United States v. Jimenez ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 7, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-5015
JOSE SANTOS JIMENEZ, (D.C. No. 08-CR-00055-TCK-2)
(N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, ANDERSON, and BALDOCK, Circuit Judges. **
After the district court denied his motion to suppress, Defendant Jose Santos
Jimenez entered a conditional plea of guilty to possession of marijuana with intent
to distribute. The plea reserved Defendant’s right to challenge the district court’s
ruling on the motion to suppress. The district court sentenced Defendant to 51
months in prison. Defendant appeals, alleging the district court should have granted
his motion to suppress in the first instance. We have jurisdiction under 28 U.S.C.
*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
§ 1291, and affirm.
I.
Responding to a tip developed from an undercover investigation, Tulsa police
officers approached a residence on 140th E. Avenue in Tulsa, Oklahoma shortly after
midnight on February 6, 2008. Officer Tim Wilson smelled fresh marijuana
emanating from the residence while standing in the driveway. Officer Wilson also
heard voices coming from the garage area of the residence.
Officer Wilson, dressed in plain clothes, knocked on the door of the residence,
flanked by two other officers. Flor Mendoza answered. Although Mendoza allowed
the officers into the residence, there is a dispute about the specific facts giving rise
to their entry. In the district court, Mendoza testified that she consented to the entry,
which is consistent with Officer Wilson’s account. Mendoza, however, had
previously testified in a state court hearing that the officers entered without consent.
She repudiated this account before the district court, indicating that she was
pressured by her attorney and other occupants of the residence to lie about the
circumstances of the entry. The district court did not make any findings regarding
these facts because it deemed the details were not critical to Defendant’s motion to
suppress. Likewise, we conclude these facts are not essential to resolving
Defendant’s appeal.
After Mendoza allowed the officers to enter the residence, they conducted a
sweep to secure the house. During the sweep, they found four men in the garage
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with approximately 350 pounds of marijuana, packaging materials, and scales in
plain sight. Among the four men were Defendant and Rafael Gonzalez. The officers
placed all four men in handcuffs. Gonzalez told Officer Wilson that he lived at the
residence with his girlfriend, Mendoza, and her children. Gonzalez gave Officer
Wilson consent to search the residence. Officers found other items in the residence
not relevant to Defendant’s appeal.
After his indictment, Defendant filed a motion to suppress the evidence seized
during the search. Defendant made two arguments in support of his motion. First,
Defendant contended the police violated his reasonable expectation of privacy in the
residence by entering without consent and impermissibly performing a sweep leading
to the discovery of Defendant. Second, Defendant alleged that suppression was
required under the fruit of the poisonous tree doctrine, even if he lacked an
expectation of privacy in the residence.
At a hearing on the motion, it became clear that Defendant did not have free
access to the residence, had never spent the night at the house, did not have a key to
the house, did not keep any personal belongings at the house, had only visited the
house four or five times, and that the sole purpose of these visits was to unload
marijuana. The district court held that these facts precluded Defendant from
establishing standing to challenge the search of Gonzalez’s home.
The district court also rejected Defendant’s arguments based on the fruit of the
poisonous tree doctrine. In so ruling, the district court observed that Defendant had
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never argued he was unlawfully detained or that his Fourth Amendment rights were
violated.
After the district court denied his motion to suppress, Defendant entered a
conditional plea of guilty to possession of marijuana with intent to distribute. The
plea reserved the right to challenge the district court’s denial of his suppression
motion. Defendant made a timely appeal.
I.
In reviewing the denial of a motion to suppress, we view the evidence in the
light most favorable to the Government and accept the district court’s factual
findings unless they are clearly erroneous. See United States v. Soderstrand, 412
F.3d 1146, 1151 (10th Cir. 2005). We review de novo the district court’s ultimate
determination of reasonableness under the Fourth Amendment. See id.A.
