946 F.2d 1497 (10th Cir. 1991), 91-5003, United States v. Dewitt

Docket Nº:91-5003.
Citation:946 F.2d 1497
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kevin Wesly DEWITT, true name, Kenneth Odell Rison, Defendant-Appellant.
Case Date:October 15, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1497

946 F.2d 1497 (10th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,


Kevin Wesly DEWITT, true name, Kenneth Odell Rison,


No. 91-5003.

United States Court of Appeals, Tenth Circuit

October 15, 1991

Page 1498

Submitted on the briefs: [*]

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Michael Gordon Katz, Federal Public Defender, Jenine M. Jensen, Asst. Federal Public Defender, Denver, Colo., for defendant-appellant.

Tony M. Graham, U.S. Atty., Susan W. Pennington, Kathryn Hastings Phillips, James L. Swartz, Asst. U.S. Attys., Tulsa, Okl., for plaintiff-appellee.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

On August 24, 1989, a state trooper stopped defendant-appellant Kenneth Odell Rison for a speeding violation on an Oklahoma highway. Another trooper arrived at the scene to serve as a backup. After examining defendant's driver's license and the rental contract for the car, the first trooper asked defendant if the automobile contained any weapons, narcotics or other contraband. When defendant answered in the negative, the trooper requested to search the automobile. After defendant agreed, both troopers searched the glove box, the trunk and the entire passenger compartment and found nothing. The second trooper then placed his hand in the cleft between the back seat cushions where he felt an object which he thought to be contraband. He then partially exposed the package and confirmed his suspicion. At this point, the troopers arrested defendant and removed the back seat of the automobile, under which they found four one-kilogram packages of cocaine. Defendant was later tried by jury and convicted of possession with intent to distribute a controlled substance, 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(B).

Defendant appeals, challenging the district court's denial of his motion to suppress the evidence resulting from the search. In his suppression motion, defendant argued that (1) the consent was not voluntary, or, in the alternative, (2) the search exceeded the scope of any consent given. On appeal, defendant reasserts the consent arguments made below and further argues that (1) he was unlawfully detained, and (2) the unlawful detention tainted the fruits of the allegedly consensual search. We affirm, holding that the district court's findings on the consent issues were not clearly erroneous and that defendant has waived the unlawful detention argument.

I. Consent

The government argues that defendant's consent arguments are irrelevant because he has failed to demonstrate that he has standing to challenge the search of the rented automobile. See United States v. Roper, 918 F.2d 885 (10th Cir.1990). We agree with the government that it is the defendant's burden to establish standing to challenge a fourth amendment violation, see Rakas v. Illinois, 439 U.S. 128, 139-140, 99 S.Ct. 421, 428-429, 58 L.Ed.2d 387 (1978); however, the government has waived this issue by failing to raise it below. We will not consider issues which are raised for the first time on appeal unless a party demonstrates an impediment which prevented raising the argument below. United States v. Orr, 864 F.2d 1505, 1508 (10th Cir.1988). The government, citing United States v. Hansen, 652 F.2d 1374 (10th Cir.1981), contends that the waiver rule does not apply to the issue of fourth amendment standing. This reliance is misplaced. In Hansen, we did not hold the government to the waiver rule because its failure to raise the issue was excusable considering the "confusing" circumstances surrounding the defendant's fourth amendment challenges. Id. at 1382-83. In other words, the government demonstrated an impediment. Hansen by no means establishes the proposition that standing can never be waived. Such a proposition would be contrary to established Supreme Court case law. In Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), for example, the Court stated that the issue of fourth amendment standing

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could be waived if the government has "failed to raise [it] in a timely fashion during the litigation." Id. at 209, 101 S.Ct. at 1646. See also United States v. Ford, 525 F.2d 1308 (10th...

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