U.S. v. $277,000.00 U.S. Currency, HWY773

• Decision Date: 08 August 1991
• Docket Number: D,No. 89-56005,No. HWY773,HWY773,89-56005
• Citation: 941 F.2d 898
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. $277,000.00 U.S. CURRENCY; One 1986 Dodge Ram Charger, Jalisco, Mexico Lic.efendants, and Ramon S. Montes, Claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 898

941 F.2d 898

60 USLW 2174

UNITED STATES of America, Plaintiff-Appellee, v. $277,000.00 U.S. CURRENCY; One 1986 Dodge Ram Charger, Jalisco, Mexico Lic. No. HWY773, Defendants, and Ramon S. Montes, Claimant-Appellant.

No. 89-56005.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 8, 1990.

Decided Aug. 8, 1991.

Gerson S. Horn, and William S. Pitman, Beverly Hills, Cal., for claimant-appellant.

Donna R. Eide, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUG, CANBY and WIGGINS, Circuit Judges.

HUG, Circuit Judge:

The Government obtained the civil forfeiture of a 1986 Dodge Ram Charger and $277,000 in U.S. currency found in this vehicle, pursuant to 21 U.S.C. § 881 (1988). Claimant Montes appeals on the ground that evidence discovered in the search of the Dodge Ram Charger should have been suppressed because it was obtained in violation of his Fourth Amendment rights. He contends that the police conduct in searching the leased Dodge Ram Charger, which was covered and parked in the backyard of a home, in order to discover the vehicle identification number ("VIN"), was a violation of his Fourth Amendment rights. The $277,000 in currency was discovered in the process and was confiscated when the narcotics-detector dog alerted on the currency. The central issue of the appeal is whether the police have a right to search a parked vehicle to obtain the VIN. Execution of the judgment has been stayed pending this appeal, pursuant to Fed.R.Civ.P. 62(d). We reverse.

I.

On October 13, 1987 at 11:32 a.m., Montebello Police Department Officers Rodriguez and Gorman responded to a complaint of loud music from a black pickup truck at 484 Via Norte in a Montebello residential area. Because an incorrect address had been given, the officers radioed the command desk to confirm the location and were told the correct residence had two lion statues in front. Officer Rodriguez noticed this description matched the residence at 476 Via Norte. As they approached this residence, they could hear Spanish music from two houses away.

As they got closer, the officers observed that the music was coming from a black pickup truck parked in the driveway of the 476 Via Norte residence. Walking down the driveway, the officers shouted their presence. No one responded or was seen in the front of the property or through an open garage door.

The officers then went to the house. The wrought iron security gate and front door were both ajar. The officers rang the doorbell and knocked several times. Officer Rodriguez repeatedly announced the police presence in Spanish and English. There was no answer. The officers decided to enter the residence through the opened door in order to issue a municipal citation concerning excessive noise coming from a vehicle, pursuant to Montebello Municipal Code § 4223.1. Upon entering the residence, the officers again announced their presence in Spanish and English. No one was discovered inside. In the kitchen, the officers observed an individual outside in the backyard, who was later identified as Rafael Mancillias, age 22, and who was seen closing a door to the garage. Officer Rodriguez was prevented from entering the backyard from the residence by a secured wrought iron door in the rear porch. Mancillias complied with Rodriguez' request to open the door.

While Officer Rodriguez explained the purpose of the police visit to Mancillias, Officer Gorman focused upon two parked vehicles in the backyard which were covered with opaque car covers and had exposed Mexican license plates. The first was a 1986 Dodge Ram Charger, the subject of this appeal, and the second was a 1982 Ford pickup. Officer Gorman noted he was aware that vehicles are often stolen and sold in Mexico. Based upon this suspicion, Officer Gorman raised the car covers on each car to find the place showing the VIN in order to cross-check whether the vehicles had been reported stolen. He reported that the VIN plates were "missing" on both vehicles because they were not visible from the vehicle exterior.

After Officer Gorman informed Officer Rodriguez of the missing VIN on the first vehicle, Rodriguez placed Mancillias in handcuffs and advised him that he was being detained for a grand theft automobile investigation but was not under arrest. The officers then called for the assistance of two detectives who were members of the Montebello Police Department automobile theft detail.

