U.S. v. Miller

• Decision Date: 20 May 1996
• Docket Number: 95-3045,Nos. 95-3039,s. 95-3039
• Citation: 84 F.3d 1244
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian L. MILLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Ray HICKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1244

84 F.3d 1244

UNITED STATES of America, Plaintiff-Appellee, v. Brian L. MILLER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael Ray HICKS, Defendant-Appellant.

Nos. 95-3039, 95-3045.

United States Court of Appeals, Tenth Circuit.

May 20, 1996.

Rehearing Denied July 5, 1996.

Randall K. Rathbun, United States Attorney, and D. Blair Watson, Assistant United States Attorney, Wichita, Kansas, for Plaintiff-Appellee in No. 95-3039.

Michael G. Katz, Federal Public Defender, and Jenine Jensen, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant in No. 95-3039.

D. Blair Watson, Assistant United States Attorney (Randall K. Rathbun, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee in No. 95-3045.

Timothy J. Henry, Assistant Public Defender (David J. Phillips, Federal Public Defender, with him on the briefs), Wichita, Kansas, for Defendant-Appellant in No. 95-3045.

Before SEYMOUR, Chief Circuit Judge, and BRORBY and MURPHY, Circuit Judges.

BRORBY, Circuit Judge.

A jury convicted defendants Brian Lee Miller and Michael Ray Hicks of one count of possession with intent to distribute methamphetamine (18 U.S.C. § 2 and 21 U.S.C § 841(a)(1)); one count of possession with intent to distribute marijuana (18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1)); and one count of using or carrying a firearm in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)). The jury also convicted Mr. Miller of one count of being a felon in possession of a firearm (18 U.S.C. §§ 922(g) and 924(a)(2)) and convicted Mr. Hicks of one count of interstate transportation of a stolen vehicle (18 U.S.C. § 2313). Mr. Miller and Mr. Hicks now challenge their convictions, and Mr. Hicks also challenges his sentence. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and vacate Mr. Miller's convictions for using or carrying a firearm in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)) and being a felon in possession of a firearm (18 U.S.C. §§ 922(g) and 924(a)(2)), and remand his case for resentencing in light of our decision to vacate these convictions. In addition, we reverse Mr. Hicks's conviction for using or carrying a firearm in relation to a drug trafficking crime, vacate his sentence for that offense, and remand for a new trial. We affirm in all other respects.

I

On March 8, 1994, Mr. Hicks was driving a 1991 Ford Aerostar east on U.S. Highway 54 in Clark County, Kansas, with Mr. Miller in the front passenger seat beside him. The van had Missouri license plates. At 3:11 p.m., Kansas Highway Patrol Officer Tom Kennedy determined, by using radar, that Mr. Hicks was going 66 miles-per-hour in a 55 mile-per-hour zone. Trooper Kennedy turned on his lights and stopped the van for speeding. While Trooper Kennedy was pulling the van over, he noticed Mr. Hicks and Mr. Miller "both started talking back and forth to each other" and had "worried look[s]." After they reached the side of the road, Trooper Kennedy walked to the driver side of the van, told Mr. Hicks he had stopped him for speeding and asked him for a driver's license, registration, and proof of insurance. Mr. Hicks said he had proof of insurance and registration, and looked through his wallet and then the glove compartment, but was unable to produce either. Mr. Hicks did, however, produce a valid Kansas driver's license. Trooper Kennedy asked Mr. Hicks who he bought the van from, but Mr. Hicks did not give the person's name. Given the combination of the Missouri license plates, the Kansas driver's license, and Mr. Hicks's statement he had bought the car in California, Trooper Kennedy concluded "probably maybe [Mr. Hicks] stole the vehicle."

Between three and five minutes after he stopped the van, Trooper Kennedy asked Mr. Hicks to step out and walk back to the patrol car. Trooper Kennedy then put Mr. Hicks in the back seat of the patrol car and again asked him where his registration and insurance documents were. Mr. Hicks again looked in his wallet and said he could not find them. Mr. Hicks appeared nervous while he was in the patrol car. When Trooper Kennedy asked Mr. Hicks who owned the van, Mr. Hicks told him he had just bought it, but that the license plates actually belonged to a 1976 Dodge pickup truck he owned, and that he planned to register the van when he reached his destination in Kansas. When Trooper Kennedy asked Mr. Hicks where he was going, Mr. Hicks said he was traveling from Oxnard, California, to Iola, Kansas, to see his ex-wife, bring a present to his daughter, and help Mr. Miller find a job. He also asked Mr. Hicks how long he had known Mr. Miller, and Mr. Hicks said "a long time," and that they had gone to school together. While Mr. Hicks was in the patrol car, Trooper Kennedy checked his license plates and driver's license with the dispatcher. The license plates were current. The registration check on the license plates came back "no record on file," so Trooper Kennedy went back to the van to check the vehicle identification number (VIN).

