*1 America, UNITED STATES of
Plaintiff-Appellee,
Arturo CASTELLANOS, Defendant-
Appellant.
No. 12-4108.
United States Appeals, Court of
Fourth Circuit.
Argued: Jan. May
Decided: *2 E., .Archenbronn, Michael
ARGUED: Carolina, Ap- Winston-Salem, for North Hairston,. Office of Jane pellant. Sandra Greensboro, Attorney, States the United Carolina, Appellee. ON for North Rand, At- Ripley BRIEF: Carolina, Greensboro, North torney, Appellee. ’ TRAXLER, Judge, Chief
Before DAVIS, Judges. Circuit AGEE Judge opinion. by published Affirmed opinion, majority wrote the AGEE joined. Judge TRAXLER which Chief dissenting opinion. wrote a Judge DAVIS OPINION AGEE, Judge: Circuit conditionally pled Castellanos Arturo Car- District North Middle guilty cocaine. to distribute conspiracy olina is to the appeal challenge on His sole sup- of his motion denial court’s district found cocaine, had been which press tank of a as the in his view was inconsistent the Ex- vehicle was being transported a com- plorer coming from a dealership. He also car agree mercial carrier. We with the noticed the Bondo,” odor of “strong a com- that Castellanos pound failed to commonly used in repair *3 prove he a legitimate expectation had after-market (J.A. alteration of vehicles. vehicle, 38). the and we affirm the Roberts observed fresh tool marks judgment of the court. district where the rear seats were anchored to the floor, indicating those had recently been
I. removed installed. pounded When he floorboard, On the Captain rear Kevin Roberts noticed an Roberts of Texas, inconsistency Reeves in the County, the sound the passen- ger Department, Sheriffs side above conducting gas the tank. patrol routine at Pecos, stop truck near Roberts then inserted a optic scope fiber Texas. He observed a Direct Ship- Auto into Explorer’s the gas tank in order (“DAS”) pers car commercial carrier a peer into its interior. so, When he did filling station, fuel and became suspicious Roberts observed several bags blue float- one
that being transported vehicles ing in the tank. He then asked the car carrier, on the (the car Explorer (Roberts) carrier driver if he could take “Explorer”), bore a dealership placard in custody of the Explorer. The driver con- lieu of a regular license plate. Roberts, sented and officers, with other
Upon questioning possession the took driver of Explorer the car the and trans- carrier ported the Explorer, it to another Roberts was location for further provided shipping documents examination. identifying When Roberts and other of- the owner of the vehicle ficers Explorer Wilmer Caste- examined the in more de- tail, nada. The documents they also found trip reflected a tank had been origin California opened with a final and Bondo, destination resealed with and re- for delivery of the Greensboro, vehicle in covered 23 kilogram-sized bricks of cocaine North Carolina. Roberts with attempted to a street value of approximately $3 contact Castenada using phone number million.
provided DAS, but received answer. no Subsequently, DAS informed Roberts He then attempted verify the origin and that someone claiming to be Castenada destination provided DAS, addresses had calling been DAS to inquire about the but the California address was not associ- delivery of the Explorer. Using new con- ated anyone bearing Castenada’s tact information for Castenada received name, and the North Carolina address DAS, from Roberts called telephone matched two unrelated businesses. When number claiming to be an employee of a Roberts contacted businesses, those their wrecker service in Texas. Roberts falsely representatives each they stated had never informed the individual claiming to be heard of Castenada and were not expect- Castenada that the driver of the DAS car- ing delivery of a vehicle. rier had been arrested his cargo and im-
Unable to contact Castenada, Roberts pounded so that Castenada would be re- asked the driver the DAS car carrier for quired to travel to Texas order to claim permission to search The the Explorer. A days few later Roberts consented, driver and opened Roberts learned someone, later identified as Explorer and began to search the interior Castellanos, Arturo locally had arrived and of the vehicle. He immediately noticed was waiting for a ride to the wrecker “grass and stuff’ area, in the utility which, service to claim Explorer. adduced at detained and located Police entirely of hearing consisted suppression to the the title possession in his
who Roberts, detailed who testimony from number tracking DAS and of the vehicle seizure search bearing paper vehicle, piece that lead investigation subsequent earlier from number phone Roberts’ of Castellanos. arrest his Miranda1 waived calls. Castellanos that he Roberts told rights, not introduce did Notably, Castellanos Explorer purchasing process that he owned to show any evidence Carolina. in North Castenada, who lived conducted time advised Castenada explained permission He then or had search the warrantless *4 in' Cali- home from Castellanos’ Castellanos go Although him to vehicle. to use the Explorer, retrieve the to to Texas a title document fornia to with in'Texas appeared Car- North into it to Castenada put not title then drive he did Caste- pay would to attempt demon- where Castellanos olina or Otherwise would inter- Castellanos "ownership possessory the vehicle. or nada strate to California. out-of- Explorer back Castellanos’ drive in the vehicle. then est Roberts, statements, relayed by expressed as considerable Roberts court After termi- himself main- story,. Castellanos that clear Castellanos skepticism made per- a different interview. that Castenada nated the tained purchase son, as claimed he insofar that a bags two duffle also seized Police in- was an Castenada Explorer from (not appeal) to this party co-conspirator made Castellanos complete transaction. Castella- front desk. motel’s a local left at were and Castenada he showing that no alone, traveling to be nos, claimed who that Castena- person or the same one and to belonged bags of the either that denied his alias. da was one opened Roberts him. When (cid:127) the district items, argument, other After found, in addition to bags, he ruling from bench. a short foreign court issued Feeling a pillow. neck a contoured that The stated it court opened pillow, Roberts object inside motion deny in a telephone [Castellanos’] to going a cellular I’m and discovered with bags, and duffle turned the as to both the bag. When plastic automobile, had which regard on, the number he found phone carrier a common given over provided been the number matched telephone ascertained which were addresses to contact using been by DAS no There was false to be addresses. Castenada. expectation legitimate individuals other Castellanos false. shipper’s address The point. indicted were later appeal party to it was receive was to person who The Carolina of North District the Middle address. false five to distribute of conspiracy one count (J.A. 72.) containing a mixture more of kilograms any findings not make hydrochlo- The court did cocaine amount a detectable §§ fact. 21 U.S.C. ride, violation 846(b)(1)(A).
841(a)(1), and into entered trial, Castellanos Prior gov- with the agreement plea sup- conditional trial, moved Prior to Castellanos sole count guilty to pled bag ernment duffle in the items contained press the indictment, distribute conspiracy gas tank. cocaine found and the (1966). L.Ed.2d 694 Arizona, 86 S.Ct. 384 U.S. 1. Miranda hydrochloride. cocaine Pursuant to Rule The Fourth Amendment protects 11(a)(2) of the Federal Rules of Criminal “against unreasonable searches and sei Procedure, Const, Castellanos reserved right zures.” U.S. amend. A govern IV. appeal the district court’s adverse deci- ment agent’s search is unreasonable when sion on suppress. his motion to Castella- it infringes on “an expectation of privacy nos was sentenced to 120 months’ impris- that society prepared to consider rea onment noted a timely appeal. We Jacobsen, sonable.” United States v. jurisdiction have pursuant to 28 U.S.C. U.S. 80 L.Ed.2d § 1291. (1984). “In order to demonstrate a legitimate expectation of privacy, [Castel- II. must subjective lanos] have a The assignment sole of error raised of privacy,” Bynum, United States v. appeal Castellanos on is that the district Cir.2010), and that sub court in denying erred his motion to sup- jective expectation of privacy must be “ob press the evidence of the cocaine discover- jectively reasonable; words, other ed in tank of Explorer.2 must be an society is will government rejoins, however, that as a ing to recognize reasonable,” *5 matter, threshold Castellanos cannot chal- Bullard, (4th States v. 237, 645 F.3d 242 lenge the search because he failed to show Cir.2011) (internal quotation marks omit a reasonable of privacy in the ted). The burden of showing legitimate a vehicle’s gas tank. If government the is expectation of privacy in the area searched correct, that issue dispositive is appeal with the rests defendant. Rawlings v. so we address it first. Kentucky, 98, 104, 448 2556, U.S. 100 S.Ct. (1980).
