F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 4 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Nos. 99-5052 & BOBBY CUSTER and TROY WADE 99-5060 CUSTER, (D.C. No. 98-CR-133-EA) (N.D. Okla.) Defendants-Appellants.
ORDER AND JUDGMENT *
Before KELLY , McKAY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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 cases are
therefore ordered submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The 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. Defendants and brothers Bobby and Troy Wade Custer appeal their
convictions for possession of a controlled substance, methamphetamine , in
violation of 21 U.S.C. § 844(a). We affirm.
Defendants were arrested by Bureau of Indian Affairs (BIA) officers after
being detained outside Bobby Custer’s van at the Cherokee Nation Bingo
Outpost. Earlier in the evening, security cameras had recorded actions that the
Outpost’s security officers believed showed defendants, while in the van, using
an illegal drug. BIA officers were called and arrived several hours later. They
requested permission to search the van, but Bobby Custer refused. BIA officers
believed they had probable cause to support a warrantless search and proceeded
to do so. They discovered various items that could be utilized in using drugs as
well as a baggie containing a substance later identified as methamphetamine.
In No. 99-5052, Bobby Custer argues his motion to suppress the evidence
obtained during the search should have been granted. He contends that the BIA
officers had no objective facts to support a determination that they had probable
cause to conduct a warrantless search of his van.
On appeal from the denial of a motion to suppress, we consider the totality
of the circumstances while reviewing the district court’s findings of fact for clear
error and viewing the evidence in the light most favorable to the government.
See United States v. Gutierrez-Daniez , 131 F.3d 939, 940-41 (10th Cir. 1997).
-2- We review the ultimate reasonableness of a seizure under the Fourth Amendment
de novo. See United States v. Anderson , 114 F.3d 1059, 1063 (10th Cir. 1997).
“[T]he credibility of the witnesses and the weight given to the evidence, as well
as the inferences and conclusions drawn therefrom,” are the province of the
district court. Id. (quotation omitted)
A warrantless search of a vehicle is valid where there is probable cause to
believe that the vehicle contains contraband or other evidence which is subject to
legal seizure. See United States v. Ross , 456 U.S. 798, 809 (1982) . While some
facts presented to support probable cause “must be outrightly dismissed as so
innocent or susceptible to varying interpretations as to be innocuous,” United
States v. Lee , 73 F.3d 1034, 1039 (10th Cir. 1996), acts which appear facially
innocent may, when taken together, create bona fide suspicions giving rise to
probable cause, see Illinois v. Gates , 462 U.S. 213, 243 n.13 (1983); see also
United States v. Muniz-Melchor , 894 F.2d 1430, 1438 (5th Cir. 1990) (facts in
their interrelated context may reinforce each other, “so that the laminated total
may indeed be greater than the sum of its parts”) . Further, “[i]f police have
probable cause to search a car, they need not get a search warrant first even if
they have time and opportunity.” United States v. Ludwig , 10 F.3d 1523, 1528
(10th Cir. 1993).
-3- At the hearing on the motion to suppress, the BIA officer testified that she
believed she had probable cause to search the van based on her training and
experience, the call from the Outpost’s Chief of Security, the videotape, and her
knowledge that drug dealing had been a problem in the Outpost’s parking lot.
These circumstances, viewed in their totality, were sufficient to establish
probable cause for the search. See United States v. Arzaga , 9 F.3d 91, 94 (10th
Cir. 1993) (“We have upheld the warrantless search of a vehicle where events
preceding the search gave the officer probable cause to believe the [vehicle]
contained illegal drugs.”) (quotation omitted ).
In No. 99-5060, Troy Custer’s attorney has stated that he believes that his
client’s appeal is wholly frivolous. He therefore has filed both a motion to
withdraw as attorney of record and a corresponding Anders 1 brief outlining Troy
Custer’s desired ground for appeal. An Anders brief must refer to “anything in
the record that might arguably support the appeal.” Id. Consistent with this
requirement, counsel states that the only possible point of error concerns the
district court’s denial of Troy Custer’s motion to suppress. Troy Custer maintains
the motion should have been granted because he did have standing to object to the
search of the van.
1 Anders v. California , 386 U.S. 738, 744 (1967) .
-4- The issue of standing to contest a search or seizure is one of law which we
review de novo. See United States v. Gama-Bastidas , 142 F.3d 1233, 1237 (10th
Cir. 1998).
Fourth Amendment rights are personal and may not be asserted vicariously.
See Rakas v. Illinois , 439 U.S. 128, 133-34 (1978) . The defendant must show
that he had a legitimate expectation of privacy in the area searched, see Rawlings
v. Kentucky , 448 U.S. 98, 104 (1980), by asserting either a possessory or a
property interest, see Rakas , 439 U.S. at 148-89. Evidence will be suppressed
only when the search violates a person’s constitutional rights. See United States
v. Eylicio-Montoya , 18 F.3d 845, 850 (10th Cir. 1994). “It is not enough that a
person is aggrieved by the introduction of damaging evidence derived from the
search.” Id.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 4 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Nos. 99-5052 & BOBBY CUSTER and TROY WADE 99-5060 CUSTER, (D.C. No. 98-CR-133-EA) (N.D. Okla.) Defendants-Appellants.
ORDER AND JUDGMENT *
Before KELLY , McKAY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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 cases are
therefore ordered submitted without oral argument.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The 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. Defendants and brothers Bobby and Troy Wade Custer appeal their
convictions for possession of a controlled substance, methamphetamine , in
violation of 21 U.S.C. § 844(a). We affirm.