A defendant “charged with crimes of possession may only claim the benefits
of the exclusionary rule if [his] own Fourth Amendment rights have in fact been
violated.” United States v. Jarvi, 537 F.3d 1256, 1259 (10th Cir. 2008) (quoting
United States v. Salvucci, 448 U.S. 83, 85 (1980)). The district court referred to this
principle as Fourth Amendment “standing,” but this terminology is, technically, “a
misnomer.” Id. at 1260 n.2. Although the substance of the inquiry remains the
same, the Supreme Court has counseled that the question whether a defendant can
show a violation of his own Fourth Amendment rights “is more properly placed
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within the purview of substantive Fourth Amendment law than within that of
standing.” Rakas v. Illinois, 439 U.S. 128, 140 (1978). With that said, we do not
quarrel with the district court’s analysis on this point. Several distinguished jurists
continue to use the “standing” terminology as useful shorthand. See, e.g., United
States v. Romain, 393 F.3d 63, 68 (1st Cir. 2004) (Selya, J.) (acknowledging after
Rakas that the term “standing” “is imprecise,” but adopting the usage “[f]or
simplicity’s sake”). But, regardless of terminology, our precedents still foreclose a
defendant from successfully excluding “evidence that has been ‘come at by
exploitation’ of a violation of somebody else’s rights.” Jarvi, 537 F.3d at 1259.
Defendant concedes on appeal that he lacks “standing” to challenge the
officer’s initial entry, which means that he had no expectation of privacy in
Gonzalez’s residence. Defendant’s brief demonstrates he understands the
equivalence of these two concepts. 1
Even if Defendant had not made this concession, we would affirm the district
court’s conclusion that Defendant had no reasonable expectation of privacy in
Gonzalez’s residence. The district court’s conclusion falls squarely within a host of
controlling authority. See, e.g., Minnesota v. Carter, 525 U.S. 83, 90 (1998)
1
Although Defendant stated in his brief that “[t]he first issue to be decided
is whether or not [he] has standing to challenge the search and seizure,” he
subsequently noted “there was probably not sufficient evidence developed at the
suppression hearing to support a finding that [Defendant] had an expectation of
privacy” in Gonzalez’s residence. Appellant’s Brief at 5, 6.
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(holding a person at another’s residence solely for the purpose of engaging in drug
related activity has no legitimate expectation of privacy in the residence); United
States v. Thomas, 372 F.3d 1173, 1176 n.1 (10th Cir. 2004) (holding a “person who
is present at another’s home, with permission, simply for the purpose of
consummating a business transaction does not have a reasonable expectation of
privacy there”). As we observe below, the conclusion that Defendant had no
legitimate expectation of privacy in the residence has important consequences for his
arguments concerning the fruit of the poisonous tree doctrine.
B.
At the outset of our discussion, we note that Defendant did not argue in district
court that his rights, as compared to those of Gonzalez, were violated by an illegal
detention. The district court correctly concluded the cases Defendant relied upon
were, therefore, distinguishable on this fact alone. See United States v. DeLuca, 269
F.3d 1128, 1132 (10th Cir. 2001) (holding the defendant could “contest the
lawfulness of his own detention” and seek suppression of drugs found in a vehicle
search after he was detained “as the fruit . . . of that illegal detention” even though
defendant did not have a reasonable expectation of privacy in the vehicle searched);
United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996) (“If the physical
evidence found in the vehicles was the fruit of the defendants’ unlawful detention,
it must be suppressed.”); United States v. Eylicio-Montoya, 70 F.3d 1158, 1162
(10th Cir. 1995) (distinguishing “passenger standing to directly challenge a vehicle
6
search from passenger standing to seek suppression of evidence discovered in a
vehicle as the fruit of an unlawful stop, detention, or arrest.”).
Now, in response to the district court’s cue, Defendant has raised for the first
time on appeal the contention that he was unlawfully detained. In the ordinary civil
case, we would have little trouble refusing to address a new argument on appeal
under these circumstances. See, e.g., Ramsey Winch Inc. v. Henry, 555 F.3d 1199,
1204 n.6 (10th Cir. 2009) (observing that an appellate court will generally “not
resolve issues on appeal unless they are presented, considered, and decided by the
district court”). But our criminal cases have been more cautious. See United States
v. Zubia-Torres, 550 F.3d 1202, 1207 (10th Cir. 2008) (holding that plain error
review is appropriate unless there is “some evidence” that the defendant made a
“knowing and voluntary” waiver of a particular argument). Because there is no
evidence in this case that Defendant’s failure to argue he was unlawfully detained
was both knowing and voluntary, we apply plain error review. See United States v.
