U.S. v. Green

• Decision Date: 11 September 2001
• Docket Number: 00-3627,No. 00-3495,00-3495
• Citation: 275 F.3d 694
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. TONY MICHAEL GREEN, DEFENDANT - APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. CLIMMIE ROBINSON, DEFENDANT - APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 694

275 F.3d 694 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. TONY MICHAEL GREEN, DEFENDANT - APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE, v. CLIMMIE ROBINSON, DEFENDANT - APPELLANT.

No. 00-3495, 00-3627

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 11, 2001

Filed: December 27, 2001

Appeals from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted] Before Morris Sheppard Arnold and Bright, Circuit Judges, and Kyle,¹ District Judge.

Bright, Circuit Judge

Tony Green and Climmie Robinson each appeal their convictions for drug offenses, raising issues as to the admissibility of evidence obtained during the search of a car at a drug checkpoint. In addition, Ms. Robinson challenges the admission of her prior possession of narcotics under Federal Rule of Evidence 404(b). We reject their contentions and affirm.

I. BACKGROUND

On February 16, 2001, the Franklin County, Missouri, Sheriff's Department operated a drug interdiction checkpoint on eastbound Interstate 44 (I-44), approximately one mile east of St. Clair, Missouri. The Franklin County Sheriff's Department had adopted the Drug Enforcement Checkpoint Plan of Action, to govern the operation of the checkpoint. The Sheriff's Department posted signs on I-44 warning of the checkpoint for eastbound traffic one mile before the checkpoint. However, for such eastbound traffic another exit ramp, the AH exit, is located after the signs but before the checkpoint. The plan indicated:

The AH overpass was selected because of its remote location. Eastbound travelers having passed the rest area and two St. Clair exits which offer gas, food, and lodging have little reason to exit at AH which has no "services" and no aerial signs to reflect "services" at the exit. In an attempt to enhance the likelihood of contacting drug couriers at the checkpoint, two signs will be placed approximately 1/4 mile west of the AH overpass on both sides of the eastbound lanes of Interstate 44. The signs state:

"DRUG ENFORCEMENT CHECKPOINT 1 MILE AHEAD"

The signs are placed prior to the exit ramp in an attempt to divert suspected drug traffickers to the actual checkpoint located at the top of the overpass.

Green's Add. at 38.

About 11:00 p.m. at the top of the AH exit ramp, police stopped a white Buick Century driven by Edward Freeman and occupied by Tony Green and his wife, Elizabeth Green. Franklin County Deputy Sheriff Raymond Pracht advised Freeman of the drug enforcement checkpoint. Pracht asked Freeman several questions, including whether he noticed the signs leading up to the checkpoint. Pracht further detained Freeman after (1) witnessing Freeman shaking; (2) Freeman telling him he stopped because he was tired and had bloodshot eyes; (3) seeing Freeman did not have bloodshot eyes; and (4) Freeman telling Pracht about his need to go to the bathroom despite the fact that the exit had no such services.

Freeman voluntarily admitted that he received $500 to deliver a package to St. Louis and that he believed the package contained drugs. Freeman orally consented to a search of the car and signed a consent form authorizing the search. A drug dog indicated the presence of drugs in the car. The search produced three packages of cocaine, totaling 2236 grams. The police found two packages of drugs, wrapped in duct tape and concealed in open potato chip bags under the front passenger seat. Police found the third bag of drugs in the air duct of the car. Freeman agreed to cooperate in the investigation.

Freeman implicated Green as a co-drug courier and said that they were to deliver drugs to Climmie Robinson. Tony and Elizabeth Green denied any knowledge of the drugs. Green said that he and his wife had traveled with Freeman to Los Angeles, where they stayed a short time. Green said they were returning home at the time of the police stop.

Officers at the checkpoint informed St. Louis Drug Enforcement Agency (DEA) Agent Anthony Boone about Freeman's willingness to cooperate. Agent Boone then arranged a controlled delivery of the drugs by Freeman to Climmie Robinson. Prior to the controlled delivery, DEA Agent Robert Bayes obtained a search warrant for Robinson's residence. Freeman delivered a "sham" package of drugs to the house. After Freeman delivered the package, the police executed the search warrant to recover the sham package. Robinson and a number of others were arrested as a result of the controlled delivery.