We 65 review de L.Ed.2d novo the 633 district legal court’s conclusions on a motion to government The argues suppress. See Cardwell, United States v. Castellanos any expectation lacked pri of (4th 378, Cir.2005). 433 F.3d 388 Normal vacy in Explorer the because the record ly, we would review the district court’s failed establish that actually he owned factual findings the suppression context the vehicle or established any legitimate for clear Here, error. however, See id. possessory it. In the absence the court made no findings is, of fact. “It evidence, of such the argues, course, of the better practice for the dis Castellanos is essentially seeking the pro trict court to make findings, such but of tection the Fourth Amendment vicari where district so, the court fails to do we ously and such a inadequate status is upon assume the district court construed the which to raise a Fourth Amendment evidence in the light most favorable to the claim.3 party prevails who on the suppression mo below,” id., tion case, the govern “The Fourth pro Amendment ment. tects people, not places.” v. Katz United 2. Castellanos challenge does not the district 3. We note at the outset concept that the of court's denial of his "standing” motion to the as it is used in the Fourth Amend contents of bags. largely the duffle ment context Accordingly, any by subsumed substan law, challenge tive Fourth ruling to that Amendment which views the is waived. See United concept through Hudson, 263, the lens of a (4th States v. reasonable ex 268 privacy. of Cir.2012) way, Put (issues another not raised in opening brief Supreme away Court has moved from an in waived). are dependent doctrine “Fourth Amendment Illinois, standing.” In Rakas v. U.S. 439
833
itself,
States,
by
by
19
S.Ct.
were violated
search-
389
88
U.S.
(cid:127) solely
aggrieved
those who are
(1967). Accordingly, Fourth
576
L.Ed.2d
Al-
damaging
introduction of
evidence.”
vicariously
be
rights “may not
Amendment
derman,
171-72,
394
at
89
U.S.
S.Ct.
Rumley,
v.
588
asserted.” “capacity
protection
to- claim the
Cir.2009)
2
(quoting
n.
depends
upon
the Fourth Amendment
...
Illinois, 439
133-34,
128
99
Rakas
U.S.
person
protec-
whether
who claims
(1978)).
“A
58 L.Ed.2d
S.Ct.
legitimate expectation
tion ...
has
aggrieved by
illegal
who is
person
Rakas,
the invaded
place.”
through
intro-
only
search
seizure
at
as person “whether that claims an owner- Accordingly, this is type not of case ship or possessory where a property, defendant has established such a and whether right he has established a close connection to the vehicle that is sub- precautions ject taken to exclude search that may others from he claim posses- Rusher; sory the property.” interest in United States v. it. (4th Cir.1992). 966 Here, F.2d Furthermore, although “[individ Castellanos asserted to Roberts that he may uals assert a reasonable
was purchasing but his claim of privacy in packages addressed to them is not substantiated in by the way names,” under fictitious United States v. record. Castellanos did not enter the title Villarreal, (5th Cir. evidence, of the Explorer into nor did he 1992), we note that Castellanos adduced establish that purchased he the vehicle no evidence at suppression sale, with a bill of Division of Motor Vehi- demonstrating that the name “Wilmer registration, cles or anything else. And Castenada” simply Instead, alias. there that, is no purchased if position Castellanos’ was that he and all, prior he did so to the Castenada were two separate individuals search. engaged in a sale transaction as testified .by Indeed,
Parties
Roberts.
other than
Castellanos
may
repre
owners
possess
sented
trial
court that
priva
“there is no
cy
dispute
factual
See,
here questioning
contents
a vehicle.
e.g.,
the facts
Jones,
(J.A.
United
rendered
U.S. -,
States v.
Detective
Roberts.”
67.)
In
S.Ct.
(2012)
949 n.
absence of
proof. For example, Castellanos present sum, In the evidence heard the dis- (or ed no evidence that anyone Castenada trict court at suppression else) granted had him permission to use failed to support a conclusion that Castel- the vehicle or agent act as his DAS, lanos anything had more than a distantly any or other right any of kind to the attenuated connection to the Explorer. vehicle. case, Jones, This is not a like Castellanos bore the burden to show that where the defendant has established an he had reasonable expectation of privacy, ownership, or a possessory even in and has not he done Having so.5 failed to 5. Because we conclude that Castellanos carrier undermines an otherwise expectation lacked a privacy reasonable of in privacy of in those any part Explorer, of the we need not post address effects. See at 837 3.n. Castellanos does any aspect of the search of the gas tank. standing Explorer lack because the was Accordingly, disagree we with the being transported dissent's by common carrier. He assertion that we fashion a new law of rule lacks carry because failed he to delivering personal that effects to a common to burden show that he constitutionally had a burden, inquired chal- within about the whereabouts cannot carry his Castellanos Ex- of the search lenge the warrantless
plorer. theory upon first observe that the We in good colleague dissent Finally, our ap- which the dissent bases its conclusion warrant a points that we feel makes a few dissenting for the pears first time First, the contends we dissent response. on opinion. opening ap- Castellanos’ brief facts attention how the [our] “focus any stand- peal analysis is bereft at the time Captain appeared despite and ing question, search,” post misapplying at thus thé standing, on brief he lacked argument determining standard for proper no in reply.6 filed brief We Castellanos subjective ex- had a whether Castellanos question to which therefore the extent objectively rea- that is beneficiary can be the Castellanos contrary, analysis our To sonable. he has never argument made. record, rather the facts in the focuses on they may appeared facts as have than the granting Castellanos the benefit of Even in the Roberts. The evidence Captain doubt, assuming Explorer that the record, course, large part based in fact Ave- destined the Montlieu testimony, supple- which was not Roberts’ Greensboro, towing company nue by any proffer or controverted mented inquire did fact therein that Castellanos title, Explorer’s from Castellanos. whereabouts, Explorer’s about the Castel- to the 'of whether highly question relevant establishing no closer to that he lanos is sufficiently owned or had a Castellanos Explorer has a sufficient connection to was nev- close connection Instead, standing. the evi- to establish into Nor was there er entered evidence. at best asked dence shows that Castellanos that, evidence, other than his claim any Explorer place where purchased point he the vehicle some was to be delivered. It does not establish Castenada, inter- that Castellanos had an Castenada, either Castellanos was Explorer time it was est that, contrary lading, to the bill of Castel- searched. sum, In recipient. lanos was the intended addition, argues In that cer- dissent nothing in the dissent alters our conclusion facts, tain known that Castellanos’ interest court, establish district presented is too attenuated demonstrate merely Castenada in fact that Wilmer may have had in Specifically, the an alias of Castellanos. Explorer’s tank was reasonable. although the address posits dissent *8 lading on the bill of was not associat- listed III. near personally, it was ed with Castellanos towing company Explorer the where reasons, the all of the foregoing For (Roberts’ testimo- may have been destined the is affirmed. judgment of district court and that ny equivocal point), may AFFIRMED someone, who have been suppress, the sponse dem- to Castellanos1motion to connection to sufficient to the objectively expectation onstrate an reasonable Castella- of Facts” contained in "Statement privacy. almost opening appeal brief on consists nos’ entirely gleaned testi of facts from Robert’s Indeed, heavily although the relies dissent mony. government’s re on facts taken from the DAVIS, court, Judge, dissenting: Circuit facts before the prior district to the n suppression hearing, demonstrated that legal are all familiar the old We with Appellant objectively had an saw: in the vehicle. against you, the are When facts hammer Rather,than Appellant call on at the outset against you, the law. the law is When (evidence standing to offer evidence of his. hammer the facts. both are When record), already the district against you, yell hammer the and table proceeded directly court to the merits like hell. suppression by the requiring the Fischer, In re 131 B.R. government to put on evidence. id. See (E.D.Mo.1990). Second, court, like the gov- district the the cannot ignored The facts and law be Appellant ernment never called on to appeal. pounding they Nor can the “prove” his standing challenge to the majority take from the denude them of the Explorer. search of the It did not do so power they possess. prosecuting because Assistant United the The record the district court before es- Attorney knew full well that Appel- tablished, by preponderance of the evi- lant, as a member of the narcotics conspir- dence, that ‘Wilmer Castenada”1 was the acy charged seeing delivery to the Appellant, alias of who had a possessory from California to North Carolina of the in, undisputed right and an cocaine hidden in the gas tank of the Ex- over, exercise dominion and control plorer, standing had. to challenge the Thus, Explorer. contrary Indeed, search of the vehicle. record holding by majority’s reached abbrevi- question raises serious toas whether the analysis, proper ated result on the prosecutor affirmatively misled the district record before us is that the district court court, through her presentation selective erred, procedurally substantively, and fac- advocacy facts, and of certain evidentiary tually legally, reaching and conclu- its- making into its erroneous determination of sion that Appellant failed to establish legitimacy Appellant’s expectation of reasonable, i.e., a “legitimate,” privacy. See n. 6. infra privacy2 sufficient to main- tain his Fourth challenge Third, Amendment law, as a matter govern- warrantless, nonconsensual search of ment misapprehend- district court the vehicle. ed the nature and the character of the necessary evidence Appellant to estab-
First, the district court never called on
lish
standing
challenge
his
the search of
during
evidentiary
before or
Explorer.
