U.S. v. Lewis

• Decision Date: 05 May 1994
• Docket Number: No. 93-3061,93-3061
• Citation: 24 F.3d 79
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher Columbus LEWIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 79

24 F.3d 79

UNITED STATES of America, Plaintiff-Appellee, v. Christopher Columbus LEWIS, Defendant-Appellant.

No. 93-3061.

United States Court of Appeals Tenth Circuit.

May 5, 1994.

Submitted on the briefs: ^*

Charles D. Anderson, Federal Public Defender, and Marilyn M. Trubey, Branch Chief, Federal Public Defender's Office, Topeka, KS, for defendant-appellant.

Randall K. Rathbun, U.S. Atty., and Thomas G. Luedke, Asst. U.S. Atty., Topeka, KS, for plaintiff-appellee.

Before BALDOCK, Circuit Judge and McWILLIAMS, Senior Circuit Judge and SHADUR, Senior District Judge ^**

SHADUR, Senior District Judge.

Christopher Columbus Lewis ("Lewis") has appealed his conviction following a jury trial on five drug-related counts: possession with intent to distribute cocaine, possession with intent to distribute crack cocaine, conspiracy to possess both of those substances with the intent to distribute them, and two counts charging the use of a firearm during drug trafficking. ¹ Lewis' conviction led to concurrent long-term sentences on the drug charges, the longest being a custodial period of 240 months, with a consecutive mandatory term of 60 months to follow on the firearm counts. Lewis' objections on appeal are limited to his three claims that certain evidence should not have been admitted at trial (claims that he had advanced in two pretrial motions to suppress and in a motion in limine filed on the day of trial):

1. evidence obtained from the search of the car driven by Davis, in which Lewis was a passenger at the time of their arrest,

2. Lewis' statements made during an interview by a law enforcement officer on the day after his arrest and

3. Lewis' additional statements to another law enforcement agent on the following day.

We find Lewis' claims to be without merit and therefore affirm his conviction.

Facts

Because of the view that we take of Lewis' two suppression motions, it is unnecessary to recount the incidents leading to Davis' and Lewis' arrest, or the circumstances of the post-arrest interviews, in the same detail that Lewis' able federal defender counsel has set out in the brief on appeal. What follows suffices to present the framework for dealing with Lewis' legal arguments.

On July 20, 1992 Kansas Highway Patrol Trooper Michael Weigel ("Weigel") observed the rented car driven by Davis, with Lewis as passenger, traveling 73 miles per hour in a posted 65-mile-per-hour speed zone. Weigel stopped the car, and his ensuing conversations with Davis and Lewis--including some substantial inconsistencies in their stories--gave rise to suspicion on Weigel's part. When Weigel then asked to search the car, the trial court permissibly found (based on Weigel's testimony) that Davis consented to the search.

Weigel struck gold (or more accurately, the narcotics-related equivalent of gold) in that search: 300 grams of crack cocaine, a pager and a .22 caliber revolver in the trunk (earlier Weigel had found a fully-loaded .25 caliber semi-automatic pistol and a cellular telephone in the car's glove compartment), and a kilo of cocaine in the car's wheel well. Those items were the subject of defendants' joint motion to suppress, a motion that was denied by the district judge and that now serves as Lewis' first ground for appeal.

Needless to say, both Davis and Lewis were then arrested. Next day Weigel reminded Lewis of his Miranda rights and asked if Lewis wanted to discuss the situation. Lewis proceeded to provide Weigel with a tape-recorded statement. That statement is now the subject of Lewis' second ground for appeal--but only on the predicate that the statement flowed directly from the allegedly illegal search of the car.

On the next day (July 22) Bureau of Alcohol, Tobacco and Firearms Special Agent Mike Schmitz ("Schmitz") also interviewed Lewis. Before the interview began Schmitz again advised Lewis of his rights, and Lewis then signed the rights-acknowledgement portion of the form tendered to him by Schmitz. Because of what the district judge credited as an oversight on Schmitz' part, Schmitz did not ask Lewis to sign the waiver-of-rights portion of that same form. In any event, Lewis agreed to and did talk with Schmitz. Lewis' third ground for appeal asserts that his statements during that interview were involuntary and therefore excludable on constitutional grounds.

Search of the Automobile

Lewis urges that as a passenger in the rented vehicle he had the required standing to argue the illegality of its search (citing for that proposition United States v. Kye Soo Lee, 898 F.2d 1034, 1037-38 (5th Cir.1990)). In response the government points to our decisions in United States v. Erwin, 875 F.2d 268, 270-71 (10th Cir.1989), United States v. Jefferson, 925 F.2d 1242, 1249 (10th Cir.1991) and United States v. Martinez, 983 F.2d 968, 973-74 (10th Cir.1992).

Certainly the government has by far the better of that exchange--indeed, the seminal decision in Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 432-33, 58 L.Ed.2d 387 (1978) (which we relied on in our cases cited by the government) is directly on point. Rakas provides the definitive teaching that a "passenger qua passenger" has no reasonable expectation of privacy in a car that would permit the passenger's Fourth Amendment challenge to the search of the car. But even were Lewis viewed as having some attenuated possessory interest in the vehicle (a dubious assumption in light of the authorities), his contention does him no good in any event because Davis (as both lessee of the leased vehicle and in control as its driver) unquestionably had at least the primary possessory rights in the vehicle. That being so, the voluntary oral consent given by Davis to search both the trunk and its contents (as the trial judge found after hearing the evidence on the motion to suppress) unquestionably validated the search (a lesson taught by Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) and its nearly innumerable progeny). And that dooms Lewis' basic quarrel with the search itself.

Lewis' trial counsel also argued during the suppression hearing that even if Davis were held to have consented, Trooper Weigel's search exceeded the scope of that consent because it extended to Lewis' luggage contained in the trunk. But that argument too is a loser, because (1) Davis' consent was framed in general terms (extending to the entire trunk and its contents), (2) the searching officer had no way to determine ownership of the luggage from its external appearance and (3) nothing in the record reflects that Lewis interposed any contemporaneous objection to the search of his bag.

Before us Lewis seeks to pose an added argument that he was detained unlawfully by Trooper...