U.S. v. Elmore

• Decision Date: 17 September 2002
• Docket Number: No. 01-4334.,01-4334.
• Citation: 304 F.3d 557
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. N'Kenley Allen ELMORE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

304 F.3d 557

UNITED STATES of America, Plaintiff-Appellant, v. N'Kenley Allen ELMORE, Defendant-Appellee.

No. 01-4334.

United States Court of Appeals, Sixth Circuit.

Argued: August 7, 2002.

Decided and Filed: September 17, 2002.

Louis M. Fischer (argued and briefed), U.S. Department of Justice, Criminal Division, Washington, DC, for Plaintiff-Appellant.

Keith E. Golden (argued and briefed), Golden & Meizlish Co., LPA, Columbus, OH, for Defendant-Appellee.

Before: SUHRHEINRICH and BATCHELDER, Circuit Judges; LITTLE, District Judge.^*

OPINION

BATCHELDER, Circuit Judge.

The United States appeals the district court's order granting N'Kenley Elmore's ("Elmore") motion to suppress the evidence obtained by law enforcement officers during a search of a car that he did not own and in which he was neither the driver nor a passenger. Elmore was charged, along with his cousin Orlando Elmore ("Orlando") — the driver of the car — and Tyron Maynus — the passenger — with conspiring to possess with the intent to distribute over five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846. The cocaine was found in a car driven by Orlando when the officers searched the vehicle after stopping it because it had no visible rear license plate. The district court granted Elmore's motion to suppress the evidence, holding that Elmore had a reasonable subjective expectation of privacy in the vehicle that was sufficient to permit him to challenge the search, and that the search was not based on probable cause or reasonable suspicion and therefore violated the Fourth Amendment. We conclude that Elmore has no basis upon which to object to either the stop or search, and we reverse.

I.

On June 21, 2001, Detective Franchie Robinson (Detective Robinson) of the Logan County (Ohio) Sheriff's Department was patrolling on Route 33 when he stopped a 1991 Cadillac because it did not have a visible rear license plate. Ohio law requires that every automobile display valid license plates on the front and the rear of the vehicle. Ohio Rev.Code Ann. § 4503.21. Upon very close inspection, Detective Robinson was able to discern — and with some difficulty, read — through the car's heavily tinted rear window a temporary license tag. Ohio law also requires that if a license tag is displayed in the rear window of the car, it must be clearly visible and not obstructed by the window's tint. Id. Robinson obtained from Orlando, who was driving the car, his driver's license, his insurance information, and the car's temporary registration. Although the driver's license showed that Orlando was a resident of Columbus, Ohio, the registration indicated that the car was registered to Orlando at a Chicago residence address.

A check on Orlando's driver's license yielded contradictory information, and while he waited for clarification and for information on the car's registration, Robinson questioned Orlando about his trip and the identity of his passenger. Orlando explained that he no longer lived in Ohio, that he now lived in Chicago, and that he had traveled to Chicago by bus a few days earlier, purchased the car, and was taking his brother, Tyron, back to Ohio. Robinson then went to the other side of the car and — leaning into the open window — made a similar inquiry of the passenger, Tyron Maynus. Maynus' responses were not consistent with Orlando's — Maynus said the two were friends, not brothers, and that both lived in Columbus — and while questioning Maynus, Robinson smelled the odor of burnt marijuana. His suspicions aroused about both the car and its occupants, Robinson consulted with the other officer who had by then arrived on the scene, and that officer obtained Orlando's consent to search the vehicle. (Orlando contends that he did not give his consent, but the district court assumed, for purposes of the suppression proceedings, that he had consented, but not voluntarily.) Orlando then showed the officers the approximately $10,000 in cash that was in the trunk, and the officers called for a drug dog. The search that ensued after the dog alerted on the car yielded six kilograms of cocaine hidden in secret compartments.

N'Kenley Elmore, the appellant here, was implicated by Orlando, and ultimately Elmore, Orlando and Maynus were indicted for conspiracy to possess with intent to distribute in excess of five kilograms of cocaine. Orlando and Maynus pleaded guilty. Elmore moved to suppress all of the evidence obtained as a result of the stop and the search of the Cadillac, claiming that the stop was illegal from the time that Detective Robinson actually saw the temporary license tag in the rear window of the vehicle, and that the search was illegal because it was neither consensual nor supported by reasonable suspicion. The government challenged Elmore's ability to contest the legality of the stop, since Elmore was neither the owner of the vehicle nor in the vehicle at the time it was stopped.

The district court held an evidentiary hearing, at which Orlando testified that Elmore had given Orlando money to purchase the car; that Orlando was to transfer the title of the car to Elmore once they got the car to Columbus; and that the cocaine in the car was not Orlando's. The district court granted the motion to suppress. Although the court did not address the question of whether Elmore could challenge the initial stop of the vehicle, the court held that as the "putative owner" of the car, Elmore had a subjective expectation of privacy in it; that "an owner's expectation of privacy in a car with tinted windows is of a type that society would recognize as legitimate," and was therefore objectively reasonable; that based on this reasonable expectation of privacy, Elmore could challenge the constitutionality of the search of the car and seizure of the evidence; and that once Officer Robinson detected the temporary license tag in the rear window of the car, regardless of whether that tag could be read through the tinted window, he no longer had any justification for the stop, the subsequent search was unconstitutional, and all evidence resulting from the stop was tainted.

II.

We review for clear error the district court's findings of fact made with regard to a motion to suppress; we review de novo the court's legal conclusions. United States v. Ivy, 165 F.3d 397, 401-02 (6th Cir.1998). Whether Elmore can challenge the constitutionality of the stop or the search is a question of law. United States v. Smith, 263 F.3d 571, 581 (6th Cir.2001).

The first clause of the Fourth Amendment "protects two types of expectations, one involving `searches,' the other `seizures.' A `search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A `seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). The Supreme Court has ruled definitively that "the Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See also Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) ("Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.") For that reason, the Court ruled long ago that whether an individual may challenge the constitutionality of a search or seizure is to be determined, not in the context of traditional standing principles, but in the context of substantive Fourth Amendment law. The question, then, is

whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.

Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

We turn first to the stop. Elmore has shown no possessory interest in the Cadillac whatsoever. Even if his having supplied the money for the purchase of the car were enough to establish ownership — an issue we need not resolve here — it is undisputed that Elmore was not in the car when Detective Robinson stopped it, nor was he anywhere in the vicinity of the car, nor had he ever even seen the car. The stop of the car did not entail any interference with Elmore's possessory interest, let alone a meaningful one. Cf. United States v. Powell, 929 F.2d 1190 (7th Cir.1991) (holding that vehicle owner not present in the vehicle when it was stopped had not suffered interference with his possessory interest and could not challenge the constitutionality of the stop.)

Because Elmore can show no interference with his possessory interests in the car, he cannot demonstrate that the officers' stop of the car infringed any right personal to him that the Fourth Amendment was designed to protect. The question then becomes whether, if Elmore cannot complain of the stop, he can nonetheless complain of the search of the car.¹ To challenge the search, Elmore must demonstrate that he personally had an expectation of privacy in the Cadillac that society is prepared to consider reasonable. Contrary to the conclusions of the district court, we conclude that Elmore has shown neither an expectation of privacy that is...