matter,
the. Ford
As an initial
hearing on
the motion to
court
“prove”
erroneously
standing
challenge
believed that
only
search of the
n.
could
be estab-
16. It
infra
so,
likely,
did not do
lished
formally
most
because the
introduced
facts known to the
and the Appellant. That is not and has never been
parties alternatively spell
cy;
1. The
only
presented
this name
appeal,
issue
"Castenada”
dissent,
and "Castaneda.” To be
only
consis-
issue discussed in this
is the
*9
majority opinion,
dissenting
tent with the
this
legal
correctness of the district court's
conclu-
Castenada,
opinion
spelling
uses the
except
Appellant
"legitimate
sion that
lacked a
ex-
quote.
when used in a direct
point
of
at [the]
[when the
Explorer]
given
Ford
had been
to a
over
com-
Appellant
2. No one
sufficiently
doubts that
mon carrier with addresses which were ascer-
subjective
a
expectation
priva-
manifested
of
tained to be false addresses.” See J.A. 72.
suppression
that its sole
fectively proved
Further-
Part III.A.
law. See
the
infra
narrowly
erroneously
focus- hearing
and
conclud-
more,
obsessively
witness
enforce-
mind of the
state of
law
the
destination
the
ing on the
ed that
intended
of
challenged
the
conducted
who
ment officer
other than
Explorer was an address
district
search,
and the
government
the
lading.
the bill
that
on
identified
of
apply
ap-
the
erroneously failed to
court
bottom,
law,
a matter of
At
as
test
Amendment
Fourth
propriate
society
pre-
relinquish,
and
is not
did
objective
on
hinges
that
a test
standing,
extinguish,
objective
to
reason-
pared
search, not on a
reality
the time
of
subjective ex-
undisputed
ableness of his
subjective
law
belief
officer’s
enforcement
simply
he
pectation of
because
surrounding search
the state
offacts
in
used an alias to conceal his involvement
Part III.B.
and seizure issues.
infra
trafficking conspiracy.3
a narcotics
case,
be,
in
and
it must
this
Viewed as
and for all of the reasons
Respectfully,
objective perspective
an
herein, I dissent.
set forth
search,
is
the issue
time
favor of
correctly resolved in
easily and
I.
Appellant.
court’s
finally, the district
Fourth
A.
use
Appellant’s
that
finding
conclusion
majority
erroneously re-
opinion
hid-
ship
carrier to
narcotics
of a common
to
narrative of this case
gards the relevant
effect,
constitutionally protected
in
den
a
20, 2010, when
commence on
automobile, coupled
i.e.,
an
tank of
Roberts, of the Reeves
Captain Kevin
alias,
delegitimizes
an
use of
with the
Texas,
hap-
Department,
County,
Sheriffs
clear
constitutes
privacy,
in
in cocaine
upon million
hidden
pened
$3
error. See
legal
manifest
factual
error
a Ford
gas tank of
in
D.
this
& The evidence
Parts III.C
infra
a warrant and without
searched without
com-
that the district court
record shows
Rather,
government
as the
valid consent.
finding
in
“[t]he
clear error
mitted
court in its written
the district
advised
(whatever
false”
address was
shipper’s
suppress,
to the motion
opposition
means)
who
person
and that “[t]he
2009. As
story begins sometime
Explorer] was
[the
receive
to the district court:
explained
72;
J.A.
see
false
[sic].”
address
infra
the Greensboro
During
or about
Indeed,
directly contrary
Part III.E.
Drug Enforce-
Resident Office
finding,
court’s
district
ef-
appeal
token,
majority
this
suasive. Not even
court and
By
the district
same
legal
extent
dubious reason-
majority
accepts
error to the
the Seventh Circuit’s
commit
holding
deliver-
they
a new rule
men-
ing;
majority
fashion
does not even bother
constitutionally protected personal effects
ing
explained
As
tioning Crowder. No wonder.
to under-
carrier is sufficient
III.D,
common
turning
fact of
in Part
the mere
infra
over an item to
objectively
reason-
mine
is otherwise
what
does not
a common carrier
Although the
privacy.
able
expec-
extinguish
one’s
held,
authority
has
Seventh Circuit
sole
majority
If the
privacy in the item.
tation of
summary
court in
relied
the district
its
silentio,
intends,
contrary
to fashion a
sub
here,
that an
denial of the motion
then,
rule,
irregular procedural
light
any privacy
relinquishes
individual
should,
below,,
at mini-
we
course of events
shipper,
he turns it over to
a car when
mum,
judgment
and remand
vacate the
Crowder,
934-
States v.
proceedings
the motion
case for further
Cir.2009),
reasoning in
the court’s
suppress.
unper-
wholly
deeply flawed and
case
*10
(GRO-DEA)
Greensboro,
initi-
ment Administration
been able to surveil one of the
Carolina,
investigation
suspected
into the
participants
ated an
North
in the con-
drug trafficking activity of Juan Manuel
spiracy through the
tracking
use of GPS
investigation
Lopez. The
continued into
technology. Through the
of that tech-
use
in
DEA
August
agents
nology
investigative
and other undisclosed
obtained court authorization to
a
install
activity,
investigator, Agent
the lead
Ra-
(GPS)
global positioning satellite
track-
zik,
anticipate
came to
the arrival of the
ing
burgundy
on a
device
Chevrolet Sil-
Greensboro,
in
and learned
verado
truck
pickup
by
utilized
Juan
Appellant,
Arturo
was us-
Lopez.