Green and Robinson moved to suppress the evidence obtained at, and derived from, the initial stop of the Buick. The district court² denied the motion to suppress the evidence of the cocaine. A jury convicted Green and Robinson of possession and intent to distribute cocaine. The district court sentenced Green to seventy-eight months (six years and six months) and Robinson to 130 months (ten years and ten months). Green and Robinson timely appeal.

II. FOURTH AMENDMENT CLAIM

Both Green and Robinson bring Fourth Amendment challenges to the admission of evidence resulting from the stop and subsequent search of the car at the drug checkpoint. We will review their claims individually.

We review the district court's factual determinations for clear error and the denial of a motion to suppress de novo. United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994).

At oral argument, Green's attorney argued that Green challenged the stop of the vehicle and the detention of his person, but did not challenge the seizure of the car. The government contends that Green lacks standing³ to make any Fourth Amendment challenge. In determining whether Green has standing to challenge the stop of the car and the resulting seizure of drugs, it is important to distinguish between the stop of the car and the search resulting in the discovery of the drugs. For the reasons that follow, Green lacks standing to contest the search of the car, but he does have standing to challenge the stop and the detention of his person. United States v. Lyton, 161 F.3d 1168, 1170 (8th Cir. 1998).

Green can only assert a violation of his Fourth Amendment rights if he can demonstrate a legitimate expectation of privacy as a passenger of the car driven by Freeman. Rakas v. Illinois, 439 U.S. 128, 138-44 (1978). Fourth Amendment rights are personal and may not be asserted vicariously. United States v. McCaster, 193 F.3d 930, 933 (8th Cir. 1999). We first address whether Green had a legitimate expectation of privacy in the area searched or the items seized. As stated in Rakas, "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas, 439 U.S. at 134.

To establish a legitimate expectation of privacy, the defendants must demonstrate: (1) a subjective expectation of privacy; and (2) that this expectation is one that society is prepared to recognize as objectively reasonable. United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995). The ownership, possession and/or control of the area searched or item seized is relevant to the analysis. Gomez, 16 F.3d at 256. The United States Supreme Court has explicitly determined that a person has no reasonable expectation of privacy in an automobile belonging to another. Rakas, 439 U.S. at 148-49.

Green cannot show any possessory or privacy interest in the car. In fact, he has denied such an interest. Green did not object to the magistrate judge's determination that he lacked standing to contest the search of the car. As a passenger, Green does not have a right to challenge the search of the car. Id. Moreover, Freeman, who did have an interest in the car, consented to the search.

Even though Green lacked a possessory or property interest in the motor vehicle that would enable him to directly challenge the search, he may still contest the lawfulness of his own detention and seek to suppress evidence as the fruit of his illegal detention. See United States v. Kreisel, 210 F.3d 868, 869 (8th Cir. 2000); see also United States v. DeLuca, 269 F.3d 1128, 1133 (10th Cir. 2001) (determining that a passenger can challenge the unlawful detention resulting from a stop of the driver and the vehicle). A passenger has standing to challenge his detention because all occupants of a stopped vehicle are subject to a Fourth Amendment seizure. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450 (1990). Such a stop affects an occupant's interest in freedom from random, unauthorized, investigatory seizures. Delaware v. Prouse, 440 U.S. 648, 653 (1979). "The interest in freedom of movement and the interest in being free from fear and surprise are personal to all occupants of a vehicle, and an individual's interest is not diminished simply because he is a passenger as opposed to the driver when the stop occurred." United States v. Kimball, 25 F.3d 1, 5 (1st Cir. 1994).

We consider whether Green's initial detention violated the Fourth Amendment and whether any "fruits" of that detention must be suppressed. United States v. Portwood, 857 F.2d 1221, 1222 (8th Cir. 1988) (citing United States v. Durant, 730 F.2d 1180, 1182 (8th Cir. 1984) ("[a]ny evidence attained as a direct result of an illegal stop would be inadmissible under the 'fruit of the poisonous tree doctrine.'")). For the reasons that follow, we determine that the discovery of drugs in the car is not a "fruit" of Green's illegal detention.

In the instant case, the police stopped the car at a drug checkpoint. In Indianapolis v. Edmond, 531 U.S. 32 (2000), the United States Supreme Court determined that checkpoints set up for general crime prevention, including drug interdiction, do not pass constitutional muster under the Fourth Amendment. Id. at 42. Edmond addressed a class action lawsuit challenging the constitutionality of the checkpoints. Id. at...