The USMJ found no standing, but defendant did not need to testify to establish standing. Here, there was evidence in the record that others said the duffle bag was defendant’s and his papers were found inside it. That should be enough for standing, and remanded to the USMJ for further evidence. United States v. Trejo, 2015 U.S. Dist. LEXIS 92719 (D.S.D. July 15, 2015), rejecting 2015 U.S. Dist. LEXIS 93432 (D.S.D. May 4, 2015):
The question here is whether Trejo has demonstrated that he had a legitimate expectation of privacy in the duffel bag. Several factors are relevant when determining whether a defendant had a legitimate expectation of privacy in an object, including ownership, possession or control, historical use of the object, whether the object contained the defendant’s personal belongings, the ability to regulate access to the object, and all of the circumstances surrounding the search. United States v. Parada, 577 F.3d 1275, 1280 (10th Cir. 2009); United States v. Pierson, 219 F.3d 803, 806 (8th Cir. 2000). Courts have found that a passenger had a legitimate expectation of privacy in bags located in a third-party’s vehicle when the passenger placed his closed bags that contained his personal belongings in the trunk of a third-party’s car, Edwards, 632 F.3d at 642, when a passenger placed his opaque bag directly above his seat on a bus, Bond, 529 U.S. at 338-39, and when the passenger was the bailee of a suitcase that the bailor had placed in the trunk of a taxi cab, United States v. Perea, 986 F.2d 633, 641-42 (2nd Cir. 1993).
Although Trejo did not testify at the suppression hearing, his counsel made an offer of proof that Trooper Biehl would testify that the duffel bag was closed, that it contained court documents bearing Trejo’s name, and that Trooper Biehl arrested Trejo because he believed that Trejo owned the bag and had control over it. T. 101-02. The magistrate judge, apparently relying on Trooper Biehl’s statements on the video of the traffic stop, found that the duffel bag contained several documents bearing Trejo’s name, and the government has not objected to this finding. The video also shows Trooper Biehl telling Garsia that the bag containing the methamphetamine was “gray and purple,”3 Ex. 1 at …, and Garsia stating multiple times that the bag belonged to Trejo. Ex. 1 at ….
Assuming that Trooper Biehl would testify as Trejo’s counsel says, this information, along with the statements on the video from Trooper Biehl and Garsia and the fact that the bag contained papers bearing Trejo’s name, could be sufficient to establish that Trejo, as the owner of a closed and opaque bag within the vehicle, had a legitimate expectation of privacy in the bag. See United States v. Freire, 710 F.2d 1515, 1518-19 (11th Cir. 1983); United States v. DiGiorgio, No. 4:08CR3019, 2008 U.S. Dist. LEXIS 110508, 2008 WL 2718370, at *9-10 (D. Neb. July 11, 2008). In Freire, for instance, the Eleventh Circuit rejected the argument that the defendant needed to testify at the suppression hearing to establish that he had a legitimate expectation of privacy in a briefcase found in a third-party’s car. 710 F.2d at 1519. It held instead that testimony from a passenger in the car that the defendant owned the briefcase and gave it to the passenger for safekeeping was sufficient to demonstrate that the defendant had a legitimate expectation of privacy in the briefcase. Id. Similarly, the district court in DiGiorgio concluded that the defendant, who was a passenger in a car, had demonstrated that he had a legitimate expectation of privacy in a duffel bag located in the car’s trunk where the bag contained receipts bearing the defendant’s name, a police officer testified that the car’s driver had told him that both the driver and the defendant had bags in the car, and the driver could be heard on a recording of the stop stating that the bag belonged to the defendant. 2008 U.S. Dist. LEXIS 110508, 2008 WL 2718370, at *9-10.
The existence of a “legitimate expectation of privacy” to a piece of luggage within a vehicle necessarily involves a case-by-case determination. For example, the Third Circuit in United States v. Shabazz, 533 F. App’x 158 (3rd Cir.), cert. denied, 134 S. Ct. 832, 187 L. Ed. 2d 692 (2013), held that a police officer’s testimony that he saw the defendant leave a house with bags and place them in the trunk of a third-party’s car was insufficient to establish standing where the defendant did not claim ownership in the bags at the time of the arrest and did not present any evidence at the suppression hearing that the bags or the contents therein were his. Id. at 162. Likewise, the Eighth Circuit in United States v. Payne, 119 F.3d 637 (8th Cir. 1997), held that the defendant did not have standing to contest the search of a suitcase found in the trunk of a third-party’s car in which the defendant was not a passenger. Id. at 642. Although the evidence showed that the defendant had transported the suitcase to an apartment complex before returning and giving it to the third party, the Eighth Circuit found that this “temporary possession” was insufficient to establish a legitimate expectation of privacy in the bag. Id. In reaching this conclusion, the Eighth Circuit noted that the defendant had not presented any evidence that he owned the suitcase, had historical use of it, had the ability regulate access to it (the suitcase was only zipped shut and had no lock), or that the suitcase had identification tags indicating that the bag belonged to the defendant. Id. Trejo’s claims involving the duffel bag seem to be more analogous to the facts in Freire and DiGiorgio than those in Shabazz or Payne. But more testimony about the duffel bag and Trejo’s interests in it is necessary to resolve this question.
The issue of whether Trejo had a legitimate expectation of privacy interest to contest the search of the duffel bag is remanded to the magistrate judge to hear more testimony concerning the bag and search of the bag, including the bag’s appearance, contents, and location, Garsia’s statements that Trejo owned the bag, and any other testimony that may be relevant to this issue.
