U.S. v. Eylicio-Montoya, EYLICIO-MONTOY

• Decision Date: 22 November 1995
• Docket Number: No. 94-2181,EYLICIO-MONTOY,D,94-2181
• Citation: 70 F.3d 1158
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Tomasitaefendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1158

70 F.3d 1158

UNITED STATES of America, Plaintiff-Appellant, v. Tomasita EYLICIO-MONTOYA, Defendant-Appellee.

No. 94-2181.

United States Court of Appeals Tenth Circuit.

Nov. 22, 1995.

Joseph Douglas Wilson, Department of Justice, Washington, D.C. (John J. Kelly, United States Attorney, and David N. Williams, Assistant United States Attorney, District of New Mexico, with him on the briefs), for Plaintiff-Appellant.

Stephen P. McCue, Supervisory Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellee.

Before HENRY and McKAY, Circuit Judges, and SHADUR ^*, Senior District Judge.

HENRY, Circuit Judge.

The government appeals the district court's interlocutory order suppressing evidence obtained during a search of a vehicle in which the defendant-appellee Tomasita Eylicio-Montoya was a passenger. We exercise jurisdiction under 18 U.S.C. Sec. 3731. Following the analysis of our prior panel opinion, see United States v. Eylicio-Montoya, 18 F.3d 845 (10th Cir.1994), we reverse the district court's order and remand for further proceedings.

I. BACKGROUND

Most of the relevant facts are set forth in detail in the prior opinion, see Eylicio-Montoya, 18 F.3d at 846-48, and we summarize them briefly here. In October 1992, an informant contacted United States Customs Agent Albert Vogrinec and told him that a woman named Tammy had been hired by a man named Reuben to transport marijuana from Grants, New Mexico, to Denver, Colorado. The informant provided Agent Vogrinec with an address for Tammy, and Agent Vogrinec subsequently discovered that the defendant Ms. Eylicio-Montoya lived there. Agent Vogrinec was familiar with Ms. Eylicio-Montoya from a previous investigation of marijuana trafficking and knew that she had previously been convicted of transporting marijuana.

Customs agents began surveillance of Ms. Eylicio-Montoya's house. On November 2, 1992, they followed a brown Datsun and a white pickup truck from the residence to a motel. From their observations, the agents were able to confirm several of the details provided by the informant regarding a plan to transport marijuana. See id. at 846.

The next morning the agents observed Ms. Eylicio-Montoya, her son Joe Eylicio, and her daughter-in-law leave the motel in a blue Dodge Colt. Two men left at the same time in the white pickup. The agents followed the Dodge and the pickup a short distance west on Interstate 40. Joe Eylicio drove the Dodge; Ms. Eylicio-Montoya rode in the front seat, and her daughter-in-law rode in the back.

With assistance from New Mexico police officers, the agents stopped the two vehicles. Agent Vogrinec and a New Mexico police officer then approached the Dodge, ordered the occupants out of the vehicle, and directed them to lie on the ground. According to Agent Vogrinec, he removed his firearm from its holster, but kept it behind his back. As he approached the vehicles, Agent Vogrinec observed several burlap bags through the rear window of the Dodge. He then opened the hatchback of the Dodge, inspected the burlap bags, and confirmed that they contained marijuana.

Ms. Eylicio-Montoya was charged with possession with intent to distribute less than fifty kilograms of marijuana in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(D). She filed a motion to suppress the marijuana discovered in the burlap bags, arguing that the stop of the Dodge was not supported by reasonable suspicion and that her subsequent arrest was not supported by probable cause. Rec. vol. I, doc. 11. The district court granted the motion, and the government appealed.

This Court vacated the district court's order and remanded the case for further proceedings. See Eylicio-Montoya, 18 F.3d at 851. We first held that, assuming that the district court did not disbelieve the uncontradicted testimony of Agent Vogrinec, the circumstances known to customs agents established the reasonable suspicion of wrongdoing necessary to support the initial stop of the Dodge and the pickup. We noted that "a brief investigative stop only requires 'some objective manifestation that the person stopped is ... engaged in criminal activity.' " Id. at 848 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

However, as to the reasonableness of Ms. Eylicio-Montoya's arrest under the Fourth Amendment, we found the record insufficient to make a final determination. We concluded that the evidence obtained by customs agents prior to the stop "quite clearly [fell] short of probable cause for an arrest." Id. at 849. "However," we said, "the espial of the burlap bags prior to the arrest, in addition to the facts constituting reasonable suspicion for the stop, would rise to the level of probable cause necessary to render the arrest proper." Id. We therefore directed the district court to determine when Agent Vogrinec saw the burlap bags. We stated that if Agent Vogrinec saw the burlap bags before ordering the occupants out of the vehicles, then there was probable cause for the arrest and the district court should deny Ms. Eylicio-Montoya's motion to suppress. On the other hand, we said, if Agent Vogrinec ordered the occupants out of the vehicles before he saw the burlap bags, "then there was no probable cause for that arrest and there may be grounds for suppressing the evidence on the basis that it was the fruit of that arrest." Id.

