U.S. v. Roper, 90-5010
| Decision Date | 13 November 1990 |
| Docket Number | No. 90-5010,90-5010 |
| Citation | 918 F.2d 885 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael Eugene ROPER, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Tony M. Graham, U.S. Atty., and David E. O'Meilia, Asst. U.S. Atty., Tulsa, Okl., for plaintiff-appellee.
Curtis J. Biram of Biram & Kaiser, Tulsa, Okl., for defendant-appellant.
Before McKAY, BALDOCK, and McWILLIAMS, Circuit Judges.
In a one-count indictment, Michael Roper, Jr. and two co-defendants, John Griffin and Robert Burke, were charged with the possession with intent to distribute cocaine, in excess of 500 grams, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(ii). We are here concerned with only Roper.
Roper filed a motion to suppress the use at trial of the cocaine seized from an automobile which he was driving in Oklahoma and which had been stopped for speeding. After hearing, the district court denied the motion, holding that Roper had no standing to challenge the search of the vehicle, and, alternatively, that Roper, in any event, had consented to the search.
Thereafter, by plea agreement, Roper pleaded guilty to a one-count information charging him with interstate travel to facilitate a narcotics enterprise, in violation of 18 U.S.C. Sec. 1952, Roper reserving the right to appeal the district court's denial of his motion to suppress. He was then sentenced to imprisonment for forty-six months followed by thirty-six months of supervised release. Pursuant to the plea agreement, the original indictment was dismissed.
At the evidentiary hearing on Roper's motion to suppress, it was established that an automobile driven by Roper was stopped by an Oklahoma Highway Patrol trooper on the Turner Turnpike near Bristow, Oklahoma. At the time, Robert Burke was a passenger sitting in the front seat, and John Griffin was asleep in the back seat. The trooper testified that he stopped the vehicle because the driver was traveling 74 miles per hour in a 65 miles per hour zone. Roper was given a traffic citation.
After issuing the citation, the trooper asked Roper, who was at the time seated in the trooper's patrol car, if he had any drugs or guns in the car. Roper said he did not. The trooper then asked if Roper would consent to a search of his car. Roper replied that he had no objection and signed a consent to search form. The trooper testified that he then went to the stopped vehicle and asked both Griffin and Burke if he could search the vehicle and they verbally consented. The trooper in his search of the vehicle noticed a bulge behind the back of each front seat, and when he pulled off the cloth-covered panel from the rear of each seat he found two packages of cocaine, one inside of each panel.
At the hearing on the motion to suppress, it was also established that the vehicle in question had been rented from Budget Rent-a-Car at the Los Angeles, California airport by one Jessica Johnson, the common-law wife of John Griffin. In renting the car, she used a credit card which had been issued jointly in her name and John Griffin's name. The rental contract provided that the car could only be driven by the lessee, Jessica Johnson, and could not be driven outside the State of California without written permission. After renting the vehicle, Johnson turned it over to Griffin. Griffin was going to use the vehicle to transport cocaine from Los Angeles to the Baltimore, Maryland area. Johnson was to fly to Washington, D.C., where she would meet Griffin.
Before leaving for Baltimore, Griffin removed the panels from the backs of each front seat and placed 500 grams of cocaine in each seat. He then re-glued the panels to the seat.
Griffin's drivers license had been suspended, so he hired Roper and Burke to drive the vehicle to Baltimore, agreeing to pay each of them $500. Roper knew that the vehicle he was driving had been rented and that it had cocaine secreted therein. Roper testified, at the suppression hearing, that he had no possessory interest in the cocaine seized.
The district court in denying the motion to suppress held that Roper had no standing to challenge the search of the vehicle and the seizure of the cocaine therefrom, and, alternatively, that in any event Roper had consented to the search.
At the outset it should be noted that Roper has made no claim that the initial stop of the vehicle he was driving was pretextual in nature. Such being the case, the first matter to be considered is whether Roper has any standing to challenge the search of the vehicle. If it is determined that he does not have standing, we need not consider the consent issue.
In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the petitioners were convicted of armed robbery in a state court of Illinois. At the trial, the prosecution offered into evidence a sawed-off rifle and rifle shells which had been seized by the police during a search of an automobile in which the petitioners were passengers. The vehicle was stopped and searched shortly after the robbery. Neither petitioner was the owner of the vehicle and neither asserted ownership of the rifle or rifle shells. The person driving the get-away car was the owner of the car.
In the Illinois trial court, the rifle and rifle shells were received into evidence, over objection. On appeal, the Illinois Appellate Court held that the petitioners, as mere passengers in the vehicle, lacked standing to object to the allegedly unlawful search. On certiorari, the Supreme Court affirmed. In so doing, the Supreme Court in Rakas at 144, n. 12, 99 S.Ct. at 430-31, n. 12, stated that although common-law concepts of real and personal property are not dispositive, "one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of his right to exclude." The Supreme Court also commented that Fourth Amendment rights are personal rights which could not be "vicariously asserted." In this connection, the Supreme Court went on to state as follows:
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 at 134, 99 S.Ct. at 425 (citation omitted).
In United States v. Erickson, 732 F.2d 788 (10th Cir.1984), we...
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