U.S. v. Lanford

• Decision Date: 19 February 1988
• Docket Number: No. 87-1608,87-1608
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Byron LANFORD, a/k/a David Allen Mitchell, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1351

838 F.2d 1351

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Byron LANFORD, a/k/a David Allen Mitchell, Defendant-Appellant.

No. 87-1608

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 19, 1988.

William B. Hardie, Jr., El Paso, Tex. (Court-appointed), for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Lloyd Byron Lanford (Lanford), who entered a conditional plea of guilty under Fed.R.Crim.P. 11(a)(2), appeals the district court's denial of his motion to suppress evidence seized following his arrest at a permanent Border Patrol checkpoint. We affirm.

Facts and Proceedings Below

The United States Border Patrol maintains a permanent checkpoint on Interstate 10, slightly west of Las Cruces, New Mexico, which is itself northwest of and within one or two hours' driving distance from El Paso, Texas. On December 26, 1986, Border Patrol Agent William Jepson (Jepson) was assigned to the Las Cruces checkpoint at the primary inspection area, where westbound vehicles are initially screened. Shortly after 11:00 that morning, he had read a notice posted at the checkpoint that the El Paso, Texas police had broadcast a bulletin warning law enforcement officers to be on the lookout for a suspect in the robbery several hours earlier that morning of the First Financial Banking Center in El Paso. The suspect was described as a white male with a moustache or goatee who was approximately twenty-eight years old; six feet two inches tall; wearing sunglasses, a light colored tee shirt, blue jeans, and a black leather jacket; and driving a dark colored sedan, possibly an Oldsmobile, with the numbers 251 on the license plate. At approximately 12:15 p.m., Lanford, who fit the general description, arrived at the checkpoint in a dark red, almost black 1986 Oldsmobile Toronado that bore Louisiana license plate number 251 D 996.

Jepson questioned Lanford as to his citizenship. Lanford replied that he was an American citizen. Jepson then asked Lanford his destination. Lanford answered, "Nowhere, I'm just driving around." During this exchange, Jepson noticed several facts that together aroused his suspicion. First, Lanford appeared extremely nervous: his hands shook, his voice quivered, and he would barely glance at Jepson, staring straight ahead when answering Jepson's questions. Second, Jepson had noticed that the car bore Louisiana plates and that Lanford, therefore, had driven "quite some distance" to be "just driving around." Third, Lanford was unshaven and generally disheveled. This did not seem to "fit" with the appearance of the car, which was new and well-kept. Based on these observations Jepson directed Lanford to the secondary inspection area for further questioning and used his walkie-talkie to request a computer check of the license plate number to determine whether the car was stolen.

At the secondary inspection area, Jepson asked Lanford for identification. Lanford, who was still seated in the automobile, picked up a wallet from the floorboard and flipped through it but found no identification. Lanford then briefly looked around the automobile's interior and finally presented Jepson with a checkbook containing personalized checks in the name of Chris Lawrence Post. Further questioning revealed that this purported "Mr. Post" could not spell his middle name or give his address consistently with the name and address printed on the checks. His answers were again nervously given. Jepson was then notified that the automobile had been reported stolen. He and Agent Randy Olsen, who came to Jepson's assistance at this time, then arrested Lanford. Less than five minutes had elapsed from the time Lanford had entered the checkpoint.

Then, a contemporaneous search of the car and of Lanford netted over four thousand dollars. Four of the bills seized were later identified as "bait" money given to the robber of the First Financial Banking Center. A black leather jacket and a pair of sunglasses were also discovered during a subsequent search of the car.

