United States v. Cardenas

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 28 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-4011
(D.C. No. 00-CR-53-J)
JOSE GONZALEZ CARDENAS, also (D. Utah)
known as Jose Gonzales Cardenas,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, BALDOCK, and KELLY, Circuit Judges.
Defendant-Appellant Jose Gonzalez Cardenas appeals from his conviction
of possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2, for which he was sentenced to 151 months’ imprisonment,
followed by a five-year term of supervised release. On appeal, he challenges the
district court’s denial of his motion to suppress. Our jurisdiction arises under 28
U.S.C. § 1291 and we affirm, although on different grounds than those relied
upon by the district court in denying the suppression motion.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Background
On January 20, 2000, Mr. Cardenas was stopped by the Utah Highway
Patrol as he drove a Jeep Cherokee along Interstate 70. Troopers impounded the
vehicle and cited him for driving with a suspended license, driving without
insurance, and driving with a cracked windshield. An inventory search of the
vehicle revealed 1.3 pounds of methamphetamine packaged and stowed in the air
filter housing.
During the stop, the trooper discovered a registration card that indicated the
owner of the vehicle was Ramos Godinez. The trooper then asked Mr. Cardenas
why he was in possession of the vehicle. The record is inconsistent as to Mr.
Cardenas’s response to this question, but the district court ultimately found that a
Ramos Gonzales loaned the vehicle to Mr. Cardenas.
In his motion to suppress, Mr. Cardenas claimed the search of the vehicle
exceeded the lawful bounds of an inventory search. The government urged the
district court to uphold the inventory search based on Mr. Cardenas’s lack of
standing and on the merits. The district court found that Mr. Cardenas had
standing to assert his Fourth Amendment claim, but denied the motion after
concluding that the troopers had conducted a legal search.
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Discussion
When we review an order denying a motion to suppress, “we accept the
district court’s factual findings unless they are clearly erroneous, and we view the
evidence in the light most favorable to the district court's determination.” United
States v. Caro, 248 F.3d 1240, 1243 (10th Cir. 2001). Moreover, credibility
determinations, “‘and the weight given to the evidence, as well as the inferences
and conclusions drawn therefrom, are matters for the trial judge.’” Id. (quoting
United States v. Fernandez, 18 F.3d 874, 876 (10th Cir. 1994)). However, we
review de novo the trial court’s conclusions involved in a suppression hearing.
United States v. Rubio-Rivera, 917 F.2d 1271, 1274-1275 (10th Cir. 1990). We
review standing de novo.
The Fourth Amendment protects citizens against unreasonable searches and
seizures. U.S. Const. amend. IV. Fourth Amendment rights are personal rights
and cannot be asserted by a third party. See Rakas v. Illinois, 439 U.S. 128, 140
(1978). In moving to suppress evidence gathered during an illegal search,
defendants have the burden of proving that the search violated their individual
Fourth Amendment interests. United States v. Rascon, 922 F.2d 584, 586 (10th
Cir. 1990). Whether an individual has a cognizable Fourth Amendment right
depends upon two factors: whether the individual has exhibited a subjective
expectation of privacy and whether society recognizes that subjective expectation
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as reasonable. Id.Mere possession of an automobile does not automatically satisfy this two-
pronged test or guarantee standing for the possessor to contest a search of that
vehicle. See United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990). In
Arango, the defendant received possession from an individual named Gonzalez.
The defense offered no evidence about how Gonzalez came to possess the vehicle,
or about any link between Gonzalez and the actual owner. Id. Consequently the
court concluded that the defendant failed to meet the burden of proving that he
had a reasonable expectation of privacy in the vehicle searched. Id.When 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.” Rubio-Rivera, 917 F.2d at 1275. Offering “sufficient evidence” does
not require that a defendant must present formal, documented proof of ownership
or legitimate possession in order to have standing. Arango, 912 F.2d at 445.
However, a defendant must, “at least state that he gained possession from the
owner or someone with the authority to grant possession.” Id.In reviewing the denial of Mr. Cardenas’s motion to suppress, we may
consider the evidence introduced at the hearing on the motion to suppress as well
as the evidence later presented at trial, even though such may not have been
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presented at the pretrial suppression hearing. Carroll v. United States, 267 U.S.
132, 162 (1925); United States v. Smith, 527 F.2d 692, 694 (10th Cir. 1975).