When Officer Gorman determined that the VIN plates were missing, he decided to impound the vehicles, pursuant to Cal.Veh.Code § 10751, because the VIN was not adequately displayed and for further investigation of automobile theft. Officer Gorman opened the locked Dodge Ram Charger with a "slim-jim" in order to locate the VIN or vehicle registration papers. Inside the Dodge Ram Charger, Officer Gorman checked the glove box, visors and front sections and was unable to find either a VIN or registration papers. In the center of the rear passenger floor board, Officer Gorman noticed a brown shopping bag, which according to the police report, he opened to locate registration information. Gorman discovered $67,650 in U.S. currency inside the bag. Continuing his search, Gorman observed a black leather brief case and black canvas camera bag in the rear of the vehicle, which upon opening also contained $130,000 and $79,760 in U.S. currency, respectively. As a result of the manner of packaging of the large sums of money, Gorman believed the currency may have been used in drug trafficking. Narcotics investigators were summoned to the scene as well as Los Angeles County Sheriff's Deputy T. Lynch, a specialist in automobile theft.

Lynch, who arrived after the vehicle search, examined the vehicle and ultimately found the VIN inside the vehicle. He noted the VIN contained a numbering sequence consistent with vehicles manufactured in Mexico. ¹ Subsequently, a narcotics-detector dog alerted on the interior of the vehicle, the money and the three containers. On October 15, 1987, the Montebello Police Department turned over the 1986 Dodge Ram Charger, the U.S. currency and the containers to the U.S. Customs Service.

At the suppression hearing, claimant Montes testified that on February 25, 1987 he entered into a one-year lease agreement in Mexico with the owner of the Dodge Ram Charger and produced a copy of the lease. In October, 1987, Montes parked the vehicle in the backyard of the residence at 476 Via Norte. Montes received permission to park the vehicle in the backyard from Mancillias. Mancillias was not the owner of the house and did not live there but told Montes he was in charge of the house. Montes gave Mancillias a set of keys to the car but did not give him permission to open the vehicle or to drive it.

II.

The district judge concluded that Montes had no legitimate expectancy of privacy in the residence or the backyard. He found it unnecessary to rule on whether Montes had an expectancy of privacy in the vehicle because of his decision that Montes had no expectancy of privacy in the VIN. He then found that the officers' removal of the opaque cover from the Dodge was not a violation of Montes' Fourth Amendment rights, because he had no expectancy of privacy in the VIN. He concluded that when the officer discovered that the VIN was missing, he had the right to impound the vehicle and that the $277,000 in currency inevitably would have been discovered in the inventory search of the impounded vehicle. The historical facts essential to this appeal are not in question. We are thus reviewing the conclusions of law made by the district court from those facts, which conclusions we review de novo.

The claimant contends as follows: (1) the police entry in the residence and the backyard where the vehicles were discovered was unlawful; (2) it was unlawful to remove the cover from the Dodge vehicle without a search warrant or probable cause; (3) it was unlawful for the police to break into the vehicle simply because they could not locate the VIN; (4) even if it had been lawful to break into the vehicle to search for the VIN, that this did not justify opening the shopping bag, the brief case and the black canvas camera bag; (5) the inevitable discovery doctrine was misapplied by the court because there was no justification for impounding the vehicle since it had an appropriate VIN attached.

III.

We agree with the district court that Montes did not have a legitimate expectancy of privacy in the residence or the backyard. He had no control whatsoever over the backyard. Thus, he cannot contest the observation of the covered vehicles or the fact that they had Mexican license plates.

The Government contends that Montes had no expectancy of privacy in the vehicles because he had turned possession of the vehicles over to Mancillias. This presents a closer question. He gave Mancillias a set of keys to the vehicles but did not give him permission to open or drive them. A person asserting a violation of the Fourth Amendment has the initial burden to establish his right to do so. Thus, Montes had the burden to establish that he had a legitimate expectancy of privacy in the vehicles. See, e.g., United States v. One Parcel of Land, 902 F.2d 1443, 1444 (9th Cir.1990) (per curiam); see also Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387 (1978) (motion to suppress proponent has burden to establish violation of Fourth Amendment rights). The Government relies on our opinion in United States v. One 1977 Mercedes Benz, 708 F.2d 444 (9th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 981, 79 L.Ed.2d 217 (1984). In that case, the vehicle was turned over to the exclusive possession of a third-party to drive without safeguarding any privacy interests or restricting the use of the vehicle. Here, Montes was the legitimate lessee of the...