Manuel
ing the alias
in
“Wilmer Castenada”
(footnote omitted).4
management,
conspiracy,
on behalf of the
Thus,
J.A. at 21-22
shipping
delivery
of the
of the Ford
had been
investigating
Explorér
from California to North Car-
trafficking operation
Greensboro narcotics
22-24,
short,
olina. J.A.
by
of which
45-48.
In
Appellant
part
was a
for more
time of
year prior
serendipitous
Captain
than a
in-
Roberts’s search of the
Captain
tervention of
Roberts in
the United
had at
Texas on
States
Indeed,
participants
drug
as set forth
least one of the
above,
case,
for approximately
prior
charged
a month
conspiracy
this
of which
Texas,
the events
part,
United States had
a
sights.
well
its
(citations omitted).
undisputed
4. This dissent’s consideration of
Id. at 148
It would make
case,
facts in
record of this
set out in the
mockery
judiciary’s
a
assertion that it is
opposition
Appel
written
impartial
seeker of truth to make this rule
15-24,
suppress,
lant’s motion to
J.A.
see
but
one-way
by applying
solely
a
street
to evi-
outside the formal testimonial record of the
dence that confirms a district court’s denial of
hearing
suppress,
fully
on the motion to
is
suppress, particularly
a motion to
on the
precedent.
consonant with circuit
In United
standing.
threshold issue of
dissent,
Gray,
vigorous
over
Thus, this dissent relies on this Court’s ac-
presented
Court relied on evidence
at sentenc
knowledgement that the search for truth is
ing
up
to shore
its affirmance of the district
enhanced
consideration of “a more com-
determination,
court’s
made at the conclusion
prehensive
supporting
record”
a district
evidentiary hearing
of an
on a motion to
suppress
court's denial
a motion to
"be-
suppress,
objec
defendant lacked an
pertinent
suppression
cause all the facts
ato
tively
privacy.
inevitably developed
pre-
motion are not
at a
(4th Cir.2007).
F.3d
146-54
We rea
Likewise,
hearing.”
trial
Id.
when "a more
follows,
pertinent part:
soned as
comprehensive record” is available to demon-
recognized
This court has
later
when
pre-trial
mling
strate
the denial
on
proceedings confirm the correctness of the
erroneous,
manifestly
clearly
findings,
district court’s
we can affirm a
the search for truth is enhanced when we
pre-trial suppression ruling based on such
precept
espe-
examine that record. This
ruling
evidence. This
sense
makes
because
where,
here,
cially true
the district court
pertinent
suppression
all the facts
to a
mo-
independent findings
made no
and the facts
inevitably developed
pre-
tion are not
aat
relied on are vouched for
trial
and both the trial court and
opposition
in its written
to a defendant’s mo-
appellate
precluded
court should not be
part
joint
tion to
and made a
taking
comprehensive
note of a more
appendix
appeal. See J.A. 15-29. See also
here,
supporting,
record
as it does
the dis-
Jordan,
United States v.
trict court’s initial denial of the motion to
'
(11th Cir.2011)
that,
(noting
reviewing
suppress.
adopting
contrary ap-
In
"rulings
suppress,”
appel-
motions
proach, the dissent would create an artifi-
truth,
late court
against
is “not restricted to the evidence
cial barrier
ascertainment of
lowering
presented
suppression hearing
the curtain well before the
and in-
end of
play.
record”).
stead
consider[s]
whole
*11
29, 2010,
employee
September
On
proffer of evidence
The
Avenue
notified
at the Montlieu
business
opposition
in its
court
the district
Agent
Hispanic
Razik that the
man had
as follows:
suppress continued
motion to
inquiring
again come to the business
26, 2010, agents moni
September
On
Explorer.
employ-
the Ford
The
.about
Lopez’s
tracker followed
the GPS
toring
presented
that the man had
ee advised
of Mont-
the intersection
first to
vehicle
tracking
copy
number and a
of the title
in
Market Street
Avenue and
lieu
n
Explorer. Agent Razik went to
for the
Greensboro,
Approxi
North Carolina.
copy
and obtained a
the business
later,
to a
he traveled
mately 40 minutes
title. He also showed the
vehicle’s
two
High Point
near
Road
restaurant
spoke
Hispanic
who
with the
employees
in
Surveil
Drive
Greensboro.
Meritt
that was
from
photograph
man a
Lopez leave the restau
taken
agents
lance
saw
rant
as Auturo
with
two other
[5]
CASTELLANOS
men,
later identified
and Raul
the video
on
September
footage
.2010.
Four Seasons Mall
Both
employees
defendant Auturo CASTEL-
identified
togeth
traveled
The three
Hernandez.
LANOS as the man who had been
vehicle to Four Seasons
Lopez’s
er in
September 24 and
business between
Mall Greensboro. Surveillance
in
foot
29, 2010,
September
inquiring
by DEA
was obtained
age
Mall
from
Explorer.
Ford
agents.
added).
(emphases
22-24
J.A. at
a busi-
he was
with
Because
familiar
Montlieu Avenue
ness located
Thus,
suppression
time of the
at the
area
Greensboro
and Market Street
case,
6, 2011,
July
hearing in this
on
DAS
shipped
receives
vehicles
Appellant
full
knew
well
government
Agent Razik
Shippers, Special
Greensboro,
Auto
North Car-
appeared
had
any-
and asked
olina,
contacted the business
actual Montlieu Avenue ad-
if
day inquiring
in on that
Explorer
one
been
the Ford
was to be
dress where
agent
The
was advised
about a vehicle.
who at all times was
by Appellant,
received
just
alias, “Wilmer,”
been in
Hispanic man had
and who was
using
that a
assigned
about a Ford
the 336-263-7145
making inquiry
using
phone
short,
government
the same
knew
advised that
In
Agent Razik was
number.
motion to
since
on the
been in several times
at the time of the
man had
“Wilmer
asking
Appellant
about the
September
also knew
number
telephone
The man
Castenada.”
vehicle.
left
September
during
period
between
number.
as a contact
336-263-7145
201Ó,
was Greens-
Appellant
24 and
the Montlieu
September
On
Carolina,
boro,
California.
North
Razik
Agent
business
Avenue
notified
And,
knew that
man had called
Hispanic
that the same
that had
conspiracy
of a
was a member
Explorer and the
again about the Ford
traf-
for narcotics
investigation
been under
as “Wilmer.”
man
himself
identified
source,
ap-
a California
ficking, with
going to contact
The man stated he was
year.
one
proximately
DEA
directly. DAS Auto
DAS
notified
27, 2010, that
September
later
recites, the dis-
majority opinion
As the
in Texas on
Explorer was seized
Sep-
search of the
puted
parallel
transpired
tember
in’Greensboro.
described events
the above
spelling
employs
used
dissenting opinion
Appel-
alternatively spelled
parties have
5. The
appeal: Arturo.
of this
This
on the docket
and "Auturo.”
lant’s name "Arturo”
*12
was,
suspicious
unmistakably,
recipient
while
Captain Roberts became
stop
upon
truck
when he came
a Greensboro.
at
local
which,
top
car carrier
on the
commercial
attempted to contact Appellant
Roberts
trailer,
an
rack of
was loaded with
phone
shipping
at'the
number listed on the
Explorer
Ford
that was be-
“older model”
documents, but
there was no answer.
ing transported from California
Greens-
unspeci-
Roberts then determined from an
boro,
North Carolina.
J.A.
This was
Appellant
fied
appar-
database
had no
Appellant
the vehicle that
and his associ-
ent connection to the California address.
