{"id":8810,"date":"2013-07-23T05:47:55","date_gmt":"2013-05-30T15:48:00","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-05-30T15:48:00","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=8810","title":{"rendered":"CA4: Defendant who claimed a truck full of cocaine didn’t prove standing to challenge its search"},"content":{"rendered":"

A car was being shipped across the country on a truck, and an officer became suspicions of it and asked the truck driver about it. The paperwork was in the name of Castenada. The officer attempted to call Castenada at the numbers in the paperwork, and nobody knew him. The officer then asked the truck driver for permission to search the car, and, with a fiberoptic scope he found packages floating in the gas tank. One thing led to another, and defendant was arrested for 23 kgs of cocaine in the gas tank. He filed a motion to suppress but didn\u2019t testify, and the district court held he never met his burden on \u201cstanding\u201d to show that he was using a fictitious name or whatever. On appeal, the holding he didn\u2019t have standing was affirmed. United States v. Castellanos<\/a>, 716 F.3d 828 (4th Cir. May 29, 2013) (citing treatise in dissent n.17):<\/p>\n

<\/p>\n

For the reasons explained herein, we agree with the government and hold that Castellanos has failed to demonstrate by a preponderance of the evidence that, at the time of the search, the evidence showed that he had a legitimate expectation of privacy in the Explorer.4<\/p>\n

4The dissent repeatedly faults the government and the district court for failing to call Castellanos at the suppression hearing to prove his standing (i.e., his reasonable expectation of privacy) in order to raise the objection to the search of the Explorer. See post, at 13-14, 30 n.16. But the dissent agrees with the undisputed proposition that proving standing was Castellanos’ burden to bear. See post at 33 (citing United States v. Stevenson, 396 F.3d 538, 547 (4th Cir. 2005)). Castellanos made no effort to prove his standing or rebut the government’s argument that he had none. He was represented by able counsel, and it is not the duty of the court or the government to make Castellanos’ reasonable expectation of privacy case for him. Indeed, as the dissent itself observes, the government’s primary argument in opposition to the motion to suppress was that Castellanos lacked standing to challenge the search of the Explorer. See post at 14. Castellanos, through counsel, was on notice that his standing was disputed, and neither the government, nor the district court, was obligated to remind him of his burden. Moreover, the argument made by the dissent appears sua sponte for the first in the dissent, having never been presented by Castellanos in the trial court or on appeal.<\/p><\/blockquote>\n

When attempting to determine whether a defendant has a reasonable expectation of privacy in property that is held by another, we consider such factors as “whether that person claims an ownership or possessory interest in the property, and whether he has established a right or taken precautions to exclude others from the property.” United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992). Here, Castellanos asserted to Roberts that he was purchasing the Explorer, but his claim is not substantiated in any way by the record. Castellanos did not enter the title of the Explorer into evidence, nor did he establish that he purchased the vehicle with a bill of sale, Division of Motor Vehicles registration, or anything else. And there is no evidence that, if he purchased the Explorer at all, he did so prior to the search.<\/p>\n

Parties other than owners may possess a reasonable expectation of privacy in the contents of a vehicle. See, e.g., United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 949 n.2 (2012) (observing that although the defendant was not the registered owner of the searched vehicle, he was the “exclusive driver” and the Court thus “[did] not consider the Fourth Amendment significance of Jones’s status”). However, Castellanos offered no evidence that he had any such interest, though he bore the burden of proof. For example, Castellanos presented no evidence that Castenada (or anyone else) had granted him permission to use the vehicle or act as his agent with DAS, or any other right of any kind to the vehicle. This is not a case, like Jones, where the defendant has established an ownership, or even a possessory interest in the vehicle. Cf. id. (describing Jones’ rights as similar to those of a bailee). Accordingly, this is not the type of case where a defendant has established such a close connection to the vehicle that is subject to search that he may claim a possessory interest in it.<\/p>\n

Furthermore, although “[i]ndividuals may assert a reasonable expectation of privacy in packages addressed to them under fictitious names,” United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992), we note that Castellanos adduced no evidence at the suppression hearing demonstrating that the name “Wilmer Castenada” was simply an alias. Instead, Castellanos’ position was that he and Castenada were two separate individuals engaged in a sale transaction as testified by Roberts. Indeed, Castellanos represented to the trial court that “there is no factual dispute here questioning the facts as rendered by Detective Roberts.” (J.A. 67.) In the absence of evidence that Castenada was Castellanos’ alter ego or a fictitious name, this case is more closely aligned with United States v. Givens, 733 F.2d 339, 341 (4th Cir. 1984) (per curiam), a case in which we held that a defendant lacked a legitimate expectation of privacy in a package that was addressed to a third party.<\/p>\n

In sum, the evidence heard by the district court at the suppression hearing failed to support a conclusion that Castellanos had anything more than a distantly attenuated connection to the Explorer. Castellanos bore the burden to show that he had a reasonable expectation of privacy, and he has not done so. Having failed to carry his burden, Castellanos cannot challenge the warrantless search of the Explorer.<\/p><\/blockquote>\n

The dissent noted that the government’s case proved standing, citing the treatise in n. 17:<\/p>\n

The defendant bears the burden of proving standing to challenge a search under the Fourth Amendment. Stevenson, 396 F.3d at 547. Nonetheless, the defendant need not affirmatively present evidence of his legitimate expectation of privacy; rather, he may simply “point to specific evidence in the record which the government [has] presented and which establishe[s] his standing.” United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995).17<\/p>\n

17. Accord United States v. Gates, 745 F. Supp. 2d 936, 948 n.4 (N.D. Cal. 2010) (“[A] defendant may establish standing by pointing to all evidence in the record, including the Government\u2019s evidence.”); United States v. Doe, 801 F. Supp. 1562, 1573 (E.D. Tex. 1992) (finding that defendant established a legitimate expectation of privacy in a car through “testimony by a government witness from which it [wa]s reasonable to infer that defendant\u2019s possession of the vehicle was lawful and with permission”); 6 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment \u00a7 11.2(b) (5th ed. 2012) (“[I]t may happen that the burden is actually met … by evidence given by the [government].”), citing People v. Gonzalez, 502 N.E.2d 1001, 1002 (N.Y. 1986) (“[E]vidence elicited during the People\u2019s direct case may be cited in support of a defendant\u2019s standing claim.”) (internal citation omitted); 1 John Wesley Hall, Jr., Search & Seizure \u00a7 6.3 (LexisNexis 2012) (“It is conceivable that the defense could show [standing] through prosecution witnesses and that it could be self-evident in many circumstances.”), citing People v. FuentesBorda, 589 N.Y.S.2d 5, 6 (N.Y. App. Div. 1992) (holding that defendant had standing to challenge police invasion of apartment because, although defendant had not asserted “personal standing,” “the police observations of defendant and his companion entering, exiting and locking the apartment established a privacy interest sufficient to confer standing”). <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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