The only evidence of ownership of the Jeep Cherokee presented during the
suppression hearing and the trial was a valid registration card in the name of
Hector Ramos Godinez, which had been inside the vehicle, II R.S., Pl. Ex. 3, and
the testimony of Trooper Roberts that a roadside check confirmed Mr. Godinez as
the registered owner. II R.S. at 20.
During the stop, Trooper Roberts questioned Mr. Cardenas about his
possession of the vehicle. The record shows three different accounts of Mr.
Cardenas’s answer. During the suppression hearing, Trooper Roberts testified
that Mr. Cardenas had said that Ramos Gonzalez lent him the vehicle. II R. S. at
12. This is the answer that Trooper Roberts recorded in his notes of the incident.
I R. S. at 44. At trial, however, Trooper Roberts stated that Mr. Cardenas told
him that he had borrowed the vehicle from a friend named Hector Ramos. I R. S.
at 43. When defense counsel pressed Trooper Roberts about the discrepancy
between his testimony and his notes, Trooper Roberts admitted that he could not
recall precisely what name Mr. Cardenas had given him. Id. at 44-45. In
summary, Trooper Roberts’s notes and various statements conflict and really do
not satisfy Mr. Cardenas’s initial burden (for standing) to explain how he came to
possess the Jeep Cherokee.
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Further complicating the picture, Mr. Cardenas testified at trial and stated
that he borrowed the Jeep from his friend Jesus Ramos. There is no evidence that
Jesus Ramos is Hector Ramos Godinez, the name appearing on the car’s
registration. To the contrary, Mr. Cardenas testified “I understood [Jesus Ramos]
was the owner because I asked him to let me borrow [the Jeep Cherokee] and he
let me borrow it.” I R. S. at 105. Though the test for a reasonable expectation of
privacy contains a subjective element, we have held that a possessor of a vehicle
who has a subjective belief in the authority of another to lend a vehicle to that
person, without evidence that such authority in fact existed, has not met the
burden required to establish Fourth Amendment standing to contest a search of
the vehicle. See United States v. Martinez, 983 F.2d 968, 973 (10th Cir. 1992).
Mr. Cardenas did not offer “sufficient evidence indicating that he has
permission of the owner...to use the vehicle.” Rubio-Rivera, 917 F.2d at 1275.
The district court found that Ramos Gonzalez had lent the vehicle to Mr.
Cardenas, and indeed, Mr. Cardenas testified he did not know the individual
identified as the vehicle’s owner on the registration certificate. I R.S. at 105.
Among the varying accounts of the roadside exchange between Roberts and
Cardenas, Robert’s notes, and Mr. Cardenas’s own testimony, not a single version
links Mr. Cardenas either directly or indirectly to the actual owner of the
Cherokee, be that Mr. Godinez or someone else. Mr. Cardenas failed to show
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evidence either that the owner loaned him the Jeep, or that a linkage existed
between the person who lent the Jeep and the owner. See United States v.
Betancur, 24 F.3d 73, 76 (10th Cir. 1994) (no standing to challenge search of a
truck where defendant testified that one person lent the truck, but the name on the
registration papers indicated a different name and no linkage between registered
lender and owner was shown). Because Mr. Cardenas failed to “at least state that
he gained possession from the owner or someone with the authority to grant
possession,” he failed to meet his burden of proving that he had a reasonable
expectation of privacy in the vehicle searched. Arango, 912 F.2d at 445.
Mr. Cardenas also testified that he had borrowed the Jeep Cherokee on at
least one prior occasion, and that one week before his arrest, he had paid for
repairs to the vehicle. I. R. S. at 85. He also stated that on a previous trip to
Colorado, an acquaintance recognized the Jeep as belonging to “Ramos.” Id. at
106-07. This evidence does not provide the needed link between Mr. Cardenas
and the owner of the vehicle. Prior possession, paying for repairs and the
recognition of the vehicle by a third party do not, in and of themselves, establish
lawful possession of the vehicle. Mr. Cardenas’s argument does little more than
establish possession of the vehicle and “[m]ere possession of the vehicle and the
keys are not sufficient to confer standing.” Martinez, 983 F.2d at 973.
Because we find that Mr. Cardenas lacked standing to challenge the search,
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we do not reach the issue of whether the search comported with the requirements
of the Fourth Amendment.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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