Greensboro,
awaiting in
ates had been
(apparently using
Roberts also determined
Appellant regularly inquired
which
law enforcement or commercial databases
the Montlieu Avenue address
at
record)
not identified in the
un-
two
no later than
beginning
Sep-
Greensboro
identified businesses could be associated
tember
2010. Roberts examined the
with an address on Montlieu Avenue
shipping
Explorer;
documents for the Ford
Greensboro,
Carolina,
North
where the
Casténada,
alias,
Appellant’s
was
Wilmer
Explorer
Ford
was to be delivered to “Wil-
shipper
recipient.
listed as
both
mer
But
Castenada.”
when he called
(or
Regardless
Appellant
of whether
some
businesses,
those
no one at either was
conspiracy)
other member of the
was the
familiar with the name
Castena-
“Wilmer
actual “shipper”
da,”
the sense that he had
and no one to whom Roberts spoke
—in
Explorer
been California when the Ford
anticipated
could confirm
delivery
of a
Explorer.6
had' been loaded onto the DAS trailer —he
Ford
It
upon
these facts—
Although
Explorer
just
did not elicit the
Ford
across the street
Avenue, wjt,
during
testimony
address from
Montlieu
136 Mont-
his
at
Avenue,
Street,
lieu
near Market
where there is
suppression hearing,
the Montlieu Avenue
towing company
Bobby’s Friendly
(which
known as
lading
address on the bill of
itself is
(Roberts’s
Towing.
testimony
See J.A. 45
record)
govern
not in the
was set forth in the
Razik);
Agent
about his conversation
with
id.
response
sup
ment’s written
to motion to
(Roberts’s
testimony
at 55
press.
appeared
J.A. 16. The address also
arrest,
upon
piece
paper
had a
with
Guilty
the "Factual Basis in
Plea”
Support
Bobby’s
information about “I believe a
Tow-
filed in the district court about two weeks
ing here in Greensboro where the vehicle was
hearing
suppress.
after the
on the motion to
to”);
possibly destine
Better
[sic]
Business
Factual Basis Document
United
Bureau,
Bobby’s
BBB Business Review of
Castellanos, No.
1:11-cr-00031-NCT-5
Inc.,
Friendly Towing Storage,
http://www.
&
(M.D.N.C.
2011) (hereinafter
July
"Factu
bbb.org^greensboro/businessreviews/towing-
Basis”).
supra
(discussing
al
n.
companies/bobbys-friendly-towing-and-
propriety
considering supplementary
mate
(last
storage-in-greensboronc-4004988
visit-
rial outside
formal
testimonial record cre
16, 2013);
Apr.
GoogleMaps, http://maps.
ed
hearing
ated
sup
at the
on the motion to
(search
google.com
“bobby’s friendly towing
press).
greensboro north Carolina” and zoom in five
Avenue,
The address
is 135 Montlieu
times) (last
16, 2013).
Apr.
visited
Cf.
Greensboro,
Carolina,
North
and two busi-
Foster,
States v.
295 n. 6
nesses share that address: Briclcwood Build-
Cir.2011)
J.) ("We
(Agee,
judicial
take
notice
ers and Dove Communications. Factual Ba-
”).
map
County, Virginia....
of a
of Lee
sis 2.
are the
These
businesses that Roberts
I,
one,
govern-
am disturbed that the
telephoned
September
on
immedi-
proceeded
ment
as it did. The
warrantless,
ately before he conducted the
presented misleading testimony to the district
Ford, nonconsensual search of the
likely
grossly distorting
court that
had a
effect
course,
Id. Of
as he
testified
the motion
hearing judge’s comprehension
on the
July
whether,
Roberts learned after
bearing
time Rob-
speaking
Agent
warrantless,
Razik on
erts conducted his
nonconsensu-
2010, that, contrary to the address on the
Explorer, Appellant
bill
al
search of
in,
lading,
(as
delivery
the correct
ownership
right
address for the
such
and,
response
these facts alone —that As
to the mo-
apparently,
clear,
erroneously
tion to
concluded
made
“a
the district court
business
“legitimate
had lacked
located
Montlieu Avenue and Mar-
ket
area of
...
privacy”
point
Greensboro
re-
Street
to a
given
shipped
“had been
over
vehicles from DAS Auto
ceive[d]
Shippers,”
Hispanic
carrier with addresses which
and “a
man” had visit-
common
*13
false addresses.”
ed the business “several times
Sep-
were ascertained
be
since
24, 2010,”
tember
asking
72.
about “a Ford
J.A.
Explorer.”
J.A. 22-23.
course,
above,
set forth
and as the
Of
Roberts,
Captain
at the time of the
having
stymied
well knew
been
(even though
allay
his efforts to
suppression hearing
suspi-
Roberts
or confirm his
regarding
Explorer,
not know it at the time he searched the
cions
decided to
did
20, 2010),
worry
Roberts
roll the constitutional dice and
vehicle
is,
seriously
attempt
consequences
pro-
mistaken in his
later.7 That
(1)
investigate
the destination of the
ceeded to search the vehicle
without
conspiracy)
a
of the narcotics
to ex-
tain Roberts failed to take the time to
member
contact
and control over the
colleagues
ercise such dominion
his
in the law enforcement com
Explorer,
Greensboro,
Carolina,
as to sustain his
munity in
North
privacy against gov-
reasonable
of
suspicious
destination of the
vehicle. For
intrusion.
ernmental
decades,
local, state,
agencies
and federal
judge
If the
had been told
capacity
have demonstrated an admirable
for
lading
that the bill of
contained not a “false
See,
interjurisdictional cooperation.
e.g., the
found)
(as
judge ultimately
but
address”
213,
Gates,
seminal case of Illinois v.