We also directed the district court to consider whether Ms. Eylicio-Montoya had standing to challenge the search of the Dodge. Observing that a passenger normally lacks standing to challenge the search of a car in which she claims neither a property nor a possessory interest, our panel opinion stated that Ms. Eylicio-Montoya could establish standing by "demonstrating some relationship to the vehicle sufficient to establish her lawful possession or control thereof." Id. at 851.

On remand, Ms. Eylicio-Montoya offered testimony from her son Joe Eylicio. He stated that he had borrowed the Dodge from his father and that he had loaned it to Ms. Eylicio-Montoya to get it serviced. He added that when he borrowed the car there were no burlap bags in the back and that he first noticed the bags when the agents made the stop.

After hearing Mr. Eylicio's testimony, the district court again granted Ms. Eylicio-Montoya's motion to suppress. The court first concluded that Ms. Eylicio-Montoya had "a subjective expectation of privacy in the automobile and its contents" and therefore had standing to challenge the search. Rec. vol. I, doc. 58, at 2. The court also found that "[a]ccording to credible witnesses, the agents exited their vehicles with their guns drawn and ordered the occupants to exit the vehicles and lie on the ground." Id. Based on this finding, the district court concluded that Ms. Eylicio-Montoya "was arrested at the time the agents exited their vehicles with their guns drawn and ordered the occupants to exit the vehicles and lie on the ground." Id. Additionally, the district court found that Ms. Eylicio-Montoya's arrest "occurred prior to Agent Vogrinec's observing the sacks of marijuana in the rear of the vehicle." Id. Accordingly, the district court held that there was no probable cause to arrest Ms. Eylicio-Montoya and that the evidence discovered in the Dodge was the fruit of an unlawful arrest. Id.

The government then filed this appeal of the district court's ruling. It now argues that Ms. Eylicio-Montoya lacks standing to challenge the search of the Dodge because she did not have a reasonable expectation of privacy in the car. The government also argues that the evidence discovered in the Dodge is admissible under the inevitable discovery doctrine.

II. DISCUSSION

In reviewing a ruling on a motion to suppress, we accept the district court's factual findings unless they are clearly erroneous. United States v. McSwain, 29 F.3d 558, 560 (10th Cir.1994); United States v. Nielsen, 9 F.3d 1487, 1489 (10th Cir.1993). We view the evidence in the light most favorable to the prevailing party. McSwain, 29 F.3d at 560; United States v. Pena, 920 F.2d 1509, 1513 (10th Cir.1990), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). However, the ultimate determination of whether the challenged conduct is reasonable under the Fourth Amendment is a legal question that we examine de novo. McSwain, 29 F.3d at 561; United States v. Horn, 970 F.2d 728, 730 (10th Cir.1992). Whether a defendant has standing to challenge a search is also a legal question subject to de novo review. United States v. Betancur, 24 F.3d 73, 76 (10th Cir.1994).

Applying these standards, we will first consider whether Ms. Eylicio-Montoya has standing to directly challenge the search of the Dodge. Next, we will examine whether she has standing to challenge her subsequent arrest. Because we conclude that Ms. Eylicio-Montoya has standing to challenge her arrest, we will then consider whether her arrest violated the Fourth Amendment. Finally, we will consider whether the evidence obtained from the Dodge should be suppressed as "fruit of the poisonous tree," see Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), or whether, as the government maintains, the evidence is admissible under the inevitable discovery doctrine.

A. Standing to Challenge the Search

The personal nature of Fourth Amendment rights imposes on the party seeking to suppress evidence the burden of " 'adducing facts at the suppression hearing indicating that [her] own [Fourth Amendment] rights were violated by the challenged search.' " Eylicio-Montoya, 18 F.3d at 850 (quoting United States v. Skowronski, 827 F.2d 1414, 1417 (10th Cir.1987)). Two factors are relevant: (1) whether a party has manifested a subjective expectation of privacy in the area searched, and (2) whether society is prepared to recognize that expectation as reasonable. Id.; United States v. Erwin, 875 F.2d 268, 270 (10th Cir.1989).

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