When Trooper Kennedy returned to the van, he copied the VIN from the driver side doorjamb. The VIN was also on the dashboard, but it was not visible through the windshield because there was a magazine covering it. Trooper Kennedy did not return immediately to his patrol car to check the VIN, but instead put his hands on the driver seat, leaned into the van, and asked Mr. Miller, who was still in the passenger seat, where he and Mr. Hicks were going. Mr Miller told Trooper Kennedy he was traveling from Ventura, California, which is near Oxnard, California. Trooper Kennedy later testified he questioned Mr. Miller because Mr. Hicks seemed "nervous."

One or two minutes later, at 3:23 p.m., while he was still leaning into the van and talking to Mr. Miller, Trooper Kennedy looked into the ashtray in the center of the dashboard and found a wooden pipe. He recognized it as a drug pipe. Trooper Kennedy did not have to move anything in order to see the pipe. He then returned to his patrol car and asked Mr. Hicks if it was his pipe. Mr. Hicks admitted it was. Trooper Kennedy placed Mr. Hicks and Mr. Miller under arrest for possession of drug paraphernalia in violation of Kansas law and called for backup. Trooper Kennedy also called the VIN into the dispatcher, but it is unclear whether he did so before or after he arrested Mr. Hicks and Mr. Miller. After his backup arrived, Trooper Kennedy learned from the dispatcher that the van was stolen. Mr. Miller, Mr. Hicks, and the van were then taken into custody and brought to the sheriff's station. Trooper Kennedy later performed an inventory search of the van. Among other things, he discovered marijuana, methamphetamine, a glass drug pipe, a loaded Smith & Wesson nine-millimeter semi-automatic handgun, a loaded Multon .380 automatic handgun, zip-lock baggies, and a scale.

Mr. Hicks moved to suppress the evidence Trooper Kennedy found in the van, but the district court denied his motion on the grounds that Mr. Hicks lacked standing to object to the search of the van because he did not have lawful possession of it, and that the length of his detention in the back of the patrol car was reasonable. After a two-day trial, a jury convicted Mr. Hicks and Mr. Miller on all counts, except that it found Mr. Miller not guilty of interstate transportation of a stolen vehicle. The district court sentenced both Mr. Hicks and Mr. Miller to sixty months imprisonment for their violation of 18 U.S.C. § 924(c)(1), to run consecutively with their sentences for the remaining offenses, yielding an aggregate term of imprisonment of 248 months for Mr. Hicks and 322 months for Mr. Miller. This appeal followed.

II. Guilt Issues

A. Suppression of Evidence

Prior to trial, both Mr. Hicks and Mr. Miller moved to suppress the evidence found in the van on the grounds that both the search and the duration of the detention were unreasonable under the Fourth Amendment. Mr. Miller later withdrew his motion, but Mr. Hicks did not. The district court held a hearing and denied Mr. Hicks's motion on several grounds in a written order. Mr. Hicks now challenges that decision. He first contends the district court erred when it concluded he lacked standing to challenge the search of the van on Fourth Amendment grounds. "On appeal from the denial of a motion to suppress, we view the evidence in the light most favorable to the district court's ruling, and will uphold the district court's factual findings unless they are clearly erroneous." United States v. Marchant, 55 F.3d 509, 512 (10th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 260, 133 L.Ed.2d 184 (1995). "The questions of standing and the reasonableness of a search under the Fourth Amendment are questions of law subject to de novo review." United States v. Betancur, 24 F.3d 73, 76 (10th Cir.1994).

The issue of standing is " 'invariably intertwined' with substantive Fourth Amendment analysis." Betancur, 24 F.3d at 76. In deciding whether a defendant has standing, "the inquiry focuses on whether there has been a violation of the Fourth Amendment rights of the particular defendant who is seeking to exclude the evidence." Id. To show that a particular search violated his Fourth Amendment rights, the defendant must prove he "has manifested a subjective expectation of privacy in the area searched and [that] that expectation is one society would recognize as objectively reasonable." Id.; see also Marchant, 55 F.3d at 512-13; United States v. Benitez-Arreguin, 973 F.2d 823, 827 (10th Cir.1992). The mere fact an individual has physical possession of a vehicle does not necessarily give that person a reasonable expectation of privacy in it. United States v. Arango, 912 F.2d 441, 444 (10th Cir.1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991). Rather, he has no reasonable expectation of privacy unless he proves he had...