462 U.S.
address,
by
digit
merely
off
one
an erroneous
225-26,
2317,
103 S.Ct.
arrived Septem- On the I believe it 1, 2010, when he and one of his ber, October I Razik.... He spoke Agent were arrested. coconspirators aware of the Mat- of the title document to possession fact, waiting ter of he was for the Ford tracking- information Explorer to arrive in North Carolina. DAS, phone using a cell up. Through The vehicle never showed had used to communicate same number he investigation, he was to come to able preceding several with Roberts over appre- the conclusion had been days.13 hended and seized Texas and that’s num- got my phone where he name and Meanwhile, Greensboro, Agent back in ber and contacted me. successfully story uncovered the Razik had Id. at 45-46. The government’s response when he of the undelivered to the motion further elaborat- on Mont- towing business returned *15 cooperation ed on the the two law between Avenue in Greensboro and learned lieu officers: enforcement inquiring been the man had 28, 2010, Septem- September Agent between On Razik the Ford spoke Captain 2010. J.A. 23- with Kevin Roberts who September ber and fact, according In to Roberts’s confirmed that the vehicle had been Q. person you phone matching phone And that later determined number "wasn’t Mr. Arturo correct? to be lading.” had off the bill of [he] number figure, yes. A. Best I can 43; (government's opposition to J.A. id. at 23 J.A. 61. suppress, asserting "[t]he the motion to telephone listed for Castenada on the number government, Inexplicably, and the ma- 336-263-7145”). Lading Bill of was lead, jority following de- Appellant's to activities votes much attention (Roberts’s testimony that “Wil- 12. See J.A. 43 specifically in Texas and his interactions with Castenada” called him from 336- Captain mer had Roberts after he had been arrested (Roberts’s 263-7145); testimony id. at there. But few of those facts bear on earlier, time, at the one week that 336-263-7145 "was the same number” state of affairs warrantless, Roberts conducted subject Wil- when from which "the identified as ... search of the Ford called). nonconsensual mer Castenada” had having any And the limited evidence rele- suppression hearing Roberts testified Appellant's appeal vance to the issue that Wilmer Castenada Arturo Castella- against the acts statements in Texas cut nos were one and same: (1) Appellant appeared government: with the Q (336)263-7145] you recognized as [ And vehicle; (and (2) Appellant insisted title to the being the number that the individual disclaimed) pur- never denied or he was calling when he was con- was ... vehicle; (3) Appel- of the chaser/owner tacting you? phone assigned possessed lant Mr. A. Yes. Identified as Wilmer Castena- using Roberts had been number which da. That’s also the same number that I Appellant. All of these communicate Ship- with DAS believe Mr. Moore Auto confirmed Roberts in his hear- facts were pers given me. ing testimony. wholly escapes me how this It Q. belonged to Wilmer Caste- against finding, That he said than in evidence cuts rather finding, support nada? that at the time of vehicle, Appellant harbored an search of the A. Yes. alias, person Castenada, seized from the DAS car carrier after 23 óf his Wilmer Avenue, Greensboro, at 136 Montlieu kilograms of cocaine were found North Carolina.14 Captain tank.. advised Agent Razik that bill of vehicle’s B. lading being stated vehicle was 1, 2011, February On grand federal Gardenia, California, shipped from jury in the Middle District of North Car- Greensboro, “Wilmer Castaneda” olina indicted Castellanos and others for telephone North Carolina. The number conspiracy to kilograms five distribute Bill listed for Castaneda on the of Lad- more of a mixture or containing substance ing was 336-263-7145. hydrochloride, cocaine violation of Id, at 23. 1, 2011, §§ April U.S.C. 841 and 846. On (cid:127) ¡fc % ;£ íjs ;Ji pled guilty. The only sum and ra- substance On June Castellanos moved to tional version of the interstate narrative suppress all evidence seized from the Ford record, shown time Rob- Explorer, arguing that the search had vio- erts conducted his warrantless and non- lated the Fourth Amendment.15 gov- Explorer consensual search of the Ford ón argued ernment that Castellanos had no Appellant’s job is that challenge the search because coconspirator as a in the charged conspira- he had any “expectation lacked cy joint possession, to exercise domin- in a vehicle that being under a shipped ion, and control over the Ford fictitious name to the per- same fictitious delivery himself, and see Greensboro, to its safe son at an address in North company carrier that the vehicle was in Pecos, *16 in the vehicle. Texas. CASTELLANOSadvised Lo- pez that he and Hernandez would travel to summary 14. The narrative set forth in this is Pecos in order to retrieve the vehicle. Lo- fully described in the Factual Basis: pez stated that he advised CASTELLANOS During debriefings, Lopez Juan Manuel trip not to make the and to take a loss on agents advised DEA that defendant CAS- the vehicle and the load. CASTELLANOS TELLANOS and Raul Hernandez were the trip Lopez gave decided to make the two men he had ... to meet in instructed $1,000 CASTELLANOSand Hernandez 25, Greensboro on or September purchase cash in order to airline to tickets 2010, possession ship- in order to take aof Lopez dropped pair Texas. off at the According Lopez, ment of cocaine. to Raleigh-Durham airport. Lopez stated that being shipped cocaine was in a vehicle via spoke with the California Oc- on source car carrier from a source in California. 2, tober Lopez 2010. The source advised Lopez The source told that CASTELLANOS that the defendant and Hernandez had and Hernandez would take possession of drug trafficking organization. robbed the load vehicle and deliver cocaine to call, During subsequent a the source ad- Lopez. Lopez stated he took defendant Lopez something right vised was not CASTELLANOSto obtain a fictitious identi- shipment] Lopez [with the and directed to Lopez fication card. recalled that the last get Lopez rid of the contact number had for name on the ID card was Castaneda. Lo- defendant CASTELLANOS. pez advised that defendant CASTELLANOS parties Factual Basis 10-12. The confirmed went to a carrier business near Market account, well, sentencing as hear Street and Montlieu Avenue in Greensboro 23-25, ing. Sentencing Tr. United States September several times between 25 and Castellanos, No. 1:11-cr-00031-NCT-5 September in order to find out (M.D.N.C. 12, 2012), Apr. ECFNo. 98. n when the vehicle be would delivered. On CASTELLANOSwas 15. J.A. 10-13. Castellanos also moved to by person advised a at the Greensboro car the evidence seized from the duffel to assigned justify Appellant’s to two local isted the search.” that [wa]s Carolina He “[pjlacing also at 64. Br. 13. contends that J.A. 26. See id. businesses.” into the ... shipper item hands of a does 6, 2011, the district court denied July On pri- not ... diminish one’s suppress, reaching bare the motion vacy in that at item.” Id. 9. conclusion, by any legal unsupported find fact, counters that ings that Castellanos had lacked Castella- no legitimate expectation priva- in a vehi nos had because, search, cy over to common at the time of the given cle that “had been “no ... which ascer facts connected Ex- [him to] with addresses weré carrier 18, July plorer”: provided J.A. 72.16 “The information tained to be false.” On false,” 2011, totally car carrier entered conditional service was Castellanos “subjective 74, guilty reserving right expectation” plea, id. drugs would is “not suppression ruling, see Plea not be discovered one
challenge
Castellanos,
4,
society
recognize
Agreement
prepared
States v.
(internal
(M.D.N.C.
Br. 13
July
Appellee’s
No.
reasonable.”
1:11-cr-00031-NCT-5
omitted).
2,
2011),
quotation
On
marks
ECF No. 66.
December
to 120 months in
he was sentenced
III.
Judgment
74-75.
was en
prison. J.A.
February
tered
Castellanos
proper
A
determination of
re-
February
timely appeal
filed this
all the
quires careful consideration of
evi-
dence,
Id.
regardless
party,
gov-
of which
defendant,
ernment dr the
introduces the
II.
Moreover,
evidence.
the evidence must be
objective
wholly
per-
considered from a
argues
the district
Castellanos
spective,
regard for the state
denying
sup-
court
his motion to
without
erred
searching government agent.
mind of the
press
from the
the evidence
Finally,
of an alias nor
did
obtain a
neither the use
because the
possession
constitutionally
transfer of
exception
no “well-defined
ex-
warrant and
'
Texas, id..,
bag
him to
but has
THE COURT: Mr.
would
he took with
you
appeal.
you
prefer
name
that claim on
Castellanos the
abandoned
—is
by?
be addressed
*17
Yes,
Curiously, although
writ-
That’s
THE DEFENDANT:
sir.
fine
opposition
ten
the motion to
re-
to
me.
alleged
solely
Appellant’s
lack of
lied
may be seated.
THE COURT: You
Ms.
transcript
hearing
standing,
Hairston,
of the motion
you have evidence?
do
that neither the
nor the
Yes, sir,
shows
Your
MS. HAIRSTON:
Honor.
actually
called on
district court
time, Captain
We would
to call at this
like
"prove”
standing. Specifically,
this is
Kevin Roberts.
how the motion
commenced:
ROBERTS,
(CAPTAIN
GOVERN-
KEVIN
WITNESS,
SWORN.)
MENT’S
WAS
Ms. Hairston.
THE COURT:
Thus,
government proceeded
to introduce
morning.
Good
Your
MS. HAIRSTON:
it
it was satisfied had to
evidence even before
Honor,
calling
we’re
United States of Amer-
so,
standing,
Appellant lacked
do
because if
number
ica versus Arturo
case
there
no need for
represent-
Mr. Castellanos is
l:llCR31-5.