Defendants were arrested by Bureau of Indian Affairs (BIA) officers after
being detained outside Bobby Custer’s van at the Cherokee Nation Bingo
Outpost. Earlier in the evening, security cameras had recorded actions that the
Outpost’s security officers believed showed defendants, while in the van, using
an illegal drug. BIA officers were called and arrived several hours later. They
requested permission to search the van, but Bobby Custer refused. BIA officers
believed they had probable cause to support a warrantless search and proceeded
to do so. They discovered various items that could be utilized in using drugs as
well as a baggie containing a substance later identified as methamphetamine.
In No. 99-5052, Bobby Custer argues his motion to suppress the evidence
obtained during the search should have been granted. He contends that the BIA
officers had no objective facts to support a determination that they had probable
cause to conduct a warrantless search of his van.
On appeal from the denial of a motion to suppress, we consider the totality
of the circumstances while reviewing the district court’s findings of fact for clear
error and viewing the evidence in the light most favorable to the government.
See United States v. Gutierrez-Daniez , 131 F.3d 939, 940-41 (10th Cir. 1997).
-2- We review the ultimate reasonableness of a seizure under the Fourth Amendment
de novo. See United States v. Anderson , 114 F.3d 1059, 1063 (10th Cir. 1997).
“[T]he credibility of the witnesses and the weight given to the evidence, as well
as the inferences and conclusions drawn therefrom,” are the province of the
district court. Id. (quotation omitted)
A warrantless search of a vehicle is valid where there is probable cause to
believe that the vehicle contains contraband or other evidence which is subject to
legal seizure. See United States v. Ross , 456 U.S. 798, 809 (1982) . While some
facts presented to support probable cause “must be outrightly dismissed as so
innocent or susceptible to varying interpretations as to be innocuous,” United
States v. Lee , 73 F.3d 1034, 1039 (10th Cir. 1996), acts which appear facially
innocent may, when taken together, create bona fide suspicions giving rise to
probable cause, see Illinois v. Gates , 462 U.S. 213, 243 n.13 (1983); see also
United States v. Muniz-Melchor , 894 F.2d 1430, 1438 (5th Cir. 1990) (facts in
their interrelated context may reinforce each other, “so that the laminated total
may indeed be greater than the sum of its parts”) . Further, “[i]f police have
probable cause to search a car, they need not get a search warrant first even if
they have time and opportunity.” United States v. Ludwig , 10 F.3d 1523, 1528
(10th Cir. 1993).
-3- At the hearing on the motion to suppress, the BIA officer testified that she
believed she had probable cause to search the van based on her training and
experience, the call from the Outpost’s Chief of Security, the videotape, and her
knowledge that drug dealing had been a problem in the Outpost’s parking lot.
These circumstances, viewed in their totality, were sufficient to establish
probable cause for the search. See United States v. Arzaga , 9 F.3d 91, 94 (10th
Cir. 1993) (“We have upheld the warrantless search of a vehicle where events
preceding the search gave the officer probable cause to believe the [vehicle]
contained illegal drugs.”) (quotation omitted ).
In No. 99-5060, Troy Custer’s attorney has stated that he believes that his
client’s appeal is wholly frivolous. He therefore has filed both a motion to
withdraw as attorney of record and a corresponding Anders 1 brief outlining Troy
Custer’s desired ground for appeal. An Anders brief must refer to “anything in
the record that might arguably support the appeal.” Id. Consistent with this
requirement, counsel states that the only possible point of error concerns the
district court’s denial of Troy Custer’s motion to suppress. Troy Custer maintains
the motion should have been granted because he did have standing to object to the
search of the van.
1 Anders v. California , 386 U.S. 738, 744 (1967) .
-4- The issue of standing to contest a search or seizure is one of law which we
review de novo. See United States v. Gama-Bastidas , 142 F.3d 1233, 1237 (10th
Cir. 1998).
Fourth Amendment rights are personal and may not be asserted vicariously.
See Rakas v. Illinois , 439 U.S. 128, 133-34 (1978) . The defendant must show
that he had a legitimate expectation of privacy in the area searched, see Rawlings
v. Kentucky , 448 U.S. 98, 104 (1980), by asserting either a possessory or a
property interest, see Rakas , 439 U.S. at 148-89. Evidence will be suppressed
only when the search violates a person’s constitutional rights. See United States
v. Eylicio-Montoya , 18 F.3d 845, 850 (10th Cir. 1994). “It is not enough that a
person is aggrieved by the introduction of damaging evidence derived from the
search.” Id. (quotation omitted) ; see also Gama-Bastidas , 142 F.3d at 1239 (“A
passenger [2] generally does not establish standing to contest the search of a
vehicle merely because he was charged with a possessory crime.”).
In determining whether a search has infringed upon the defendant’s Fourth
Amendment rights, the court must examine (1) whether the defendant “manifested
a subjective expectation of privacy in the object of the challenged search,” and (2)
2 Troy Custer was not a passenger in the vehicle at the time of the search. He was inside the Outpost when BIA officers arrived and was asked to come outside to provide the keys to the van. He remained outside the van during the search. The videotape showed he was inside the van during the period in which the suspicious activity occurred.
-5- whether that expectation was objectively reasonable. California v. Ciraolo , 476
U.S. 207, 211-212 (1986).
Upon review of the record, we conclude Troy Custer does not have standing
to contest the search. He has not demonstrated that he had any legitimate
possessory interest in or any lawful control over the vehicle or the evidence
seized. 3
The judgments of the United States District Court for the Northern District
of Oklahoma are AFFIRMED. Counsel’s request in No. 99-5060 to withdraw as
counsel is GRANTED. Defendant Troy Custer’s request for appointment of
counsel is DENIED.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge
3 In fact, at trial, Bobby Custer testified that the methamphetamine was his and that his brother did not know drugs were in the van.
-6-