 (6th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Dean JENKINS, Defendant-Appellant.

No. 95-5535.

United States Court of Appeals, Sixth Circuit

August 13, 1996

Argued April 16, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied Oct. 9, 1996.

Page 431

[Copyrighted Material Omitted]

Page 432

Michael E. Winck, Asst. U.S. Atty., Office of the U.S. Atty. (argued), Knoxville, TN, Danny R. Smith, Asst. U.S. Atty., Office of the U.S. Atty. (briefed), Johnson City, TN, for plaintiff-appellee.

David B. Hill (argued), Newport, TN, Charles L. Beach, Law Office of Charles Beach & Associates (briefed), Clinton, TN, for defendant-appellant.

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Before: MILBURN and BOGGS, Circuit Judges; and BORMAN, District Judge. [*]

BOGGS, Circuit Judge.

Dean Jenkins alleges ten errors in the way that the federal government investigated, prosecuted, tried, and sentenced him for drug trafficking. Two of these warrant a detailed written opinion. For the reasons that follow, we affirm.

I

Jenkins owns a trucking company called Black Mountain Motor Lines ("Black Mountain"). Sometime in 1991, Jenkins grew disillusioned with normal profit margins, built a secret compartment into the trailer of a rig, and began to smuggle marijuana from Texas to Tennessee.

Meanwhile, Agent Gilleland of the Tennessee Bureau of Investigation was trying to catch Juan Sepulvada, who Gilleland believed to be responsible for the shipment of significant amounts of marijuana into Tennessee. Gilleland drove to Texas in a false-bottomed truck, posing as a drug buyer. He met Sepulvada and asked to buy marijuana to take back to Tennessee. Sepulvada was generally willing to sell Gilleland marijuana, but was not impressed with Gilleland's false-bottom truck, which Sepulvada believed would not pass an inspection by the authorities. Instead, Sepulvada suggested that they use a more sophisticated container: the secret compartment in the trailer of Jenkins's Black Mountain rig. He told Gilleland that they would have to pay Jenkins $ 150 per pound to transport the marijuana. Gilleland agreed to Sepulvada's tactic and Jenkins's price.

Gilleland notified Agent Escalon of the Texas Department of Safety about the smuggling plan on November 12. The Texas authorities searched the area and located a Black Mountain truck on November 14. By this date, the truck, driven by a Black Mountain employee named James Holt, had already picked up Sepulvada's marijuana. The Texas authorities kept the truck under constant surveillance. Holt drove the truck to pick up a load of carrots in Edinburg, Texas, and, on November 16, began the journey back to Tennessee.

Holt had driven just six miles when he was pulled over by Trooper Lopez of the Texas Highway Patrol. Agent Escalon had instructed Lopez to stop Holt and get consent to search the trailer of the rig for marijuana. Transcript, Suppression Hearing, April 11, 1994, at 35-36. Lopez told Holt that he had stopped him because of a burnt-out tag light. It seems clear from the record, however, that Lopez fibbed. Lopez could not remember telling Holt that a tag light was burnt out, nor could he remember writing Holt a ticket. More important, Holt testified that he had checked his tag lights before leaving Edinburg (perhaps expecting such a ploy), and that all of the lights were operational.

Trooper Lopez and Holt have predictably different accounts of what happened next. Careful reading of the record, however, does leave one with a general picture of what occurred. Lopez gave Holt a written consent form, and asked if Holt would authorize a search of the rig's trailer by signing it. Holt took the form, saying something like: "It's not up to me; I don't own the stuff." Transcript, Suppression Hearing, at 39. Holt then signed the consent form. Although Holt testified that he thought the consent form was only a traffic ticket for a burnt-out tag light, the magistrate judge found this testimony incredible. Lopez, and other officers who arrived later, searched the trailer and found 319 pounds of marijuana hidden behind the carrots.

Jenkins and various codefendants, including Holt, were indicted on December 8, 1993. Jenkins moved to suppress the marijuana seized from his truck. A magistrate judge held a hearing and recommended a holding that (i) Jenkins lacked standing to object to the seizure, and (ii) Holt consented to the search. The district court adopted the magistrate judge's recommendation on August 4, 1994. On November 27, Jenkins filed a motion to dismiss the indictment on grounds of

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double jeopardy. On November 30, the day he was scheduled for trial, Jenkins filed a motion to dismiss the indictment for violation of the Speedy Trial Act. The district court denied both motions. Jenkins was eventually convicted, and filed a timely notice of appeal.

We will address two issues. In Part II, we determine whether the court erred in not suppressing the evidence seized after the search of the rig's trailer. In Part III, we determine whether the court erred in denying Jenkins's motion to dismiss the indictment under the Speedy Trial Act. Each of Jenkins's other allegations of error is either frivolous or adequately addressed by the rulings and opinions of the court below.

II

A

This case gives us an opportunity to clarify an earlier opinion in United States v. Blanco, 844 F.2d 344 (6th Cir.1988), concerning the standing of an absentee owner to challenge a search of a vehicle. In Blanco, the defendant rented a car, giving both his own name and the name of an "additional driver" on the rental form. The defendant then immediately gave sole control of the car to the driver, who drove from Florida to Ohio with a load of drugs. We held that the defendant in Florida did not have standing to object to a search of the car in Ohio because he did not have a subjective expectation of privacy in the vehicle. Id. at 349. See California v. Ciraolo, 476 U.S. 207, 210, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210, 215 (1986) (standing to challenge search requires a subjective expectation of privacy that society would recognize as legitimate).

The district court apparently read Blanco to hold that anyone who entrusts a vehicle to the control of another person cannot have a subjective expectation of privacy in the vehicle. Accordingly, the court held that Jenkins did not have standing to object to the search of the rig because he let his employee, Holt, drive it. We believe that the court's inflexible approach is an incorrect application of the law in this admittedly difficult area. Blanco did not establish a per se rule barring any absentee owner from challenging a vehicle search. It merely affirmed the district court's factual determination--reviewing for clear error--that the defendant in Blanco, who had merely rented the car for another to drive, did not have a subjective expectation of privacy in a particular vehicle. Blanco, 844 F.2d at 349. Blanco in no way abrogates a district court's responsibility to consider the evidence that a defendant offers to prove standing. If the facts of a case indicate a subjective expectation of privacy, as they did not in Blanco, the first prong of the standing test is satisfied, see Ciraolo, 476 U.S. at 210, 106 S.Ct. at 1811, regardless of how far away a defendant-owner may be from his or her vehicle.

In the suppression hearing below, Jenkins testified that his employees were not allowed into his rigs' trailers except when loading or unloading freight. Transcript, Suppression Hearing, at 2-3. He also testified that he usually ordered his trailers locked and sealed to guard against shortages and employee theft, although this trailer had inadvertently been left unlocked and unsealed. Ibid. We are uncertain if this testimony was credible, or even if there was other information of which we are unaware that would contradict it. But if the testimony is true, it suggests that Jenkins had a subjective expectation of privacy in the trailer of the rig, even if a third party had physical control of the rig at the time of the search. See United States v. Powell, 929 F.2d 1190, 1196 (7th Cir.1991) (absentee defendant has standing to object to officer's entry into the canopied back end of his pickup truck); United States v. Infante-Ruiz, 13 F.3d 498, 501-02 (1st Cir.1994) (where defendant put a closed briefcase in a friend's car and allowed the friend limited access to it, the defendant "did nothing to indicate [the...

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