Illinois
at all. See
v.
introduce
by
case
ed Mr. Michael Archenbronn. The
Andreas,
765, 771,
3319,
463
103 S.Ct.
U.S.
hearing on
called for
the Defendant’s
is
("If
(1983)
inspection by
protected transport effects for com- is a expecta “What objectively privacy by carrier vitiates an reason- tion of mon is definition related to time, privacy place in connection able and circumstance.” United property. 1149, 1154 with that States v. Ramapuram, 632 F.2d (4th Cir.1980). Thus, in determining
A.
a person
whether
a reasonable expec
has
particular place
tation of
in a
or
“It
that ‘suppression
is axiomatic
object,
totality
courts consider the
product of a Fourth Amendment violation
circumstances,
151,
Gray, 491 F.3d at
tak
successfully urged only by
can be
those
ing into
person
account “whether
[the]
rights
by
whose
were violated
the search
ownership
claims an
or
itself,
possessory interest
aggrieved
those who are
sole-
Rusher,
property,”
v.
States
ly by .the introduction of damaging evi-
”
(4th
868,
Cir.1992);
966 F.2d
875
the indi
dence.’ United
v. Gray,
491 F.3d
Cir.2007)
searched,”
(4th
vidual’s “control of the area
138, 144
(emphasis
origi-
Horowitz,
nal)
1222,
United States v.
States,
806 F.2d
(quoting Alderman v. United
(4th Cir.1986);
171-72,
1225
165,
961,
“his
394 U.S.
22
efforts
ensure
89 S.Ct.
(1969)).
id.;
“Thus,
privacy”
object
area,
[his]
L.Ed.2d 176
or
‘capacity
protection
purposes
to claim the
“the
of the Fourth
which the individual uses
Stevenson,
depends
upon
property,”
Amendment
...
v.
whether
United States
(4th
538,
Cir.2005);
person
protection
who claims the
...
396 F.3d
546
his “his
legitimate expectation
has a
of privacy,
property,”
in torical use of the
United States
”
Sanchez,
(1st
place.’
110,
invaded
Id.
v.
(ellipses
origi-
943 F.2d
113
Cir.
nal)
Carter,
(quoting
1991);
Minnesota v.
“society’s
525
common understand
U.S.
119
142
ing
S.Ct.
L.Ed.2d 373
as to areas that deserve Fourth
(1998)
Illinois,
(quoting
Stevenson,
Rakas v.
439
protection,”
U.S. Amendment
“Any
L.Ed.2d
Notably, the Fourth Amendment “does ing standing to challenge a search under only not shield those who have Stevenson, title to the the Fourth Amendment. DeForte, premises.” searched Nonetheless, Mancusi v. F.3d at 547. the defendant *18 2120, 392 U.S. 20 affirmatively present need not evidence of (1968). Indeed, L.Ed.2d 1154 person legitimate his expectation “[a] of privacy; rath- may legitimate have a expectation er, priva may simply “point specific evi- cy in a place object or he does not own.” dence the record which the Perez, 1336, 1338 United States v. 689 F.2d presented [has] which established] (9th Cir.1982) curiam) (per (citing Zermeno, United standing.” United v. States 66 275, (5th (9th Reyes, 1058, Cir.1995).17 States v. 595 F.2d 278 F.3d 1062 A mere Gales, 936, (N.D.Cal.2010) ("[A] Accord United F.Supp.2d States v. 745 n. 4 948
847 Cir.2003) (“[A] (1st 21, protec- F.3d 32 will suffice. 351 of the evidence preponderance 789, ... Amendment] 795 tible [Fourth 221 F.3d Vega, v. United depend does not on the state of mind of (5th grounds Cir.2000), abrogated on other time, seizure.”). police Aguirre, v. by United States recognized Cir.2011). Rather, (5th perspective— “the omniscient is 606, 611 n. 13 F.3d 664 Helms, considering sup- a a motion to judge what F.2d States v. 703 Accord United knows, Cir.1983) post reality (4th press ex drives (noting that 759, 763-64 —that LaFave, Wayne R. standing doctrine.” 6 hearing” suppression at a “any ... fact A Search & Seizure: Treatise on the only by preponder- must be “established (5th ed.2012) § evidence”). Fourth Amendment 11.3 ance of the Colb, Standing (quoting Sherry F. Room B. Only: Why Fourth Amendment Exclusion Longer Logically No Standing Can Because, majority recognizes, a as the Coexist, L.Rev. 1671 28 Cardozo exists (2007)). subjective ex- has where the defendant- reasonable, is inquiries The results of Roberts’s only person is the ante Castellanos only the Ford are relevant inso- Nonethe- mind is relevant.
whose state of they provide objective far as less, majority focuses its attention in- “ownership possessory who had an or Captain appeared the facts how Rusher, vehicle, 966 F.2d at terest” doing, In so at the time of the search. it, Horowitz, 875, who had control of 806 or longstanding Fourth majority misapplies at 1225. evidence is limited Such reaches the principles and Amendment Roberts’s, discovery, shipping that the doc- wrong result. the owner as Wilmer uments identified Castenada, this, subsequent the “state officer’s in a case like
Simply put, Ap- discovery that Castenada was pos Wilmer regarding the searcher of mind of That Rob- supra(cid:127) alias. See pellant’s the item searched n. ownership session the bill of subjectively thought that standing.” erts to the issue of is irrelevant Han, delivery address for lading listed a false 74 F.3d 545 States v. above, Cir.1996) irrelevant; govern- (4th as shown v. (quoting United States that a Mont- (9th filings ment’s own indicated Canada, Cir. 1378 Paradis, expecting 1975)). towing business lieu Avenue also United States support of a defen may be cited in standing by pointing rect case may defendant establish record, (internal including claim.”) standing to all evidence in citation dant's evidence.”); United States v. Hall, Jr., omitted); Government's Wesley Search dr 1 John Doe, (E.D.Tex.1992) F.Supp. 2012) ("It (Lexis-Nexis is con § 6.3 Seizure legiti- (finding established that defendant [stand the defense could show ceivable that through privacy in a car mate and that it ing] through prosecution witnesses "testimony by government witness from many circum could be self-evident that defen- reasonable to infer [wa]s which it Fuentes-Borda, stances.”), citing People v. was lawful possession of the vehicle dant's (1992) (holding N.Y.S.2d A.D.2d LaFave, Wayne R. permission”); and with challenge po that defendant A Treatise on the Fourth Search dr Seizure: because, although apartment lice invasion of 2012) ("[I]t 11.2(b) § ed. Amendment "personal stand had not asserted defendant actually met may happen that the burden is *19 defendant ing,” police observations of “the given by [government].”), by evidence ... entering, exiting lock companion and his 950, Gonzalez, 510 citing People v. 68 N.Y.2d privacy inter apartment ing established (1986) 1002 N.Y.S.2d 502 N.E.2d standing”). ("[E]vidence People's sufficient to confer during di- est elicited c. delivery Explorer. supra Ford of the Indeed, n. himself testified Appellant That used an alias does not “Bobby’s Towing ... in Greensboro” was his objectively expecta- defeat reasonable “possibly where the vehicle was des- privacy. tion of Although we have held officer further Id. The testified tine[d].” that an individual who is not thé sender called the shipping had legitimate does have a expectation of company inquire several times to about the privacy in a mailing addressed to a third Explorer, and had arrived Texas— party,18 the use of an alias alone does not right foreclose the to retrieve the vehicle—with the title docu- to assert a Fourth Amendment claim. The distinction be- tracking Explorer, ment to the information tween the use of a third party as an ad- DAS, phone using from and a cell dressee, and the use an disguising of alias same number he used communicate addressee, identity the true cannot preceding with Roberts over the several be An overstated. individual who is not days. expectation sender cannot assert an of sum, objective In evidence adduced privacy in mailing to an addressed