Olano, 507 U.S. 725, 733 (1993) (noting that a waiver involves the intentional
relinquishment of a known right).
II.
Defendant contends his rights were violated by an illegal detention and that
we should suppress the evidence police found of his drug trafficking activity as
tainted fruits of the poisonous tree. We will only reverse for plain error when we
identify (1) an error, (2) that is plain, which (3) affects substantial rights. See Zubia-
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Torres, 550 F.3d at 1208. “If these three criteria are met, then we may exercise
discretion to correct the error if it seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Id. Here, we deduce no error because the
evidence of Defendant’s drug trafficking is not fruit of the poisonous tree.
A.
“The poisonous tree doctrine allows a defendant to exclude evidence ‘come
at by exploitation’ of violations of his Fourth Amendment rights.” Jarvi, 537 F.3d
at 1259 (quoting Wong Sun v. United States, 371 U.S. 471, 487-88 (1963)).
Defendant has the burden of demonstrating “a ‘factual nexus’ between a violation of
his own Fourth Amendment rights and the discovery of the challenged evidence.”
Id. (emphasis added). To properly evaluate the connection between the purported
violation of the Fourth Amendment and the alleged derivative evidence, “it is critical
that the precise police conduct being objected to be properly identified, for this may
itself turn out to be determinative.” 6 Wayne R. LaFave, Search & Seizure: A
Treatise on The Fourth Amendment § 11.3 (4th ed. 2004 & 2008 Supp.).
Here, Defendant objects to the police conducting a protective sweep of
Gonzalez’s residence. According to Defendant, the protective sweep was unlawful
because it was not conducted incident to an arrest, as required by our precedent. See
United States v. Torres-Castro, 470 F.3d 992, 996-97 (10th Cir. 2006) (noting the
Tenth Circuit follows the minority rule, allowing a protective sweep to precede an
arrest only if there is “a legitimate basis for the arrest prior to the search, and the
8
arrest . . . follow[s] quickly thereafter”). Because the Government has not argued
that the police had probable cause to arrest Defendant prior to conducting a sweep
of Gonzalez’s residence, we will assume without deciding that the sweep was
impermissible.
B.
Despite our assuming the illegality of the protective sweep, Defendant’s
argument fails because his rights were not violated by the protective sweep. “[T]he
fruit of the poisonous tree doctrine applies only when the defendant has [a reasonable
expectation of privacy] regarding the Fourth Amendment violation which constitutes
the poisonous tree.” United States v. Olivares-Rangel, 458 F.3d 1104, 1117 (10th
Cir. 2006). Here, the conduct Defendant challenges, i.e., the alleged poisonous tree,
is the protective sweep of Gonzalez’s home which led to his allegedly unlawful
detention. Essentially, Defendant argues that, by waiving the magic wand of an
unlawful detention, he may bootstrap himself into the position of challenging the
sweep of Gonzalez’s residence as if he had a reasonable expectation of privacy
therein. But Defendant cannot challenge this conduct because he had no reasonable
expectation that his presence at the residence—solely for the purpose of illicit drug
trafficking activity—would remain private.
1.
We arrive at the conclusion that Defendant may not challenge the protective
sweep of Gonzalez’s residence based on the seminal case defining the fruit of the
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poisonous tree doctrine, Wong Sun v. United States, 371 U.S. 471 (1963). In Wong
Sun, federal agents illegally entered and arrested Toy at his premises because of a
tip that he was selling drugs. Id. at 474. Under questioning, Toy said that he did not
have any narcotics, but that Yee did. Id. Agents then entered Yee’s premises and
recovered narcotics, which Yee said he obtained from Toy and Wong Sun. Id. The
narcotics found at Yee’s premises were later admitted against Toy and Wong Sun,
over their objections. Id. at 477. The Supreme Court held that Wong Sun could not
object to admission of the narcotics because the illegal search of Yee’s premises
“invaded no right of privacy of person or premises which would entitle Wong Sun
to object.” Id. at 492. By contrast, Toy could object to the admission of the
narcotics because Toy’s Fourth Amendment rights were violated with respect to the
poisonous tree, i.e., the initial illegal entry and detention of Toy at his own premises
which led to Yee. Id. at 488. If Toy had merely objected to officers’ conduct at
Yee’s premises, he would have been unable to object to admission of the narcotics.
