United States v. Jeffrey Castellanos

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 18, 2022
• Docket: 19-50342
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50342

Plaintiff-Appellee, D.C. No. 8:18-cr-00166-JVS-1 v.

JEFFREY CASTELLANOS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted November 17, 2021 Pasadena, California

Before: BYBEE and BENNETT, Circuit Judges, and BATAILLON,** District Judge.

Jeffrey Castellanos entered a conditional guilty plea to a single count of

possession with intent to distribute methamphetamine. 21 U.S.C. §§ 841(a)(1),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska, sitting by designation. 841(b)(1)(B)(viii). He appeals the district court’s denial of his motion to suppress.

We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Because the parties are familiar with the facts, we do not recount them here,

except as necessary to provide context to our ruling. Castellanos argues (1) that the

officers conducted an unlawful search when they entered the curtilage of his friend’s

home by walking onto a driveway that he was permitted to use, and (2) that the

officers seized him by a show of authority and by blocking his path before they had

a reasonable suspicion that he was engaged in criminal activity.

This court reviews “the denial of the motion to suppress de novo and any

associated factual findings for clear error.” United States v. Brown, 996 F.3d 998,

1004 (9th Cir. 2021). “Whether an encounter between a defendant and an officer

constitutes a seizure is a mixed question of law and fact that [this court] review[s]

de novo.” United States v. Washington, 490 F.3d 765, 769 (9th Cir. 2007).

Castellanos’s first argument fails because even if the area abutting the public

alley could be considered curtilage (an issue we do not reach), he lacks standing to

raise a Fourth Amendment claim under the trespass theory. “[A]n overnight guest

in a home may claim the protection of the Fourth Amendment, but one who is merely

present with the consent of the householder may not.” Minnesota v. Carter, 525

U.S. 83, 90 (1998). The Court “considers curtilage—‘the area immediately

surrounding and associated with the home’—to be ‘part of the home itself for Fourth

2 Amendment purposes.’” Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018) (quoting

Florida v. Jardines, 569 U.S. 1, 6 (2013)). It follows that only an overnight guest

may claim the protection of the Fourth Amendment in the curtilage of a home.

Jaime Garcia declared that Castellanos had “permission to use [the] driveway

and to access [the converted garage].” But mere permission is insufficient for

Castellanos to have standing to raise a trespass theory claim for the officers’ entry

onto the driveway. Garcia did not testify that Castellanos could stay in the converted

garage or the driveway overnight or had permission to exclude others from using the

driveway or the garage. Cf. Lyall v. City of Los Angeles, 807 F.3d 1178, 1188 (9th

Cir. 2015) (“[M]ost importantly, [the appellant] did not have the right to exclude

others from any portion of the [property].”). Castellanos’s argument that he had

“possessory” rights in the driveway are unavailing. We stated in Lyall that standing

under the trespass theory requires possessory rights “beyond mere permission to

remain on the property searched.” Id. at 1187 n.9. The Lyall court found that the

plaintiffs had sufficient possessory rights to a warehouse that the police searched by

showing that they “were in charge of the property that night” because they “had

possession of the warehouse, the right to control it, and the right to bring an action

in trespass against intruders.” Id. at 1189. Castellanos established no such rights

3 here, showing only that he had the permission to park his car on the small strip

abutting the public alley that he and Garcia describe as a driveway.1

Castellanos’s second argument fails because, even assuming that he was

seized when the officers approached him, the officers had reasonable suspicion to

support the seizure. An officer may “conduct a brief, investigatory stop when the

officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois

v. Wardlow, 528 U.S. 119, 123 (2000). “The officer must be able to articulate more

than an ‘inchoate and unparticularized suspicion or “hunch”’ of criminal activity.”

Id. at 123–24 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). But reasonable

suspicion “is not a particularly high threshold to reach.” United States v. Valdes-

Vega, 738 F.3d 1074, 1078 (9th Cir. 2013). “[T]he likelihood of criminal activity

need not rise to the level required for probable cause, and it falls considerably short

of satisfying a preponderance of the evidence standard.” Id. (quoting United States

v. Arvizu, 534 U.S. 266, 274 (2002). The court considers the totality of the

circumstances and allows officers to rely on their training and experience. See id.

First, the “fact that the stop occurred in a high crime area [is] among the

relevant contextual considerations in a Terry analysis.” Wardlow, 528 U.S. at 124

(internal quotation marks omitted); see also United States v. Williams, 846 F.3d 303,

1 We agree with the government that Castellanos waived the argument that the search violated his reasonable expectation of privacy, as he has argued only the trespass theory on appeal.

4 309–10 (9th Cir. 2016). As the government argues, the officers had objective bases

for associating this alley with frequent crime, including that Officer Silva had

arrested more than 15 suspects in that alley for crimes related to drugs, weapons, and

stolen cars. See United States v. Mayo, 394 F.3d 1271, 1275 (9th Cir. 2005) (“[T]his

meeting took place in a high-crime area and in front of a motel that hosted previous

narcotics activity.”); United States v. Diaz-Juarez, 299 F.3d 1138, 1142 (9th Cir.

2002) (“While [the appellant’s] presence in a high-crime area cannot alone provide

reasonable suspicion that he had committed or was about to commit a crime, [the

officer] could consider this fact in forming reasonable suspicion.” (citation

omitted)). Second, nervous behavior is also a relevant consideration in analyzing

reasonable suspicion. United States v. Palos-Marquez, 591 F.3d 1272, 1277–78 (9th

Cir. 2010); United States v. Crasper, 472 F.3d 1141, 1144, 1147 (9th Cir. 2007).

The encounter took place shortly before midnight, and officers observed Castellanos

make quick movements stuffing or hiding something away in his vehicle in a high-

risk drug and gang-activity area, just after he saw their police vehicle approaching.

Such “furtive movements . . . [are] relevant to our analysis.” United States v. Job,

871 F.3d 852, 861 (9th Cir. 2017); see also United States v. Burkett, 612 F.3d 1103,

1104, 1107 (9th Cir. 2010) (finding the fact that the defendant appeared to be “either

hiding or retrieving something from underneath the seat” of his car to be one factor

5 supporting a stop and frisk). The officers could reasonably suspect criminal activity

given these circumstances.2

AFFIRMED.

2 We agree with the government that Castellanos has waived any argument about the seizure or arrest after the Officers viewed the syringe just after approaching Castellanos.