Lanford was indicted for (1) robbery of a federally-insured savings and loan in violation of 18 U.S.C. Sec. 2113(a) and (2) interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. Sec. 2312. Lanford filed a pretrial motion to suppress, contending that there was not probable cause for his arrest. After an evidentiary hearing, the district court denied Lanford's motion to suppress. The court held that Lanford lacked standing to challenge the search of the Toronado because he did not have a legitimate expectation of privacy in a stolen automobile. The five-minute detention prior to receiving the report that the automobile was stolen was constitutional, contended the court, because the agents had "a reasonable suspicion, based upon articulable facts, that criminal activity [was] occurring." The court held that the officers had probable cause for arrest once they received the report that the vehicle was stolen. Lanford then moved for a rehearing of his suppression motion on the ground that the government had withheld the names of witnesses to the search of the automobile in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court found that their testimony would be immaterial to its decision and denied the motion. Lanford subsequently entered a conditional guilty plea to both counts pursuant to Fed.R.Civ.P. 11(a)(2), reserving the right to appeal the district court's adverse ruling on the suppression motion and to withdraw his plea if successful on appeal. ¹

Discussion

Lanford argues on appeal that his diversion to the secondary inspection area by Jepson was unconstitutional because Jepson did not have an articulable, reasonable suspicion of criminal activity and, therefore, that all evidence seized after his arrest must be suppressed. Lanford also reurges his Brady complaint.

We begin with the issue of standing. Lanford does not challenge the finding of the district court that he failed to prove that he legally possessed the automobile that Chris Post, the registered owner, had reported stolen. We therefore review only the district court's conclusion of law that Lanford did not have standing to challenge the search of the automobile.

In United States v. Parks, 684 F.2d 1078 (5th Cir.1982), we summarized the test for standing under the Fourth Amendment in the wake of the privacy-interest analysis of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967): " 'whether governmental officials violated any legitimate expectation of privacy held by' the party seeking to exclude the evidence obtained through the challenged search or seizure." 684 F.2d at 1082 (quoting Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980)). In Parks, we held that presence in a plane did not show a legitimate expectation of privacy absent a showing of ownership or proprietary rights. 684 F.2d at 1085-86. Although we have not applied the legitimate-expectation-of-privacy test to a stolen automobile, two other circuits applying this test have denied standing to possessors of stolen automobiles. See United States v. Hensel, 672 F.2d 578, 579 (6th Cir.), cert. denied, 457 U.S. 1107, 102 S.Ct. 2907, 73 L.Ed.2d 1316 (1982); United States v. Hargrove, 647 F.2d 411, 413 (4th Cir.1981). We agree and hold that Lanford lacked standing to challenge the search of the automobile.

Lanford does, of course, have standing to challenge the search of his person. Nevertheless, we believe that Jepson's stop of Lanford was a constitutionally permissible Terry stop. ² Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Terry and its progeny,

"recognized that a reasonable suspicion of criminal activity based on contemporaneous observations may justify a temporary stop and detention for the purpose of investigating that suspicion, even though the officer does not have probable cause to believe that a particular crime has been committed. Whether a detention is an arrest or merely a Terry-stop depends on the 'reasonableness' of the intrusion under all the facts." United States v. Martinez, 808 F.2d 1050, 1053 (5th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 1962, 95 L.Ed.2d 533 (1987).

Reasonable suspicion must be based on "specific and articulable facts," not "inarticulate hunches." Terry, 88 S.Ct. at 1880. And these facts must "be judged against an objective standard: would the facts available to the officer at the moment of seizure ... 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Terry, 88 S.Ct. at 1880. See United States v. Gomez, 776 F.2d 542, 546 (5th Cir.1985). Cf. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 1877 & n. 6, 64 L.Ed.2d 497 (1980) (objective test determines when seizure of person).

Finally, when making these determinations we must bear in mind our standard of review. When reviewing a trial court's ruling on a motion to suppress, we must accept the trial court's purely factual findings based on live testimony at a suppression hearing unless the findings are clearly erroneous or influenced by an incorrect view of the law. See United States v. Tarango-Hinojos, 791 F.2d 1174, 1176 (5th Cir.1986). Moreover, we must view the evidence in the light most favorable to the party prevailing below, except where such a view is either inconsistent with the trial court's findings or is clearly erroneous considering the evidence as a whole. See United States v. Maldonado, 735 F.2d 809, 814 (5th Cir.1984).

Following the suppression hearing, the district court found that Jepson had a reasonable suspicion that the car that Lanford was...