U.S. v. Soto, 91-4213

Citation988 F.2d 1548
Decision Date22 March 1993
Docket NumberNo. 91-4213,91-4213
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jaime SOTO, also known as Leonel Guerra, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Steven B. Muslin (Ira A. Moltz, with him on the brief), Chicago, IL, for defendant-appellant.

Richard D. McKelvie, Asst. U.S. Atty. (David J. Jordan, U.S. Atty., with him on the brief), Salt Lake City, UT, for plaintiff-appellee.

Before LOGAN, BARRETT and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Jaime Soto appeals his conviction under 21 U.S.C. § 841(a)(1) for possession of a controlled substance with intent to distribute. Most issues on appeal arise out of the denial of defendant's motion to suppress cocaine found in a search of the automobile defendant was driving after he was stopped for a traffic violation. They raise nearly every difficult problem of standing, right to question, consent, and search possible in an automobile stop and search context. Defendant also contends that the prosecution made an improper appeal to ethnicity during closing argument.

I

Defendant was driving eastbound on Interstate 70 in Utah on a cold December day, when he was stopped by Sevier County Deputy Sheriff Phil Barney for traveling seventy-five miles per hour in a sixty-five mile zone. Barney asked defendant for his license and registration. Defendant produced an Illinois driver's license bearing the name Leonel Guerra and an identification card. Barney testified at a suppression hearing that defendant's hands were visibly shaking and that his movements were very fast, described by Barney as "panicky." Barney asked defendant for the car registration, which when produced showed the owner to be a person whose last name was Corral. Defendant identified the owner as his uncle, who had lent him the car for a trip from Chicago to Los Angeles and back. When Barney asked defendant for his uncle's address, defendant did not answer. Barney testified that defendant seemed to begin to answer the question "three or four times," but never actually did. Tr. of Motion to Suppress at 12.

The officer testified that he was concerned that defendant did not know his uncle's address, and that defendant appeared overly nervous. Still in possession of defendant's license and registration, Barney asked defendant whether he was carrying any firearms or narcotics in the car. Defendant replied that he was not. The officer then told defendant that he was going to issue a written warning for speeding, and proceeded back to his car where he performed an NCIC check on defendant's car. This check came back negative, and a check on the Guerra license revealed no outstanding warrants. Returning to defendant's car, Barney testified that he began to hand defendant the citation and documentation when he again noticed defendant's hand visibly shaking. At that point, without returning the license and registration, the officer once again asked whether defendant was carrying any narcotics or weapons. Barney testified that when he asked this question, defendant's hand "froze," and that defendant again responded in the negative. The officer then asked permission to look in the car trunk. Defendant agreed, and got out of the car to open the trunk.

Officer Barney noticed that the matting covering the bottom of the trunk was in "disarray," and that the spare tire was out of place, leaning against the back of the back seat. There was only one handbag in the trunk, and no luggage evident in the passenger compartment. The officer pulled on the matting, and it came up "easily," revealing "what looked like fresh glue that was not set." Tr. of Motion to Suppress at 16. The area under the matting appeared to have been freshly painted, and the officer noticed "a seal of about two inches wide that appeared to run completely across the trunk from side to side about a quarter of the way up on the hump above the gas tank." Id. at 17.

The officer then asked permission to examine the passenger compartment, which defendant granted. When defendant told the officer that his car heater was not working, Barney had defendant and his two passengers, a woman and a young child, go to the officer's car to keep warm. At the time, 7:20 a.m. December 3, the outside temperature was eight degrees above zero.

Examining the rear seat, Officer Barney found that it was loose, and that the back of the car smelled of fresh paint. He pulled up the seat, and noticed that the area under the seat was completely clean, even though the car was a 1984 model. He found that the hook that holds the seat in place had been bent out of shape and was not securing the seat properly. Barney also noticed that the covering over the gas tank area was higher than normal. Taking these observations into account, the officer testified that he was confident that a secret compartment would be found in the vehicle, and that it most likely would contain narcotics, weapons, or large sums of money. Given the cold weather and poor lighting conditions, Barney asked defendant to follow him to a nearby service station where the inspection could continue. Defendant agreed, stating that he might be able to fix his heater at the same time.

Defendant followed the officer approximately two miles to a service station, where defendant's car was placed on a hoist. In the following inspection Barney noticed that the metal bracings securing the gas tank had been moved from their original positions, and that one area of the undercarriage appeared to be darker than the others. Examining that section, he discovered a door, secured by four carriage bolts, which he removed. He then saw three packages behind the door, which he suspected contained cocaine. The officer then arrested defendant, resecured the compartment door, and transported defendant to the sheriff's station. On the way, defendant stated that his real name was Jaime Soto, not Guerra, and that he was an illegal alien. Further inspection of defendant's car resulted in discovery of nineteen kilograms of cocaine.

After a jury trial, defendant was convicted of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and sentenced to 121 months imprisonment. This appeal followed.

II

A district court's denial of a motion to suppress evidence is reviewed under a clearly erroneous standard, and the evidence is considered in the light most favorable to the district court's ruling. United States v. Horn, 970 F.2d 728, 730 (10th Cir.1992); United States v. Evans, 937 F.2d 1534, 1536 (10th Cir.1991). The ultimate determination of reasonableness under the Fourth Amendment, however, as well as other conclusions of law, is reviewed de novo. Horn, 970 F.2d at 730; United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). If the district court's factual findings are based on an erroneous interpretation of law, a remand is appropriate unless the record is such that only one resolution of the factual issue is possible. United States v. Price, 925 F.2d 1268, 1270 (10th Cir.1991).

A

The district court held that defendant had standing to challenge the search of the passenger compartment and trunk of the vehicle, but that he had no standing to contest the search of the secret compartment within the vehicle. When, as here, there is no dispute concerning the relevant facts, we review the district court's ruling de novo. United States v. Rascon, 922 F.2d 584, 586 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2037, 114 L.Ed.2d 121 (1991); United States v. Rubio-Rivera, 917 F.2d 1271, 1274 (10th Cir.1990).

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court held that the proper approach to standing in Fourth Amendment cases "forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing." Id. at 139, 99 S.Ct. at 428. Fourth Amendment rights are personal, and cannot be asserted vicariously. Rascon, 922 F.2d at 586. Consequently, "a threshold issue in deciding a motion to suppress evidence is whether the search at issue violated the rights of the particular defendant who seeks to exclude the evidence." Id. This inquiry has evolved into a two-part test: The court must determine whether the defendant has exhibited a subjective expectation of privacy in the area searched, and also whether society is willing to recognize that expectation as being objectively reasonable. Id.; accord United States v. Langston, 970 F.2d 692, 698 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 439, 121 L.Ed.2d 358 (1992); United States v. Arango, 912 F.2d 441, 445 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991).

Whether a driver's privacy interest in an automobile is reasonable depends on the driver's lawful possession of the vehicle. "Where the defendant offers sufficient evidence indicating that he has permission of the owner to use the vehicle, the defendant plainly has a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle." Rubio-Rivera, 917 F.2d at 1275. The government, citing Arango and United States v. Erwin, 875 F.2d 268 (10th Cir.1989), argues that defendant has no standing to challenge the search of his vehicle because he did not prove ownership of the car at the time of the search and did not show that he was in lawful possession of the vehicle.

In Arango, the defendant testified that he obtained the truck that was searched from a person he knew not to be the owner, and failed to present evidence regarding that person's lawful possession of the truck. 912 F.2d at 445-46. Although the court stated that the defendant "need not always come forward with legal documentation establishing that he lawfully possessed the...

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