actual suppression hearing demonstrated party third because the privacy right, and that' Wilmer Castenada was Appellant’s thus Fourth Amendment challenge, alias, Wilmer Castenada was listed belongs contrast, party. to that third In láding bill of for the Ford Explorer, Appel- where, here, the individual asserting the lant had the shipment tracking title and privacy is in fact the ad- vehicle, information for the he had called disguised dressee but has identity his true several times to check’on the status of the alias, by using an expectation retains phone he had the cell privacy object, in the right and the calls, which he had made those and a bring a Fourth challenge Amendment towing company in Greensboro had been the search object. or seizure of that expecting delivery. the vehicle’s The court Despite majority’s unwillingness knew, also from the opposi- principle, follow this a number of courts suppress, tion to the motion to Appel- already have done so. See United States lant had visited the towing Greensboro Villarreal, (5th v. 963 F.2d Cir. business several times to ask about the 1992) (holding may that “individuals assert n These undisputed facts a reasonable expectation privacy establish, were more than sufficient by a packages addressed to them under ficti preponderance evidence, Appel- names”); Johnson, tious United States v. lant had an protect- Cir.2009) (“there 584 F.3d able Fourth Amendment is a fundamental difference between mere and, particular, in the privacy ly using an alias to receive a package and (cid:127) afforded its tank. using another’s identity”); United States Givens; defendants). Smith, See United 733 F.2d See also United States v. (4th Cir.1984) curiam) (per 341-42 (finding (11th Cir.1994) (holding a legitimate expectation defendants lacked a legitimate defendant lacked a privacy in the package contents of a ad- to, privacy opened in a letter addressed entity, dressed "neither to them nor to some by, party); Koenig, a third United States v. fictitious, real or ego, which is their alter but (7th Cir.1988) (finding a defen- parties,” specifically to actual third re- who was "neither the sender nor the dant serving opinion legitimate whether ex- package” addressee of the had no package can exist in it, right standing). and thus lacked entity addressed to a fictitious created
849 (D.P.R. Colon-Solis, jectively privacy 508 186 reasonable of F.Supp.2d expectation v. 2007) (“It It long that indi in the item. has been held that generally accepted is packages and sent the mail expecta through a letters may assert reasonable viduals full pro- to are accorded Fourth Amendment in addressed privacy packages of tion Jacobsen, names”) tection. See United States v. (citing fictitious Unit under them 109, 114, 161, 466 U.S. 104 80 Goldsmith, S.Ct. F.Supp.2d v. 432 ed States (“Letters (1984) (D.Mass.2006), Villarreal, L.Ed.2d 85 and other 963 and 170 in 774). packages are of general sealed class F.2d public large in which the has a effects in opinion Unit- As the Seventh Circuit’s legitimate expectation privacy; of warrant- us, “there is v. Pitts reminds ed States presump- less searches of such effects are inherently wrong with a desire nothing unreasonable.”) omitted). (footnote tively anonymous sending or re- remain when observed, This (7th pack Court has “Sealed package.” a 322 F.3d 459 ceiving are, course, of ages entitled to Fourth Cir.2003). Although enforcement a “law protection against Amendment warrantless is entitled to certainly or a court officer seizures, any just searches other the use of an alias as a relevant consider Givens, area.” v. private' United States deciding mail factor whether to detain (4th Cir.1984) F.2d 341 cu- (per warrant,” an alias ... issue a the use of or riam). legitimate pri of expectation not result in a loss of Fourth alone should ' vacy through the mail packages sent n. 1. To rights. Amendment Id. at 459 and common to both carriers extends significantly otherwise weakens hold id.; recipients. senders Villarre Amendment because protections, Fourth al, 774. Ordinarily, 963 F.2d at the send legitimate of a expectation the existence expectation upon of privacy er’s terminates depend the nature of privacy “does on delivery. King, v. 55 F.3d United States activities, inno- the defendant’s whether (6th Cir.1995). 1193, 1196 (citing or criminal.” Id. at 458 Unit- cent (2d Fields, v. ed States why There is no reason a sent vehicle Cir.1997)). Thus, use of the Appellant’s car be through delivery a service would Castenada not defeat his priva alias Wilmer did lesser entitled than, in the legitimate expectation privacy say, package a via the U.S. cy sent expec Just is no Explorer.19 Postal Service. as there privacy pack in the on a tation of address D. Hinton, 222 States v. age, see United Similarly, Appellant pri- not lose his Cir.2000), did has no reason one vacy Explorer simply be- in the exterior able an automobile service had transport respecting objects cause a of a vehicle it, possession of the vehicle. The physical that are observed from outside vehicle Brown, turning it a fact of an item —be mere over see Texas 460 U.S. (1983); But,
letter,
package,
or a
a com-
vehicle—to
S.Ct.
L.Ed.2d 502
container, “a
ob-
extinguish
placed
mon carrier does not
one’s
once
within
closed
'
2010;
majority’s
to understand
”[I]t
19. The
observation that
ber
difficult
"maintained that Castenada was a different
incriminating
to make
admis
how a refusal
Ap-
person”
import.
p.
is of little
Ante
police interrogation
response
can
sions
only
pellant
such
after he
made
assertions
deprive
person
Fourth Amend
be held to
on
had been arrested
October
LaFave,
standing.” Wayne
Search
ment
R.
long
expecta-
after
A Treatise
the Fourth Amend
&
Seizure:
sub-
tion
had been
11.3(e) (5th ed.2012).
§ment
jected
governmental
Septem-
intrusion
*21
Robbins,
426,
protected
diary
dishpan
equally
and a
are
2841,
(plurality opin-
For the judgment, reverse the order of
vacate the ruling court
the district expecta-
lacked an
tion of 20, 2010, this case and remand proceedings.
for further America, STATES of
UNITED
Plaintiff-Appellee, JONES, Bernard Marlon
Jermar
Defendant-Appellant.
No. 12-4211. Appeals, States Court of
Fourth Circuit.
Argued March May
Decided 72; supra See J.A. 3. In issue or before properly addresses.” see n. When an claim is court, appeal, Appellant aim at brief on took direct the court is not limited conclusion, legal identifying the issue on particular legal advanced theories follows; appeal as parties, independent rather retains the but THE DISTRICT COMMIT DID COURT power identify apply proper con- BY DENYING ]’S ERROR APPELLANT! law. struction governing TO SUPPRESS THE EVIDENCE MOTION Servs., Inc., Kemper Fin. U.S. Kamen v. 500 IN FOUND THE FORD EXPLORER S.Ct. 114 L.Ed.2d IT HELD THAT HAD WHEN APPELLANT (1991). Express, Interactive Inc. v. Cf. Gift NO EXPECTATION OF PRI- LEGITIMATE Inc., (Fed. Compuserve, VACY IN THE FORD SINCE EXPLORER Cir.2001) (noting principle “the familiar BEING IT WAS SHIPPED BY A COMMON support appellate does not review [an court] CARRIER? ing only arguments, but the decisions reached Thus, majority, Appellant's Br. 2. not is the court”); Screen Lawlor v. Nat’l the trial dissent, Appellant or this that has fundamen- 526, Corp., Serv. 352 U.S. tally legal landscape on which the altered (1957) curiam) (Frankfurter, (per L.Ed.2d litigated been case has the course J., (“We dissenting) judgments review event, appeal. In Marshall as Justice talk.”). appeals twenty-five the courts of instructed years ago: