United States v. Jesus Benitez-Arreguin ( 1992 )

HOLLOWAY, Circuit Judge.

This is an appeal from a conviction under 21 U.S.C. § 841(a)(1) for possession of heroin with intent to distribute. The defendant was convicted on a jury verdict of guilty as to Count I of the indictment. He was sentenced for a term of 63 months of imprisonment, to be followed by five years of supervised release, and a $50 special assessment. Defendant appeals, claiming error in the denial of a motion to suppress evidence including the controlled substance.

I

A

The issue raised concerns a search at the Salt Lake City, Utah, Amtrak Station. At that time defendant Benitez-Arreguin arrived from Los Angeles by train and was noticed by Utah state narcotics agents Hall and Larsen, who were on duty at the station on May 30, 1990. They testified that they were to “profile” passengers arriving on the early morning train from Los Ange-les. II R. 3-4. The defendant was the only Hispanic observed leaving the train. Id. at 49. He entered the station and was followed by the officers who observed him carrying two cloth symmetrical-bags about two feet in length and eight inches in diameter. Id. at 37. Defendant did not retrieve any other luggage from the baggage counter.

In the station, defendant went to a telephone to place a call. Agent Larsen stood nearby and attempted to overhear the conversation. However, defendant conversed in Spanish, which Larsen did .not understand. Ill R. 51. After making the call, defendant took a seat in the waiting area of the station, placing the two bags near his feet and under his chair. As he sat in the waiting room, he looked around and watched other people. Hall and Larsen moved about the waiting room, watching the defendant.

About ten or fifteen minutes later another male Hispanic, Ramirez, entered the star tion. Defendant picked up his bags and the two walked out of the station together. The agents followed and Hall asked to speak with them and displayed his badge. II R. 41. The agents then requested identification from defendant and Ramirez. The defendant produced a “green card." When Larsen attempted to talk to defendant, he realized that defendant did not speak English. In his report, Hall said that defendant Benitez-Arreguin did not speak English. Id. at 28. Larsen spoke and made hand motions toward the bags held by the defendant to indicate that he wanted to look into the bags. Id. at 46. Larsen testified at the suppression hearing that the defendant opened the first bag, which contained clothing. Larsen then used gestures indicating he wanted to look into the other bag. The defendant bent down, opened it and handed it to Larsen. Id. at 47. In the second bag, Larsen found some pants, and in a pocket he found a tube-shaped object six or eight inches long and wrapped in duct tape. After this incident, Larsen testified that he took the suspected narcotic and placed it back inside the bag and had his narcotics dog inspect it, ánd the dog made a definite alert. Id. at 48-49. Larsen opened the package and had the contents tested later by the state crime lab and it was found to contain heroin, about 350 grams in quantity. Id. at 49.

At the suppression hearing, the defendant testified that he did not speak English. His testimony throughout was conducted through an interpreter. He had been in this country approximately two or three years during the fruit season but spent most of his time in Mexico. Ill R. 2-3. On May 30, 1990, he was at the train station in Salt Lake City, and when Mr. Ramirez came into the station the defendant stood and greeted him, shaking hands, and they started to go outside. He said that at this point two policemen, overtook them, got in front of them and showed Ramirez and the defendant their badges. Id. at 5. Ramirez and the defendant stopped and the officers then asked for their identification. He understood this because the word “identification” was very similar to the word in Spanish. Id. at 6. The defendant then showed the officer his green card issued by the Immigration Service. It was returned to them when they went to an officer in the train station. Id.

The defendant said the- officers then made signs, which the defendant took to mean that they wanted to search the suitcases. The defendant did nothing to stop them from searching the suitcases because they were policemen. Ill R. 7. When the suitcases were searched, the officer still had defendant’s identification. The defendant said he did not understand he had the right to deny the officer permission to look in the bag. Id. The defendant testified that he knew Ramirez because he had come to Salt Lake City once looking for work, sometime around April. When one of the officers made signs pointing toward the bag, he was looking at the defendant’s face and the officer bent down and opened the bag. As he was bending down, the officer said “coca, mota, chiva.” Id. at 15. “Mota,” he had heard,' was marijuana, and “chiva,” the defendant believed, was heroin. The defendant’s response to the officer’s statements was only to shrug his shoulders and hold his hands up as if to signify he did not know anything. Id. at 16.

The defendant testified that just one of the two bags was his, the large one carrying his clothing and lotions. The other one he got when he was looking for work. A friend in a Los Angeles bar, who was not really a friend, knew that the defendant was looking for work and asked the defendant if he could take the bag for him to a hotel, “Colacha,” in Salt Lake City. Ill R. 19. The man told the defendant that someone would get the bag at the hotel, a woman who would take him to a farm to work. The defendant was told that the bag belonged to the woman and contained children’s clothing. Id. at 21, 23. The defendant did not know if the bag belonged to the friend or to the woman, but he was to take it to her and the defendant did not look inside the bag. The defendant took care of the bag as if it were his, but he did not know what was inside the bag. Id. at 24-25. The defendant testified that he did not want the officers to search the bags because he was in charge of them. Id. at 25.

B

After hearing the testimony in two hearings on the suppression motion, the trial judge heard oral argument and made his ruling from the bench. The judge found that from the totality of the circumstances there was a valid Terry-type stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The judge said that some of the observations, such as the man sitting in the chair, the reading of a book or watching television, did not impress him as showing a basis for suspicion. However, the judge said he was impressed that the police officer had a vast background of experience and testified that the defendant appeared to be nervous, looking over both shoulders, and seemingly anxious to be going someplace. He looked like a man with a mission. He seemed to know where a telephone was, although it was not obvious. The greeting for Ramirez was unusual in that the defendant did not embrace Ramirez or seem to even shake his hand. IV R. 34-35.

The judge found that the examination of the bag was not consensual. There was no clear and unequivocal or specific permission given. The judge found there was implied duress and that the presumption against waiver of constitutional rights was not overcome. Also, there was an obvious language barrier and it was obvious to the officer that the defendant did not speak English. The pantomime gestures were not sufficient to produce a consent to search.

The judge then turned to the issue of the extent of the defendant’s rights under the Fourth Amendment, or standing. Citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), he found that arcane distinctions developed in property and tort law concerning guests, licensees, invitees and the like ought not to control. Thus whether the defendant was a bailee or not, the judge found the real question to be whether the defendant had a subjective expectation of privacy, and whether society would recognize the expectation as objectively reasonable. The judge took the position that even though the search would not have been permitted due to lack of a valid consent, the fortuitous circumstance that the defendant disclaimed ownership in the bag was such as to destroy his right to standing to raise the question, even though that was not known by the officer. IV R. 36-37. Accordingly, the motion to suppress was denied from the bench.

The ruling was memorialized in a written order of October 4, 1990. There the court stated: that the initial stop of the defendant was not a consensual police-citizen encounter; that, however, it did constitute a valid investigatory stop under Terry v. Ohio in light of the totality of the circumstances creating a reasonable suspicion; that the search of the defendant’s bag containing the controlled substance was not consensual because of implied duress and the obvious language barrier and because the pantomime gestures were an insufficient method by which to obtain clear and unequivocal consent. The order concluded:

4. The defendant’s subsequent disclaimer of ownership of the bag and his testimony regarding the circumstances by which he came into possession of the bag and where he was taking the bag, effectively destroys his standing to bring this motion to suppress.

The court finds that the defendant possibly had a subjective expectation of privacy in the bag, however the court finds that society would not recognize such an expectation as objectively reasonable under the circumstances of this case. The police officer’s lack of knowledge about a possible standing issue at the time the bag was searched and seized is immaterial.

I R. Doc. 21, at 2.

After the subsequent trial and his conviction on the jury’s verdict, the defendant appealed.

II

In order to challenge the validity of a search and seizure, a defendant bears the burden of demonstrating that his or her own Fourth Amendment rights have been violated. See, e.g., Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 133-34, 99 S.Ct. 421, 424 n. 1, 425-26, 58 L.Ed.2d 387 (1978); United States v. Abreu, 935 F.2d 1130, 1132 (10th Cir.), cert. denied, — U.S.-, 112 S.Ct. 271, 116 L.Ed.2d 224 (1991). The issue whether a search violated a defendant’s Fourth Amendment rights involves two inquiries. First, a defendant must establish that he or she had a subjective expectation of privacy in the place or property searched. E.g., Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Abreu, 935 F.2d at 1132. Second, a defendant must establish that society would recognize his or her subjective expectation as objectively reasonable. Eg., Smith, 442 U.S. at 740, 99 S.Ct. at 2580; Abreu, 935 F.2d at 1132. We review a district court’s factual findings made on a motion to suppress under the clearly erroneous standard. E.g., United States v. Jefferson, 925 F.2d 1242, 1248 (10th Cir.), cert. denied, — U.S.-, 112 S.Ct. 238, 116 L.Ed.2d 194 (1991). However, we review de novo a district court’s ultimate objective determination whether society would recognize a defendant’s subjective expectation of privacy. Id. at 1248-49.

Defendant Benitez-Arreguin seeks to establish a protected Fourth Amendment interest in part based upon his status as a bailee. However one of the fundamentals of Fourth Amendment privacy interest analysis is that “arcane distinctions developed in property and tort law between guests, licensees, and the like, ought not to control.” Rakas, 439 U.S. at 143, 99 S.Ct. at 430 (1978); see also United States v. Salvucci, 448 U.S. 83, 91, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980) (“While property ownership is clearly a factor to be considered in determining whether an individual’s Fourth Amendment rights have been violated, property rights are neither the beginning nor the end of this Court’s inquiry.”). Thus, a Fourth Amendment violation does not automatically result from the illegal seizure of property from a person who is the owner, see Rawlings v. Kentucky, 448 U.S. 98, 105-06, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980), or who has legal possession, see Salvucci, 448 U.S. at 91-93, 100 S.Ct. at 2552-54.

We agree that in such circumstances a bailee carrying luggage for another person could have a legitimate expectation of privacy in the luggage.¹ In analyzing the case of a bailee, we consider the factors that generally might give any defendant a legitimate expectation of privacy, including ownership, lawful possession, or lawful control of the property or place searched. See United States v. Arango, 912 F.2d 441, 445 (10th Cir.1990), cert. denied, — U.S. --, 111 S.Ct. 1318, 113 L.Ed.2d 251 (1991). A bailee may make a substantial claim of legitimate expectation of privacy because, as we have observed, “[although neither ownership nor lawful possession are determinative, they are often dispositive factors.” Id. at 445; see also Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12 (one owning or lawfully possessing or controlling property will in all likelihood have legitimate expectation of privacy by virtue of right to exclude).

A proponent of a motion to suppress who relies upon the lawful possession factor bears the burden of presenting at least some evidence that his or her possession was lawful. While “the proponent of a motion to suppress need not always come forward with legal documentation establishing that he lawfully possessed the area searched, the proponent must at least state that he gained possession from the owner or someone with the authority to grant permission.” Arango, 912 F.2d at 445 (citation omitted). At the suppression hearing, Benitez-Arreguin explained that a man asked him to deliver the bag to a woman in Salt Lake City. The government did not present evidence that contradicted the defendant’s story. The district judge did not reject the defendant’s claim about how he came into possession of the bag. We feel that Benitez-Arreguin satisfied his initial burden by asserting a possessory interest in the bag through a bailment. See Robles v. State, 510 N.E.2d 660, 663 (Ind.1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2872, 101 L.Ed.2d 907 (1988) (decided under federal Fourth Amendment); State v. Grundy, 25 Wash.App. 411, 607 P.2d 1235, 1237-38 (1980) (same).

We are persuaded further that defendant’s subjective expectation of privacy is one which society would recognize as objectively reasonable. In general, luggage such as suitcases and footlockers is “a common repository for one’s personal effects, and therefore is inevitably associated with the expectation of privacy.” Arkansas v. Sanders, 442 U.S. 753, 762 & n. 9, 99 S.Ct. 2586, 2592 & n. 9, 61 L.Ed.2d 235 (1979). In other contexts, we have held that lawful possession carries with it the legitimate expectation of privacy. See, e.g., United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir.1990) (holding in automobile search case that “[wjhere the defendant offers sufficient evidence indicating that he has permission of the owner to use the vehicle, the defendant plainly has a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle”). We agree with the courts that have concluded that a person transporting luggage as a bailee, or at least with the permission of the owner, has a reasonable expectation of privacy that society would recognize. See Robles, 510 N.E.2d at 663; Casey, 296 S.E.2d at 482; Grundy, 607 P.2d at 1237-38. Further, we feel that society’s recognition of defendant’s expectation of privacy is indicated by “the general rule that a bailee in possession of personal property may recover compensation for any conversion of the article bailed or destruction of or damage to the bailed property, by another while in his possession.” 8 Am.Jur.2d Bailments § 263, at 994 (1980).

The cases relied on by the government and its argument that there was a disclaimer here such as to destroy the defendant’s position on standing are unpersuasive. The argument and authorities deal mainly with situations where a defendant wholly eschews any interest in or knowledge of the searched property.² We feel this is a distinguishable case because here the defendant on the contrary testified that he had not wanted the bags searched because he was in charge of them. Ill R. 25. The defendant’s testimony that he had been given possession of the second bag and asked to deliver it in Salt Lake City did not amount to a denial of any connection to the bag; his position was thus not an effective disclaimer of any subjective expectation of privacy in the bag, either at the time of the search or at the hearing.

We are convinced the defendant had a sufficient interest as a bailee to challenge the search. Indeed, in Rakas, the Court noted that “[o]ne of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.” Rakas, 439 U.S. at 143-44 n. 12, 99 S.Ct. at 430-31 n. 12 (emphasis added).

In sum, we agree with the trial judge’s conclusion that the initial stop was valid under Terry v. Ohio due to the totality of the circumstances creating reasonable suspicion. We are satisfied that the defendant had a sufficient right to claim the Fourth Amendment’s protection with respect to the bag in his charge as bailee. We are also convinced that the record amply supports the finding that the subsequent search of the defendant’s bag containing the controlled substance was not consensual. Thus, there being no warrant, and no claim by the government of probable cause and exigent circumstances to search without a warrant, the defendant’s Fourth Amendment rights were infringed. See, e.g., United States v. Smith, 797 F.2d 836, 840 (10th Cir.1986).

Accordingly, we hold that the denial of the motion to suppress was in error. The conviction of the defendant must be REVERSED and the cause is REMANDED for further proceedings in accord with this opinion.

1 . Benitez-Arreguin notes Professor LaFave’s analysis that "[a] person who is not the owner of the container but who possesses it by virtue of his status as bailee certainly has standing to object to illegal interference with his possessory interest.” 4 Wayne R. LaFave, Search and Seizure § 11.3(f), at 344 (2d ed. 1987). Some courts have recognized that a bailee may have a protected Fourth Amendment privacy interest in bailed property. Robles v. State, 510 N.E.2d 660, 663 (Ind.1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2872, 101 L.Ed.2d 907 (1988); State v. Grundy, 25 Wash.App. 411, 607 P.2d 1235, 1237-38 (1980); see also State v. Casey, 59 N.C.App. 99, 296 S.E.2d 473, 482 (1982) (holding defendant given possession and control of bags had legitimate expectation of privacy in luggage he claimed belonged to another). See generally United States v. Oswald, 783 F.2d 663, 666 (6th Cir.1986) (explaining "[a] suitcase or briefcase is property of a kind in which the owner or bailee normally has a strong expectation of privacy”).

2 . See United States v. Garcia, 849 F.2d 917, 918-19 (5th Cir.1988) (upholding trial court’s ruling that defendant abandoned suitcase by denying ownership); United States v. Hawkins, 681 F.2d 1343, 1344, 1346 (11th Cir.) (upholding denial of motion to suppress because of defendant's "unsolicited and violent" denials of an interest in suitcase prior to search), cert. denied, 459 U.S. 994, 103 S.Ct. 354, 74 L.Ed.2d 391 (1982); United States v. Canady, 615 F.2d 694, 695-97 (5th Cir.) (upholding finding that defendant abandoned suitcase he repeatedly denied owning pri- or to and after search), cert. denied, 449 U.S. 862, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); United States v. Miller, 589 F.2d 1117, 1131 (1st Cir. 1978) (holding search of luggage consensual in part because "appellant denied both ownership and any knowledge of the owner of the bag” prior to search), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979). But see United States v. McBean, 861 F.2d 1570, 1572 & n. 3, 1574 (11th Cir.1988) (per curiam) (holding defendant by disclaiming ownership and knowledge of contents of luggage given to him to take to another city precluded challenge of search).