See id.; see also Olivares-Rangel, 458 F.3d at 1117 (observing that Toy was “entitled
to suppression of the drugs found at Yee’s house because it was clear that the
narcotics were come at by the exploitation of Toy’s statement and hence that the
drugs may not be used against Toy. Thus, regardless of the fact that Toy maintained
no reasonable expectation of privacy in the drugs at Yee’s house . . . he could object
to them as poisonous fruits.”) (internal quotations, alterations, and citations omitted).
Here, Defendant finds himself in the predicament that Toy would have been
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in had authorities not first illegally entered Toy’s own premises and obtained
information before obtaining the narcotics from Yee, i.e., Defendant objects to
alleged police misconduct in entering an area where he had no reasonable
expectation of privacy. Defendant’s lack of a legitimate expectation of privacy in
Gonzalez’s residence cuts off his fruit of the poisonous tree argument at the knees.
See Alderman v. United States, 394 U.S. 165, 171-72 (1969) (holding a Fourth
Amendment violation can only be raised “by those whose rights were violated by the
search itself, not by those who are aggrieved solely by the introduction of damaging
evidence.”). Merely by alleging a subsequent unlawful detention, Defendant cannot
now bootstrap himself into the position of one with “standing” to challenge the
sweep of Gonzalez’s residence. Defendant’s Fourth Amendment rights were not
violated with respect to the poisonous tree. See LaFave § 11.3 (noting “the question
‘is whether [the defendant’s] Fourth Amendment rights were violated’ with respect
to the poisonous tree”) (quoting Olivares-Rangel, 458 F.3d at 1117).
To be able to object to the police conducting an illicit protective sweep of the
Gonzalez residence, Defendant would have to have some basis to claim that the
sweep violated his rights. He does not. We conclude, therefore, that his subsequent
detention was lawful.
2.
Defendant’s detention occurred after the police had conducted the sweep of
Gonzalez’s residence, and only an individual with a legitimate expectation of privacy
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in the residence could object to the sweep. After entering the garage, officers acted
reasonably in detaining Defendant when they caught him red handed with large
quantities of marijuana, cuttings tools, and scales in plain sight. See United States
v. Turner, 553 F.3d 1337, 1344 (10th Cir. 2009) (holding a “warrantless arrest by a
law officer is reasonable under the Fourth Amendment where there is probable cause
to believe that a criminal offense has been or is being committed”).
We reject any contention that the officers could not rely on the readily
apparent drug trafficking evidence in the garage because they were not “lawfully
located in a place from which the [drug paraphernalia could] be plainly seen.”
United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993). In holding as much,
we agree with our sister circuit’s reasoning that a claim the officers were not
legitimately on the premises can only be raised by an individual with a legitimate
expectation of privacy in those same premises. See United States v. Paopao, 469
F.3d 760, 765 (9th Cir. 2006), cert. denied, 550 U.S. 938 (2007).
In Paopao, the police arrested the defendant after he entered an apartment
operated solely as an illegal gambling establishment, deposited a tan bag, and exited.
Id. at 763. After securing the defendant, police entered the apartment in hopes of
finding his associate who was suspected of bank robbery. Id. During a protective
sweep of the apartment, an officer saw a hand gun jutting out of the tan bag, which
he seized and subsequently searched. Id. After the defendant was indicted for being
a felon in possession of a firearm, he moved to suppress the firearm, arguing that the
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protective sweep of the apartment was unlawful because police “did not have a legal
right to be in the” apartment. Id. at 765. The Ninth Circuit rejected this claim,
holding that because the defendant “had no reasonable expectation of privacy in the
[apartment], he cannot challenge the officer’s entry or protective sweep.” Id. The
court reasoned that its holding was supported by “long-established Supreme
Court . . . precedent that a privacy interest in the place or thing searched is always
required in order for a defendant to challenge the search.” Id. Here, Defendant had
no reasonable expectation that his illicit drug trafficking activity in Gonzalez’s
residence would be free from intrusion and, thus, he cannot challenge the officers
entry into the garage.
Having determined that the district court committed no error, much less a plain
one, in rejecting Defendant’s contentions based on the fruit of the poisonous tree
doctrine, we need not consider the Government’s other arguments supporting denial
of Defendant’s motion to suppress.
AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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